Environmental Law Federal -Natural Resources -Pollution Control (Federal Pollution Control Statutes) -Department of the Interior State

-Federal-State Relations -Cooperative Federalism -There are also state laws that states just pass on their own Local -Zoning -Basic land use decisions -Amount and availability of mass transit

Anti-Environmental Laws -Location of permitted facilities -Location of waste disposal sites -Transportation funding -Military -Economic Incentives -Freedom of the Seas

1. INTRODUCTION & KEPONE

Todays environmental laws came into existence in the 60s and 70s, built on federal foundations replacing the generally passive stances of the states towards industrial pollution (the states were competing against each other to attract businesses). During that time there was increasing awareness of the negative consequences of cost externalizing behaviors. Race to the Bottom --- race to laxicity a. Recurring Themes: i. Externalitiesa side effect or consequence of an industrial or commercial activity that affects other parties without this being reflected in the cost of the goods or services involved. The cost of an action that is not directly taken into account by the producer of the action. Usually not the intended cost. Environmental law seeks to internalize the externality. 1. Solutions: Permits, voluntary measures 2. Options: say that every producer of pollution needs a permit, then you regulate. Or you levy a tax. The perfect tax to achieve internalization of externality would be $10,000 per year. But, the recovery would go to the government, so a better solution would be to allow the orchard to recover in tort law. 3. But, this is not a typical situation. A more common situation would be multiple polluters affecting multiple different properties. ii. Nature of Environmental RisksEnvironmental risks often involve complex situations, with multiple polluters and multiple parties affected. How do you determine causation? How to you determine the percentage responsible for the damage? How to you put a value on the damage? What if the polluting factory employs lots of people in the affected town? 1. Regulatory law negates (to an extent) common law approachs need for causation 2. Unlike torts cases, there are hundreds or thousands or parties on each side in environmental issues. Thats why we dont use tort law, but instead use regulatory law. 3. Uncertainty of environmental sciences and impacts. iii. Tragedy of the CommonsHardin: a common resource provides an incentive to exploit, to the ultimate ruin of everyone (Cow pasture). If all of the uses of a common good could communicate, it would probably not be as

big of a problem. But, there are often so many users that itd be impossible for them all to communicate. 1. Overuse of common resource (Example: over-grazing cow pasture) 2. Pollution of common resource 3. Negative feedback / comes-back-around a. In Kepone there was no negative feed back / comes back around feature in these situations, legal, media, and political intervention helps. Themes from case: i. Number of government Agencies Involved: OSHA (1970) Occupational Safety & Health Administration, EPA, CDC (Center for Disease Control), VA Dept of Health, VA Water Control Board, City of Hopewell ii. Piercing the corporate veil iii. ***Intrusiveness of Government Regulation: This will be another theme in this class to really fix the problem and prevent problems, you need regulation that will seem very intrusive iv. indirect dischargers into POTWspublically owned treatment worksare not considered point sources and so dont need NPDES permits v. In the Kepone case, the fishermen and employees used the Tort system to attack Kepone. Problem with allowing the tort system to handle environmental cases: torts doesnt way environments interest, only the people using the environment (fishermen); businesses can settle and keep polluting, which might be more cost-efficient 4. Possible solutions: a. Quotas / permitting system b. Communication among small number of users i. Doesnt work with large number of users c. Location restriction (ex: ocean zoning) / import restriction d. Licensing e. Privatization (doesnt work well with air and ocean, but cap and trade comes close) iv. CPR Perspective: Environmental Justice (Environmental Racism) 1. EJ Communities: (Environmental Justice Communities) Disadvantaged communities, for any reason can be low-income, minority, Native American tribes, etc. 2. Government agencies now have to consider the environmental impact on EJ Communities 3. Racial disparity in enforcement of environmental regulations: amount of discretion given to officials, who often tend to enforce rules more stringently in upper-income communities 4. Hot Spots: Cap-and-trade or other emission trading programs would create hot-spots in poorer and minority communities. This happens

