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Environmental Law – David CaseFall 2011

Ben McMurtray

Table of Contents

ContentsTable of Contents........................................................................................................................................1

Part 1: POLICIES, PROBLEMS AND VALUES..................................................................................................3

_Toc311524104

ECONOMICS AND ECOLOGY....................................................................................................................5

The Rise of Federal Statutory Environmental Regulation........................................................................7

STANDING TO SUE TO ENFORCE THE ENVIRONMENTAL LAWS...............................................................9

Part 2: THE REGULATORY PROCESS...........................................................................................................12

APA Rulemaking....................................................................................................................................12

Chevron Test for Statutory Interpretation by Agency............................................................................14

The Regulatory Process.........................................................................................................................16

PART 3: INTRODUCTION TO NEPA, THE EIS REQUIREMENT......................................................................17

Introduction to NEPA.............................................................................................................................17

NEPA CUMULATIVE IMPACTS, THE SIGNIFICANCE REQUIREMENT AND ENVIRONMENTAL ASSESSMENT...............................................................................................................................................................19

Effects covered by NEPA........................................................................................................................24

Challenging EIS on Failure to Consider Alternatives..............................................................................26

Supplementation of EIS:........................................................................................................................27

Substantive v. Procedural Requirements of NEPA.................................................................................28

Timing and Scope of EIS.........................................................................................................................30

PART 4: THE CLEAN WATER ACT................................................................................................................31

THE SCOPE OF FEDERAL AUTHORITY TO REGULATE WATER POLLUTION..............................................31

Rapanos Wetlands.................................................................................................................................35

ADDITIONAL RAPANOS INFORMATION.................................................................................................37

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REGULATION OF DISCHARGES FROM POINT SOURCES.........................................................................39

TECHNOLOGY-BASED EFFLUENT LIMITATIONS, POTWs, WATER QUALITY STANDARDS, INTERSTATE POLLUTION............................................................................................................................................42

INDIVIDUAL CONTROL STRATEGIES, SECTION 401 CERTIFICATION & TMDLs........................................45

PART 5: THE CLEAN AIR ACT......................................................................................................................49

GREENHOUSE GAS EMISSIONS AND THE CAA.......................................................................................49

NATIONAL AMBIENT AIR QUALITY STANDARDS....................................................................................54

ATTAINING AND MAINTAINING THE NAAQSs, OFFSETS........................................................................58

Reviewing SIP’s......................................................................................................................................61

PART SIX: RCRA..........................................................................................................................................63

STATUTORY AUTHORITIES AFFECTING WASTE MANAGEMENT, INTRODUCTION TO RCRA...................63

IDENTIFYING HAZARDOUS WASTE, HOUSEHOLD WASTE EXCLUSION...................................................67

PART SEVEN: CERCLA.................................................................................................................................70

INTRODUCTION TO CERCLA, CERCLA LIABILITY, RESPONSIBLE PARTIES................................................70

CERLCA LIABILITY: OPERATORS AND ARRANGERS.................................................................................74

CERCLA: STRICT, JOINT AND SEVERAL LIABILITY AND ALLOCATION OF LIABILITY..................................77

PART EIGHT: THE ENDANGEDED SPECIES ACT...........................................................................................81

RATIONALE FOR PRESERVING BIODIVERSITY, INTRODUCTION TO THE ENDANGERED SPECIES ACT.....81

ESA: LISTING PROCESS, REVIEW OF FEDERAL ACTIONS.........................................................................85

PROTECTING ENDANGERED SPECIES AGAINST PRIVATE ACTIONS........................................................88

PART NINE: GULF COAST OIL SPILL............................................................................................................90

OVERVIEW OF DEEPWATER HORIZON OIL SPILL STATUTORY LIABILITY................................................90

PART TEN: VIOLATIONS AND ENFORCEMENT............................................................................................95

DETECTING VIOLATIONS, ENFORCEMENT AUTHORITIES AND POLICIES................................................95

PART ELEVEN: CLASS ASSIGNMENTS...................................................................................................101

Chapter 8: Environmental Impact Assessment................................................................................101

Chapter 6: Water Pollution Control.................................................................................................101

Chapter 5: Air Pollution Control.......................................................................................................102

Chapter 4: Waste Management and Pollution Prevention..............................................................102

Chapter 10: Environmental Enforcement........................................................................................103

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Part 1: POLICIES, PROBLEMS AND VALUES

Introductory Concepts

I. Sound environmental policy is formed at the intersections of politics, law, science, economics, and ethics

II. VALUESa. Should environmental protection measures be premised on nature’s instrumental

or intrinsic value to humans or on preserving nature for it’s own sake?b. Said another way, should policy goals be decided based on risks to humans,

economic considerations (e.g., cost benefit analysis) or according to moral or ethical imperatives?

III. POLITICSa. Environmental policy is created in the most combative regulatory arena in

American politics.b. Divisive political conflict and confrontation between adverse and competing

interests play a very large part in environmental regulation and policymaking.IV. MEANS AND METHODS

a. What regulatory tools or policy instruments should be used to implement environmental policy, once those policies have been determined?

b. Traditional tool of environmental protection has been “command-and-control”c. The concept of “reform” of environmental regulation is a pervasive theme

V. “Command-and-Controla. A top-down, hierarchical regulatory form where government commands

compliance with detailed, source-specific performance standards (enforced through permitting systems), or requires uniform technology based controls for certain types of polluting activity.

VI. UNCERTAINTYa. Refers primarily to scientific uncertainty, although many other types of

uncertainty affect environmental law and regulationb. Uncertainty creates an intellectual problem in policymaking – we may and usually

do not have certainty about issues that we believe must nonetheless be dealt with here and now

c. Critical question becomes “What should we do in the face of our uncertainty?”VII. RISK

a. Establishing environmental policy and establishing regulatory objectives relates to the attempt to reduce risk

b. Concept of risk itself is a poorly understood concept in generalc. Public perceptions of risk often differ greatly – sometimes enormously – with

expert assessments of riskd. Risk can be defined generally as the probability of suffering harm or losse. Perception gap in understanding risk begins when experts use the term “risk” to

refer to the combination of the probability that an event will happen and the consequences if it does

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f. However, public perception is often driven by the possibility (not the probability) of particularly dire consequences. The more severe the possible consequences, the more upset the public may be regardless of probability of those consequences occurring.

VIII. ECONOMIC INEFFICIENCYa. Primary criticism of current environmental regulatory system – goals and policy

are established without full consideration given to economic costs involvedb. Private industry in U.S. spends in excess of $200 billion annually on pollution

controlsIX. VOLUMINOUS

a. Sheer enormity in numbers of environmental statutes, regulations and rules is staggering

b. Over 100 federal environmental statutes, including nine major statutory schemesc. Statutes are accompanied by an exponentially greater number of regulations

implementing and executing the statutory mandatesd. Statutes and regulations are interpreted by court decisions, agencye. rules, and often difficult to access agency documents and interpretationsState

statutes and rules may impose different and possibly stricter requirementsX. COMPLEXITY

a. environmental regulation is highly technical and dependent upon science, engineering and economics

b. language of environmental regulation is often highly indeterminate and ambiguous

c. meaning of statutes or regulations often contained in a vast range of “underground environmental law”’

d. Institutional Differentiationi. many different entities regulate the environment and often are in active

conflict with each other

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ECONOMICS AND ECOLOGYI. Collective Action Problem

a. Economists view all individuals as rational utility maximizing economic actors.b. In theory, individual actors are motivated to maximize individual gain – to takec. action that results in a net gain to themselves – this is rational economic behaviord. This dynamic drives the “tragedy of the commons” – each individual is motivated

to use common resources (air – water – land) to the point of over-congestion and overuse and such actions ultimately begin to yield negative returns.

e. The “tragedy of the commons” dynamic creates a collective action problem – society needs to find ways to either force rational actors to internalize external costs, or to otherwise intervene to protect common pool resources.

II. Environmental Economicsa. The environment is not a separate entity from the economy. Change in one

affects change in the other.b. No economic decision can be made that does not affect our natural and built

environments.c. No environmental change can occur that does not have an economic impact.d. Environmental economics views the real economy in which we live and work as

an open system. In order to function (i.e., provide goods and services or wealth for human operators), this system has three basic processes:

e. These basic processes generate waste streams that find their way back into the environment (air, water, land) causing biological or other environmental changes (contamination) and/or harm or damage to animals/plants and their ecosystems (pollution).

f. Economics views the generation of waste streams as an external cost or an externality and a primary example of a market failure.

i. Extraction è waste streamii. Processing/Fabrication è waste stream

iii. Consumption è waste stream g. Internalize the Externality

i. The primary question that environmental economics attempts to answer:1. What public policies will induce the generator of the externality to

take the external costs into account? In the lexicon of economics, to internalize the externality?

ii. When such a market failure (externality) occurs, economics believes government intervention in the form of implementation of some policy to correct the failure is justified.

iii. If such a policy forces the generator to internalize external costs, it either must pay the costs or change its behavior in order to avoid generating the costs.

iv. Economics seeks to determine which policies will efficiently change the behavior of economic actors.

h. Policy Optionsi. Available policy options to induce generators of externalities to internalize

the costs they generate:

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1. Use the court system (unchain the lawyers) – common law compensation system for redress of injuries to person or property, especially through nuisance law and tort law

2. Direct regulation – command-and control policiesa. Performance standards – establish emission standards and

limitsb. Technical controls – require installation of pollution control

equipment3. Market-based approaches (price instruments) – attempt to give

polluters economic incentives to control emissionsa. Pollution taxes on emissions or polluting inputb. Subsidies on reductions of emissions (payment as a

“reward” for reducing a unit of pollution from an initial level)

c. Marketable permit systems – create markets in certain permits to pollute

d. Information disclosure (TRI)4. Robert Paehlke, Environmentalism and the Future of Progressive

Politics a. “The balance reasonable environmentalists seek involves

reminding society that unanticipated costs of negative impacts can be severe, even irreversible. This has happened so often that environmentalists seek to reverse the burden of proof regarding safety of new technologies. Proponents of new technologies and substances should be required to demonstrate their safety. In our court system, people are innocent until proven guilty. But new technologies should be seen as guilty until proven innocent.” (p. 41)

i. Rule of Unintended Consequencesi. “Because ecosystem interconnections can be complex and multifarious, an

ecological rule of thumb is that seemingly simple actions typically will have non-obvious and unintended consequences that may culminate in a threat to ecosystem stability.” (p. 39)

ii. “Environmental science assumes that every new technology introduces undesirable and commonly unanticipated impacts….” (p. 41)

j. Who Speaks for the Trees?i. “Someone must speak for other species and for future generations, and we

all must be willing to accept less economically desirable options when necessary.” (p. 41)

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The Rise of Federal Statutory Environmental Regulation

a. Common Law Roots: Public and Private Nuisancei. Madison v. Ducktown Sulphur, Copper & Iron Co.,

1. Facts : TN company near the GA-TN border, runs a copper-smelting operation; burning open-air piles of ore which produces harmful sulphur smoke.

2. Issue : What can the law do to address this situation?3. Potential Solutions :

a. Close the Factoryb. Injunctionc. Tort Lawsuit

i. Arguably this is a straightforward nuisance action – farmers can sue the factory in tort for damages

4. Held → no injunction because they had considerable economic value to the community. “The proper decree is to allow the complainants a reference for the ascertainment of damages, and that the injunction must be denied to them.” (Try to recover damages but no injunction).

ii. Missouri v. Illinois1. Facts: MO sued to restrain the discharge of sewage of Chicago through an artificial

channel into the Desplains River, in IL. The river empties into the IL River and then empties into the Mississippi @ a point 40 miles above STL. MO argues that typhoid fever increased as a result and the bacillus of typhoid reaches the Mississippi.

2. Held Cannot determine the effects of the pollution and quantity. The experiment made by the Пs of sending sacks of bacilli down the river to see if they could survive was unfounded. Пs infect the waster as well and STL should take their own preventative measures.

iii. Georgia v. Tennessee Copper Co. 1. Facts: GA wants to enjoin Copper Companies from discharging noxious gas from the

works in TN over the plaintiff’s territory. GA says that is hurts forests, orchards, and crops in 5 counties. This is a suit be a State for an injury to its in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens.

2. Held → is a preponderance of the evidence that the sumptuous fumes caused and threaten damage on so considerable a scale to the forests and vegetable life, if not to health, within the plaintiff state to make out a case within the requirements of Missouri v. Illinois. Injunction is issued.

b. The Rise of Federal Regulation and the Impact on Common Lawi. Four Key Problems with the Common Law System:

1. Substance : law was reactive rather than preventative, and the standards of proof and of causation were quite high.

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2. Rule-making : Conducted by non-expert courts and judges.3. Enforcement : Initiated largely by private enforcers.4. Policy : Most relevant law was state law, not federal.

ii. Tracing the History of Federal Environmental Law [CB: 85 et. seq.]1. The Common Law and the Conservation Era (pre-1945)2. Federal Assistance for State Problems (1945-1962)3. The Rise of the Modern Environmental Movement (1962-1970)4. Erecting the Federal Regulatory Infrastructure (1970-1980)5. Extending and Refining Regulatory Strategies (1980-1990)6. Regulatory Recoil and Reinvention (1991-present)

iii. International Paper Co. v. Ouellette1. Facts :

a. IPC dumping paper waste into Lack Champlain (NY/VT); VT lakeside residents bring a private nuisance action.

b. IPC removes to Federal court and moves to dismiss on the grounds of preemption, citing Milwaukee II.

2. Held: USSC holds that VT state law nuisance action is preempted but the NY nuisance law is not preempted. Source State Common Law vs. Affected State Common law. Affected state law is preempted.

a. “Ouellette preserves the ability of plaintiffs to bring state common law actions against polluters so long as the law of the source state, rather than the receiving state, is applied.”

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STANDING TO SUE TO ENFORCE THE ENVIRONMENTAL LAWSI. Access to Federal Court

a. There are three necessary prerequisites for a plaintiff to have access to the federal courts:

i. (1) The court must have subject matter jurisdiction,ii. (2) The plaintiff must have a private right of action, and

iii. (3) The plaintiff must have standing to sueb. Private Right of Action

i. Two primary sources to demonstrate that Congress intended to provide plaintiffs a federal remedy to challenge administrative agency action:

1. A statute expressly grants the plaintiff a private right of action (i.e., the statute contains language along the lines of “any person may commence a civil action on his own behalf”), or

2. Administrative Procedure Act establishes a “cause of action” for any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute” (see 5 U.S.C. § 702)

c. Standing to Suei. Even where Congress has conferred a private right of action, plaintiffs still

must independently satisfy standing requirementsii. The standing doctrine is a constitutional limitation on the ability of

Congress to grant private rights of judicial review stemming from Article III which limits the power of the federal judiciary to resolution of “cases” and “controversies”

iii. Four basic requirements for standing:1. The challenged action must cause plaintiff some actual or

threatened injury-in-fact;2. The injury must be fairly traceable to the challenged action

(causation);3. The injury must be redressable by judicial action; and4. The injury must be to an interest arguably within the zone of

interests to be protected by the statute alleged to have been violated

iv. Injury-in-Fact1. Lujan v. Defenders of Wildlife (U.S. 1992) -- “injury in fact” is

defined as an invasion of a legally protected interest which is –a. (a) concrete and particularized (i.e., must affect the plaintiff

in a personal and individual way) andb. (b) actual or imminent, not conjectural or hypothetical.

v. Causation1. Lujan v. Defenders of Wildlife (U.S. 1992) “…there must be a

causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not … the result of the independent action of some third party not before the court.”

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vi. Redressability1. Lujan v. Defenders of Wildlife (U.S. 1992) – “…it must be likely,

as opposed to merely speculative, that the injury will be redressed by a favorable decision.”

vii. “Associational” or “Representational” Standing1. An association can sue in its own name on behalf of its members

if:a. One of its members would have standing to bring the

action,b. The lawsuit relates to the purposes of the organization, andc. Neither the claim asserted nor the relief requested requires

the participation of individual members (that is, declaratory or injunctive relief is the goal, not individualized damages)

i. This isn’t a class action mechanism, it just gives the organization standing to sue for declarative or injunctive relief.

viii. Injury-in-Fact1. Lujan v. Defenders of Wildlife (U.S. 1992) – “…the desire to use

or observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for purposes of standing. But the `injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.”

a. Cf. Sierra Club v. Morton (U.S. 1972) – injury to “environmental, aesthetic, or recreational interests” actually suffered by persons can qualify as injury in fact

ix. Burden of Establishing Standing1. Lujan v. Defenders of Wildlife (U.S. 1992) – “The party invoking

federal jurisdiction bears the burden of establishing the[] elements [of standing]. Since they are not mere pleading requirements but rather an indispensable part of the plaintiffs’ case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation….”

2. Lujan v. Defenders of Wildlife (U.S. 1992) – “To survive … summary judgment …, respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one of more of respondents’ members would thereby be `directly’ affected apart from their `special interest’ in the subject.”

x. Past Injury Not Enough1. Lujan v. Defenders of Wildlife (U.S. 1992) – “As we have said in a

related context, past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief … if unaccompanied by any continuing, present adverse effects.”

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d. Sierra Club v. Morton (for associational standing)i. Sierra Club asserted special interest in preserving nature as their basis for

standing (what will be injured in fact if ski-resort proceeded);ii. Ct. rejects argument

1. Interest didn’t amount to an injury in fact. П must be among the injured persons, NOT just have a speculative interest;

2. If the group could have shown that one of its members actually used the park, then it would have had standing; i.e. if the ski-resort is built the level of enjoyment of those using the park will be injured in fact (aesthetics would be lowered by the project - Lujan stated that “purely aesthetic purposes, is undeniably a cognizable interest for purposes of standing”).

3. Injury requirement isn’t a high standard → doesn’t require that someone be physically injured, just that some enjoyment that they had prior to action is lowered by the action.

iii. Representational standing was asserted by an amicus brief, but the Sierra Club rejected this help; the Club wanted this case to be a groundbreaking case which would given them standing to sue in a much wider array of cases (i.e. w/out need to show that one of its members actually was injured by an activity).

iv. Douglas’s dissent:1. The injured object actually becomes a party (i.e. the trees are

parties to the litigation);a. Problem is, who will speak for the inanimate object?b. How do we know what the inanimate objects actually

want?e. Massachusetts v. EPA

i. Facts: EPA argues that Massachusetts does not have standing because greenhouse gas emissions inflict widespread harm so the doctrine presents an insuperable jurisdictional obstacle.

ii. Ct: 1. Govt and Congress has ordered EPA to protect MA by prescribing

standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles which contribute to air pollution that may endanger public health or welfare.

2. EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both actual and imminent. (Lujan requirements).

3. MA has met the demanding standards of standing.

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Part 2: THE REGULATORY PROCESS

APA RulemakingI. APA Rulemaking

a. 5 U.S.C. § 551(5) – “rule making” means agency process for formulating, amending, or repealing a rule

b. 5 U.S.C. § 551(4) – “rule” means the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of the agency….

II. Informal Rulemakinga. Three-Step Process in 5 U.S.C. § 553:

i. Notice – 5 U.S.C. § 553(b)ii. Comment – 5 U.S.C. § 553(c)

iii. Publication – 5 U.S.C. § 553(d)b. Informal Rulemaking – Notice

i. 5 U.S.C. § 553(b) – General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law.

c. Informal Rulemaking – Commenti. 5 U.S.C. § 553(c) – After notice required by this section, the agency shall

give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.

d. Informal Rulemaking – Publicationi. 5 U.S.C. § 553(d) – The required publication or service of a substantive

rule shall be made not less than 30 days before its effective dateii. 5 U.S.C. § 553(c) – After consideration of the relevant matter presented,

the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose

iii. [Both the final rule and statement of basis and purpose appear in the Federal Register]

III. Formal Rulemakinga. 5 U.S.C. § 553(c) – When rules are required by statute to be made on the record

after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

b. [For formal rulemaking, the detailed requirements of §§ 556 and 557 replace the comment and publication portions of the informal rulemaking process in § 553]

IV. Hybrid Rulemakinga. Congress can, and often does, impose specific rulemaking procedures within

specific statutory schemes

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b. These rulemaking procedures may be more detailed than the informal rulemaking procedures of § 553 but less detailed than the formal rulemaking procedures of §§ 556 and 557

V. Small Business Regulatory Enforcement Fairness Acta. Agencies must give consideration to impact of proposed rules on small business

when such rules may adversely affect themb. EPA must give small business representatives the opportunity to review and

comment on such rules before such rules are the subject of public notice and comment

c. All rules issued by federal agencies must be sent first to Congress for review before taking effect

d. Congressional Review Act contains special fast-track procedures for Congress to enact resolutions that disapprove the rules

e. Agencies must provide for waivers or reductions in civil penalties imposed on small business to ease the burden of environmental regulatory enforcement

VI. Presidential Oversight of Rulemakinga. Executive Order 12,866 (issued by President Clinton in 1993) – subjects all

significant EPA regulatory actions to Office of Management and Budget review, including detailed cost-benefit analysis of major rules

b. Executive Order 12,898 (issued by President Clinton in 1994) – requires review of agency actions and rules for purposes of incorporating environmental justice strategies

VII. Judicial Reviewa. 5 U.S.C. § 702 – A person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.

i. [This provision can provide constitutional “standing” (i.e., a legal right to review) if another statute does not provide such a right to review of agency action.]

b. Scope of Judicial Reviewi. 5 U.S.C. § 706 – The reviewing court shall –

1. (1) compel agency action unlawfully withheld or unreasonably delayed; and

2. (2) hold unlawful and set aside agency action, findings, and conclusions found to be—

a. (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

b. (B) contrary to constitutional right, power, privilege, or immunity;

c. (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

d. (D) without observance of procedure required by law;e. (E) unsupported by substantial evidence in a case subject to

sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

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f. (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

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Chevron Test for Statutory Interpretation by Agency

I. Chevrona. facts: the EPA is trying to get people into attainment with the standards for emissions

with CAA by implementing new source review- new sources of pollutants can move into an area which is not in compliance BUT the review is pretty rigorous and it’s whether to grant a permit to build the new facility. Companies don’t like this b/c costly and takes time

b. issue- what is a stationary source?i. Carter Administration- interpreted stationary source to mean every single

source of a pollutant in a plant is a stationary source (smoke stacks, pipes, wherever emissions are coming from) SO if modified any of these, then ea. source had to be individually permitted.

ii. Reagan admin changed it- stationary source based on bubble concept- everything under the bubble of a specific plant or factory is collectively a stationary source of pollution. So ok as long as don’t raise the overall level of emissions.

c. lower ct said that EPA’s definition was contrary to the purpose of the act- b/c doesn’t actually allow improvement of air quality, just maintenance

d. SCt says have to look at agency’s interpretation and then determine if their interp is appropriate or not BUT ct cannot come up with their own interp, have to start with the agency’s

e. SO---> Ct came up with 2 part test-see belowI. Chevron Test for Statutory Interpretation by Agency

a. STEP ONE: Is the statute silent or ambiguous on the precise interpretive question at issue?

i. If not, the court must apply (and the agency must follow) the unambiguously expressed intent of Congress and the inquiry ends.

ii. If the answer is yes, then move to Step Two.b. STEP TWO: Is the agency’s interpretation based on a permissible (reasonable)

construction of the statute?i. If yes, the court defers to the agency’s interpretation.

ii. If not, the court will proceed to provide a reasonable interpretation.iii. [NOTE: The agency typically prevails if the court gets to Step Two.]