because older facilities, which are traditionally located in these areas, are the facilities that will be most likely to pollute at same high level and buy emission to offset. 5. Instead of cost-benefit analysis, you can use a rights-violation perspective a. Other school of thought: To know whether or not there was racial discrimination, we would need to know what the racial composition of the community was right before the plant moved in this could cause property values to decrease, so that poorer people move to those locations over time 6. EJs Goals: a. Substantive Component: fairness in the treatment of different populations b. Procedural Component: who as a seat at the table when important decisions are made; encouraging greater participation (EJ has been more successful at this goal Legal strategies for enforcing environmental justice 1. Equal Protection Clausemust show INTENTIONAL impact. The discrimination must be intentional 2. Title VI of the Civil Rights Act (CRA) of 1964Title VI does not apply to the EPA a. Alexander v Sandoval (2001)a private litigant cant bring an adverse Disparate Impact claim under Title VI. The agency still can though 3. Executive Order (EO) 12898directs agencies to ensure that federal actions substantially affecting human health or the environment do not have discriminatory effects based on race, color, or national origin. a. Adverse Disparate Impact b. Less Discriminatory Alternative Common Law (torts) of Nuisance and Trespass v. In the Kepone case, the fishermen and employees used the Tort system to attack Kepone. Problem with allowing the tort system to handle environmental cases: torts doesnt way environments interest, only the people using the environment (fishermen); businesses can settle and keep polluting, which might be more cost-efficient vi. Argument against abating polluter: some pollution is necessary, because certainly cement is good for the world; the market dictates that the pollution should occur here, in a rural area with a relatively low population of lesserincome people, where the land value is already relatively inexpensive. 1. Atlantic Cement Company had to get a local land-use permit. There are also zoning regulations when a major facility is built. 2. The $45 million dollar investment in a new facility and the jobs that it created weigh heavily on the local government. Localities compete to get such businesses to come there vii. Ducktown Copper casesTennessee, 1904established the principle of balancing the equities in awarding an injunction for an environmental

viii.

ix.

x.

xi.

xii.

xiii.

nuisance. Court allowed economic activity to continue, requiring only that they compensate the nearby farmers for their losses. It was an award of compensatory damages but a denial of injunctive relief. Private Nuisance v Public Nuisance (Spur v Del Webb)public nuisance can be brought by private plaintiffs if they have special injury standing, and often can be filed along with private nuisance claims. NY v Schenectady Chemical Co (1983) 1. State of the Art Defense was not good enough to avert liability, since with respect to public nuisances fault is not an issue. 2. Public Nuisance is typically only for equitable relief. There is money damage in this case, but it is for the clean up of a toxic waste site; this case is the exception to the rule 3. Joint & Several Liability substantial factor test either one or both of Ds can be liable. Can even be liable for the whole is one D is insolvent Benefits of Tort Law: 1. Monetary compensation 2. Personal vindication, giving person day in court, sense of closure 3. Helps address harm done; it is retrospective; while regulatory law can only prevent or deter future harm, unless there is already a relevant law on the books 4. Discoveryhelps uncover documents and information to shed light on industry practices 5. Fines, penalties, damages tend to be greater There is a weighing of interests in deciding which areas to regulate and which areas not to. Why do we regulate elevator maintenance but not trees (to keep tree limbs from falling and doing damage). The answer looks a lot like B=PL, the Hand Formula. Weigh the burden of regulation against the gravity of the potential harm taken with the likelihood of that damage. Nuisance: A trespasstory invasion of land, interfering with the use and enjoyment of the land; has to be unreasonable. Reasonable interference with enjoyment doesnt count The smell of the cooking from next door Unreasonable: more than a trifle 1. Unreasonableness of the nuisance is often found by weighing the utility of the conduct against the degree of the interference. 2. Restatement: conduct is unreasonable when the harm caused is substantial and the financial burden of compensation will not render infeasible the continuation of the conduct, or when the harm to the plaintiff outweighs the social utility of Ds conduct 3. Public v Private nuisanceblocking a public road is the classic example of a public nuisance 4. Today there can be a private action for public nuisance, but only if the private plaintiff can show special damages . The case book calls this rule paradoxical; why should you have to show special damages if the nuisance is supposed to be a bother to everyone.