II. Justifications for Agency Deferencea. Gap filling –

i. Congress has made a legislative delegation of authority to the agency to make policy judgments to fill gaps in the statute

ii. Because Congress has delegated this policymaking authority to the agency, the court should not substitute its own judgment for a reasonable interpretation made by the agency

b. Agency expertise –i. Agencies have the expertise, time, and resources to consider technical and

complex regulatory policy questions in a detailed and reasoned fashioned

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ii. Courts do not have the same luxury of time, resources, and expertise to focus on these issues and thus the agency is in the better position to make these decisions

c. Legal realism – i. The federal judiciary is not an accountable political branch as is the

executive branch (of which the agency is a part)ii. It is more appropriate for a political branch of government to make policy

choices that reconcile competing political interests

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The Regulatory Process

a. administrative law- taking the law and making the regulations and policies to implement it

b. Sierra Club v. Costleiii. Issue: Should informal oral communications with White House Staff or the

President be docketed (transcribed for the record, published as if part of comment period) on the rulemaking record during post-comment periods with individuals outside EPA?

iv. Is there something inappropriate with the Pres getting involved in the rule-making process after the opp. for public comment but before the final rule.

2. NOT unlawful for the Pres to call EPA admin into his office, relationship btwn exec branch and heads of admin agencies is normal. This is executive policy making so Pres has authority to supervise it.

v. Concern and reason that might want what was discussed to be on the record is that Pres may have let politics influence the rulemaking. Political influence or persuasion.

vi. Ct: 2. The purposes of full-record review with underlie the need for disclosing

ex parte conversations in some settings do not require that courts know the details of every White House contact in this informal rulemaking setting.

3. “we find that the existence of intra-Executive Branch meetings during the post comment period, and the failure to docket one such meeting involving the President, violated neither the procedures mandated by the Clean Air Act nor due process.”

4. NOT worried b/c there has to be a basis for the rule in the factual record. AND the agency needs to state why it did what it did and point to where supported. So doesn’t matter what discussion was b/c rule has to be grounded in record form public comment period.

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PART 3: INTRODUCTION TO NEPA, THE EIS REQUIREMENT

Introduction to NEPAI. Preamble to NEPA

a. The preamble to NEPA states that among its purposes are:i. To declare national policy which will encourage productive and enjoyable

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

II. Congressional Declaration of Policy in NEPAa. The policy declaration in NEPA includes the following aspirational goals:

i. fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

ii. assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings;

iii. attain the widest range of beneficial uses of the environment without the degradation, risk to health or safety, or other undesirable and unintended consequences;

iv. preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice;

v. achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and

vi. enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

III. NEPAa. NEPA is an unusual statute because, instead of directly regulating business and

industry with respect to environmental conduct, it focuses on change in the manner in which decision making is conducted within the federal government, specifically federal agencies.

b. NEPA requires federal agencies to weigh the impact of their actions before activities under their jurisdiction are performed.

c. Not a command-and-control statuted. Regulates the decision-making process of the federal governmente. Informational regulation (requires the generation of information and seeks

informed decision-making)IV. [NEPA § 102(2)(C)]

a. The Congress authorizes and directs that, to the fullest extent possible…all agencies of the Federal Government shall –

i. (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on

1. (i) the environmental impact of the proposed action,

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2. (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

3. (iii) alternatives to the proposed action,4. (iv) the relationship between local short-term uses of man’s

environment and the maintenance and enhancement of long term productivity, and

5. (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

V. [NEPA § 102(2)(E)]a. The Congress authorizes and directs that, to the fullest extent possible…all

agencies of the Federal Government shall –i. (E) study, develop, and describe appropriate alternatives to recommended

courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;

VI. Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)a. (Page 350) “…it is now well settled that NEPA itself does not mandate particular

results, but simply prescribes the necessary process. …. If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.”

b. (Page 351) “In this case, for example, it would not have violated NEPA if the Forest Service, after complying with the Act's procedural prerequisites, had decided that the benefits to be derived from downhill skiing at Sandy Butte justified the issuance of a special use permit, notwithstanding the loss of 15 percent, 50 percent, or even 100 percent of the mule deer herd. Other statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits uninformed--rather than unwise--agency action.”

VII. Definitionsa. “Major Federal Action”

i. (1) Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the APA; treaties and international conventions or agreements; formal documents establishing an agency’s policies which will result in or substantially alter agency programs.

ii. (2) Adoption of formal plans, such as official documents prepared or approved by federal agencies which guide or prescribe alternative uses of federal resources, upon which future agency actions will be based.

iii. (3) Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.

iv. (4) Approval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities.

1. [40 C.F.R. §1508.18(b)]

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NEPA CUMULATIVE IMPACTS, THE SIGNIFICANCE REQUIREMENT AND ENVIRONMENTAL ASSESSMENT

I. [NEPA § 102(2)(C)]a. The Congress authorizes and directs that, to the fullest extent possible…all

agencies of the Federal Government shall –i. (C) include in every recommendation or report on proposals for legislation

and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on –

1. (i) the environmental impact of the proposed action,2. (ii) any adverse environmental effects which cannot be avoided

should the proposal be implemented,3. (iii) alternatives to the proposed action,4. (iv) the relationship between local short-term uses of man’s

environment and the maintenance and enhancement of long term productivity, and

5. (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

b. Connected Actionsi. “`Connected actions’ are defined as actions that `

1. (i) Automatically trigger other actions which may require environmental impact statements,

2. (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously,

3. (iii) Are interdependent parts of a larger action and depend on the larger action for their justification.’”

4. 40 C.F.R. § 1508.25(a)(1)c. Connected Actions Cases:

i. Thomas v. Peterson – 1. building of road in order to get to area and then sale of timber

leases. Suit is about whether the agency needs to make an EIS prior to road being built or after road built and before the timber sales.

2. Ct says that have to consider the env. impact of both the road and the timber leases as CONNECTED ACTIONS and because they will have a CUMULATIVE EFFECT as cumulative actions.

a. due to the cumulative effect of road and timber sales together, TIMING ISSUE arises, b/c impact statement is to inform the decisons that have NOT been made yet. NEPA process to inform the decision. SO--> if build the road then study if there is significant impact from the timber sales, there is reason to find that there is no significant impact, to find in favor of the timber sales b/c already invested in the road. It swings the balance and makes the EIS a farce

ii. Sierra Club v. Peterson-

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1. leasing for oil and gas leases. Two types of leases, one with stipulation that cannot touch the surface until given permission and then other type where no stipulation BUT agency may mitigate the actions by the lease holder.

2. wants to give out the non-stipulation leases prior to doing the EIS. Says that these require an application for the permit to drill with a plan, AT that point the agency can look at plan and impose conditions preventing adverse env. impact, mitigate.

a. again a timing issue--> EIS needs to be done prior to decision being made, prior to granting lease b/c these leases still allow the leasee to go onto property and do all sorts of things prior to any EIS. These initial things before the leasee’s have to submit the plan will have their own env. mpact.

3. Ct wants EIS to happen prior to agency entering into commitment (lease contracts) for the action

4. pg 885- “EIS is required when the critical agency decision is made which results in “irreversible and irretrievable commitments of resources” to an action which wil affect the environment.

d. Cumulative Actionsi. “`Cumulative actions’ are defined as actions `which when viewed with

other proposed actions have cumulatively significant impacts.’”1. 40 C.F.R. § 1508.25(a)(2)

e. “Significant”→ Defining for NEPA, i.e. significance of an action (see pgs. 895):i. Requires consideration of both:

1. Context: a. Significance varies with the setting of the proposed action;

i. Society as whole, the affected region, the affected interests, and the locality.

2. Intensity:a. Refers to severity of the impact; the following should be considered

i. Impact that may be both beneficial and adverse. 1. Significant effect may exist even if the agency

believes that on balance the effect will be beneficial;ii. Degree to which the action will affect public health and safety;

iii. Unique characteristics of the geographic area;iv. Degree to which action will be highly controversial;v. Degree to which effects of action are highly uncertain or

involve unique or unknown risks;vi. Degree to which action may establish precedent for future

actions w/ significant effects;vii. Whether action is related to other actions with individually

insignificant impact but cumulatively significant impacts;viii. Degree to which action will adversely affect “historic places”;

ix. Degree to which action will adversely affect endangered species;

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x. Whether the action threatens violation of law imposed for protection of the environment.

f. “Significance” – Hanly v. Kleindienst (2d Cir. 1972)i. Agency should review proposed action in light of two relevant factors:

1. (1) the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it; and

2. (2) the absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area.

3. Thus, consideration should be given to two issues:a. The extent of adverse affects above those of existing

adverse affects (how much worse will it be?)b. the absolute level of total adverse affects (how bad is

that?)4. Even a slight increase in adverse conditions in an existing situation

might cause harm that is significant (the straw that breaks the back of the environmental camel)

g. Hanly v. Kleindienst – i. agency made the decision that impact will not be significant on the

community such that an EIS was neededii. Ct did not have anything given by Congress for what significant meant, so

had to come to a standardiii. Comes up with 2 relevant standards

1. the extent to which the action will cause adverse env. effects in excess of those created by existing uses in the area affected by it, (how much worse is the proposed action going to make the current env. impact?)(if a pristine area then a little raising of impact NOt so bad, but if already a highly impacted area, then a little more looks worse)

2. the absolute quantitative adverse env. effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area (how bad is the total env. affect that is now going to be carried by this area where proposed action is to take place?)(will this be the straw that breaks the camel’s back)

iv. NOW- not an issue what this means b/c the CEQ regs tell us.v. Standard of Review is the normal arbitrary and capricious standard of

review, SO- the quetion of whether the action is going to have significant env. impact is given the arbitrary and capricious standard b/c within the processs

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1. NOTE: this is different from the standard for the final report given in Stryker, which is just a check off that it was done.

vi. To determine whether an action is something that has a significant impact, look to pg 895.

1. This is the regulation for CEQ for determining significancea. context and intensity are both consideredb. under intensity, case pointed out 1,4,5,6, and 7

h. Whether to Prepare an EISi. 40 C.F.R. § 1501.4 – In determining whether to prepare an environmental

impact statement the Federal agency shall:1. Determine … whether the proposal is one which:

a. (1) Normally requires an environmental impact statement, or

b. (2) Normally does not require either an environmental impact statement or an environmental assessment (categorical exclusion).

2. (b) If the proposed action is not covered by paragraph (a) …, prepare an environmental assessment.

3. (c) Based on the environmental assessment make its determination whether to prepare an environmental impact statement….

4. * * * *5. (e) Prepare a finding of no significant impact …, if the agency

determines on the basis of the environmental assessment not to prepare a statement.

6. 40 C.F.R. § 1508.9 – “Environmental assessment”:a. Means a concise public document for which a Federal

agency is responsible that serves to:i. (1) Briefly provide sufficient evidence and analysis

for determining whether to prepare an environmental impact statement or a finding of no significant impact.

ii. (2) Aid an agency’s compliance with the Act when no environmental impact statement is necessary.

iii. (3) Facilitate preparation of a statement when one is necessary.

7. FONSIa. 40 C.F.R. § 1508.13 – “Finding of no significant impact”

means a document by a Federal agency briefly presenting the reasons why an action … will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared. ….

8. Effectsa. 40 C.F.R. §1508.8 – “Effects” include:

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i. (a) Direct effects, which are caused by the action and occur at the same time and place.

ii. (b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.

iii. Effects and impacts as used in these regulations are synonymous. Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial.

i. NEPA § 102(2)(E)i. The Congress authorizes and directs that, to the fullest extent possible…all

agencies of the Federal Government shall –1. (E) study, develop, and describe appropriate alternatives to

recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;

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Effects covered by NEPA

a. Direct effects , i. caused by the action & occur at the same time & place;

b. Indirect effects , i. caused by the actions that are later in time or farther removed in distance, but are still

reasonably foreseeable. ii. This is all supposed to be anticipated and taken into account in determining what indirect

effects an action may haveiii. Ex. growth inducing effects related to induced changes in the pattern of land use, population

density or growth rate, and related effects on air and water and other natural systems, including ecosystems.

c. Ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect or cumulative.

d. Those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial.

e. Concept of effects is NOT unlimited based on Court decisions, there is a proximate cause kind of analysis--> Metropolitan Edison Co. v. People Against Nuclear Energy- ct held that psychological effects of putting in a new nuclear reactor near the area where 3 mile island occurred was too remote to trigger an EIS.

-Also Dept of Trans v. Public Citizen- should an agency do an EIS on effects of bringing in all the trucks from Mexico under NAFTA (trade agreement)- agency issued a FONSI w/ regard to the env impact, no significant. SCt says not a significant causal connection b/c the agency cannot control the # of trucks coming across the border, so even if find a significant effect they cannot enact env. regulations to stop the trucks or limit their impact. So if can do study but cannot do anything with the results---NO way to reduce or eliminate the effects, if powerless with regards to the env problems, means do not need to do EIS

-Arg was that EA was insufficient b/c not give enough consideration to the overall env impact, the cumulative impact that setting a level of emissions for trucks may have

-agency’s arg for a FONSI- there is significant uncertainty as to whether the contribution of this section of the US transportation sectors carbon emissions will have an effect on greenhouse gas emissions. Too speculative as to what impact this contribution to the overall impact will have

-also arguing that the new standards will make the emissions 0.2% better than it was with the last standards. Agency trying to argue these statistics. BUT the numbers don’t really support this--> in actuality just slowing growth rate emissions BUT not the overall amount of emissions.

-NEPA wants agencies to engage in a hard look at the proposed action and at alternatives.

Nat’l Audobon v. Dept of the Navy - offers a great analysis of how you review what the agency has done as to whether it complies with NEPA reqs.

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***Case tells us that there are several reasons to make sure that agencies follow NEPA procedure and create an adequate EIS where needed b/c even though they do not have to actually follow it later (under Stryker) it creates a record and it is public information that can be used by the public, by watchdogs who can act to make the agency change or bring action.

-Want to put alternatives out there for both the agency and the public

5. Consideration of Alternatives to the proposed action→ TEST for the adequacy of analysis?a. NEPA Requiresb. Vermont Yankee

i. Guideposts for Alternatives1. Reasonableness - i.e. agency doesn’t have to go so far as to be unreasonable in

its consideration;2. Feasibility of Alternatives

*see Note 2 after the case - “the concept of alternatives is an evolving one, requiring the agency to explore more or fewer alternatives as they become better known and understood.”

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Challenging EIS on Failure to Consider AlternativesI. Comments must be significant enough to cross threshold of materiality

a. i.e. a challenging group can’t just say that the agency didn’t consider all the alternatives or that the group didn’t consider a particular alternative without giving some significant analysis of the reasonableness and feasibility of this alternative - it’s the challenger’s burden to show the alternative to be one that should have been considered.

II. In the book, talks about quality of the analysis in an EIS - again Nat’l Audobon v. Dept of the Navy gives a better analysis for quality requirements.

III. Sierra Club v. Army Corps of Engineers - the quality issue was that the area of the river to filled by the hwy was categorized as a “biological wasteland”, meaning nothing lives there, when there was indeed a type of fish living there. Army Corp of Eng told they were wrong, went ahead and acted anyhow and even owned up in Ct that they knew they were wrong. 2nd Cir. states that there was an inadequacy to the impact statement --need to hold the agency’s feet to the fire about if they took a “hard look.” For example, not analyzing the data properly, not doing an analysis of data- it’s more questioning the quality of the analysis, NOT judging the actual decision made, just whether adequate job of studying alternatives (this is how this case/rule is still in compliance with Strykers Bay, where ct not to look into actual decision made or which should be made). Here the samplings were done wrong, so obvious inadequacy.

IV. -only power ct has is to say the review was inadequate, go do it again, CANNOT say made the wrong decision, only b/c the process flawed

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Supplementation of EIS:I. Marsh v. Oregon Natural Resources

a. Obligation of supplementation- there is a supplementation req;i. If new information, then an agency may have to supplement the EIS;

1. Neither approval of project or beginning of project will preclude supplementation as a rule;

ii. Remains major federal action to occur, & if the new information is sufficient to show that the remaining action will affect the quality of the human environment in a significant manner, a supplemental EIS must be prepared:

1. Essentially a TWO Part TEST:a. How much action remains to occur/ is left to be completed, andb. How significant is the new information.

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Substantive v. Procedural Requirements of NEPA

a. Calvert Cliffs Coordinating Committee v. U.S. Atomic Energy Commissioni. Represents what NEPA was probably intended to be;

1. However → NOT what NEPA actually is now.

ii. Court → NEPA’s goal was to promote more informed decisions –1. Requires more than just physical placement of the report in the file,

a. requires actual consideration of the report in the decision-making process;*they established their own rules and are just making a report w/out really considering it or following it. So this addresses whether have to do anything with the report- substantive.

2. Basic NEPA Process: a. EISb. Then agency decision on proposed action ---> either go on the project and

pick an avenue of action 1, 2, or 3 OR NO action (stop project altogether).

c. IF someone wants to challenge that the process does not support the substance, the decision reached--> (this is Calvert Cliffs) there is deference given to the agency’s substantive choice, NEPA is not the only factor, env. factors not the only thing considered by agency--> BUT reviewing ct can reverse the agency’s decision IF the agency’s decision seemed arbitrary OR gave insufficient weight to env. factors.

3. Agency decision should be left intact so long as it is not arbitrary and capricious;a. Final decision should be compared to the EIS, and if it is contrary to

the information in the report, then it is arbitrary and capricious;i. This doesn’t mean that the court’s judgment should be substituted

for that of the agency;1. It just means that the EIS should actually be considered in

the decision making process.*Ct holds that consideration of the environmental matters must be more than pro forma ritual-- need to consider the EIS at every important stage of the decisionmaking process b/c that is the agency complying to the fullest extent as provided for in the procedural guidelines of NEPA

b. Stryker’s Bay v. Karlen (Represents what NEPA actually is today) No arbitrary and capricious standard, but instead just see if the agency made a report.

1. 2nd Cir, the ct of appeals, says determinative weight should be given to the factors that reach a decision under the NEPA process. So not just a process under NEPA that needs to be followed, BUT provides substantive standards that effect how cts should review it. Cannot fold into other factors when env. factors involved, env. factors should have determinative weight and drive the outcome of the decision.

2. SCt- (per curiam opinion- ct issued its opinion based on the briefs issued to SCt on whether or not they should grant certiorari- not the full blown process)- only role for the ct is to make sure that the agency

a. Marshall, dissent- wants to use an arbitrary and capricious, abuse of authority standard of review b/c feels that an agency cannot make the report and then disregard it, have to give it consideration.

b. Makes similar point that is in Calvert Cliffs- what is the point in making a report if don’t require agencies to factor it into whatever decision they make

ii. Vermont Yankee v. NRDC indicated that NEPA was essentially procedural;

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1. Thus, once NEPA’s procedural requirements are met, Ct’s only role is to ensure that the agency considered the information in the report;

a. The court should not interject its own judgment into the agency’s decision making process;

i. Thus, NEPA basically is a check-mark requirement - did the agency consider the EIS? If yes, then decision stands.

c. Roberts v. Methow Valley i. “It is now well settled that NEPA itself does not mandate particular results, but simply

prescribes the necessary process. …. If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.”

1. Other statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits uninformed--rather than unwise--agency action.

d. Dept. of Transportation v. Public Citizeni. Facts:

1. Federal Motor Carrier Safety Administration (FMCSA) is an agency within the Department of Transportation (DOT) is responsible for motor carrier safety and registration. FMCSA has no statutory authority to impose or enforce emissions controls or to establish environmental requirements unrelated to motor carrier safety.

2. FMCSA issued an EA in accordance with NEPA for the proposed Application of Safety Monitoring Rules. The EA focused on the environmental effects of the entry Mexican trucks and buses and found the effects to be minor and issued a FONSI and declined to prepare an EIS. FMCSA then issued its regulations. Respondents sued arguing the regulations were in violation of NEPA and the EA was deficient because it failed to give adequate consideration to the overall environmental impact of lifting the moratorium on the cross-boarder operation of Mexican motor carriers. Ct of appeals agreed with respondents.

ii. Issue: 1. Whether NEPA and the CAA require the FMCSA to evaluate the environmental

effects of cross-border operations of Mexican-domiciled motor carriers, where FMCSA’s promulgation of certain regulations would allow such cross-boarder operations to occur.

iii. Held: Where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant “cause” of the effect. Therefore, under NEPA, the agency need not consider these effects in its EA when determining whether its action is a “major Federal Action.” Because the President, not FMCSA, could authorize cross-border operations from Mexican motor carriers, and because FMCSA has no discretion to prevent the entry of Mexican trucks, its EA did not need to consider the environmental effects arising from the entry.

1. Reasoning: No causal connection between FMCSA’s issuance of the proposed regulations & the entry of the Mexican trucks is insufficient to make MFCSA responsible under NEPA to consider the environmental effects of the entry. Since FMCSA has no ability categorically to prevent the cross-boarder operations of Mexican motor carriers, the environmental impact of the cross-boarder operations would have no effect on FMCSA’s decision-making.

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Timing and Scope of EIS

Problems of Timing and Scope : (when does an EIS need to be done and what scope when NEPA does apply)

1. Kleppe v. Sierra Club- a. Sierra club wanted an EIS on the entire regional area to be affected by the project b/c the individual EIS’s

for each lease were too narrow, and the national level of EIS was too broad.b. DC Cir. said that so much may happen under the indiv. leases that by the time the Dept of the Interior gets

down the road, then may try and justify that decision instead of doing the regional EIS to try and inform the agency like NEPA is meant to do.

i. HAVE to do EIS before acting, have to make one while they are contemplating the action. Balancing test on when the agency needs to do the EIS. (this is DC Cir. interp)

* The fear is that if wait too long to make the EIS, the agency will simply make the EIS to justify the action already taken. It will make the EIS a simple box check, or dog and pony show where the agency has already determined what it wants to do and it makes the purpose of the EIS to inform the decision moot.

ii. SCt held that statutory construction does NOT support the balancing factors and does not say when to make the statement--> SO don’t have to have the detailed statement until recommending or proposing an action.

1. feel that DC is rewriting the statute and cannot do so.

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PART 4: THE CLEAN WATER ACT

THE SCOPE OF FEDERAL AUTHORITY TO REGULATE WATER POLLUTION

I. pg 638-640 in the book summarizes the progress of the CWAII. Structure of the Clean Water Act

a. Three ring circus:i. First ring – Section 301 (prohibits discharges of pollutants from point

sources except as permitted under the Act)ii. Second ring – Section 402 (establishes the National Pollution Discharge

Elimination System (NPDES) for point source dischargers)iii. Third ring – Section 404 (establishes the dredge and fill permitting

program)III. CWA Policy Goals – 1972

a. CWA § 101(a) – The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter –

i. It is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;

ii. It is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983;

IV. Problems with Reaching CWA Goals in 1972a. CWA only controls “point source” pollution

i. § 101(a)(7) added in 1987 articulating a goal to control nonpoint source pollution but no actual federal regulatory programs yet implemented

b. Permit program allows discharges of pollutants from point sources at certain levels into covered waters

c. CWA does nothing to remediate past pollution problemsV. What is the Jurisdictional Reach of the CWA?

a. Two components:i. The question of how broadly to interpret the statutory language (“the

waters of the United States”) under the CWAii. The question of the extent to which Congress has Constitutional

authority to regulate waters that fall within that statutory interpretationiii. § 301(a) – “Except as in compliance with this [Act], the discharge of any

pollutant by any person shall be unlawful.”iv. § 502(12) – “The term `discharge of a pollutant’ … means … any

addition of any pollutant to navigable waters from any point source….”

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v. § 502(7) – “The term `navigable waters’ means the waters of the United States, including the territorial seas.”

VI. CASESi. U.S. v. Riverside Bayview Homes)!!!!!! IMPORTANT CASE (p. 653)

1. issue 1: Chevron analysis to determine whether the EPA & Corps had overstepped CWA jurisdiction;

i. Deference to Agency interpretation of statute unless:1. Step 1: Clearly Expressed Intent of Congress that conflicts with

agency interpretation 2. Step 2 : If no clear intent, as long as Agency interpretation is

reasonable it will standb. Ct says that there is ambiguity as to how far beyond navigable waters Congress meant

to go? go to step 2 of Chevron b/c ambiguity--> if reasonable give deference, if not no deference

c. Corps construed CWA i. Cover all freshwater wetlands that were adjacent to other covered waters,

even if the wetland was not regularly flooded by conventional “waters”;ii. Freshwater wetland defined by Corps as:

1. 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.

d. Court determined that Corps and EPA has ecological expertise, and had made an “ecological judgment” that protection of wetlands (regardless of whether they are filled w/ waters from navigable waters) is necessary to protection of more traditional navigable waters, because these wetlands are so interconnected (as filters, flood prevention devices, etc) with the other covered waters;

i. The Court also determined that the term “navigable” in the statute is defined in a way that precludes its more traditional meaning (i.e. it doesn’t mean navigable in fact).

issue 2-even though the 6th Cir had said that to be a wetland the navigable waters or other covered waters need to be providing the saturation of the wetland that supports the vegetation---> SCt says they don’t care where the water comes from, doesn’t need to be from a water of the United States/covered waters.

-concept of adjaceny- by protecting wetlands, protect the waterways, all part of a connected aquatic ecosystem

e. Thus, the Court in Riverside Bayview Homes deferred to the EPA under the second step of its Chevron analysis.

ii. SWANCC v. Corps1. Issue : Whether the CWA authorized jurisdiction over the isolated wetlands in question;

(Chevron again)a. two issues? is this an reasonable interpretation? AND if so, does it affect interstate

commerce such that it is Const.?b. CWA unambiguous:

i. statutory language expressly precluded jurisdiction over the isolated wetlandsii. No need for Step 2

2. The Corps was extending jurisdiction to isolated waters whose use could affect interstate commerce;

a. Under its Migratory Bird Rule, this included waters used as habitats for migratory birds, habitats for endangered species, or to irrigate crops sold in interstate commerce-

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the purpose of this was to satisfy the 2nd issue/question that there was a connection to interstate commerce

3. SCt first distinguishes the waters here from the waters in Riverside Bayview, b/c in Riverside the wetlands were adjacent to other covered waters, BUT this is diff b/c intrastate waters here that are NOT adjacent. Ct unwilling to designate these as water covered by the statute as “waters of the United States”

b. Riverside Bayview – ACoE statutory interpretationi. “Waters of the United States” =

1. Navigable waters2. Tributaries of navigable waters3. Interstate waters4. Tributaries of interstate waters5. Non-navigable intrastate waters (whose use or misuse could affect

interstate commerce)6. Freshwater wetlands adjacent to other covered waters

c. Lopez v. U.S . (U.S. 1995) i. Congress has constitutional authority under the Commerce Clause to

regulate:1. Channels of interstate commerce,2. Instrumentalities of interstate commerce or persons and things in

interstate commerce, and3. Intrastate activities that substantially affect interstate commerce.

d. Corps’ 1977 Definition of “Wetlands”i. “The term `wetlands’ means 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.”

e. SWANCC – ACoE Statutory Interpretationi. The term “waters of the United States” is defined to include “all other

waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate … commerce ….”

f. “Waters of the United States” – ACOE Interpretationi. Navigable waters

ii. Tributaries of navigable watersiii. Interstate watersiv. Tributaries of interstate watersv. Non-navigable intrastate waters (whose use or misuse could affect

interstate commerce)vi. Freshwater wetlands adjacent to other covered waters

vii. Isolated (intrastate, non-navigable) waters (whose use or misuse could affect interstate commerce)

g. ACoE Migratory Bird Rulei. § 404(a) extends to intrastate waters:

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1. Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or

2. Which are or would be used as habitat by other migratory birds which cross state lines; or

3. Which are or would be used as habitat for endangered species; or4. Used to irrigate crops sold in interstate commerce.

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Rapanos WetlandsI. Rapanos

a. “In these consolidated cases, we consider whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute “waters of the United States” within the meaning of the Act. …. It is not clear whether the connections between these wetlands and the nearby drains and ditches are continuous or intermittent, or whether the nearby drains and ditches contain continuous or merely occasional flows of water.”

II. Rapanos Plurality Opinion a. “Waters of the United States” include only:

i. “relatively permanent, standing or flowing bodies of water”1. - this excludes channels containing merely intermittent or

ephemeral flowii. “wetlands with a continuous surface connection to bodies that are

`waters of the United States’ in their own right”b. Plurality – “Navigable Waters” Confers Jurisdiction Only Over “Relatively

Permanent Bodies of Water”i. Dictionary definitions (“the waters” indicates bodies forming

conventional geographic features)ii. Plain meaning (interpreting waters to mean dry land defies commonsense

understanding)iii. Use of term “navigable” suggests only discrete bodies of water are

intendediv. Separate definition of “point source” encompasses intermittent flow

water channels indicating intent that “navigable waters” be a distinct and separate category

v. Furthers CWA policy of preserving right and responsibility of States to plan and develop land and water use

c. Plurality – Only Wetlands With A “Continuous Surface Connection”i. The reason wetlands are covered by the CWA at all is because of the

“boundary-drawing problem” recognized in Riverside Bayview ii. The “inherent difficulty” with adjacent wetlands of determining where

water ends and land beginsiii. Absent such a physical surface connection, wetlands are lands not waters

III. Justice Kennedy’s Concurrencea. Riverside Bayview and SWANCC can be read to establish a “significant nexus”

test:i. “[W]etlands possess the requisite nexus, and thus come within the

statutory phrase `navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as `navigable.’ When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they

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fall outside the zone fairly encompassed by the statutory term `navigable waters.’”

b. Kennedy On Plurality’s “Relative Permanence” Requirementi. Makes no sense in a statute concerned with downstream water quality –

irregular or intermittent water flow can nonetheless have substantial adverse water quality effects

ii. Dictionary definitions of “waters” do not exclude the concept of intermittent flow

iii. “Point sources” can carry continuous as well as intermittent flow, undermining any conclusion that intermittent flow is limited to “point source” definition and is excluded from “navigable waters” definition

c. Kennedy On Plurality’s “Continuous Surface Connection” Requirementi. Riverside Bayview rejected the proposition that wetlands must contain

moisture from neighboring covered watersii. Riverside Bayview was not limited to concept of adjacent wetlands but had

a broader focus on “wetlands’ `significant effects on water quality and the aquatic ecosystem’”

iii. SWANCC interpreted the CWA to require a “significant nexus” with “navigable waters” which is broader than the surface-water connection

iv. Plurality’s reading of the statutory text gives insufficient deference to Congress’ purposes in enacting the CWA and to the authority of the agency in implementing the statutory mandates

d. Kennedy’s View of Corps’ Regulationsi. For wetlands adjacent to navigable-in-fact waters, the Corps may

categorically rely on adjacency to establish jurisdiction because a reasonable inference of ecological interconnection can be drawn

ii. For wetlands adjacent to nonnavigable tributaries, the Corps must either develop regulations identifying categories of such wetlands for which the same reasonable inference can be made or establish a significant nexus on a case-by-case basis

e. Summaryi. Kennedy agrees with the dissent that “an intermittent flow can constitute a

stream”ii. Kennedy agrees “that the Corps can reasonably interpret the Act to cover

the paths of such impermanent streams”iii. Kennedy states that the plurality’s conclusion that “navigable waters may

not be intermittent … is unsound”iv. Kennedy rejects the “plurality’s second limitation – exclusion of wetlands

lacking a continuous surface connection to other jurisdictional waters”IV. Which Rapanos test is controlling?

a. Confusion exists in the lower courts over whether the plurality’s test or Justice Kennedy’s “significant nexus” test should be controlling.

b. Some circuit courts consider Justice Kennedy’s test the controlling test, while others hold that CWA jurisdiction exists if either Justice Kennedy’s or the plurality’s test is satisfied.

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c. In an April 2011 guidance document (on TWEN), the EPA and the Corps have taken the position that CWA jurisdiction will exist if either of the two tests is met.

ADDITIONAL RAPANOS INFORMATIONi. Rapanos v. U.S. (IMPORTANT for DIFFERENT TESTS)

1. Fractured court - 4-4-1; three important opinions;***See EPA handout guide for lower courts on how to follow Rapanos

2. Scalia’s plurality opinion:a. The CWA’s “waters of the United States” includes only:

i. Relatively permanent, standing or flowing bodies of water (this excludes intermittent flow channels), or

ii. Wetlands with a continuous surface connection to bodies that are waters of the U.S. in their own right.

b. How did Scalia come to this conclusion?i. Dictionary definitions (“the waters” indicates bodies forming conventional

geographic features),ii. Plain meaning (interpreting waters to mean dry land defies commonsense

understanding),iii. Use of term “navigable” suggests only discrete bodies of water are intended,iv. Separate definition of “point source” encompasses intermittent flow water channels

indicating intent that “navigable waters” be a distinct and separate category,v. Furthers CWA policy of preserving right and responsibility of States to plan and

develop land and water use c. The reason wetlands are covered by the CWA at all is because of the “boundary-drawing

problem” recognized in Riverside Bayview;i. The “inherent difficulty” with adjacent wetlands of determining where water ends

and land begins;ii. Absent such a physical surface connection, wetlands are lands not waters.

3. Kennedy’s Concurrence:a. Riverside Bayview and SWANCC can be read to establish a “significant nexus” test!!!

i. “[W]etlands possess the requisite nexus, and thus come within the statutory phrase `navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as `navigable.’ When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term `navigable waters.’”

b. Kennedy’s views on the plurality:i. Relative permanence requirement:

1. Makes no sense in a statute concerned with downstream water quality – irregular or intermittent water flow can nonetheless have substantial adverse water quality effects;

2. Dictionary definitions of “waters” do not exclude the concept of intermittent flow;

3. “Point sources” can carry continuous as well as intermittent flow, undermining any conclusion that intermittent flow is limited to “point source” definition and is excluded from “navigable waters” definition.

ii. Continuous surface connection requirement:

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1. Riverside Bayview rejected the proposition that wetlands must contain moisture from neighboring covered waters;

2. Riverside Bayview was not limited to concept of adjacent wetlands but had a broader focus on “wetlands’ `significant effects on water quality and the aquatic ecosystem’”;

3. SWANCC interpreted the CWA to require a “significant nexus” with “navigable waters” which is broader than the surface-water connection;

4. Plurality’s reading of the statutory text gives insufficient deference to Congress’ purposes in enacting the CWA and to the authority of the agency in implementing the statutory mandates.

c. Kennedy’s view of Corps’ regulations:i. For wetlands adjacent to navigable-in-fact waters, the Corps may categorically rely

on adjacency to establish jurisdiction because a reasonable inference of ecological interconnection can be drawn;

ii. For wetlands adjacent to non-navigable tributaries, the Corps must either develop regulations identifying categories of such wetlands for which the same reasonable inference can be made or establish a significant nexus on a case-by-case basis.

4. Which standards applies? → Dec. 2008 → Guidelines from EPA & Army Corp. on the Effect of Rapanos on CWA Jurisdiction Pg. 670

a. Federal Jurisdiction Overi. All traditional navigable waters (TNW), ii. Wetlands adjacent to TNW, iii. Non-navigable tributaries of TNWiv. Navigable waters that are relatively permanent

1. i.e. waters with tributaries that typically flow year-round or that @ least have continuous seasonal flows

b. Fact-Specific Inquiry required to see if significant nexus test is satisfied for1. Non-navigable tributaries that don’t have flow year-round or have at least

continuous flow seasonally2. Wetlands adjacent to such tributaries 3. Wetlands adjacent to, but not directly abutting relatively permanent, non-

navigable tirbutariesV. BUT Some Lower Court are the Plurality’s, Kennedy’s or both.

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REGULATION OF DISCHARGES FROM POINT SOURCESI. Effluent Limitations

a. CWA § 301(a) prohibits “the discharge of any pollutant by any person” except as in compliance with effluent limitations required by §§ 301(effluent limitations), 302 (water quality related effluent limitations), and 307 (toxic and pretreatment effluent standards), new source performance standards required by § 306, and the permitting requirements of §§ 402 (NPDES) and 404 (dredged or fill material).

II. National Pollutant Discharge Elimination Systema. CWA § 402 establishes a comprehensive permit program to apply the Act’s

effluent limitations to regulate “the discharge of any pollutant.”b. Discharge of Dredged or Fill Materialc. CWA § 404 establishes a program to “issue permits, after notice and opportunity

for public hearings for the discharge of dredged or fill material into the navigable waters and specified disposal sites.”

i. (Dredged material – material excavated or dredged from waters of the United States)

ii. (Fill material – material used to replace an aquatic area with dry land or change the bottom elevation of a water body)

III. “Discharge of a Pollutant”a. CWA § 502(12) – “The term `discharge of a pollutant’ and the term `discharge

of pollutants’ each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.

IV. “Discharge”a. CWA § 502(16) – “The term “discharge” when used without qualification

includes a discharge of a pollutant, and a discharge of pollutants.”V. “Point Source”

a. CWA § 502(14) – “The term `point source’ means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.”

ii. NRDC v. Costle 1. Case of largely historical value p 6842. EPA had brainstormed certain categories to meet what a point source was, and then this

was them coming up with categories EXEMPT from being point sources.3. NRDC challenged these exemptions, saying that EPA need to show where the Act said

they could make exemptions4. EPA argued 2 things:

a. infeasability - coming up with permit reqs for certain things that might be considered point sources would be near impossible, cannot come up with concrete numbers or amounts of discharges they could make. Doesn’t work, can’t calculate with precision what they would be permitted to do.

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b. Congress can’t be for real - EPA argued no way Congress really expected EPA to handle everything that might fall under Act

c. What ct did was to come up with a general permit- if a sitaution does not lend itself to specific requirments under a permit, then give general permits, and can give general to entire classes of dischargers.

d. Note 4 pg 689 - Congress added the sentence “This term does not include agricutural stormwater discharges and return flows from irrigated agriculture.” to the act to limit what req’d a permit

b. U.S. v. Plaza Health Labs, Inc.i. Issue: Can a person placing pollutants into water be a point source?

1. MAJi. “the term ‘point source’ is comprehensible only if it is held to

the context of industrial and municipal discharges” - i.e. a person is not a point source under the Act;

ii. CWA was never designed to address the random, individual polluter;

iii. Term “point source” as applied to a human being is at best ambiguous

1. Rule of lenity resolves statutory ambiguities in favor of Δs in criminal cases → Policy of fair warning

2. Dissent -Says that Villegas could be a point source, a person could be a point source, could fall under “iscernable, confined and discrete conveyance” b/c in this case they could trace the blood back to the lab and back to Villegas- based on idea that if you can trace it back then can be a point source

b. Notes 5 and 7 on pg 696 - examples of how broad a point source can be- the fact that in defining a point source Congress seemed to dump the Thesaurus into it, implies that they want the term to be broadly defined/interpreted.

VI. Tulloch Rulea. Corps of Engineers regulation that defined “discharge of dredged materials”

under § 404 to include “any addition of dredged material into, including any redeposit of dredged material within, the waters of the United States.”

i. 33 CFR § 323.2(d)(1) b. Challenge to Tulloch Rule→ National Mining Association v. Corps

i. Essential rule 1. net withdrawal does not qualify as an addition of a pollutant.” (Reasoning

below)ii. Mining Associations challenge: Chevron Step 1

1. Statute clearly prohibits “addition of any pollutant”, thus the Corps doesn’t have authority under the CWA to regulate something that is not an addition (fall back material);

a. Corps counter:i. § 502 (6) defines pollutant broadly, and when the material is

lifted and allowed to fall back, it becomes a pollutant;iii. D.C Cir: Chevron Step 1 analysis

1. “the straightforward statutory term “addition” cannot reasonably be said to encompass the situation in which material is removed from the waters of the U.S. and a small portion of it happens to fall back;

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2. Simply no “addition of any pollutant” in this situation, thus CWA doesn’t give Corps

iv. Concurrence → argued that the case should have been decided under Chevron Step 2;1. If the Corps interpretation had been found by the court to be unreasonable (step

2), rather than contrary to the express language of the statute (step 1), the Corps still would have been able to prohibit some redeposits, such as redeposits occurring later in time or in different locations.

a. Under the majority’s holding, redeposits may not be prohibited under the CWA (as a general rule, though the Court says that some forms may be validly regulated - the Corps just went too far by asserting jurisdiction over “any redeposit”).

c. South Florida Water Management District v. Miccosukee Tribe of Indiansi. Issue: whether transfer of water from one body to another qualifies as a “discharge”

under the CWA;1. Water Mgmt’ District argued the *Unitary Waters Approach *

a. Because the CWA defines discharge as “any addition of any pollutant to navigable waters”, transferring water from one body to another isn’t an addition to “navigable waters” - “navigable waters” encompass all the water bodies that fall under this term, doesn’t say “any” “navigable waters” so that means that all the navigable waters are one body of water;

i. i.e. Lake Huron, Lake Erie, and Lake Superior are all a part of the larger concept of “navigable waters” → one body of water for CWA purposes;

2. Court Problems w/ the “Unitary Waters approach:”a. EPA Regulations (agency who was actually asserting this argument)

contrary to this approach b. The rest of the Act doesn’t really support this approach → the absence

of “any” in a definition isn’t enough to support this approach;c. Not practically sensible → not all waters are the same and they aren’t

really a part of each other.VII. Pollutant

a. CWA § 502(6) – “The term `pollutant’ means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”

b. Holding of National Mining Assoc. v. Army Corps of Engineersi. – ≠ +

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TECHNOLOGY-BASED EFFLUENT LIMITATIONS, POTWs, WATER QUALITY STANDARDS, INTERSTATE POLLUTION

I. Pollution Control Technology Standardsa. By July 1977, dischargers were required to employ “best practicable control

technology currently available” (BPT)b. By July 1983, dischargers were required to employ “best available technology

economically achievable for each category or class” (BAT)c. New sources are required to reduce effluents to the greatest degree “achievable

through application of the best available demonstrated control technology” (BADT)

II. Modification of BAT Standardsa. CWA § 301(c) – “The Administrator may modify the requirements of

[application of the best available technology economically achievable (BAT) standards] with respect to any point source … upon a showing … that such modified requirements (1) will represent the maximum use of technology within the economic capability of the [point source]; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants.”

b. CWA § 301(g) – Creates a fairly complicated process allowing modification of the requirements of application of the best available technology economically achievable (BAT) standards for “certain nonconventional pollutants” based on water-quality factors.

c. CWA § 301(l) – [As before Chemical Mfgs. V. NRDC] – “The Administrator may not modify any requirement of this section [effluent limitations] as it applies to any specific pollutant on the toxic pollutant list under section [307 – toxic and pretreatment effluent standards] of this title.”

d. Fundamentally Different Factors Variancei. CWA § 301(n) – “General rule – The Administrator … may establish an

alternative requirement … that modifies the requirements of national effluent limitation guidelines or categorical pretreatment standards that would otherwise be applicable to such facility, if the owner or operator of such facility demonstrates to the satisfaction of the Administrator that

1. (A) The facility is fundamentally different with respect to the factors (other than cost) … considered by the Administrator in establishing such national effluent limitation guidelines or categorical pretreatment standards;

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

i. Chemical Manufacturers Association v. NRDC1. Issue: whether FDF variances for toxic pollutants were valid under the CWA;

a. Complaining party (NRDC) argued that § 301 (l) forbade modification of effluent limitations for toxic pollutants;

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2. Held: FDF variances were different than the modifications provided by § 301 (c) and (g);

a. Rather than an exception to the effluent standards (such as those allowed by § 301 (c) and (g)), a FDF variance is a more fine-tuned application of the initial process for setting effluent standards;

ii. “Bottom Line” on Variances :1. Conventional polluters are responsible for BCT standards, set on a categorical

basis, but can seek a variance based either on cost or a FDF.2. Toxic polluters are subject to BAT standards but can seek a variance under

§301(n), but not §301(c) or §301(g).III. Indirect Dischargers Into POTWs

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

IV. Water Quality-Based Controls: CWA Safety Neta. Residual protection for technology based approach of the CWA;b. CWA § 303 – places primary responsibility for developing and implementing

water quality standards upon the States. States are required to i. establish water quality standards for each water body within the state,

ii. to identify waters with insufficient controlsiii. to calculate limits on pollutant loadings for those waters necessary for

them to achieve established standards with a margin of safety.c. Permits issued under the NPDES program are required to include any more

stringent limits that are necessary to ensure compliance with the water quality standards established by states for its respective water bodies.

d. That is, limitations over and above those already established due to effluent technology requirements.

e. Water quality standards are a function of two components –i. Designated uses for each water body established by the state, and

ii. Water quality criteria designed to ensure that the waters can be used for such designated uses

iii. For each water body within the state, the state designates a use (drinkable, fishable, swimmable, agricultural, industrial, etc.)