5. Why do we require the special standing rule for bringing a public nuisance? Because we need a heightened standard to keep everyone from bringing their own public nuisance suit. This is to prevent the proliferation of lawsuits after the first one is successful. 6. Political question doctrine: A lot of suits get dismissed because the judge thinks that the issue is too big or in some way inappropriate to be handled by the judicial system The issue is better dealt with in the political arena 7. Small fishing town in Alaska sued BP after the oil spill, saying it had to move the town 100 meters to keep it on solid ground because global warming was causing rising water levels, and the oil spill contributed to it 8. The fact that a polluter is not the only one causing the problem does not mean that an individual cannot be culpable for their actions. xiv. Boomer v Atlantic Cement Company, NY (1970): 1. The typical remedies for a nuisance are: a. Money damages ---- Remedy at law b. Injunction ---- Equitable remedy 2. Typically, courts will fist look to see if there is an available remedy at law. That is to say, can one put a monetary value on the damages, and if so will that satisfy the demands of the plaintiff. Equitable remedy was a last resort. 3. There is a balancing of the equities This cement plant pays $2.4 million in taxes per year to the local city government, and employs half the town Do they really want to abate this activity? 4. Balancing of the Equities: principle first used in the Ducktown Copper Cases (Tennessee Copper Cases) in 1904. Balance the gravity of the harm against the utility of the conduct But the inquiring into reasonableness of the nuisance claim should focus on the degree of interference, not a balancing of the equities So balancing of the equities is alternative approach 5. Boomer: Result can be seen as Judicially imposed easement on the plaintiffs property, that the defendant must purchase. 6. Regulatory Compliance Defense: There can be a common law remedy even when a business is complying with regulationthis is because regulations dont take into account the peculiarities of the community; it is a blanket requirement not tailored to specific situation or specific community. 7. Regulatory agencies are more susceptible that the courts to be persuaded by the current political environment. Courts are far less susceptible to political pressures, while government agencies can change with new leadership or from pressure from local/state/federal governments 8. The extent of the regulation should also be an issue. Is it is a heavily regulated industry, then compliance is a much stronger defense, often a valid defense.

Problems with Tort system for environmental protection: 1. Retrospective 2. Inadequate remedies 3. Judge has no scientific expertise 4. Evidentiary standard of preponderance of the evidence can be hard to prove 5. Issues can have too broad of a territorial scope Events that led to federal intervention & Adoption of Regulatory Approach: 1. Travels into space gave global perspectiveall one ecosystem 2. Civil Rights movementtime of liberal ascendancy 3. Nixon was one of the most pro-environmental presidents a. Some say this was in an effort to one-up his rival, Senator Ed Muskie 4. Vietnam war led to mass protests, distrust of government, distrust of big corporations 5. Environmental catastrophes 6. Race of Laxity / Race to the Bottom a. Revezs said that Race to the Bottom was a good thing i. Said that forbidding states from making trade-off is welfare reducing b. Stuck at the bottom hypothesesstates stay at the bottom of minimum standards, bc dont want to do more and have industry flee 7. Major Environmental Statutes of the 1970s: There were circa 20 major acts passed a. This was in response to the civilian movements (Earth Day, etc.) b. And in response to emerging climate of opinion c. And in response to how environmental regulation had been enforced in the past 8. Second Decade of Statutes: The 1980s a. After the 1980s, there was a drop off in the rate of passing environmental regulation Judge Steven Breyer, Regulation and its Reform, justifications for regulation: 1. Control monopolies 2. Control excess profits 3. Compensate for externalities 4. Compensate for inadequate information 5. Inhibit excessive compensation 6. Compensate for unequal bargaining power

2. REGULATORY APPROACH
a. The standard modern mode of pollution control regulation has been a Washingtondominated cooperative federalism in a command and control regulatory format. b. Taxonomic Approach: i. Stresses the potential transferability of the techniques ii. Complex statutes such as the CAA usually embody a combination of regulatory techniques iii. Virtually every regulatory effort has two elements:

c.

d.

e.

f.

1. A regulatory technique 2. Procedure for implementation a. Penalty for noncompliance b. Exceptions: statutes that impose outright bans, and statutes that incorporate permits Major Types of Regulatory Techniques: i. Review and Permit ii. Disclosure iii. Planning Statutes 1. Critical Areas Management Regulation 2. Facility Sitting Laws 3. Resource Management Statutes a. Dominant Use b. Multiple Use c. Managing to Master Plan 4. Consistency Statutesmaking sure multiple agencies are coordinated iv. Roadblock Statutes v. Harm-Based Ambient Standards 1. A prominent feature of both the CWA and the CAA 2. Like cap-and-trade market enlistment techniques, but with a different means of obtaining the goal 3. Ambient refers to the general receiving medium vi. Technology-Based Statutes GEORGIA v. TENNESSEE COPPER COMPANY (1907): i. Copper production abated. Unlike how business might deal with a private party by paying them off You cant do that with a state, which has sovereign rights ii. In Boomer, the court would not admit that land owner had absolute sovereign right to land. But this case is different. Justice Holmes is unwilling to balance equities with a sovereign state. State has absolute right to land, and if it doesnt want pollution, it doesnt have to have its equities balanced against a private party. Its equity is absolute in its land territory iii. The states by entering the Union did not sink to the position of private owners subject to one system of private law North Carolina v TVA --- North Carolina sued the Tennessee Valley Authority, for the nuisance of pollution. Case was dismissed, because the clean air act (CAA) was in place and all polluters were permitted. i. Judge thinks that courts should respect the authority of the regulatory agencies, and that a judge holding a 12-day bench trial could overrule the scientific schemes of the regulatory agency. ii. Compliance Defense --- This can be seen as a revival of the compliance defense, which we normally think of as not providing a valid defense Connecticut v AEP i. Four Issues in the Case: 1. Political Question Doctrine 2. Standing

3. Displacement 4. Nuisance ii. Defendants argue that they are only a small part of the problem, and that theres no way of telling how much exactly they are to blame iii. The court says that they are still responsible for their damaging, regardless of the fact that they are no the sole damager. There is nothing in American case law that says that you have to sue every single tortfeasor. You can choose to sue a single tortfeasor if you choose, and the presence of other tortfeasors not named in the case doesnt mitigate the liability of each individual tortfeasor. Mass. v. EPA: allowed to proceed one step at a time

3. AGENCIES & ADMINISTRATIVE LAW

Agencies: Created by legislature, but typically located in the executive branch Federal Agencies usually have broad grants of power -State Agencies have narrow grants, because they are less trusting and because Congress is typically too busy to play the role of parental supervisor Enabling Act / Organic Act --- statute passed by the legislature authorizing the formation of an agency Normally, the agency is given a specific substantive mission, but derives its procedures from a more general statute setting out procedural requirements for all agencies in that jurisdiction -On the federal level, the Administrative Procedure Act (APA) which has been in existence since 1964, is the governing procedural statute. -For states, there is the Model State Administrative Procedure Act Many agencies have broad discretion, and many of their decisions are not reviewable by courts -It can be said that a cardinal rule for a lawyer up against an agency is that he must win at the agency level or else not at all Agencies are established: 1. To take care of the detail of regulation, and 2. To develop expertise in a particular area of regulation a. Command-and-Control RegulationMechanism where agency is given powers to regulate a particular industry under a broad statutory mandate, by licenses firms to perform the activity in question and by policing the day-to-day activities of the industry. b. Deregulationeliminating the command-and-control regulatory mechanisms and letting the market act as the proper control device c. There can cabinet-level agencies, or agencies that are components of broader agencies, or on occasion free-standing agencies (EPA is the best known example). d. Since the agencies are within the Executive Branch, the President has almost plenary control over the agencies. He has complete control on policy and considerable control on budget e. Doctrine of Primary Jurisdictionrequires that most disputes within an agencys jurisdiction first go to the agency and no directly into court f. Doctrine of Ripenessprohibits judicial review if a dispute is not yet a legal (as opposed to a scientific or technical) issue

g. Types of Statutes: 1. Disclosure-Based Statute a. NEPA b. Community right to know, with out enforcing substantive policy 2. Health-Based Statute a. Figure out what levels of pollution are harmful to human health, then set standards to keep pollution at or below that level b. Criticism: theres no cost-benefit analysis. What is standard shuts down businesses, or is prohibitively expensive? 3. Technology-Based Statutes a. Install best technology available b. Particularly for new sources of pollution (brand new factories) must use best technology available c. What if the best is not good enough? This is the ongoing tension between Health-Based statutes and TechnologyBased Statutes 4. Cost-Benefit Standards a. Toxic Substances Control Actregulates the actual product, instead of the sourcesays that should weigh benefits of product versus potential risks 5. Roadblock Statutes a. Thou shalt not b. A blanket prohibition a. Rule Making Process: Congress: Public Law (Enabling Statute) Delegated Authority b. Non-Delegation DoctrineCongressional powers cant/shouldnt be delegated c. Intelligible Principle Congress must give an intelligible principle in order to delegated a power d. If a delegation of power is too broad and gives too little guidance, it can be found to be an unconstitutional delegation of power e. DC Circuit had found that delegation of power to EPA was too broad and thus unconstitutional, but an appellate court reversed, saying that we have done such things before. Delegation of authority to make railroad for public convenience f. OMBOffice of Management and Budget g. OIRAOffice of Information and Regulatory Affairs a. E.O. 12866requires every agencies to submit to OIRA a RIA (Regulatory Impact Analysis) b. The theory is that agencies should justify what they do in a cost-benefit way, or else maybe we dont need them c. The OIRA process can be a way of stomping out legislation d. Theres an efficiency argument in favor of OIRA