1. EPA has interpreted the CWA to mean that states must at a minimum seek the fishable/swimmable goal for each body of water unless that would result in substantial and widespread economic and social impact.

2. State standards must be reviewed and approved by EPA. If EPA disapproves a state standard, it must promulgate its own water quality standard for the state.

V. Impact of Water Quality Standards on Permit Limitsa. Four ways in which water quality standards can affect limits established in

NPDES permits:i. Water quality standards in downstream states may affect the terms of

permits for upstream discharges in another state;

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ii. CWA § 304(l) program for controlling toxic “hot spots” of water pollution;

iii. State water quality certification requirement under CWA § 401iv. CWA § 303(d) total maximum daily loadings (TMDL) program

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INDIVIDUAL CONTROL STRATEGIES, SECTION 401 CERTIFICATION & TMDLs

I. Impact of Water Quality Standards on Permit Limitsa. Four ways in which water quality standards can affect limits established in

NPDES permits:i. Water quality standards in downstream states may affect the terms of

permits for upstream discharges in another state;a. Arkansas v. Oklahoma

i. Issue: Does the CWA require upstream states to care about water quality standards in downstream states?

1. Second issue: If so, what test is used to determine if upstream state is violating water quality standards in downstream state?

ii. At the time, the EPA was running Ark water quality standards, so Ok suing EPA. Millions of gallons of effluent are entering into the Illinois River b/c of ARk and Ok had designated it as a recreational area, so it needs to be at least fishable, swimmable.

iii. Diff levels of the courts each give diff tests for solving this (ie: ALJ thought the test for whether a violation of the downstream state’s water- whether the effluent will have more than a diminimus impact on the downstream state’s water.)

iv. EPA CJO (CJO is essentially the EPA appeals ct) Test: “Actually Detectable Violation” of OK water quality standards needed to overturn NPEDS permit

1. SCt Held → Chevron (Step 2) deferencea. dodged the issue of whether the CWA

requires an upstream state to even care about downstream state water quality.

v. 10th Cir tries to impose a diff standard- if there is already an ongoing violation of the water standards in the downstream state, then there was an ongoing violation even though there is NO way to detect it. (this is sort of like in MO v. Ill, where reason MO could not get injunction was did not have enough proof that Ill doing it)

vi. SCt says NO to 10th Cir. test, says 10th doesn’t have authority to come up with the test, goes to Chevron review and says need to give deference to the EPA. (see 1 above)

Note 4 on pg 725: Concern the EPA had with the 10th Cir test was that something more complex, a more complex test, would frustrate the progress and not allow plants. This would give downstream states an effective veto on upstream discharges.

ii. CWA § 304(l) program for controlling toxic “hot spots” of water pollution;

iii. State water quality certification requirement under CWA § 401iv. CWA § 303(d) total maximum daily loadings (TMDL) program

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II. CWA § 304(l) – Individual Control Strategies for Toxic Pollutantsa. 1972 – CWA § 101(a)(3) – “it is the national policy that the discharge of toxic

pollutants in toxic amounts be prohibited”b. Water Quality Act of 1987 – Congress amends the CWA to add § 304(l) requiring

identification of waters not expected to meet water quality standards even after implementation of technology-based controls on point sources and authorizing imposition of “Individual Control Strategies” for dischargers into those waters

c. § 304(l) mandated that EPA and the States develop three lists of “impaired waters”:

i. “long” or “(A)(ii)” list – most comprehensive and included waters impaired by both point and nonpoint sources, and both toxic and conventional pollutants

ii. “medium” or “(A)(i)” list – a subset of the long list and included waters impaired by point and nonpoint sources of any of 126 priority toxic pollutants

iii. “short” or “(B)” list – a subset of the medium list and included only waters impaired entirely or substantially due to point source dischargers of any of the 126 priority toxic pollutants

III. State Water Quality Certification under CWA § 401a. (a) Compliance with applicable requirements

i. (1) Any applicant for a Federal license or permit to conduct any activity … which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate … that any such discharge will comply with the applicable provisions of sections [301, 302, 303, 306 and 307] of this title. ….

b. (d) Limitations and monitoring requirements of certification i. Any certification provided under this section shall set forth any effluent

limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section [301] or [302]…, [306]…, or [307], and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.

a. PUD No. 1 of Jefferson County v. Washington Dept. of Ecology:i. WA issued a water quality certification imposing minimum stream-flow requirement as a

condition of the dam building b/c when they did the permit under 401 for the hydroelectric plant, they saw that the plant wanted to divert the stream flow so much that it would effect the fish hatchery:

1. Δ argued that this exceeds the State’s authority-for the CWA to apply, there must be a discharge (addition of a pollutant), in this case there was just water being put back into the river; stream flow has nothing to do with discharge, it actually relates to how much water is being taken out. (based on 401 stating “which may result in any discharge into the navigable water”)

a. Ct says Section (d) of 401 mentions an applicant for a federal license, not just a discharger. (d) is about the applicant’s compliance, not the

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compliance of the discharge, so that section (d) allows the state to impose additional permit requirements unrelated to a discharge

b. D also argues that CWA deals with water quality, this condition does not serve this purpose b/c does not deal with discharge (sort of a Chemical Manufacturers thought that the water they are taking out is the same when they put if back in) (not the case here b/c water is actually heated)

ii. Counter→ pollutants will accompany this water when it is returned to the river;1. Δ further argues that the condition sought to be imposed is related to the project as a

whole, not to a specific discharge;a. Counter → 401(d) allows the state to impose additional conditions on an

activity once it is determined that the activity involves a discharge into navigable waters;

i. Ct upholds this interpretation - i.e. activities, not merely discharges, must comply with state WQSs. (WQS are a function of two things, 1) designated use (drinkability, etc) and 2) water qulaity criteria that will be followed to maintain the water for that particular use)

ii. Section (d) expands the authority of the state above and beyond dealing with just discharge and 301 incorporates 303 such that effects of water quality standard and designated use can allow state to require more n a permit under 401.

ii. Utility’s 2nd Argument → State only has authority to regulate (through certification) water quality through published, specific criteria for water quality;

1. Minimum stream flow was not a part of the published criteria, thus the state couldn’t now condition certification on stream flow;

b. Held:i. WQSs must consist of the designated uses of the navigable waters involved and the water

quality criteria for such waters based upon such uses;1. If an activity goes against the designated use of the water (river), the state can deny

certification, even if the project doesn’t violate established water quality criteria; ct states that too much of a burden to impose on the state to have them make a comprehensive list of criteria that will affect water quality up front, should be allowed to add to the list.

a. Thus, there are 2 ways in which a project can be conditioned.b. Requiring every possible way in which water quality could be threatened to

be published as specific criteria would be impossible; state can’t be required to do this.c. Note 2 after PUD- Furke - case where only taking out water, not

putting it back, so no discharge. Ct said not ok b/c no discharge. Ct said reason this case was NOT inconsistent with PUD was that in PUD, have to have a threshhold discharge under 401 in order for ability to impose further requirements under 401, whereas under Furke there was NO dicharge into navigable waters and so no addition, and 401 did not even apply

d. 303 is the section that imposes the duty on the states under the CWA to create the WQS within the state

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e. 303(d) applies to non-toxic pollutants, whereas the specific plans under 304 were for toxic pollutants.

IV. Total Maximum Daily Loadings (TMDLs)a. CWA § 303(d) requires that States identify waters within its boundaries for which

technology-based effluent limitations for nontoxic pollutants are not stringent enough to achieve established water quality standards for those waters, prioritize these water bodies, and then develop a TMDL for each pollutant affecting each such water body for purposes of determining what additional reductions are necessary to achieve that water body’s applicable water quality standard.

V. Identification of Areas with Insufficient Controlsa. CWA § 303(d)(1)(A) – “Each state shall identify those waters within its

boundaries for which the effluent limitations required by section [301 of the CWA] are not stringent enough to implement any water quality standard applicable to such waters.”

a. Big CONTROVERSY: pg 740 “does the TMDL program apply to waters that are impaired solely due to non-point source pollution?”

i. YES →9th Circuit in Pronsolino v. Nastri;1. Only circuit to address this issue head on.

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PART 5: THE CLEAN AIR ACT

GREENHOUSE GAS EMISSIONS AND THE CAA

I. Structure of the Clean Air Acta. Four ring circus:

i. First ring – Title I and Title V (I – NAAQS/ SIPs; V – permit program for major sources)

ii. Second ring – Title II (mobile source controls; primarily motor vehicles)iii. Third ring – Title IV (acid rain program)iv. Fourth ring – Title VI (ozone hole, CFCs – chlorofluorocarbons)

b. CAA Title II – Section 202(a)(1)i. The EPA shall prescribe “standards applicable to the emission of any air

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

c. Precautionary Standardi. The Clean Air Act “and common sense … demand regulatory action to

prevent harm, even if the regulator is less than certain that harm is otherwise inevitable.”

1. Ethyl Corp v. EPA , 541 F.2d 1, 25 (D.C. Cir. 1976) (en banc) II. Definitions

a. Air Pollutanti. CAA § 302(g) – “The term `air pollutant’ means any air pollution agent

or combination of such agents, including any physical, chemical, biological, radioactive … substance or matter which is emitted into or otherwise enters the ambient air.”

b. Welfarei. CAA § 302(h) – “All language referring to effects on welfare includes,

but is not limited to, effects on soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property….”

III. EPA Rationale for Not Regulating GHG Under CAA § 202a. GHGs do not qualify as “air pollutants” under statute

i. Congress declined to adopt a proposed amendment to the CAA establishing binding GHG emissions limitations in 1990

ii. CAA was designed to address local air pollutants rather than substances that concentrate in the world atmosphere

iii. EPA regulations of carbon dioxide would either conflict with mandatory fuel economy (tailpipe emissions) standards (regulated by DOT) or be superfluous

iv. In sum, if Congress had intended the EPA to regulate on such an important and politicized issue, it would have said so in so many words

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v. Even if it had authority over GHGs, EPA would exercise discretion not to exercise such authority:

1. Scientific uncertainty exists as to causal nexus between increased concentration of GHGs in the atmosphere and global warming

2. Mandatory regulation would be incompatible with climate change initiatives of Bush administration (voluntary GHG emission controls carried out in the private sector)

3. Mandatory regulation might hamper the President’s ability to persuade developing countries to reduce GHG emissions

IV. Mass. v. EPA Majority’s Rationale for Rejecting EPA’s Position a. Sweeping definition of “air pollutant” under § 302(g) includes any physical or

chemical substance which can be emitted into the ambient air – GHGs qualify under this flexible definition

b. EPA affirmed its statutory authority to regulate GHGs on two occasions (including two weeks) before rulemaking petition at issue was filed

c. The fact that DOT regulates vehicle mileage standards under separate statute does not permit EPA to avoid responsibility to regulate under CAA

d. EPA’s reasons for declining to exercise its authority are not related to the statutory standard

e. If EPA makes a finding of endangerment (“air pollution … reasonably … anticipated to endanger public health or welfare”), the CAA requires it to regulate

f. Thus, “EPA can avoid taking further action only if it determines that [GHGs] do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do”

g. If this constrains EPA discretion to pursue other priorities of the EPA or the President, this is the congressional design

V. Judgment of Mass. v. EPA Majoritya. EPA’s refusal to make endangerment finding under §202(a)(1) is arbitrary and

capriciousb. Majority remands to the EPA but expresses no view on whether “EPA must make

an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding”

c. However, EPA must ground its reasons for action or inaction in the statuteVI. Post-Mass. v. EPA Developments

a. EPA asserted it would issue a notice of proposed rulemaking as to whether GHG emissions from motor vehicles pose a danger to public health or welfare by the end of 2007 and a formal rule by the end of October 2008.

b. EPA missed the end of 2007 deadline for a notice of proposed rulemakingc. EPA Administrator Johnson told a Senate committee on Jan. 24, 2008 that the

EPA would issue a rulemaking notice regarding the GHG emission endangerment finding

d. In March 2008, Administrator Johnson testified at a congressional hearing that a rulemaking could not begin until the EPA considered the effect of passage of an energy bill raising automobile efficiency standards from 27.5 mpg to 35 mpg by 2020

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e. In July 2008, the EPA issued an “advance notice” of a proposed rulemaking on GHGs, which included a 120-day comment period which was to close after the November 2008 elections. This was perceived as an effort to stall on the issue until after the November 2008 elections.

f. New Obama EPA Administrator Lisa Jackson indicated in a January 23, 2009 memorandum that the EPA would move forward in response to the Mass. v. EPA decision

g. In April 2009, the EPA issued a proposed finding that six GHGs – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride – contribute to air pollution that may endanger public health or welfare through the threat of climate change.

h. Following issuance of the proposed finding, the EPA initiated a 60-day public comment period and eventually received and considered more than 380,000 comments on the issue.

i. On December 7, 2009, the EPA announced its final “endangerment finding” that GHGs threaten the public health and welfare of the American people.

j. This finding imposed no requirements or obligations on industry or other entities under the CAA to reduce GHGs. Instead, this final endangerment finding created the authority under the CAA for the EPA to move forward with creating regulations designed to reduce emissions of GHGs.

k. Congress could eventually decide to pre-empt any coverage by the CAA to GHGs in favor of comprehensive legislation directly addressing issues relating to climate change.

l. Indeed, both President Obama and EPA Administrator Lisa Jackson emphasized their preference for comprehensive legislation to address this issue at the time both the proposed and final endangerment findings were issued by the EPA.

VII. Comprehensive GHG legislationa. The House of Representatives in June 2009 passed the American Clean Energy

and Security Act (H.R. 2454), which would have used a cap-and-trade approach to lower GHG emissions 17 percent by 2020 from 2005 levels.

b. Efforts to pass similar legislation in the Senate were unsuccessful. Comprehensive climate legislation from Congress is effectively dead for the foreseeable future.

VIII. Regulation of GHGs under CAA Title IIa. On May 7, 2010, EPA and the National Highway Traffic Safety Administration

published a joint rule increasing CAFE standards and imposing GHG emission limitations on passenger cars and light trucks.

b. The final rule authorizes EPA under § 202(a) of the CAA (mobile sources) to place limitations upon vehicle GHG emissions starting in 2012.

IX. Regulation of GHGs under CAA Title I and Va. Because of the structure of the CAA, regulation of a pollutant (here GHGs) under

any section of the CAA triggers the requirements of the PSD and Title V permitting programs for stationary sources of pollutants.

b. Thus, the moment EPA finalized its mobile source GHG emission rules, the PSD and Title V programs became applicable to GHG emissions from stationary sources.

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X. EPA Tailoring Rulea. Because of concern that the number of sources of GHG emissions affected under

standard thresholds for the PSD and Title V programs (100/250 tons per year) would impose an intolerable burden on state permitting programs (6 million permits), on June 1, 2010 the EPA issued a Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule.

b. This rule took effect on January 2, 2011 and initially applied the BACT requirements of PSD only to sources emitting more than 75,000 tons of GHGs per year and significant emissions of at least one non-GHG pollutant.

c. On July 1, 2011, the program was expanded to include all new sources emitting more than 100,000 tons per year of GHGs under both the PSD and Title V programs.

XI. Future Regulation of GHGs by EPAa. Although the agency is only requiring the largest GHG emissions sources to

obtain permits to date, the EPA states that it is moving towards compliance with the CAA statutory permitting requirements (standard thresholds for PSD and Title V programs – 100/250 tons per year) with another review of the permitting requirements planned for 2016.

b. The EPA defends its decision to depart from the CAA text by implementing regulations for GHG emissions incrementally (tailoring rule) under doctrines known as “absurd results,” “administrative necessity,” and “one-step-at-a-time.”

XII. Court challenges to EPA GHG regulationsa. On Sept. 15, 2010, a coalition of eight states (including Mississippi and

Alabama), industry, and 12 House Republicans filed suit in the D.C. Circuit Court of Appeals seeking a stay of the EPA GHG regulations.

b. On Dec. 15, 2010, Texas filed a suit challenging the EPA GHG regulations in the Fifth Circuit, which transferred the case to the D.C. Circuit (which is responsible for hearing challenges to EPA CAA rules with national application) on Feb. 24, 2011.

c. The D.C. Circuit has rejected requests for a stay of EPA action under the regulations pending these court challenges.

d. Industry and business groups and the state challengers filed briefs on June 20, 2011 arguing the tailoring rule violates the CAA.

e. The EPA filed its brief defending the rule on September 16, 2011.XIII. Legislative Attacks on EPA Authority to Regulate GHGs

a. On March 3, 2011, identical bills were introduced in the House (H.R. 910) and Senate (S. 482) which would deny EPA authority to “promulgate any regulation concerning, take action relating to, or take into consideration the emission of a greenhouse gas due to concerns regarding possible climate change.”

b. The bills would overturn the GHG rules which took effect on Jan. 2 for power plants and other stationary sources and would also nullify the 2009 EPA endangerment finding on GHGs.

c. The House bill (H.R. 910) was passed in the House on April 7, 2011 on a vote of 255-172. The bill was received in the Senate on April 8, 2011 and referred to the Committee on Environment and Public Works.

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d. The Senate version (S. 482) was referred to the Committee on Environment and Public Works on March 3, 2011. No action has been taken on it or H.R. 910 by the Senate committee.

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NATIONAL AMBIENT AIR QUALITY STANDARDSI. Structure of the Clean Air Act

a. Four ring circus:i. First ring – Title I and Title V (I – NAAQS/ SIPs; V – permit program for

major sources)ii. Second ring – Title II (mobile source controls; primarily motor vehicles)

iii. Third ring – Title IV (acid rain program)iv. Fourth ring – Title VI (ozone hole, CFCs – chlorofluorocarbons)

b. Basic Structure of Title Ii. CAA §§ 108, 109 – Requires EPA to establish nationally uniform

ambient air quality standards (NAAQS) for air pollutants satisfying the criteria identified in § 108 and thus are anticipated to endanger public health or welfare. These pollutants are referred to as “criteria pollutants.”

ii. NAAQS are divided into “primary” (protection of people and public health) and “secondary” (prevention of damage to crops or trees or deterioration of buildings or infrastructure) standards.

c. Criteria Pollutantsi. NAAQS have been issued for six criteria pollutants:

1. Sulfur dioxide (SO2)2. Nitrogen oxide (NOX)3. Carbon monoxide (CO)4. Particulate matter (soot, fly ash, and similar matter)5. Ozone6. Lead

ii. Sulfur Oxides1. Corrosive, poisonous gases produced when fuel (such as coal or

oil) containing sulfur is burned (principally by utility power plants, industrial boilers, and residential heating)

iii. Nitrogen Oxides1. Produced by the burning of fuel at very high temperatures which

oxidizes nitrogen in the air (principally by vehicles and combustion plants)

iv. Carbon Monoxide1. A colorless, odorless, poisonous gas produced by the incomplete

burning of carbon in fossil fuel combustion processes, such as the internal combustion engines that drive cars and trucks or utility and other industrial boilers

v. Particulate Matter1. Solids or liquids in various sizes, including the very fine dust, soot,

smoke, fly ash, and droplets formed from chemical reactions produced by burning fuels such as coal, wood, or oil

vi. Ground-Level Ozone1. The primary ingredient of smog formed when nitrogen oxides and

volatile organic compounds (VOCs – released by vehicles burning

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gasoline, petroleum refineries, chemical manufacturing plants, and other industrial facilities) chemically react in the atmosphere during periods of intense sunlight

vii. Lead1. A heavy metal that can be released directly into the air as

suspended particles through the burning of leaded gasoline or by industrial sources such as lead smelters, waste incinerators, utilities, or manufacturing processes

d. Recent Developments on NAAQSsi. Ozone – In 1997, the Clinton EPA adopted a ground-level ozone or smog

pollution standard at 0.08 parts per million (ppm).1. In 2008, the Bush EPA revised the ozone standard to 0.075 ppm,

disregarding the recommendations of the EPA’s independent, expert science advisors that the standard should be between 0.06 and 0.07 ppm to be adequate to protect public health with an adequate safety margin.

2. Ozone – Lawsuits were subsequently filed by environmental groups arguing the 2008 standards were insufficiently protective of public health under the CAA, especially given the rejection of the science advisors’ unanimous advice. Several states also sued challenging the 2008 standards as too stringent.

3. In September 2009, the Obama EPA announced that, instead of defending the standards in court, the 2008 standards would be reconsidered. The Obama EPA took the position that the 2008 standards were legally indefensible.

4. Ozone – The lawsuits challenging the 2008 standards were stayed pending the EPA’s reconsideration. Thus, the 1997 standards (0.08 ppm) have remained in effect pending this reconsideration.

5. Ozone – On January 19, 2010, the EPA published a proposed rule to tighten the primary standard in a range between 0.060 ppm and 0.070 ppm averaged over 8 hours. This would be a reduction from the 2008 standard of 0.075 ppm.

6. Final rule was intended to be issued by Aug. 31, 2010. However, that month the EPA announced a delay in issuance of the final rule to consider information received during the public comment period. Some believed this was because of political opposition from the White House and that the EPA was seeking re-emphasis from the independent science advisors of the need for stronger standards.

7. Ozone – On Dec. 8, 2010, EPA announced it would delay issuing new NAAQSs for ozone until July 2011 so that it could consider further recommendations from the scientific advisors. On March 3, 2011, this advisory panel indicated continued strong support for the proposed rule reducing the ozone standard to the 0.060 ppm to 0.070 ppm range averaged over 8 hours.

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8. The Clean Air Scientific Advisory Committee emphasized that the 2008 standard is “not sufficiently protective of public health” and that “evidence from controlled human and epidemiological studies strongly supports the selection of a new primary ozone standard.”

9. Ozone – The EPA transmitted the draft final ozone standards to the White House on July 11, 2011. Speculation is that the standards proposed a final rule of 0.065 ppm.

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

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

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

II. Contrast with CWA Approacha. CAA requires EPA to establish national air quality standards/ CWA requires

States to establish state water quality standardsb. CAA relies on ambient air quality approach as primary methodology for pollution

control/ CWA relies on technology-based effluent standards as primary methodology with ambient water quality standards as a backup/supplemental approach

c. CAA regulates six major criteria pollutants/ CWA regulates hundreds of different pollutants

III. Hazardous Air Pollutantsa. CAA § 112 creates a separate regime for hazardous or toxic air pollutants, or

pollutants thought to pose a particularly acute danger to public health. The Clean Air Act contains an initial list of 189 hazardous air pollutants to be regulated by the EPA.