e. Critic: OIRA sets up a political avenue to sabotage regulation and that CBA (cost-benefit analysis) is flawed in general since its hard to quantify some needs Administrative Law Review o Rule-Making Process: 1) Congress enacts a law (an enabling statute) this is delegating authority to an agency to implement the statute they pass. Disadvantage of just letting the agency set the rules? o This gives too much power to the agency itself; agencies are inherently focused on narrow goals and may ignore the broader effects. o Art I.: legislative power vested in Congress because they are elected. Agency heads are not elected, they are appointed. o Non-delegation doctrine: the legislative power that Congress is vested with cannot be delegated to any other branch of government, not executive and not judiciary. The legislature can ask the agencies to implement the statutes, but they must give an intelligible principle for the agencies to follow in implementing the statute. Controversy re CAA: Section 109. Statute said: ambient air quality standards to be set by EPA at a level requisite to protect public health with an adequate margin of safety. o American Trucking Association sued once the EPA set these standards, claiming that the EPA exceeded its authority and violated the nondelegation doctrine. o D.C. Circuit: holds that the delegation of authority is unconstitutional, it provides no guidance to EPA. o Supreme Court: reversed this, and upholds it. They uphold this broad delegation of power. o This has broadened the delegation of authority to administrative agencies. 2) President issues an EO delegating authority is an alternative to step 1 3) If agency chooses to regulate, it does so through the process in the Regulatory Map. OMB Review: this is done both after the proposed rule and after the final rule is issued. o OMB is a white house office; this was created to get a handle on what the different federal cabinets are doing. o Within OMB, Office of Information and Regulatory Affairs (OIRA): this is a very powerful office that has little public exposure. This is the section that actually conducts the regulatory review; when a rule is proposed that

will have a substantial affect on U.S. economy (defined at 100 million dollars), this section of OMB reviews the rule. OIRA established under Reagan Expanded via EO 128666 by Clinton Regulatory Impact Analysis: part of OIRAs review. Cost-benefit analysis is part of this review. Costs/benefits to consumers, government, private companies, etc. Designed to increase efficiency (argument for RIA) o Counter-argument: a way to stamp out needed regulation under a cost-benefit analysis. This sets up a political avenue to sabotage regulations. The gist of the anti-CBA argument is: regulations are created by scientific experts, and a cost-benefit analysis has no place in this scheme. Public comment Proposed final rule More OMB review of final rule Note: if the agency skips a step in this process, its easy to overturn the regulation via a court. But on the merits, once a regulation is in place, it is very rare to convince a court to overrule the regulation once it has gone through this entire process. Once rule becomes final, it is published in Federal Register o This is where it becomes law (when it is published in final form in FR) and where litigation will begin. o A few months later, it will get published in CFR 4) Congressional oversight 5) Judicial review Note: this is a broad overview: look at Reg Map for more details. o Adjudication v. Rule-Making in Administrative Procedure Act Rule-Making: governed by 553 This is setting out rules that will apply in the future on a broad scale Adjudication: governed by 554. Agency decision that is applying to a single entity The questions in these are like: do you qualify for this permit, was the permit revoked fairly, are you allowed to construct nuclear power plant? Applies to a single applicant How does the existing law on the books, both statutes and regulations, apply to this one entity? (this is the question that is being asked). How agencies actually administer statutes: o 42 U.S.C. 7411: Standards for performance for new stationary sources

 (b): has two delegations of power here given to administrator of EPA. 1) delegation to publish a list of categories or sources of air pollution 2) for each of these categories, establish a federal standard of performance for new sources within the category. o EPA goes in and puts a pollution limit on each of these categories. o Pollution limit: best available technology. The CFR contains all of the actual regulations from the EPA. To promulgate all of these rules it took the EPA 10 years. Why? Compliance with APA. o EPA has to prove what the best available technology is (this is a massive expenditure of effort) and then it has to actually promulgate these as regulations. o once you publish draft rule, you have to have a public comment period and the agency has to respond. o Big reason: litigation. Every one of these rules was challenged in court; either by the private companies affected by it, or by environmental groups. o For all intents and purposes, the rules act as law. This has full legally binding effect. But the difference between a regulation and a statute is that a regulation can be challenged in court as an abuse of agency authority, or that the agency acted in excess of its delegated authority. o 33 USC 1362: Clean Water Act Definitions section Definition: Point Source: 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. Concentrated animal feeding operation (CAFO): means factory farms (poultry farms for example). These have huge waste problems with manure. Why is this included? o The idea is that there may be non-point source runoff from these types of facilities. ] Within CFR there are about 15 regulations that deal with CAFOs. Relevant one: 42 CFR 122.23: this is what actually defines what a CAFO is. This actually defines the size, the number of animals needed for the various categories of CAFOs (including specifics like veal v. cows). This is an example of how an agency has taken this broad discretion from Congress and actually applied it. Big Point: o Agency discretion can only go so far. The EPA probably couldnt have defined a CAFO as having 5 cows. o The agency cannot and should not be able to set levels in defining aspects of a

statute in an unreasonable way. If they do so, it is arguably arbitrary and capricious The plain language may prohibit this the agency would probably be exceeding its disretion. Chevron v. NRDC: this will address this issue. Agencies are political entities with heads appointed by the president He is setting the agenda Congress can defund a branch of the agency if they dont like what they are doing Be aware of what parties are at the table when the legislation is being passed, when the agency is issuing rules, and when it is being litigated; this will affect what the substance of the rules ultimately become. Administrative Procedure Act 553: how to go about creating a new rule--applies to all agencies Judicial Review of Agency Action 1. Themes: i. Standard of Reviewmost substantive challenges to agencys decisions use the arbitrary & capricious standard, or the substantial evidence standard 1. When being sued for allegedly illegal actions, an agency gets less deference than when having policy reviewed 2. 701 / 702 of APA --- every action is subject to judicial review, but not at every stagemust be final action? 3. 706 of APA: 6 SOR a. Arbitrary & capricious or abuse of discretion b. Contrary to constitutional right, power, privilege or immunity c. In excess of statutory jurisdiction d. Without observance of procedure e. Unsupported by substantial evidence f. Unwarranted by the facts, a de novo review 4. If the agency lacks authority: 706(B) or (C) 5. If the agency has the authority, but acted unreasonably: use 706(A) or 706(E) 6. 706(E) is considered to give the judge more authority to get involved and delve further into agencys decision-making process 7. It is more likely that a decision will be overturned under 706(E) than under 706(A); 706(A) is considered to be the more deferential standard ii. Guidance Documents: These are not law, but agencies always follow them. Every agency has one. Looking at these helps you to understand the policies and personnel of an agency iii. Judicial review of activityasks whether activities were appropriate under the circumstances; the judges dont make a determination on what the right decision was/should be iv. Level of Deferenceagencies a of a different branch of government, so their decisions get more deference than lower courts, but not so much that the court is abdicating its judicial role

b. Overton Park --- Parks attract their own demise, because land added counts towards the 10% of costs that states must add in transportation projects. Officials intentionally incur sunk costs i. Synopsis of Rule of Law: APA Section:706 required the court to decide: 1] whether the Secretary acted within the scope of his authority; 2] whether the choice made was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; and 3] whether the Secretarys action followed the necessary procedural requirements. ii. The Court of Appeals decision was wrong, but the case should go back to the Secretary of Transportation, rather than the District Court, to hold hearings on the topic before making a determination. iii. Applying 4(f), The Parklands Act of the Department of Transportation Act of 1966 iv. Administrative Record: agencies have to keep a record of their decision making process for judicial scrutiny reasons. There must be a record of the decision making process to show that they did not act arbitrarily & capriciously. Typically, you are not allowed to supplement the Administrative Record with documents made in anticipation of litigation. v. The Secretary of Transportations approval of use of the park, and decision that there was no other prudent alternative was a final decision, and thus the decision that the group took to court 1. EPA decisions are different from this. There is an appeals court within the internal agency, called the EAB (Environmental Appeals Board). From there you can appeal to a court. c. Doctrine of Exhaustion of Administrative Remediesbefore you can get into court, you have to exhaust whatever remedy the agency itself makes available. A corollary of this is that only final agency decisions can be taken to court. i. For EPA decisions there is an appeals court within the internal agency, called the EAB (Environmental Appeals Board). From there you can appeal to a court. d. Thresholds to Review: i. Justiciability/Reviewability 1. Discretionary acts are clearly reviewable ii. Standing 1. Injury in Fact a. Sierra Club v Morton: injury in fact does not have to be economic, can be recreational, aesthetic, or other injuries 2. Causation Injury has to be fairly traceable to defendants conduct a. SCRAPU.S. v Students Challenging Regulatory Agency Procedures (SCRAP) (1973): Standing is not to be denied simply because many people suffer the same injury To deny standing to person who are infact injured simply because many other are also injured would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion.