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

IV. Basic Structure of Title Ia. CAA § 110 – Requires States to determine how to achieve NAAQS for each

criteria pollutant within their borders through a State Implementation Plan (SIP) adequate to assure each air quality control region within the State will come into compliance with the NAAQS by a specified date.

b. If a State SIP is not prepared or is deemed inadequate, EPA is required to prepare a Federal Implementation Plan (FIP) for that State.

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c. All air quality control regions in the country are divided into one of two categories:

i. Nonattainment areas (areas in which the States are not achieving the NAAQS for a particular criteria pollutant)

ii. Prevention of Significant Deterioration (PSD) areas (areas where air quality meets or exceeds the NAAPS for a particular criteria pollutant)

d. Nonattainment Areasi. Designation as a nonattainment area requires:

1. Implementation of a SIP imposing strict limitations on new or modified sources of criteria pollutants as well as numerous other types of pollution controls intended to move the region toward compliance

2. New stationary pollution sources must comply with Lowest Achievable Emission Rate (LAER) standards

3. Existing stationary pollution sources may be required to retrofit to comply with Reasonably Achievable Control Technology (RACT) standards

e. PSD Areasi. Designation as a PSD area requires:

1. A SIP putting controls in place ensuring that air quality is maintained

2. Major new stationary pollution sources must comply with Best Available Control Technology (BACT) standards

3. New sources must demonstrate that added emissions will not cause PSD area to exceed NAAQS

V. Fundamental Weaknesses in CAA Approacha. Informational Burden

i. millions of potential sources of criteria pollutants both stationary and mobile

b. Scientific Uncertaintyi. physical and chemical fate of pollutants after emission for a source is

uncertainii. when pollutants cause “adverse effects” after emission is uncertain

VI. Precautionary Nature of the CAAa. CAA § 109(b)(1) authorizes the EPA to establish national “ambient air quality

standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [established under § 108] and allowing an adequate margin of safety, are requisite to protect the public health.”

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ATTAINING AND MAINTAINING THE NAAQSs, OFFSETSI. Congressional Delegation of Authority to EPA under CAA

a. CAA § 109(b)(1) authorizes the EPA to establish national “ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [established under § 108] and allowing an adequate margin of safety, are requisite to protect the public health.”

II. SIP Timelinea. A NAAQS is first promulgated or revisedb. States have 3 years from finalization of a NAAQS to submit SIP to EPAc. EPA has 12 months to approve or disapprove SIPd. State that fails to submit or submits a deficient SIP is subject to a number of

potential sanctionse. If State fails to obtain approval of its SIP within 2 years after a disapproval, EPA

is required to create a FIP for that State1. Union Electric Company v. EPA: (are there any constraints on the states to implement a SIP that is

economically or technologically infeasible?)a. Electric company argued that the EPA approved SIP should have been rejected b/c →

i. economically and technologically infeasible;b. Held: no statutory restraints on the state in implementing the NAAQS;

i. If State’s plan will in fact result in attainment and maintenance of NAAQS, it can implement however it chooses;

ii. There is nothing in the statutes that constrain what the state can do and implement;

iii. Technology Forcing Character of CAA’s pollution control strategies 1. expressly designed to force regulated sources to develop pollution

control devices that might at the time seem economically or technologically infeasible;

2. BUT, even though the EPA won’t prevent it;a. The state must still face political accountability (this will

constrain the state from going too far);b. Also, the electric company can go to the state agency

administering the SIP and ask for a variance, which it did after this case. (have to handle it at the state level and go to the enforcing agency)

2. Notes 3 and 4 on pg 577: the reality is NOT usually that a state comes up with something that is way too harsh and hard for industry to meet. Most of the time the plan looks good on paper BUT is not really going to be effective and will be for industry to comply with. Often assumes reductions or is based on computer modeling that is overly optimistic

III. Best Available Control Technology (BACT)a. BACT is defined “as an emission limitation based on the maximum degree of

[pollution] reduction … which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for [the] facility.”

IV. Title V Permit Programa. Added to Clean Air Act in the 1990 amendments

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b. All “major” stationary sources of criteria pollutants must obtain operating permits under Title V

c. Generally, any stationary source emitting 100 tons or more per year of a criteria pollutant is a “major” source

d. In nonattainment areas, smaller sources can be deemed “major” sources (e.g., a source emitting 10 tons of pollutants per year in an “extreme” nonattainment area for ozone is a “major” source)

i. Alaska Department of Env. Conservation v. EPA1. Alaska env dept does something that EPA doesn’t like - there is a mining

company that wants a permit and is going to emit a criteria pollutant. Since Alaska an attainment state (PSD- prevention of significant deterioration area), new source pollutants have to use BACT (best available control technology)

2. Mining company didn’t like that Alaska agency said that so mining company said let us show you this, it’s cheaper and still reduces--but then it really did not limit emissions more, SO Alaska just stuck to it’s more economically feasible.

3. Issue: whether EPA’s oversight role extends to ensuring that a state permitting authority’s BACT determination is reasonable in light of the statutory guides;

a. AK Argumenti. So long as the state has made a decision as to what the BACT

is and is requiring sources to comply with the established BACT, the EPA shouldn’t interfere;

4. Held: EPA’s oversight role extends to considering whether a state’s determination about BACT is reasonable;

a. EPA determined that AK’s BACT finding was unreasonable because it was not supported by the record (did not show that using original BACT would have been an economic hardship);

5. The Court did say, however, that the EPA does NOT have the authority to establish BACT → still the State’s responsibility

a. Basically, the State determination must be reasonable.e. New Source Review

i. Any proposed new source of CAA criteria pollutants must comply with pollution control requirements imposed by locating in either a nonattainment area or a PSD area

ii. New sources moving into a nonattainment area must comply with LAER (lowest achievable emission rate) standards

iii. New sources moving into a PSD area must comply with BACT (best available control technology) standards

V. CAA § 173 – Permit Requirements/Offsetsa. In general – [Title V] permits to construct and operate may be issued if –

i. (1) … the permitting agency determines that –1. (A) by the time the source is to commence operation, sufficient

offsetting emissions reductions have been obtained [such that total emissions in the region will be decreased to more than offset the increased emissions of the new source]; or

2. (B) in the case of a new or modified major stationary source which is located in a zone (within the nonattainment area) identified … as a zone to which economic development should be targeted, that

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emissions [from the source will not cause the area to exceed allowable emissions levels];

ii. (2) The proposed source is required to comply with the lowest achievable emissions rate;

iii. (3) The owner or operator of the proposed new source has demonstrated that all major stationary sources owned or operated by such person … in such State are subject to emission limitations and are in compliance, or on a schedule for compliance, with all applicable emissions limitations and standards…;

iv. (4) The Administrator has not determined that the applicable implementation plan is not being adequately implemented for the nonattainment area…; and

v. (5) An analysis of alternative sites, sizes, production processes, and environmental control techniques for such proposed source demonstrates that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification.

b. (c) Offsets i. (1) The owner or operator of a new or modified stationary source may

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

ii. The amount of emission reductions that must be obtained from other sources is dependent upon how severe a nonattainment zone the new source seeks to enter. For example –

1. For a “moderate” nonattainment zone reductions must be obtained at a 1.15 tons to 1 ton ratio

2. For a “serious” nonattainment, the ratio is 1.2 tons to 1 ton3. For a “severe” nonattainment zone, the ratio is 1.3 tons to 1 ton

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Reviewing SIP’s

1. EPA’s Crucial Role in Reviewing SIP’sa. To ensure SIPs include measures that will in fact result in

i. attainment & maintenance of the NAAQS.b. Federal Implementation Plan (FIP)

i. CAA mechanism for the EPA to step in and make all the choices normally reserved for the states

1. For inadequate SIPs or refusal to submit by statesii. “Conditional Approval” Authority for SIPs

1. EPA technique to avoid writing FIPs a. The EPA can condition its approval of a SIP

on the state promulgating revisions that will bring the SIP into complete compliance so long as the SIPs deficiencies are minor and corrected within one year;

c. Sanctions (CAA provides)i. Applied by EPA against states that fail to submit satisfactory

SIPs 1. suspension of federal highway funds 2. increasing the ratio of pollution offsets required

before new pollution sources can be located w/in nonattainment areas.

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

d. EPA “SIP Call” i. Basically recalling a SIP because it is not in compliance with

the CAA;2. Virginia v. EPA

a. Deals with ozone. 12 states in NE have a commission, they asked EPA to adopt a control measure which CA had adopted b/c it was stricter than the fed’l standard- commission wanted EPA to force the states to adopt it. EPA said ok, and imposed the specific control reqmnt in those states’ SIPS

b. EPA cannot condition approval of a SIP on the state’s adopting a particular control measure which the EPA deems most desirable; States have absolute discretion in making decisions about criteria and choices

i. The EPA can only reject a SIP on one of the grounds stated in § 110;

c. CAA gives the states initial responsibility for determining the manner in which NAAQS are to be achieved;

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i. State’s power to determine which sources will be burdened by regulations and to what extent;

1. So long as the SIP will in fact result in attainment and maintenance of NAAQSs, the EPA can’t reject it based on grounds that it doesn’t like the particular manner of implementation

Note 2 on pg 581: little bit of history- LA area pollution problems are really bad, EPA figured out in 1970s that CA never going to come into compliance with NAAQS based on SIPS they set. So EPA did what CAA said to, they initiated FIPS. People freaked, went to Congress and Congress in turn punished EPA for doing so. Then in 1990s the EPA was sued by env groups b/c CA still not in compliance and had not made a FIP like statute said to. 9th Cir said they had to --so EPA had to take action and instead of following what happened in 1970s they made a FIP that was essentially just covering their ass.

-SO bottom line in EPA very unlikely to create FIP

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PART SIX: RCRA

STATUTORY AUTHORITIES AFFECTING WASTE MANAGEMENT, INTRODUCTION TO RCRA

I. RCRAa. In 1976, Congress enacted the Resource Conservation and Recovery Act (RCRA)

as an amendment to the SWDA (1965). RCRA established national goals for:i. protecting human health and the environment from the potential hazards of

solid and hazardous waste disposal;ii. conserving energy and natural resources through waste recycling and

recovery;iii. reducing or eliminating the amount of waste generated, including

hazardous waste; andiv. ensuring that wastes are managed in an environmentally sound manner.

II. RCRA Structurea. RCRA establishes a national regulatory program to provide comprehensive

protection against mismanagement of hazardous waste “from cradle to grave”b. RCRA establishes a tracking system to follow hazardous waste from its point of

generation through transportation to a facility for treatment, storage or disposal (TSD)

c. TSD facilities are stringently regulated to ensure that public health is not threatened by releases of hazardous wastes

III. RCRA Actorsa. Three categories of actors fall within RCRA’s “cradle to grave” system for

hazardous wastes:i. Generators – the entity that, figuratively speaking, gives birth to the

hazardous waste in question;ii. Transporters – any entity that moves a hazardous waste from the site on

which it was generated; andiii. TSD Facilities – the entity that receives hazardous waste for either

treatment, storage or disposal purposes and which must have a federally issued RCRA permit in order to operate.

IV. Manifest Requirementa. The manifest is a data sheet that identifies each shipment of hazardous wasteb. The manifest accompanies the waste from the generating facility to the final

disposal site and allows for the “cradle to grave” tracking of the wastec. The manifest must be separately signed by the generator, the transporter, and the

TSD facility at each point in the waste’s journey from the generating facility to its ultimate destination

d. Upon receipt of the waste, a TSD facility is required to return a signed copy of the manifest to the generator

e. A generator that does not receive a signed copy of the manifest from the TSD facility within a certain time period is required to notify the government

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f. The manifest system seeks to ensure that hazardous wastes actually arrive at the permitted TSD facility and are not illegally dumped elsewhere by the transporter

V. CERCLA/RCRAa. CERCLA

i. Focus is on past – remediation of past disposal behaviorii. Liability statute authorizing remediation of past contamination and

imposition of responsibility for clean up costsiii. Imposes strict, retroactive liability

b. RCRAi. Focus is on present – managing current disposal behavior

ii. Traditional command-and-control regulatory strategyiii. Intent of RCRA is to prevent future CERCLA problems

VI. Framework for RCRAa. Is it a solid waste?

i. No (RCRA is inapplicable)ii. Yes (RCRA applies) (Move to Question #2)

b. 2. Is it hazardous?i. No (Subtitle D – largely non-regulatory – municipal solid waste)

ii. Yes (Subtitle C – stringent regulation) (Move to Question #3) c. 3. Who are you?

i. Generatorii. Transporter

iii. Treatment, Storage & Disposal Facility (TSD) (RCRA Hell)VII. Solid Waste

a. RCRA § 1004(27) -- “the term `solid waste means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from commercial, mining, and agricultural operations, and from community activities”

VIII. Disposala. RCRA § 1004(3) – “The term “disposal” means the discharge, deposit, injection,

dumping, spilling, leading, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.”

Things that will be reused do not meet definition of solid waste b/c it is NOT being discarded, so it is not solid waste.

a. American Mining Congress v. EPA (D.C. Cir.) ---(AMC)i. AMC Argument

1. Metal processing materials, if recaptured and reused, are they waste under RCRA?2. EPA had exceeded its regulatory authority in seeking to bring materials that were not

discarded or otherwise disposed of within the compass of “waste”;

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a. Recall RCRA definition of solid waste indicates that RCRA is concerned only with “discarded material”;

ii. EPA Argument1. Congress intended that materials destined for recycling or being recycled could be waste and

that the EPA has the authority to regulate recycling activities as hazardous waste management.

a. EPA Concerns → i. “Sham recycling”; ii. Certain aspects of legitimate recycling

1. - i.e. stored material (for recycling) could still cause contamination problems, such as leaching and runoff problems;

b. Under the EPA’s rule, if a material constituted solid waste, it was subject to RCRA unless it was directly reused as an ingredient or as an effective substitute for a commercial product or was returned as a raw material substitute to its original manufacturing (closed-loop recycling);

iii. Held: Chevron Step 1 analysis, 1. Term “discarded” unambiguously expressed congressional intent that solid waste be limited to

materials that are discarded by virtue of being disposed of, abandoned, or thrown away;a. EPA had overstepped their RCRA authority.

i. “EPA need not regulate spent materials that are recycled and reused in an ongoing manufacturing or industrial process”;

b. If Congress wanted to change RCRA to include material other than that “discarded”, it could do so.

c. Here the fact that this particular mining group was immediately going to reuse and reinsert this material back into the manufacturing process was important b/c not have an effect on the land etc - this is a lot like Closed Loop Recycling

iv. Dissent1. Waste is disposed under RCRA if it is put into contact with land or water in such a way as to

pose the risks to health and environment that animated Congress to pass RCRA;a. i.e. waste stored for future recycling can still cause contamination; just because the

mfgr intends to recycle the material doesn’t prevent such hazards.**Case makes the point that this is a broad interpretation that furthers the goals and intent of the statute- things getting into env and cuasing public health risks are the concern, so need to look at discard more broadly---the dissent here is analogous to the approach in Riverside Bayview, where EPA needed to be able to regulate the wetlands b/c they had an effect on the navigable waters of the US- also deference to the expertise of the agency

b. AMC II: (bad forms of recycling come to issue) (in notes after first case, pg 362-66)i. The D.C. Cir. limited AMC I to its facts;

1. “AMC’s holding concerned only materials that are destined for immediate reuse in another phase of the industry’s ongoing production process and that have not yet become part of the waste disposal problem. Nothing in AMC prevents the EPA from treating as discarded the wastes at issue in this case, which are managed in land disposal units that are part of

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wastewater treatment systems, which have therefore become part of the waste disposal problem, and which are not part of the ongoing industrial processes.”

ii. See also, American Petroleum Institute v. EPA:1. “Unlike the materials in question in AMC, the waste is indisputably discarded before being

subject to metals reclamation.” (where recycling activity has aspects of storage and hanging onto it, then that’s the kind of recycling activity that EPA can regulate)

iii. Thus, AMC I has been limited in application;1. The recycling in question must be “closed-loop” and never become “discarded” to escape

RCRA regulation by the EPA.

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IDENTIFYING HAZARDOUS WASTE, HOUSEHOLD WASTE EXCLUSIONI. Framework for RCRA

a. Is it a solid waste?i. No (RCRA is inapplicable)

ii. Yes (RCRA applies) (Move to Question #2) b. Is it hazardous?

i. No (Subtitle D – largely non-regulatory – municipal solid waste)ii. Yes (Subtitle C – stringent regulation) (Move to Question #3)

c. Who are you?i. Generator

ii. Transporteriii. Treatment, Storage & Disposal Facility (TSD) (RCRA Hell)

II. How is a Waste Deemed Hazardous Under RCRA?a. “Listed wastes” – if a waste is specifically listed by EPA in the CFR, then it is a

hazardous wasteb. “Characteristic wastes” – a waste that exhibits any one of the four hazardous

“characteristics” – ignitability, corrosivity, reactivity, or toxicity – as determined by testing performed by generators of solid waste

c. Characteristic Wastesi. “ignitability” – the tendency of a substance of catch on fire;

ii. “corrosivity” – the acidity or alkalinity of a substance;iii. “reactivity” – the tendency of a material to explode; oriv. “toxicity” – a substance containing any one of a number of metals or

organic constituents above levels established by the EPA. d. “mixture rule wastes” – any mixture of a listed waste with another solid waste

is deemed to be a hazardous waste (meaning a listed waste cannot be diluted with other solid non-hazardous wastes in an effort to avoid its classification as a hazardous waste)

e. “derived-from rule wastes” – any waste derived from the treatment, storage, or disposal of a listed waste (such as the ash residue from burning or incinerating a listed waste) is deemed to be a hazardous waste

III. “Mixture” and “Derived-From” Rulesa. These rules do not apply to characteristic wastes. A characteristic waste is only

considered hazardous so long as it continues to exhibit one of the 4 hazardous characteristics.

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

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

IV. Generator Must Determine If “Solid Waste” Is “Hazardous Waste”a. CFR § 262.11 requires a generator of a “solid waste” [the question answered at

Step 1] to “determine if that waste is a hazardous waste” [the Step 2 question].b. Two avenues to make this determination:

i. Review list of hazardous wastes in the CFR

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ii. If not listed, then determine whether the waste “exhibits a hazardous characteristic” either by:

1. Testing the waste through procedures set forth in the CFR, or 2. “Applying knowledge” of the hazardous characteristic of the

waste in light of the materials or processes usedV. Household “Waste Stream”

a. HOUSEHOLD WASTE (MUNICIPAL GARBAGE)i. ↓

ii. TREATMENT PROCESS (INCINERATION)iii. ↓iv. ASH (RESIDUE)

b. Household Waste Exclusion (1980 EPA Regulations)i. “Household waste” exempted from definition of “hazardous waste”

ii. Preamble to 1980 regs created “waste stream” exemption – residues remaining after treatment of household waste also excluded from coverage as “hazardous waste”

iii. “Waste stream” exemption lost (i.e., residues not excluded) if anything mixed in with household waste (such as commercial or industrial waste) before treatment process

iv. 1984 Statutory “Clarification of Household Waste Exclusion”1. RCRA § 3001(i) – a “facility recovering energy from the mass

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

v. City of Chicago v. EDF (Statutory Interpretation Case)1. EDF filed suit to require incinerators to manage the ash under RCRA;2. Incinerators Argument

a. Not required to manage ash under RCRA due to the EPA’s waste stream exemption, § 3001(i);

3. Held: § 3001(i) exemption did NOT apply to residue from incinerated household wastes;a. § 300(i) is silent about ash or residue being exempted –

i. Facility is exempted, not the residue or ash;b. Also § 300(i) silent about exempting those who generate hazardous waste from

household waste – i. it mentions treating, storing, disposing of, or otherwise managing waste, but

nothing about actually generating waste;

ii. Generation/generator are” terms of art” under RCRA

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1. it is significant that these words aren’t used in the exemption for household waste burning.

4. Dissent: (Case Does Not Even Understand this Argument. Probably NOT on Exam)a. When congress amended RCRA § 3001(i), it was just clarifying the waste stream

exemption previously included in the regulations;i. The administrative history came w/ or was incorporated into the clarification;

1. i.e. admits that exemption for residue/ash isn’t in the statute itself, but when regulations are clarified by statute, the statute incorporates everything about the regulation;

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

5. Waste Stream Exemption for Residue is DEAD after this case - not just for household waste mixed w/ other waste.

a. But, after this case the EPA did cut the incinerators a break by allowing fly ash and bottom ash to be tested in combination, rather than separately;

i. Bottom ash is less toxic, so regulation of ash/residue was made less stringent by this allowance.

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PART SEVEN: CERCLA

INTRODUCTION TO CERCLA, CERCLA LIABILITY, RESPONSIBLE PARTIESI. Primary Policy Goals of CERCLA

a. The primary purpose of CERCLA is remedial. The statute promotes the twin goals of:

i. Facilitating prompt and effective clean up at abandoned hazardous waste dump sites by authorizing removal and remediation operations for hazardous substances

ii. Assigning costs for such clean up to responsible parties through a comprehensive liability scheme

II. Fundamental Differences Between CERCLA and Common Lawa. Relaxed causation requirements – traditional tort causation requirements are

supplanted by a relaxed version of “endangerment” standardsb. Breadth of potentially liable persons – CERCLA casts liability net around

numerous persons who would not be held liable under common lawIII. Authorization to Act

a. CERCLA § 104(a)(1) – EPA is authorized to act whenever: (1)”any hazardous substance is released or there is a threat of such a release into the environment, or ([2]) there is a release or substantial threat of release into the environment of any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare.”