3. Redressability a. Remedy must be capable of redressing injury iii. Exhaustion of Remedies and Ripeness 1. EAB (Environmental Appeals Board) then appeal to court for EPA Article III standing: 1. Injury in Fact --This encompasses imminent harm, soon to happen in future -- Not conjectural harm --Sierra Club c Morton (1972) If you are an organization you need to be able to show that at least some of your members use the land/park in question, and least some will be affected, and least some used to use the area and would use the area but for the environmental risk. Holdings from Sierra Club: 1. Organization can get holding if at least one member has injury in fact 2. Injury in fact can include environmental harms, non-economic harms --There needs to be a showing of some concrete harm, not abstract harm. Live near the area, used to visit the area and discontinued use, cant be someone from Richmond suing over California coast line --Suing to enforce a procedural right does not count as standing. Wont accept the argument that Im injured because Congress gave me the right to sue 2. Causation Injury has to be fairly traceable to defendants conduct --SCRAPU.S. v Students Challenging Regulatory Agency Procedures (SCRAP) (1973): Standing is not to be denied simply because many people suffer the same injury To deny standing to person who are infact injured simply because many other are also injured would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion. --This is the high water markthis is as liberal as the court got before there was a narrowing of the standing doctrine --Plaintiffs were granted standing, even though they didnt have to prove that they were within the zone of interests of a relevant statute, nor did plaintiffs have to show a likelihood that the courts orders would redress the harms. 3. Redressability Article III, Section 2: The judicial Power shall extend to all Cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, to Controversies to which the U.S. shall be a party; to controversies between citizens of different states The law of standing in recent years has often been made through environmental cases. In all standing cases, plaintiffs standing to sue will be tested under: 1. Article IIIs requirement that federal courts can only hear cases where there is a case or controversy (usually a basic claim of injury), and 2. Prudent limiations based on judicial discretion, invented by the Supreme Court to restrict standing, not applicable if a statute overrides them 3. And either:

(A) Aggrieved under 313(b) of the Federal Power Act, like Scenic Hudson, or special citizen-enforcement authorization for any person who files a 60-day notice (included in many environmental statutes; they are far more liberal than the Article III injury requirement and override prudential limitations) (B) Aggrieved under APA 702s standard (much the same as Article III but subject to prudential principles Laidlaw (2000): Friends of the Earth v Laidlaw, U.S. Supreme Court (2000) -A strong body of scholarship had begun to emerge scrutinizing the line of constrictive standing decisions and clarifying basic principles underlying Article III. Influential studies of standing jurisdiction raised serious questions about whether increased restrictions on standing were the result of evolving doctrinal interpretation or organic agenda-driven decisionmaking (Scalia). --There were 4 issues raised by defendants, which Scalia supported, but the majority shot back with a win for the environmental group (see page 249) Massachusetts v Environmental Protection Agency, U.S. Supreme Court (2007) -State is suing the EPA saying that under the CAA the EPA was required to regulate carbon emission causing global warming -Anyone may raise a standing issue at any time, even sua sponte, since it is a jurisdictional issue -They only rule on Mass.s standing, since only one plaintiff needs to have standing for the case to go forward. -They rule 5 to 4 that there is standing Citizen Suit Statutory Provisions Article III standing -You can sue the agency, or sue the violator -These Provisions are written into almost every enabling statute passed by Congress (?written into other statutes?) -Provisions that say that citizens can bring private action -This is a delegation of power to citizens to enforce the statutes. The executive power to enforce being delegated to citizens is inherently problematic, especially to Scalia. -Perhaps it is good that these cases are selectively enforced we dont want to build precedent to have to enforce every statute against every violation. The agency should have deference as to who they want to prosecute and who they want to be flexible with. The idea of citizen enforcement cuts against this.

Agency Adjudications and Rulemaking 1. Rulemaking v adjudicationsrulemakings apply to a broad swath of people, while adjudications apply to a specific party and a specific set of facts
Rulemaking Adjudications Governed by APA 554 Meade: Only formal agency adjudications get Chevron deference Most adjudications are

Formal Informal

Almost never happens Most of what agencies do is

informal.

informal Not governed by any particular rules of procedure Overton Park case

Chevron U.S.A. v. National Resources Defense Council, U.S. Supreme Court (1984): -CAA requires that BAT (best available technology) standards must be applied to any new source of pollution. Source had been defined as any building, structure, or individual smokestack that emits pollution. -Under the Reagan Administration, the definition of source was changed to apply a regulatory bubble concept: a source is all of the pollution-emitting activities which belong to the same industrial grouping, are located on one or more adjacent properties, and are under the control of the same person. So, new construction did not count as a new source and did not have to meet the tougher BAT standard. Only entirely new plants -The NRDC sued to challenge the new standard as being too lax they want reductions instead no new net-increase -When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agencys policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail --Judge gives a TWO PART TEST: (1) If the intent of Congress is clear, then it is the end of the matter, as Congresss intent is paramount. (2) If there is ambiguity and Congress has not addressed the precise question at issue, then the agencys decision will be given deference as long as it is a permissible construction of the statute So, as long as it is a reasonable interpretation This is called the Chevron Two-Step, or the Chevron Deference Test 1. Whether Congress has directly spoken to the precise issue in question. If the judge doesnt like what the agency is doing, he can say the he can glean Congressional intent by saying the terms are used elsewhere to mean. Or the plain intent of the language is If the court doesnt like the activities of the agency, it will decide the case on this step and not go to step2. Given the statutory language, is the intent of Congress (in the eyes of the reviewing court) clear? If so, the court will itself declare that interpretation, whether the agency agrees or not. 2. Step 2: It is harder to overturn agency action using this step. If the court decides the meaning is not clear, then the court must review the agencys interpretation deferentially, upholding it if the court thinks the agencys answer is based on a permissible construction of the statute. --Justice Steven said that he was confused, and when he is confused he goes with the agency. This is sort of a tie goes to the runner rule. This rule seems to make sense, since they are the experts. The doctrine coming from Chevron seems to be neutral. Which agency actions get Chevron deference? U.S. v Meade, U.S. Supreme Court 2001