IV. Basic Elements of CERCLA Jurisdictiona. Basic jurisdictional elements under CERCLA consist of three requirements:

i. a release or threatened releaseii. of a hazardous substance

iii. from a facilityiv. See §§ 104(a)(1), 106(a), 107(a)(4)

V. Releasea. “Release” is defined in § 101(22) – “any spilling, leaking, pumping, pouring,

emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)….”

b. Threatened Releasei. Courts have indicated that a threatened release may be established by

1. evidence of the presence of hazardous substances at a facility2. together with an unwillingness of any party to assert control over

themVI. Hazardous Substance

a. Defined in § 101(14) primarily through a process of incorporation. CERCLA hazardous substances include:

i. pollutants designated under the CWAii. any listed or characteristic hazardous waste under RCRA

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iii. pollutants under the CAAiv. chemical substances or mixtures under § 7 of TSCAv. any substance designated as hazardous under § 102 of CERCLA (entire

list at 40 CFR, part 302, table 302.4)b. Exemptions to CERCLA Hazardous Substances Categories

i. Applications of pesticides registered under FIFRAii. “Federally permitted releases” – discharges or releases authorized by

permits issues under CWA, CAA or RCRAiii. New petroleum products (but not used petroleum products)

VII. Facilitya. “Facility” is defined in § 101(9) to include “any site or area where a hazardous

substance has come to be located.”VIII. Elements of CERCLA Liability

a. Jurisdictional elements (release or threatened release, hazardous substance, facility)

b. Federal government or other authorized party (state agency) incurred response costs because of the release or threatened release

c. The defendant is within one of the four classes of potentially responsible parties (PRPs) under § 107

d. (In a private cost-recovery action – PRPs against other PRPs for indemnity or contribution – a plaintiff must also demonstrate its response costs were consistent with the National Contingency Plan (NCP) under § 105)

IX. PRPsa. The four classes of PRPs under § 107 include:

i. Current owner or operator of the site;ii. Any parties who owned or operated the site at the time that hazardous

substances were disposed there;iii. Any parties who “arranged for disposal or treatment” of any hazardous

substances at the site (“generator” or “arranger” liability);iv. Any parties who both chose the site and transported hazardous substances

to it.v. (§ 101(35)(C) creates a “fifth category” of PRP under CERCLA – if a

party obtains actual knowledge of a release while it owns property and subsequently sells or transfers ownership of the property to another without disclosing that knowledge, that party is treated as a PRP and no third party defenses are available to it.)

X. Standard of Liability under CERCLAa. § 101(32) indicates that “liability” under CERCLA is to be “construed as the

standard of liability which obtains under [§ 311 of the CWA – the oil spill liability program]”

b. Sec. 311 of CWA does not specify a standard of liability but courts had interpreted this section prior to CERCLA to require imposition of strict liability (liability without regard to culpability or fault)

c. CERCLA also imposes retrospective liability – liability for conduct that occurred prior to CERCLA’s enactment without limit

XI. EPA Options for Responding to Contamination Problems under CERCLA

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a. EPA may investigate and clean up itself under § 104 and sue for reimbursement from PRPs under § 107

b. EPA may compel one or more PRPs to conduct necessary investigation or clean up by seeking a court order under § 106

c. EPA may issue PRPs a unilateral order requiring investigation or clean up under § 106

d. EPA may negotiate a settlement with some or all PRPs under which they agree to undertake any necessary response actions

XII. Disposala. CERCLA § 101(29) – “The term `disposal’ means the discharge, deposit,

injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such … may enter the environment or be emitted into the air or discharged into the waters, including ground waters.”

XIII. Defenses to CERCLA Liabilitya. Three defenses set forth in § 107(b):

i. Act of God – 107(b)(1)ii. Act of War – 107(b)(2)

iii. Third-party defense – 107(b)(3)b. “Traditional” third-party defense

i. Innocent purchaser defense1. To assert this defense, the third-party cannot be:

a. either an employee or agent of defendant, orb. “one whose act or omission occurs in connection with a

contractual relationship, either directly or indirectly, with defendant”

c. Additionally, the defendant must establish:i. that she exercised due care with respect to the

hazardous substances concerned, andii. Took all reasonable precautions against

foreseeable acts or omissions of any such third party

2. § 101(35)(A)(B) establish the elements:a. At the time of acquisition of the property, the defendant

“did not know and had no reason to know” of the hazardous substances

b. To demonstrate this, the defendant must have undertaken “all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice” at the time

c. Defendant must meet other requirements of third-party defense (i.e., “due care” and “adequate precautions”)

d. “All Appropriate Inquiry”i. The EPA published a final rule in 2005 establishing

standards and practices to satisfy the “good commercial or customary practice” requirement. At a minimum, a prospective purchaser of commercial

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property should have a “Phase 1” site assessment/environmental audit pursuant to American Society for Testing and Materials (ASTM) standards in order to utilize an “innocent purchaser” defense.

XIV. Nondisclosurea. § 101(35)(C) creates a “fifth category” of PRP under CERCLA – if a party

obtains actual knowledge of a release while it owns property and subsequently sells or transfers ownership of the property to another without disclosing that knowledge, that party is treated as a PRP and no third party defenses are available to it.

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CERLCA LIABILITY: OPERATORS AND ARRANGERSI. PRPs

a. The four classes of PRPs under § 107 include:i. Current owner or operator of the site;

ii. Any parties who owned or operated the site at the time that hazardous substances were disposed there;

iii. Any parties who “arranged for disposal or treatment” of any hazardous substances at the site (generator liability);

iv. Any parties who both chose the site and transported hazardous substances to it.

b. FMC Corp v. US DOC (3rd Cir. 1994) i. Government exercised “substantial control” and was thus “operator” of

facility where it –1. required company to manufacture rayon to assist war effort;2. Maintained significant control over production through

regulations, on-site inspectors, and possibility of seizure;3. Built and controlled plants;4. Supplied machinery and equipment for manufacturing; and5. Controlled product marketing and price.

c. “Operator”i. The primary issue in evaluating whether an entity should be assigned

“operator” status under sec. 107 is the extent to which it actually controls the operations that result in the hazardous substance release or threatened release that triggers CERCLA liability in the first instance.

d. United States v. Bestfoods (U.S. 1998) i. CPC – Parent company of Ott II

ii. Ott II – Subsidiary company of CPC. Chemical manufacturer at a plant that dumped hazardous wastes on site.

iii. Bestfoods – company that purchased Ott II from CPC prior to initiation of CERCLA clean up of Ott II plant site by EPA

iv. CERCLA Liability of Parent Corporation1. Indirect/derivative liability – a parent company may be held

liable for a subsidiary’s conduct when the corporate veil may be pierced (which happens when the corporate form would be misused to accomplish wrongful purposes)

2. Direct liability – a parent corporation can incur direct liability for its own actions in operating a facility owned by its subsidiary

3. …”an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility. To sharpen the definition for purposes of CERCLA’s concern with environmental contamination, an operator must manage, direct or conduct operations specifically related to pollution; that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.”

v. Scenarios for a Parent “To Operate” a Subsidiary’s Facility

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1. When the parent operates the facility in the stead of its subsidiary,2. When the parent operates the facility alongside of its subsidiary in

some sort of joint venture,3. When a dual officer of the parent and subsidiary departs so far

from the norms of parental influence exercised through dual office holding as to serve the parent, even when ostensibly acting on behalf of the subsidiary in operating the facility,

4. When an agent of the parent with no hat to wear but the parent’s hat might manage or direct activities at the subsidiary’s facility

e. Elements to Impose Liability on a Generatori. That the relevant generator arranged for the disposal or treatment of

hazardous substances,ii. At a facility which now contains hazardous substances of a type similar to

those sent by the generator,iii. That there has been a release or threatened release of hazardous substances

at the site,iv. That has caused the occurrence of response costs.

f. Disposal (“arranged for disposal or treatment”)i. CERCLA § 101(29) – “The term `disposal’ means the discharge, deposit,

injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such … may enter the environment or be emitted into the air or discharged into the waters, including ground waters.”

1. Burlington Northern v. U.S. (U.S. 2009) g. Ninth Circuit’s view of arranger liability –

i. “Traditional” Arranger – entity that transacts directly with another for the specific purpose of disposing of a hazardous substance

ii. “Broader Category” of Arranger – disposal of a hazardous substance was not the direct purpose of a transaction, but was a “foreseeable byproduct” of the transaction

II. Burlington Northern & Santa Fe Railway Co. United Statesa. RR owned land w/ B&B, an agricultural chemical distribution business. B&B was purchased bulk

chemical from Shell Oil Co. & stored it in tanks on the property. During the transfer of the chemical from Shell’s trucks to the bulk tanks, chemical spills occurred even though Shell took steps to prevent the spills. B&B’s sloppiness could not be overcome & the spills eventually contaminated the land underneath.

b. Issue:i. Is Shell liable under the CERCLA of “arranger” liability for supplying B&B with the

chemicalc. Held

i. Strict language of liability for “arrange[s] for disposal . . . hazardous substances”1. Plain Language of “Arrange”

a. Implies actions directed to a specific purpose2. Thus, “an entity may qualify as an arranger “when it takes intentional steps to

dispose of a hazardous substances3. this is traditional category of arranger

ii. Disposal1. defined broadly under the CERCLA

a. “the discharge deposit, injection, dumping, spilling, leaking, or placing of any solid waster or hazardous waste into or on any land or water”

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b. this is a broader category of arranger if the disposal is a foreseeable by-product of the transaction

iii. BUT1. Mere knowledge by an entity’s of leaked spilled, etc., is NOT enough, need to

prove that an entity planned for the disposal - has to be an intent to dispose in order to be found liable- CAN’T ignore what “arranged” means, some deliberate attempt to make something happen.

2. Thus, b/c Shell lacked the intent to dispose of the chemical when in transferred, it was not liable- this is not an arrangement to dispose of this stuff but to sell it

d. Dissenti. “The deliveries, Shell was well aware, directly & routinely resulted in disposal of

hazardous substances (through spill & leaks) for more than 20 years1. This equals contribution even if “mere knowledge” is not enough

III. PRP: “Owners”a. New York v. Shore Realty Corp.

i. Shore Realty Corp. bought land which had been used as a storage site for hazardous waste; Shore knew about the waste and potential cleanup liability at the time of purchase; the EPA held Shore liable under CERCLA as a “current owner”.

1. Shore’s argument →a. Causation requirement in CERCLA & current owner shouldn’t be

liable unless it owned the property during time of contamination;2. Held

a. CERCLA “unequivocally imposes Strict Liability on the current owner of a facility from which there is a release or threat of release, without regard to causation”;

b. For “prior owners,” to be liable under CERCLA, howeveri. Prior owner must show that he/she owned or operated the

facility at the time of disposal of any hazardous substance ;1. Any other rule for prior owners would allow the EPA

to hold liable a prior owner who owned the property fifty years before the hazardous waste ever came into contact with the property.

c. Court also rejects Shore’s “third party defense:”i. Only applies if the contamination by a third party occurs while

the owner owns the property;

b. Policy Question → Is current owner liability a good rule? i. Provides incentives for sellers to clean up property

1. Forces purchasers of property to come to grips w/ the fact that there is a cleanup that is going to have to occur;

2. Purchasers might be less likely to want to buy the propertyii. Catches pollution before it spreads

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CERCLA: STRICT, JOINT AND SEVERAL LIABILITY AND ALLOCATION OF LIABILITY

I. Strict Liabilitya. CERCLA does not expressly state that responsible parties are subject to strict

liability, but the statute is nonetheless uniformly construed to create a strict liability standard.

b. Thus, the government is relieved from any need to prove that hazardous substances were released as a result of negligence or that a PRP’s conduct was intentional or unreasonable.

II. Joint and Several Liabilitya. CERCLA also contains no references to joint and several liability, but has

nonetheless been interpreted to allow for, but not require, imposition of joint and several liability (meaning that a plaintiff may sue any one or all of the joint and several defendants, at the plaintiff’s option).

b. The courts have established a federally created uniform rule of decision for establishing, according to common law principles, whether the imposition of joint and several liability is appropriate on a case-by-case basis.

III. Apportionment of Harma. Restatement (2d) of Torts, § 433A

i. Damages for harm are to be apportioned among two or more causes where1. (a) there are distinct harms, or2. (b) there is a reasonable basis for determining the contribution of

each cause to a single harm.ii. (2) Damages for any other harm cannot be apportioned among two or

more causes.i. Burlington Northern & Santa Fe v. U.S.

1. Facts above: Although Court held parties liable but did not impose J&S Liability on the RRs for the entire response cost incurred by the Governments. District Court found that the contamination caused a single harm but concluded that the harm was divisible and therefore capable of apportionment. Ct took percentage of total area of the facility, duration of business, and determination of only 2/3 of the railroads parcel. Court of Appeals overturned, finding a lack of sufficient data to establish the precise proportion of contamination that occurred.

2. Issue 2: Whether the record provided a reasonable basis for the District Court’s conclusion that the Railroads were liable for only 9% of the harm caused by contamination at the facility. (a need for a reasonable basis for determining the contribution of each cause to a single harm is language from Rest of Torts §433A)

3. Held: The facts contained in the record reasonably supported the apportionment of liability. It was reasonable for the District Court to use the size of the leased parcel and duration of the lease as the starting point for its analysis. The 2/3rds analysis is less supported but the District Court included a 50% margin of error for this allocation. “District Court’s allocation of liability is supported by the evidence and comports with the apportionment principles.”

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4. Dissent: District Court undertook an heroic labor. Court should not have pursued the matter sua sponte. Government therefore was not able to respond and rebut the facts.

5. CASE’s extra notes: Professor Case had a problem with the 50% margin of error. Seems huge. Seemed to agree with the dissent.

6. Note: not all harms are capable of apportionment, and CERCLA defendants seeking to avoid joint and several liability bear the burden of proving that a reasonable basis for apportionment exists.

7. Notes:8. Joint and Several liability encourages settlement b/c once settle with the

government, other parties cannot seek contribution from you. Otherwise, each is laible for the whole and parties all have to sue each other for contribution.

9. **De minimus settlement- if it is clear to the EPA and you have enough proof to prove to EPA that you contributed a truly minimal/tiny portion to the waste, then they can make a de minimus settlement with you to get you out of the way.

IV. Burden of Proofa. The burden of proof as to whether a harm is divisible (and thus apportionment

possible) or indivisible (and thus apportionment not possible) is on the defendant.b. Damages will be apportioned only if the defendant can demonstrate the harm is

divisible. If this burden is not met, the harm is considered indivisible and joint and several liability will be imposed.

V. Mitigation of Joint and Several Liabilitya. EPA may enter into de minimis settlements under CERCLA § 122(g) b. PRPs are provided a statutory cause of action for contribution against other PRPs

under CERCLA § 113(f)i. Contribution Actions CERCLA § 113(f)

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

a. Cooper Industries v. Avialli. CERCLA § 113(f)(1) – “Any person may seek contribution

from any other person who is liable or potentially liable under section [107(a)], during or following any civil action under section [106 or 107]. … In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section [106 or 107].”

ii. Party can only bring a § 113 contribution action after it has first been sued under § 106 or § 107;

1. i.e. a party can’t voluntarily clean up a contamination and then seek contribution under § 113 for the costs associated with the cleanup;

a. Reason →i. § 113 says that a contribution

action may be brought “during or after any civil action under § 106 or 107”;

b. Rule also applies to settlements that occur prior to institution of any § 106 or 107 action.

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c. Ct said no implied right of contribution under 106 and 107 based on what 113 says

VI. Removal Actionsa. Typically short-term response actions to address releases or threatened releases

requiring prompt responseb. Removal actions are classified as: (1) emergency; (2) time-critical; and (3) non-

time criticalc. Usually more long-term response action than a removal actiond. Intended to permanently and significantly reduce the risks associated with

releases or threatened releases of hazardous substances that are serious but lack the time-criticality of a removal action

VII. National Contingency Plan (NCP) Processa. Extensive cleanup measures (“remedial measures”) may only be undertaken if site

qualifies for listing on the National Priority List (NPL)b. First Step – “Preliminary Assessment and Site Investigation” (PA/SI) – site

evaluated for NPL placement by use of the Hazard Ranking System and whether short term removal action or longer term remedial action should be undertaken

c. “Remedial Investigation and Feasibility Study” (RI/FS) – assess site conditions and evaluate alternatives to the extent necessary to select a remedy

VIII. Issuance of proposed plana. Provide opportunity for public commentb. Issuance of Record of Decision (ROD)

IX. Scope of Cleanupa. CERCLA § 121 establishes 5 requirements for remedial actions:

i. Must attain a degree of cleanup assuring protection of human health and environment (threshold criteria) [contemplates that cleanup may not be 100%]

ii. Hazardous substances remaining after cleanup must meet all “applicable” and/or “relevant and appropriate” requirements under federal and state law (ARAs) (threshold criteria)

b. Technological feasibility – must utilize permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable (balancing criteria)

c. Economic feasibility – must provide for cost-effective response, taking into account total long and short term costs of such actions (balancing criteria)

d. Must be in accordance with the NCP to the extent practicable (modifying criteria)X. Contribution

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

XI. PRPs’ Right to Recover Response Costs From Other PRPsa. CERCLA § 107(a)(4)(B) – “Notwithstanding any other provision or rule of law,

and subject only to the defenses set forth in subsection (b) … [PRPs] shall be

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liable for … any other necessary costs of response incurred by any other person consistent with the national contingency plan.”

XII. “Gore Factors”a. Ability of parties to demonstrate that their contribution can be distinguished from

othersb. The amount of hazardous substance involvedc. The degree of toxicity of the hazardous substance involvedd. The degree of involvement by the parties in the generation, transportation,

treatment, storage, or disposal of the hazardous substancee. The degree of care exercised by the parties with respect to the hazardous

substances concerned, taking into account the characteristics of such hazardous substances

f. The degree of cooperation by the parties with federal, state, or local officials to prevent any harm to the public health or the environment

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PART EIGHT: THE ENDANGEDED SPECIES ACT

RATIONALE FOR PRESERVING BIODIVERSITY, INTRODUCTION TO THE ENDANGERED SPECIES ACT

I. Purposes of Endangered Species Act (ESA)a. ESA § 2(b) – “The purposes of this chapter are to provide a means whereby the

ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such endangered species and threatened species….”

II. Section 4a. Section 4 is the gateway of the ESA through which an “endangered” or

“threatened” species must pass in order to be protected.b. If a species is not “listed” pursuant to the requirements set forth in Section 4, the

ESA does not apply.c. Listing decisions are made either by the Secretary of Commerce or the Secretary

of the Interior. However, Section 4(b)(3) allows citizens to petition to force a listing determination.

III. Section 7a. Section 7 addresses federal action and provides that the actions of federal

agencies cannot “jeopardize” the continued existence of any endangered or threatened species or result in the destruction or adverse modification of such species’ critical habitat.

IV. Section 9a. Section 9 addresses both federal and private action and makes it unlawful to

“take” any listed species.i. “Take” is defined in Section 3(19) to mean “to harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct.”

V. ESA Public Policya. ESA § 2(a)(3) – “The Congress finds and declares that – … these species of fish,

wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people….”

VI. Definition of Endangered Speciesa. ESA § 3(6) – “The term `endangered species’ means any species which is in

danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man.”

VII. Commerce Clause a. Lopez v. U.S . (U.S. 1995)

i. Holds that Congress has the authority under the Commerce Clause to regulate –

1. (1) use of the channels of interstate commerce,

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2. (2) instrumentalities of interstate commerce or persons and things in interstate commerce, and

3. (3) activities that have a substantial affect on interstate commerce. b. U.S. v. Morrison (U.S. 2000)

i. Congress’s commerce power is far broader when economic activity is regulated

ii. Although there is no “categorical rule against aggregating the effects of any noneconomic activity” in order to justify federal regulation under the commerce power, “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”

c. Gonzales v. Raich (U.S. 2005) i. Medical marijuana case

ii. Regulating intrastate activities that do not themselves substantially affect interstate commerce may be necessary if the failure to do so would leave a gaping hole in a larger, comprehensive regulatory scheme that does regulate interstate commerce

1. Cf. sec. 9 of ESA VIII. TVA v. Hill (HUGE CASE & Case Likes!!)

a. TVA argues that act shouldn’t apply b/c dam construction started prior to ESA’s passage;i. Court rejects this argument –

1. Construction doesn’t’ triggering the statute, but rather2. Turning the dam on triggers the Act - Act was passed prior to turning on

b. USSCi. Act doesn’t give the Ct. authority to weigh benefits of protection against the utility of the

proposed “taking” in order to determine if species should be protected;ii. NO weighing Costs of Protections → Statute says listed species have to be protected

c. God Squad i. Panel, available by statute, where anyone can seek an exemption from a ESA listing

ii. Used sparinglyIX. Congress’s Commerce Clause Authority for Regulation:

a. Was ESA a proper use of CC authority?i. Three Areas of Congressional Authority to Regulate under CC: (Lopez v. US)

1. Channels of interstate commerce, 2. Instrumentalities of interstate commerce or persons and things in interstate

commerce, and3. Activities that substantially affect interstate commerce;

a. This third area is the broadest area.b. National Association of Home Builders v. Babbitt

i. Rationales offered to justify ESA under Congress’s CC regulatory power1. Allowing ESA regulation of taking of a species is necessary to ability to prevent

transportation of the species in interstate commerce; (Wald)a. Case calls BS→ nothing is actually being moved in interstate

commerce in this case; 2. Important to allow prevention of immoral and injurious uses of interstate

commerce; (Wald)a. Case calls BS →Again, nothing is being moved in interstate commerce;

3. Fly substantially affects interstate commerce;a. There may be economic value in protection of the fly;

i. Protection of the possible commerce which depends on the Biodiversity;

1. Answer to this is the “Option Value”;

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a. We don’t know what the value of protecting species is now, but until we find out, we can just use the option value which is greater than zero (like a place-holder);

i. Case → May work in economic theory, but doesn’t really work in law; there is the requirement of burden of proofs in the legal realm, requiring evidence, proof, etc. - can’t just base a verdict on speculation;

4. Judge Henderson → ESA protects the fly’s habitat, not just the species; (Case! likes this Arg.)

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

X. Congress’s CC power → Far broader when economic activity is regulated; (U.S. v. Morrisson- where emphasis on economic activity)a. But, you can’t just say something is economic activity when it is not, i.e. it’s economic just

because it has some affect on economic activity; i. Although there is no “categorical rule against aggregating the effects of any noneconomic

activity” in order to justify federal regulation under the commerce power, “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”

b. Gibbs v. Babbitt (4th Cir):i. Facts:

1. FWS extended “takings” prohibition to cover experimental red wolf populations. Group of farmers & ranchers challenged authority of Fed. Gov’t to protect red wolves on private land

ii. 1st Question: How is this case reconcilable w/ Morrison? i.e How is activity economic?1. “Takings” themselves would be economic activity, so regulation of such would

be a regulation of activity - thus Morrison is not a problem;2. Commercially valuable livestock & crops @ issue → So economic

iii. 2nd Question: Is Lopez is satisfied?: (Is the effect substantial?)1. Tourism,

a. People cross state lines to hear and see the wolves, part of a national wild-life related recreational industry that involves tourism and interstate travel;

2. Wolves attract scientific researchers - doesn’t really explain this;3. Possibility of a renewed pelt industry in the future;

a. Scientific research and pelt industry seem like pretty weak arguments - it seems probable that the court was just trying to add stuff to bolster its tourism argument (spaghetti approach - throw stuff against the wall and hope some of it sticks).

4. Interstate Markets for Agriculture Products & Livestock***NOTES: challenges to Congresses power under ICC to enforce ESA continue, but are largely unsuccessful b/c the SCt has over and over concluded that most of the activities the ESA seeks to prohibit in order to protect species are commercial in nature, thus meeting a substantial cumulative effect on economic activity req when the acitivty is aggregated.

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XI. Gonzales v. Raich (medical marijuana case - again looking at ICC and scope of Congress’s power)a. Regulating intrastate activities that do not themselves substantially affect interstate commerce may

be necessary if the failure to do so would leave a gaping hole in a larger, comprehensive regulatory scheme that does regulate interstate commerce;

i. Can’t just cherry-pick certain aspects of a regulatory scheme, take them out, which will leave holes in the protection or regulation, etc.

ii. This is where § 9 comes in, fills in the hole of private persons actions

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ESA: LISTING PROCESS, REVIEW OF FEDERAL ACTIONSI. Purposes of Endangered Species Act (ESA)

a. ESA § 2(b) – “The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such endangered species and threatened species….”

II. ESA § 4a. Section 4 is the gateway of the ESA through which an “endangered” or

“threatened” species must pass in order to be protected.b. If a species is not “listed” pursuant to the requirements set forth in Section 4, the

ESA does not apply.c. Section 4 Listing Process

i. Secretary of the Interior designates the Fish and Wildlife Service (F&WS) to make Sec. 4 listing decisions

ii. Secretary of Commerce designates the National Marine Fisheries Service (NMFS) to make Sec. 4 listing decisions

d. The ESA requires the Secretary (through its designee) to act on a citizen petition to list a particular species under the Administrative Procedures Act

e. The Secretary has 90 days to decide whether a citizen petition makes a substantial case for listing a particular species

f. The Secretary has a year to decide whether to proceed with a listingg. The Secretary can postpone action upon certification that the listing cannot be

timely processed because of the press of other pending listingsh. These duties and deadlines can be enforced by citizen suit

III. Listinga. As of November 2011, there were 1,990 listed species, of which 1,193 were

animalb. Listings increased under every President since Gerald Ford, but drastically

declined under the George W. Bush Administrationi. Reagan – 32 listings per year

ii. George H.W. Bush – 59 listings per yeariii. Clinton – 65 listings per yeariv. George W. Bush – 8 listings per year

c. Listings appear to have increased again under the Obama Administrationi. Since June 2009, 99 total new listings have been made, 51 of which were

animalIV. Critical Habitat

a. When a species is proposed for listing as endangered or threatened under the ESA, the agency must consider whether there are areas of habitat essential to the species’ conservation

b. “Critical habitat” is defined in ESA § 3(5) as specific geographical areas essential for the conservation of threatened or endangered species and that may require special management and protection (including areas not currently occupied by the species but that will be needed for its recovery).

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c. As of May 2000, only 150 critical habitat designations had been made for 1,231 species

d. By June 2003, less than 400 critical habitat designations had been madee. As of August 2004, critical habitat designations had been made for only 36% of

listed speciesf. Bush Administration suspended new designation of critical habitat in May 2003g. Critical habitat designations are again being made under the Obama

Administrationi. As of May 2009, 523 total critical habitat designations had been made

ii. As of November 2011, F&W lists 610 total species (includes plants) with critical habitat designations. This is 30.6% of all listed species.

h. Critical Habitat – F&WS Explanation for Slow Pace of Designationsi. Why hasn't the Service designated critical habitat for more species?

After a Congressional moratorium on listing new species ended in 1996, the Service faced a huge backlog of species needing to be proposed for listing as threatened or endangered. For this reason, a relatively low priority has been assigned to designating critical habitat because the Service believes that a more effective use of limited staff and funding has been to place imperiled species on the List of Endangered and Threatened Species.

i. Additionally, the critical habitat designation usually affords little extra protection to most species, and in some cases it can result in harm to the species. This harm may be due to negative public sentiment to the designation, to inaccuracies in the initial area designated, and to the fact that there is often a misconception among other Federal agencies that if an area is outside of the designated critical habitat area, then it is of no value to the species.

V. ESA § 7(a)(2)a. “Each Federal agency shall … insure that any action authorized, funded, or

carried out by such agency … is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined … to be critical…. In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available.”

b. “Jeopardize”i. An action would “jeopardize” a species if it “reasonably would be

expected to reduce the reproduction, numbers, or distribution of a listed species to such an extent as to appreciably reduce the likelihood of the survival and recovery of that species in the wild.”

1. 50 C.F.R. § 404.02c. Section 7 Review Process

i. Step One1. The agency proposing to act must inquire of the reviewing agency

(F&WS or NMFS) to determine whether any threatened or endangered species are in the area of the proposed federal action.

ii. Step Two

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1. If so, the agency proposing to act must prepare a biological assessment to determine whether any such species is “likely to be affected” by the action. [This biological assessment can be included in an EA or EIS under NEPA.]

iii. Step Three1. If the biological assessment determines a species is “likely to be

affected,” the agency proposing to act must formally consult with the reviewing agency.

a. The reviewing agency must produce a biological opinion on whether the proposed action will jeopardize the species or destroy or adversely modify critical habitat.

i. If a finding of “jeopardy” is made, the action cannot go forward unless the reviewing agency can suggest an alternative that avoids the ESA violations.

ii. If a finding of “no jeopardy” is made, the action can go forward but the reviewing agency may still require measures to minimize any impact.

VI. Comparison of NEPA and § 7 of ESAa. “The procedural requirements of the ESA are analogous to those of NEPA: under

NEPA, agencies are required to evaluate the environmental impacts of federal projects “significantly affecting the quality of the human environment”; under the ESA, agencies are required to assess the effect on endangered species of projects in areas where such species may be present. A failure to prepare a biological assessment is comparable to a failure to prepare an environmental impact statement….”

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PROTECTING ENDANGERED SPECIES AGAINST PRIVATE ACTIONSI. ESA § 9(a)

a. (a) Generallyi. (1) …with respect to any endangered species of fish or wildlife listed

pursuant to section [4] of this title it is unlawful for any person subject to the jurisdiction of the United States to –

1. (A) import any such species into, or export any such species from the United States;

2. (B) take any such species within the United States or the territorial sea of the United States;

3. (C) take any such species upon the high seas;4. (D) possess, sell, deliver, carry, transport, or ship, by any means

whatsoever, any such species taken in violation of subparagraphs (B) and (C);

5. (E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of commercial activity, any such species;

6. (F) sell or offer for sale in interstate or foreign commerce any such species; or

7. (G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section [4] of this title….

b. “Take”i. ESA § 3(19) – “The term `take’ means to harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

c. “Harm”i. Department of the Interior regulations define “harm” as “an act which

actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.”

1. 50 C.F.R. § 17.3d. Incidental Takings

i. ESA § 10(a) – “The Secretary may permit, under such terms and conditions as he shall prescribe -- … any taking otherwise prohibited by section [9](a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.”

1. [NOTE: Permitee must prepare and follow a habitat conservation plan (HCP).]

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PART NINE: GULF COAST OIL SPILL

OVERVIEW OF DEEPWATER HORIZON OIL SPILL STATUTORY LIABILITY

I. Deepwater Horizon Disastera. On April 20, 2010, an explosion and fire occurred on the Deepwater Horizon – a

semi-submersible deepwater drilling rig (approximately 396 feet long and 256 feet wide that displaces 53,000 metric tons) – around 45 miles off the Louisiana coast

b. 11 individuals were killed and 17 injured of 126 people on boardc. At the time of the explosion, the rig was completing a well in water

approximately 5000 feet deepd. Thirty-six hours after the explosion, the rig capsized and sanke. From April 2010 until a top cap was placed on the well on June 15, 2010, the well

discharged approximately 5 million barrels of oil at a rate of roughly 50-60,000 barrels per day (high estimate of more than 211 million gallons)

f. In contrast, the Exxon Valdez disaster (previously the worst oil spill in U.S. history) in 1989 involved approximately 250,000 barrels (roughly 11 million gallons) of oil

g. Over an 87 day stretch, BP dumped 1.8 million gallons of toxic chemical dispersant to dilute the oil.

h. 85,000 square miles of fishing territory was closed at the peak of the spill.i. Over 600 miles of coastline was oiled.

II. Major Players in Disastera. BP plc – the owner of the well, and it leased the Deepwater Horizon from

Transocean, Ltd.i. BP leased the right to drill from the U.S. government (which has exclusive

rights to any oil and gas found up to 200 miles offshore)ii. The well was located in a specific block leased by BP and two business

partners for $34 million. BP owns 65% of the rights, Anadarko Petroleum Corporation (Houston) owns 25%, and Mitsui Oil Exploration Co. (Japan) owns 10%

b. Transocean, Ltd. – was the owner and operator of the Deepwater Horizonc. Halliburton, Inc. – a contractor that provided numerous services to Transocean,

the most important of which was cementing for the welld. Cameron International Corporation – the company that manufactured the

blowout preventer (BOP) which failed to operate properly during the incident III. Oil Discharge and Liability Under Clean Water Act (CWA)

a. Oil pollution of water bodies has, for several decades, been regulated under CWA § 311

b. In § 311, Congress declared it to be the national policy to prohibit discharges of oil into the waters of the U.S., adjoining shorelines, waters of the contiguous zone, or waters over the outer continental shelf where discharges might adversely affect natural resources under exclusive American jurisdiction

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c. Oil Discharge and Liability Under Clean Water Act (CWA)d. Oil is defined in the CWA as any kind of petroleum product, including fuel oil,

sludge, oil refuse, and oil mixed with other wastese. For oil pollution, a “discharge” includes any spilling, leaking, pumping, pouring,

emitting, emptying or dumping of oilf. Any discharge, even a de minimis one, causing a “sheen” triggers § 311g. Liable parties under § 311 include the owner, operator, or “person in charge” of

any vessel, onshore facility or offshore facilityh. The owner or operator is strictly liable for removal costs up to certain maximum

amounts set out in the statutei. An unlawful discharge or a failure to comply with cleanup orders subjects the

violator to civil penalties under the statuteIV. Oil Pollution Act of 1990 (OPA)

a. The focus of CWA § 311 was with regard to oil pollution prevention and liability for removal actions and cleanups; however, the provision was largely ineffective in addressing compensation and damage issues

b. The oil spill of the Exxon Valdez in March 1989 emphasized this gap in coverage in the perception of the public and Congress

c. In August 1990, Congress unanimously passed the OPA as an amendment to CWA § 311 and with numerous substantive provisions of its own

V. National Contingency Plana. As amended by OPA, CWA § 311 authorized the President to develop a National

Oil and Hazardous Substances Pollution Contingency Plan (NCP) to specify the federal response actions and authorities related to an oil spill

b. The statutory authority for the NCP as a whole comes from a combination of CERCLA, OPA and the CWA

c. The NCP provides the President the authority to perform cleanup immediately using federal resources, monitor the response efforts of the responsible party, or direct that party’s cleanup activity

d. The NCP establishes the National Response System (NRS), a coordinated national response strategy for addressing oil spills and hazardous substances

VI. OPA Liabilitya. Under OPA, a “responsible party for a vessel or a facility from which oil is

discharged … into or upon the navigable waters or adjoining shorelines or the exclusive economic zone [i.e, 200 nautical miles beyond the U.S. shore] is liable for the removal costs and damages … that result from such incident.”

b. OPA defines a “facility” as “any structure, group of structures, equipment, or device (other than a vessel) which is used for one or more of the following purposes: exploring for, drilling for, producing, storing, handling, transferring, processing, or transporting oil”

c. The term “vessel” is defined as “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, other than a public vessel” (i.e., vessel owned by federal, state, or foreign government not engaged in commerce)

d. “Responsible Party” Liability

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i. To incur liability under the OPA, a claimant need only show that a discharge occurred and that the defendant is a “responsible party” (strict liability)

ii. If a “vessel”, the responsible party includes “any person owning, operating, or demise chartering the vessel”

iii. If a “facility”, the responsible party includes the owner or operator of the facility and/or the “lessee or permittee of the area in which the facility is located or the holder of a right of use and easement granted under applicable State law or the Outer Continental Shelf Lands Act for the area in which the facility is located”

e. “Responsible Party” Defensesi. The OPA provides defenses to “responsible parties” when the discharge is

caused solely by a third party, an act of God, or an act of war (analogous to defenses under CERCLA)

ii. An employee or agent of the responsible party is excluded from the definition of a third party

iii. A third party defense is also unavailable if the discharge was caused by one with a contractual relationship with the responsible party

iv. Even if a third party defense is not available, a responsible party may seek contribution from other responsible parties

v. The OPA does not preclude enforcement of a valid indemnification agreement, contractually protecting a responsible party from the liability of others, but an indemnification agreement cannot shift statutory liability from the responsible party to anyone else

f. “Responsible Party” Liability Limitsi. Under the OPA, a responsible party is liable for removal costs and

damagesii. “Removal costs” include all removal costs incurred by the United States, a

State, or any person whose acts are consistent with the NCPiii. With regard to discharge from an offshore facility, liability for removal

costs is unlimited and liability for damages is capped at $75 millioniv. With regard to discharge from a vessel, the total of removal costs and

damages are capped at $950 per gross ton of the vessel or $800,000, whichever is greater

g. Loss of Liability Limitsi. Liability limits do not apply in any instance where the incident was

“proximately caused” by the gross negligence, willful misconduct, or violation of an applicable federal safety, construction, or operating regulation by (1) a responsible party, (2) an agent or employee of the responsible party, or (3) a person acting pursuant to a contractual relationship with the responsible party

1. In this circumstance, liability would be unlimitedh. Categories of OPA “Damages”

i. Natural Resources – “Damages for injury to, destruction of, loss of, or loss of use of, natural resources [i.e., fish, animals, plants, and their habitats], including the reasonable costs of assessing the damage”

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ii. Real or Personal Property – “Damages for injury to, or economic losses resulting from destruction of, real or personal property, which shall be recoverable by a claimant who owns or leases that property”

iii. Subsistence Use – “Damages for loss of subsistence use of natural resources, which shall be recoverable by any claimant who so uses natural resources which have been injured, destroyed, or lost, without regard to the ownership or management of the resources”

iv. Revenues – “Damages equal to the net loss of taxes, royalties, rents, fees, or net profit shares due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by the Government of the United States, a State, or a political subdivision thereof”

v. Profits and Earning Capacity – “Damages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by any claimant”

vi. Public services – “Damages for net costs of providing increased or additional public services during or after removal activities, including protection from fire, safety, or health hazards, caused by a discharge of oil, which shall be recoverable by a State or a political subdivision of a State”

VII. Oil Spill Liability Trust Funda. Created by Congress in 1986 to pay for costs associated with oil pollution

i. Source of the OSLTF is a tax on petroleum productsii. The President may borrow up to $1 billion from the OSLTF per incident

and a limit of $500 million per incident for damages to natural resourcesiii. Costs that may be covered by the OSLTF include removal costs incurred

by the federal or state government, costs for assessing natural resource damages, and claims for uncompensated removal costs or damages

VIII. OPA Compensation and Claims Processa. Claims for removal costs and damages must be presented first to the responsible

partyb. If the responsible party denies liability, or the claim is not paid within 90 days

from presentation, the claimant may elect either to sue the responsible party in federal court or present the claim directly to the OSLTF

c. If the claimant elects to sue the responsible party in court, then the claimant may not claim against the OSLTF during the pendency of the litigation

IX. Independent Fund for Claims Against BPa. In June 2010, President Obama announced that BP had agreed to set aside $20

billion to pay economic damage claims to people and businesses affected by the oil spill

b. Claims will be processed by an independent claims facility administered by Kenneth Feinberg

c. The standards for payment of claims may mirror the OPA’s liability framework or may differ to some degree

d. As of Oct. 2011, $6 billion has been paid from the fund to about 213,000 individuals and businesses.

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e. The claims facility will remain in place until Aug. 22, 2013. Any claims made after that date will be directed to BP or litigated in the courts.

f. Even though the spill occurred 18 months ago, the claims fund continues to receive about 2,270 claims each week on average.

g. Decisions on claims by the fund administrator can be appealed to the U.S. Coast Guard. Of about 1,400 appeals reviewed so far, all fund decisions have been affirmed.

X. Federal Litigation of Claims Against BP and Othersa. Over 120,000 claimants have chosen not to take final claims payments from the

$20 billion BP compensation fund and have, instead, filed law suits against BP and others under the OPA and general maritime law.

b. In the fall of 2010, the judicial panel on Multidistrict Litigation (MDL) consolidated these legal proceedings before a federal district judge in New Orleans.

c. Trial is expected to begin in February 2012.d. Trial phase I – will focus on liability for the blowout, including apportionment of

fault among all defendantse. Trial phase II – will make a factual determination of the amount of oil actually

spilled, and the culpability of the conduct of the parties in seeking to stop the oil from gushing

f. Trial phase III – will focus on the culpability of the conduct of the parties in containment of the oil, controlled burns, spraying of dispersant, etc.

XI. Governmental Claims of Regulatory Violations Under OPAa. On Dec. 15, 2010, the DOJ sued BP and others for violations of the OPA. This

suit has been consolidated with the MDL in New Orleans.b. The government claims willful misconduct or gross negligence by the defendants

justifying unlimited removal costs and damages under the OPA, including civil penalties of $4,300 per barrel spilled oil (of which the government estimates 4.1 million barrels).

c. According to the DOJ complaint, federal safety and operating regulations were violated in the drilling of the well, including: failure to take necessary precautions to keep the well under control; failure to use the best available and safest drilling technology to monitor the well's conditions; failure to maintain continuous surveillance; and failure to use and maintain equipment and material that were available and necessary to ensure the safety and protection of personnel, equipment, natural resources, and the environment.

XII. No Pre-Emption of State Lawa. The OPA does not pre-empt States from imposing additional liability or

requirements with regard to the discharge of oil within their State or any removal action in connection with any such discharge

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PART TEN: VIOLATIONS AND ENFORCEMENT

DETECTING VIOLATIONS, ENFORCEMENT AUTHORITIES AND POLICIES

I. EPA Incentives for Self-Policinga. Provides reduced civil and criminal penalties for violations discovered through

regular environmental audits if self-reported and promptly correctedb. Greater benefits are provided to those who discover violations through

environmental audits or other systematic procedures than those who discover violations through other means

c. Encourages companies to make environmental audits a regular part of operationsd. Discourages companies from disclosing violations only after they believe they are

about to be discoverede. Gravity-based penalties for violations discovered through systematic means are

reduced by 100%f. Gravity-based penalties for violations discovered through other, non-systematic

means are reduced only 75%g. Criminal penalties are eligible for waiver if violations are discovered either

through systematic or non-systematic meansII. Gravity-Based Penalty

a. That portion of a penalty over and above the economic benefit from non-compliance – that is, the punitive portion of the penalty rather than that portion of the penalty representing recovery of a defendant’s economic gain from non-compliance with environmental laws.

III. EPA Policy on Compliance Incentives for Small Businessa. EPA will forgo all penalties – including recovery of the economic benefit of

violations – for small businesses that make “good faith” effort to comply either through environmental self-audits or receiving on-site compliance assistance

i. Small businesses are defined as companies with 100 or fewer employees on a company wide basis

IV. Penalty Policies – CWAa. CWA § 309(d) requires that courts consider the following factors in determining

civil penalties for violations:i. the seriousness of the violation;

ii. the economic benefit of the violation;iii. the violator’s history of such violations;iv. whether the violator made good faith efforts to comply;v. the economic impact of the penalty on the violator; and

vi. such other matters as justice may require.b. Procedural Framework for Calculating CWA Civil Penalties

i. “First, calculate the maximum penalty that could be assessed against the violator. Using that maximum as a starting point, the court then determines if the penalty should be reduced from the maximum by reference to the statutory factors.”

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ii. Sierra Club v. Cedar Point Oil – 809 days of unlawful discharge TIMES $25,000 per day maximum fine = maximum penalty of $20,225,000

V. RCRA – Authorization of State Programa. RCRA § 6926(b) – if a State has been authorized by EPA “to administer and

enforce a hazardous waste program”, the “State is authorized to carry out such program in lieu of the Federal program in such State and to issue and enforce permits under [RCRA]”

b. RCRA § 6926(d) – “any action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action taken by the [EPA] under this subchapter”

VI. Federal Enforcement – RCRAa. RCRA § 6928(a)(1) – “Except as provided in paragraph (2), whenever … the

[EPA] determines that any person has violated or is in violation of any requirement of this subchapter, the [EPA] may issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both, or the [EPA] may commence a civil action in the … district in which the violation occurred for appropriate relief….”

b. RCRA § 6928(a)(2) – “In the case of a violation of any requirement of [RCRA] where such violation occurs in a State which is authorized to carry out a hazardous waste program under section 6926 …, the [EPA] shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under this section.”

c. Refusal to Authorize or Withdrawal of Authorizationi. RCRA § 6926(b) – authorizes EPA to reject application from State to

administer and enforce RCRA if determined that the State program “does not provide adequate enforcement of compliance”

ii. RCRA § 6926(e) – allows EPA to withdraw authorization of State if it “is not administering and enforcing a program authorized under this section in accordance with the requirements of this section”

d. 8th Circuit’s Holding in Harmon Industries v. Browner i. Secs. 6926 and 6928 when read together mean the following:

1. an authorized State has the primary enforcement authority for RCRA violations in that State

2. if the State’s authority to administer and enforce RCRA is rescinded by EPA, then the State cannot act and EPA can

3. if the EPA has given notice to an authorized State under § 6928(a)(2), and the State fails to initiate any enforcement action, EPA can then institute its own enforcement action

VII. Clean Air Act – Overfilinga. 42 U.S.C. § 7413(e) – “in determining the amount of any penalty to be assessed

under this section …, the court [] shall take into consideration … payment by the violator of penalties previously assessed for the same violation”

b. Harmon Industries: → “Overfiling” Issue (Case → tedious statutory interpretation) (8th Cir.)i. Missouri company realizes after RCRA passed that they are in violation. Missouri gives them a

consent decree---> EPA does not honor this and steps over Missouri and goes after Harmon itself. It files against Harmon.

ii. RCRA Delegation/Authorization of state Program:

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1. RCRA § 6926(b) – if a State has been authorized by EPA “to administer and enforce a hazardous waste program”, the “State is authorized to carry out such program in lieu of the Federal program in such State and to issue and enforce permits under [RCRA]”; (thought supporting the EPA would be that this only identifies what program we are enforcing and does NOT say what entity gets to enforce the program, b/c under 6929(a)(2) the EPA has authority to come in---> so issue becomes how to harmonize all of these principles)

2. RCRA § 6926(d) – “any action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action taken by the [EPA] under this subchapter”; (state argues it is authorized to take action in liue of, replacing the fed’l program, so EPA cannot overstep the state)

iii. The issue is whether the EPA has the authority to “overfile”, which is a policy that they have always had;

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

iv. RCRA’s federal enforcement provisions:1. RCRA § 6928(a)(1) – “Except as provided in paragraph (2), whenever … the [EPA]

determines that any person has violated or is in violation of any requirement of this subchapter, the [EPA] may issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both, or the [EPA] may commence a civil action in the … district in which the violation occurred for appropriate relief….” (EPA arg for FEd’l power to act arises from here)

2. RCRA § 6929(a)(2) – “In the case of a violation of any requirement of [RCRA] where such violation occurs in a State which is authorized to carry out a hazardous waste program under section 6926 …, the [EPA] shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under this section.” (this looks like it authorizes action by EPA)

v. RCRA’s provisions for refusal of authorization of withdrawal of authorization:1. RCRA § 6926(b) – authorizes EPA to reject application from State to administer and enforce

RCRA if determined that the State program “does not provide adequate enforcement of compliance”

2. RCRA § 6926(e) – allows EPA to withdraw authorization of State if it “is not administering and enforcing a program authorized under this section in accordance with the requirements of this section”

vi. 8th Circuit’s holding in Harmon:1. Secs. 6926 and 6928 when read together mean the following:

a. An authorized State has the primary enforcement authority for RCRA violations in that State; (intent of Congress was to supplant the primary role of the EPA with the state where appropriate, so State has primary role now and EPa has secondary)

b. If the State’s authority to administer and enforce RCRA is rescinded by EPA, then the State cannot act and EPA can;

c. If the EPA has given notice to an authorized State under § 6928(a)(2), and the State fails to initiate any enforcement action, EPA can then institute its own enforcement action.;

d. ****If the state is enforcing, the EPA cannot, if state not enforcing then EPA can give notice and come in and enforce.

2. State program, under EPA authorization, supplants federal administration authority, which includes enforcement;

a. Plain meaning of statute implies that EPA can’t also enforce RCRA in a state which has been authorized; if the EPA doesn’t think a state is doing enough or is going to do enough, it can refuse authorization or withdraw authorization, respectively- meaning rescind the right of the state to run the program, but we all know that the EPA does not like to have to run the programs itself.

3. What’s the problem w/ this result?

98

a. The state can pretty much just hold the EPA hostage - how long does the EPA have to wait on the state?

b. Casei. need to be a rule of reason, and what happened here was

unreasonable.???????

c. 10th Circuit rejects Harmon’s interpretation in every aspect - EPA has the authority to overfile under RCRA; (Note 1, p. 1034)

i. No other circuit has answers this question.***So there is a Circuit split on the issue

d. Harmon result doesn’t apply to Clean Air Act : (Note 3, p1035). i. 42 U.S.C. § 7413(e) – “in determining the amount of any penalty to be assessed under this section …,

the court [] shall take into consideration … payment by the violator of penalties previously assessed for the same violation”;

1. The statutory language directly indicates that EPA has the authority to overfile- to have a secondary enforcement over the state action. So diff language allows for diff result.

VIII. Criminal Enforcementa. One way to create incentives to comply with env. laws is the threat of criminal punishment. deterrence creates

a culture of voluntary compliance. i. need these incentives to comply b/c there are inadequate resources to enforce everything.

b. Virtually all Fed. Env. Laws provided criminal penalties for knowing or willful violationsi. Proof on “intent” not necessary to hold corporate officials liable for violating health or safety

regulationsc. Big Issue

i. Mens Rea Requirement for Proving liability (Open to the Circuits @ this point)ii. General Intent v. Specific Intent

d. Potentially Liable Parties i. Corporate Officers

ii. Employees who make corporate decisionsiii. Corporations themselves IF

1. Done to benefit the corporations & related to employees duties

e. Severity of Penalties & Endangerment of Human Lifei. Particularly severe if “places another person in imminent danger of death or serious bodily injury”

ii. 5th Cir.1. only applies after violation has occurred

f. Two Fundamentally Different Views i. Moral Outrage

1. Env. standards as a moral obligationii. Cool Analysis

1. Sanctions are merely part of cost of doing business

g. U.S. Weitzenhoff (9th Cir.)

99

i. Facts : Two sewage treatment plant operators discharged solid waste above NPDES limits into the ocean on several occasions (did this to bypass the measuring system/effluent samplers that measures the permit levels so that EPA would not know not in compliance) . Evidence indicated knowing, purposeful actions & a coverup. → Charged with conspiracy & substantive violations of CWA under Sect 309(d)- knowingly violating permit. Not in compliance with the CWA NPDES permit.

ii. Issue :1. What mens rea should be used for enforcing by criminal punishment? Mens Rea → General v.

Specific? 2. The worry is that it is possible to go too far in trying to create incentive.3. For “Intent:” Does the knowingly violate language in the CWA require (a) that offender know

he is violating the terms of the statue or permit OR (b) the offender merely be aware he is discharging the relevant pollutants?

4. What does it mean to knowingly violate? D tries to argue that it means knowingly went over the permit allowance, that they knew what they were doing would violate the permit, that knew actions illegal. Prosecutors are interpreting knowing violation as NOT knowingly violate permit BUt knowingly doing the violations that turn out to be illegal.

iii. Δ Argued1. Mistake when they discharged into the ocean2. Gov’t must prove that they intended to violate the permit, intended to do something

illegal.

iv. П Argued 1. didn’t have to intend to break the law, just had to intend to engage in the act

v. Held :1. The CWA is designed to protect the public @ large2. Knowingly violating “or caused the violation” is in the legislative history so use that to

support finding3. Pubic Welfare Offense Doctrine : Quoting International Minerals

a. “Where dangerous or deleterious devices or products or obnoxious waste material are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation”

4. No need to prove that offenders knew their acts violated the permit or CWA- knowingly is generally intent that you knew you were doing the act

vi. Dissent 1. Plain Language of the statute says it is a felony to “knowingly violate . . . any permit

condition or limitation”a. Legal Issue

i. what knowledge would turn innocently or negligently violating into a “knowing” permit violation? Here could have proven knowing violated permit by showing did dumping at midnight, that they told everyone to keep quiet, fact that bypassing the effluent sampling b/c knew the sampling was a violation shows that knew if send all of it into ocean it’s a violation.

2. Congress did NOT Intend, based on the language, to criminalize knowing discharge without a requirement of knowledge of a violation

3. Malum Prohibitum - these are crimes b/c we say they are wrong, illegal b/c we say so.4. Malum in se - these are morally wrong -- Dissent says that env violations should not be

considered malum in se (Public Welfare Offenses- seem like a very serious level, hold to high standard such that seem to treat env. violations as more than malum prohibitum)

a. Lenity should apply5. Int’l Minerals

a. → MISDEMEANOR case6. Protecting the public @ large does not justify making felons of sewer worker who

unknowingly violates their plants permits

100

NOTE 6: Talks about debate over dispensing with the specific inent reqs for env crimes, NOTE: not all jurisdictions take the approach in Weitzenhoff .

h. pg 1050- Mistake of Law v. Mistake of Facti. Ahmad (5th Cir.)

1. Distinguishes Weitzenhoff as a mistake of law. In this case a guy said he mistook gasoline for water. (Mistake of Fact)

a. This type of D# is OKi. Lenity

i. proposed legislation that Δ should have an opportunity to proved that they engaged in objectively reasonable behavior based on the language of the staute

ii. constitutional vagueness type issue

j. Prosecutorial Discretional to Keep the Gov’t from Going too Far

k. “Public Welfare ” as Rationale for Dispensing w/ Specific Intent→ Regulatory statute that is deemed to protect from some RISK of really specific harm

→ from the standpoint of Criminal Intent, when dealing with very toxic(?) substances, presumption that one is aware (whether they are or are not)

l.

101

PART ELEVEN: CLASS ASSIGNMENTS

Assignment # Assignment Pages

Chapter 1: Environmental Values and Policies: An Introduction

1 Policies, Problems and Values 1-23

2 Economics and Ecology 26-53

Chapter 2: Environmental Law: A Structural Overview

3 Common Law Roots 61-88

4 Statutory Law, Standing, Constitutional Authority 88-115, 125-129

5 Regulation and its Alternatives 129-139Prepare to Discuss Case Study: Liability, Regulationand Oil Spills -- Questions One, Two, Three and Five

6 The Regulatory Process 159-180

Chapter 8: Environmental Impact Assessment

7 Introduction to NEPA, the EIS Requirement 857-878Statutory Review: NEPA §§ 101,

8 Cumulative Impacts, the Significance Requirement andEnvironmental Assessment 878-903

9 Adequacy of EISs, How Well Has NEPA Worked 903-934

Chapter 6: Water Pollution Control

10 The Scope of Federal Authority to Regulate Water Pollution 643-670Statutory Review: CWA §§ 101(a)(1), 101(a)(2),

101(a)(7), 301(a), 502(7), 502(12)

11 Regulation of Discharges From Point Sources 670-698Statutory Review: CWA §§ 301, 402, 502(6), 502(12),

102

502(14)

12 Technology-Based Effluent Limitations, POTWs,Water Quality Standards, Interstate Pollution 698-726

Statutory Review: CWA §§ 301(c), 301(g), 301(l),301(n), 303

13 Individual Control Strategies, Section 401 Certification,TMDLs 726-748

Statutory Review: CWA §§ 101(a)(3), 304(l), 401(a),401(d), 303(a)

Chapter 5: Air Pollution Control

14 Introduction to CAA, What is an Air Pollutant?,Greenhouse Gas Emissions and the CAA 499-517, 546-551

15 National Ambient Air Quality Standards 551-559

Statutory Review: CAA §§ 108, 109, 110, 112

16 Revising NAAQSs, Attaining and Maintainingthe NAAQSs, Offsets 559-564, 573-591

Statutory Review: CAA § 173

Chapter 4: Waste Management and Pollution Prevention

17 Statutory Authorities Affecting Waste Management,Introduction to RCRA 338-366

Statutory Review: RCRA § 1004(27)

18 Identifying Hazardous Waste, Household WasteExclusion, Subtitle D 366-393

Statutory Review: RCRA §§ 3001(i), 3017(f)

19 Introduction to CERCLA, CERCLA Liability,Responsible Parties 393-411

Statutory Review: CERCLA §§ 101(9), (14), (22),(23), (24), (35)(A)(B)(C), 104, 104(a)(1),106, 106(a), 107(a), (b), (q), (r)

20 CERCLA Liability: Operators and Generators 411-428Statutory Review: CERCLA §§ 101(2)(A), (E), (F),

(G), 107(a), 107(o), 127

103

21 Strict, Joint and Several Liability and Allocation ofLiability 429-461

Statutory Review: CERCLA §§ 113(f), 121, 122(g)

Chapter 9: Preservation of Biodiversity

22 Rationale for Preserving Biodiversity, Introduction tothe Endangered Species Act 935-964

Statutory Review: ESA §§ 2(a)(3), 4, 7, 9

23 Listing Process, Review of Federal Actions 964-988Statutory Review: ESA §§ 4, 7

24 Protecting Endangered Species Against PrivateActions 988-1002, 1007-1009

Statutory Review: ESA §§ 3(19), 9, 10(a)

Supplemental Material: Deepwater Horizon Oil Spill25 Overview of Legal Aspects of BP/Gulf Coast Oil Spill [Materials to be

posted on TWEN]

Chapter 10: Environmental Enforcement

26 Detecting Violations, Enforcement Authorities and Policies 1011-1037Statutory Review: RCRA §§ 3006(b), 3006(d), 3008(a)(1),

3008(a)(2), CAA § 113(e)(1)

27 Criminal Enforcement 1037-1053

110th Cir, 45

22nd Cir,, 28

440 C.F.R. § 1501.4, 2240 C.F.R. § 1508.13, 2240 C.F.R. § 1508.9, 2240 C.F.R. §1508.8, 2242 U.S.C. § 7413(e), 96, 98

55 U.S.C. § 551(4), 125 U.S.C. § 551(5), 125 U.S.C. § 553(c), 125 U.S.C. § 702, 9, 135 U.S.C. § 706, 13

AACoE, 33administrative law, 16adverse environmental effects, 17agency, 4, 9, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24,

25, 26, 27, 28, 29, 30, 32, 36, 38, 41, 46, 52, 58, 59, 65, 71, 85, 86, 87

104

Agency Deference, 14Agency expertise, 14Ahmad, 100air pollutant’, 49Alaska Department of Env. Conservation v. EPA, 59alternative requirement, 42alternatives to the proposed action, 18Ambiguity, 4AMC, 64AMC II, 65American Mining Congress v. EPA (D.C. Cir.) ---(AMC,

64APA Rulemaking, 1, 12applicable” and/or “relevant and appropriate”

requirements, 79ARAs, 79arbitrary, capricious, 13Arkansas v. Oklahoma, 45Arranger, 75Associational Standing, 10Audobon v. Dept of the Navy, 26

BBACT, 52, 57, 58, 59BADT, 42BAT, 42, 43, 56Best Available Control Technology, 57, 58best available demonstrated control technology, 42best available technology economically achievable for

each category or class, 42best practicable control technology currently available,

42Bestfoods, 74biological assessment, 86, 87biological opinion, 87BPT, 42Breadth of potentially liable persons, 70Burden of Proof, 78Burlington Northern & Santa Fe Railway Co. United

States, 75Burlington Northern & Santa Fe v. U.S., 77Bush, 50, 55, 85, 86

CCAA, 2, 14, 29, 49, 50, 51, 52, 54, 55, 56, 57, 58, 59, 61, 62,

70, 71, 102, 103Calvert Cliffs Coordinating Committee v. U.S. Atomic

Energy Commission, 28Carbon monoxide, 54

CERCLA, 2, 63, 64, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 91, 92, 102, 103

Chemical Manufacturers Association v. NRDC, 42Chevron, 1, 14, 32, 40, 41, 45, 65City of Chicago v. EDF, 68Clean Air Act, 16, 49, 54, 56, 58, 96, 98Clinton, 13, 55, 85Collective Action Problem, 5Command-and-Control, 3Comment – 5 U.S.C. § 553(c), 12COMPLEXITY, 4Congressional Declaration of Policy in NEPA, 17Congressional Review Act, 13Connected Actions, 19Consideration of Alternatives, 25Consumption, 5contamination, 5, 64, 65, 74, 76, 77, 78Cooper Industries v. Aviall, 78Court challenges to EPA GHG regulations, 52CPC, 74Criminal Enforcement, 98, 103Critical Habitat, 85, 86CUMULATIVE, 3, 19Cumulative Actions, 20CWA, 31, 32, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46,

47, 48, 56, 70, 71, 90, 91, 95, 99, 101, 102CWA § 303(d), 45CWA § 303(d)(1)(A), 48CWA § 304(l), 45CWA § 402, 39CWA § 404, 39CWA § 502(6), 41CWA Policy Goals – 1972, 31CWA Section 301, 31CWA Section 402, 31CWA Section 404, 31

DD.C Cir, 40de minimis settlements, 78Defenses to CERCLA, 72Dept of Trans v. Public Citizen, 24Dept. of Transportation v. Public Citizen, 29derived-from rule wastes, 67Designated uses, 43Dictionary definitions, 35, 36, 37Direct regulation, 6discharge, 7, 31, 39, 40, 41, 42, 46, 47, 64, 72, 75, 91, 92,

93, 94, 96, 99Discharge, 31, 39, 90

105

discharge of a pollutant, 31, 39Disposal, 64, 67, 72, 75Douglas’s dissent, 11Dredged, 39

EEconomic feasibility, 79ECONOMIC INEFFICIENCY, 4EIS, 1, 3, 17, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 87,

101Endangered Species Act, 81, 85, 103Environmental Economics, 5environmental impact, 17EPA CJO, 45EPA Tailoring Rule, 51ESA, 2, 81, 82, 83, 85, 86, 87, 89, 103ESA § 9(a), 89Executive Order 12,866, 13Executive Order 12,898, 13externality, 5, 6Extraction, 5

FFacility, 64, 67, 68, 71, 74fairly traceable, 9Federal Implementation Plan, 56, 61Fill Material, 39FIP, 56, 58, 61, 62FMC Corp v. US DOC (3rd Cir. 1994), 74FONSI, 22, 24, 29Formal Rulemaking, 12

GGap filling, 14Generators, 63, 102Georgia v. Tennessee Copper Co, 7GHG, 49, 50, 51, 52Gibbs v. Babbitt (4th Cir):, 83Gonzales v. Raich, 82, 83Gore Factors, 80Gravity-Based Penalty, 95

HHanly v. Kleindienst, 21Harmon Industries, 96Harmon Industries v. Browner, 96

hazardous, 56, 63, 64, 65, 67, 68, 70, 71, 72, 74, 75, 76, 77, 79, 80, 91, 96, 97

Hazardous Air Pollutants, 56Hazardous Substance, 70Household Waste Exclusion, 68Hybrid Rulemaking, 12

IIncidental Takings, 89Informal Rulemaking, 12injury-in-fact, 9Institutional Differentiation, 4Intensity, 20International Paper Co. v. Ouellette, 8irreversible and irretrievable commitments of resources,

18, 19, 20

Jjeopardy, 87Joint and Several Liability, 77, 78, 102Judicial Review, 13

KKennedy’s Concurrence, 35, 37Kleppe v. Sierra Club, 30

LLAER, 57, 59Lead, 54, 55Legal realism, 15Legislative Attacks on EPA Authority to Regulate GHGs, 52Listing, 81, 85, 103long” or “(A)(ii)” list, 46Lopez v. U.S, 33, 81Lowest Achievable Emission Rate, 57Lujan v. Defenders of Wildlife, 9, 10

MMadison v. Ducktown Sulphur, Copper & Iron Co, 7Major Federal Action, 18manifest, 63market failure, 5, 6Market-based approaches, 6Marsh v. Oregon Natural Resources, 27Marshall, 28Mass. v. EPA, 50, 51Massachusetts v. EPA, 11

106

MEANS AND METHODS, 3medium” or “(A)(i), 46Metropolitan Edison Co. v. People Against Nuclear

Energy, 24Migratory Bird Treaties, 33Missouri v. Illinois, 7mixture rule wastes, 67

NNAAQS, 49, 54, 56, 57, 58, 60, 61, 62Nat’l Audobon v. Dept of the Navy, 24National Association of Home Builders v. Babbitt, 82National Contingency Plan, 71, 79, 91National Mining Association v. Corps, 40National Priority List, 79nationally uniform ambient air quality standards, 54Navigable waters, 33, 38NCP, 71, 79, 91, 92NEPA, 1, 17, 18, 19, 20, 23, 24, 25, 28, 29, 30, 87, 101NEPA § 102(2)(C)], 17, 19NEPA § 102(2)(E), 23NEPA § 102(2)(E)], 18New Source Review, 59New York v. Shore Realty Corp, 76Nitrogen dioxide, 56Nitrogen oxide, 54Nonattainment, 57Nondisclosure, 73Notice – 5 U.S.C. § 553(b), 12NPDES, 31, 39, 43, 45, 99NPL, 79NRDC v. Costle, 39Nuisance, 7

OObscurity, 4Offsets, 59, 60, 102Operator, 74Ott II, 74Owners, 76Ozone, 54, 55, 56

PParticulate matter, 54Permit, 31, 43, 45, 58, 59Point Source, 39point source’, 39, 40Policy Options, 6

POLITICS, 3POTW, 43Precautionary Standard, 49Preliminary Assessment and Site Investigation, 79Presidential Oversight of Rulemaking, 13Prevention of Significant Deterioration, 52, 57price instruments, 6private right of action, 9Problems of Timing and Scope, 30Processing/fabrication, 5Processing/Fabrication, 5Pronsolino v. Nastri, 48PRPs, 71, 72, 74, 78, 79PSD, 51, 52, 57, 59Publication – 5 U.S.C. § 553(d), 12PUD No. 1 of Jefferson County v. Washington Dept. of

Ecology:, 46

RRACT, 57Rapanos, 1, 35, 36, 37, 38RCRA, 2, 63, 64, 65, 66, 67, 68, 69, 70, 71, 96, 97, 98, 102,

103Reasonably Achievable Control Technology, 57redressable, 9Relatively Permanent Bodies of Water, 35relatively permanent, standing or flowing bodies of

water, 35Relaxed causation requirements, 70Remedial Investigation and Feasibility Study, 79Representational Standing, 10, 11Residue, 69RISK, 3, 100Riverside Bayview, 32, 33, 35, 36, 37, 65Roberts v. Methow Valley, 29Robertson v. Methow Valley Citizens Council, 490 U.S. 332

(1989), 18Rule of Unintended Consequences, 6

SScalia, 37SCt, 14, 24, 28, 30, 32, 45, 83Self-Policing, 95Sham recycling, 65short” or “(B), 46Sierra Club v. Army Corps of Engineers, 26Sierra Club v. Cedar Point Oil, 96Sierra Club v. Costle, 16Sierra Club v. Morton, 10

107

Sierra Club v. Peterson, 19Significance, 21Significant, 20significant nexus” test, 35, 36, 37SIP, 2, 56, 57, 58, 61, 62SIPs, 49, 54, 61Small Business Regulatory Enforcement Fairness Act, 12solid waste, 41, 64, 65, 67, 68, 72, 75, 99South Florida Water Management District v. Miccosukee

Tribe of Indians, 41standing, 9, 10, 11, 13, 35, 37standing to sue, 9, 10, 11State Water Quality Certification, 46Strict Liability, 76, 77Stryker’s Bay v. Karlen, 28subject matter jurisdiction, 9Sulfur dioxide, 54SWANCC, 32, 33, 35, 36, 37, 38SWANCC v. Corps, 32

Ttake, 5, 7, 21, 52, 62, 81, 84, 89, 94, 96, 97, 98, 100Technical, 4, 6Technological feasibility, 79threatened release, 70, 71, 74, 75Title I, 49, 51, 54, 56Title II, 49, 51, 54Title IV, 49, 54Title V, 49, 51, 52, 54, 58, 59Title VI, 49, 54TMDLs, 2, 45, 48, 102Total Maximum Daily Loadings, 48

Transporters, 63TSD, 63, 64, 67Tulloch Rule, 40TVA v. Hill, 82

UU.S. v. Morrison, 82U.S. v. Plaza Health Labs, Inc., 40U.S. v. Riverside Bayview Homes, 32U.S. Weitzenhoff, 98UNCERTAINTY, 3Union Electric Company v. EPA, 58Unitary Waters, 41Unitary Waters Approach, 41United States v. Bestfoods (U.S. 1998), 74Use the court system, 6

VVALUES, 1, 3Vermont Yankee, 25Vermont Yankee v. NRDC, 28Virginia v. EPA, 61VOLUMINOUS, 4

WWaste stream, 68Water quality criteria, 43Waters of the United States, 33, 35wetlands, 32, 33, 35, 36, 37, 38, 65Wetlands, 4, 32, 33, 35, 37, 38WQSs, 47

108