o The agency issuing tariffs said that it should be given Chevron deference. The court said that the agency only got this deference for formal agency rulings. So, only formal agency adjudications get Chevron deference. Not every small decision made o The Court rested its decision on the premise that Congress had not intended the administrative classifications to have the legal force of regulations Disclosure Statutes: Disclosure Statutes in Environmental Law: --If information is power, what is the role of law in incentivizing research on environmental risks and hazards? --If Agencies can act, how do we ensure that they act on the best available technology and information? --What is the role of environmental information for environmental agencies? Example: Nutrition Label --These labels that we have today are the product of intense lobbying, which was the food industries seriously apposed. They though that these labels would give away trade secrets and also hurt sales --TRANS FAT: there is no longer trans fat, because food companies know that people are aware. This is an example of where disclosure is helpful Toxic Release Inventory (TRI): --TRI requires facilities that manufacture, process, or use toxic chemicals in amounts above designated thresholds, and that employ ten of more full time workers, to final an annual report with EPA. --These are permitted releases, but can be used to bring a tort / nuisance suit National Environmental Policy Act (NEPA): --Passed in 1970 by Nixon, it was likely just political rhetoric that Nixon wanted to use to get votes. He probably didnt intend for it to have any real teeth, or be more than a declaration of general environmental support with no real meaning --NEPA is read to force federal agencies to stop and think before making decisions and taking actions that harm the environment --NEPA enforces that objective with Environmental Impact Statements (EIS) --Agency must do a EA (Environmental Assessment) so they can make the decision as to whether they need to proceed and do a EIS --Otherwise, they can file a FONSI (Finding of No Significant Impact) --EA is adjudication because it is an informal finding --Because it is an informal finding, it is subject to a judicial review --Arbitrary & Capricious is the standard of review --The FONSI is the adjudication that will be challenged by citizen action --Mitigated FONSI: agency says that there is FONSI because they plan on doing mitigation activities to offset environmental impact.

--NEPA is and of itself has no enforcement mechanism. Congress assumed that it would be enforced by the Executive Branch, acting through the Office of Management and Budget (OMB) and the Council on Environmental Quality (CEQ) EAEAS Process: --Preparation of initial EA if EIS is required, then: --Scoping --DEIS or DPEISdraft (programmatic) environmental impact statement --Public Comments --FEIS or FPEISfinal environmental impact statement --SEIS if necessary --Record of Decision (ROD) Recurrent issues in implementing NEPA: --Scoping: requires the agency to review the breadth of project, alternatives, invite public comment, review scope of project, all early in the process --Segmentation to avoid NEPA: like what happened in Overton Park, this is an attempt to get around NEPA: agency does the project in stages, with the least destructive stage first, and they justify later actions with sunk cost argument Major Federal Actions Significantly Affecting the Quality of the Human Environment: --Check for categorical exclusions 1. Applies to federal projects 2. Federally funded projects 3. Federal permitting of private projects --Whether an effect is significant is governed by CEQ regs 1508.27 (a weighing of context and intensity), and an EIS must be prepared if even one area of impact is significant --Agency decision on what to study, and in what depth, is governed by a rule of reason, subject to later judicial review under the arbitrary & capricious standard CEQ Regulations: -Sec. 1508.8 Effects. Effects include: (A) Direct effects, which are caused by the action and occur at the same time and place (B) Indirect effects (C) Cumulative Impacts EIS Requirements: --Alternatives: --Must study all reasonable alternatives and specify why other were eliminated --Alternative project sizes, locations, constituents, etc. --Agencies do a matrix: No Action Alternative----Preferred Alternative----At least one or two other Alternatives

Air: Water: Species: Historic: Center for Biological Diversity v National Highway Traffic Safety Administration, (2008) --Page 332 --What alternative did the National Highway Traffic Safety Administration consider? --The Court said that they should have studied a wider ranged of alternatives --Where there may be a significant effect on the environment requires consideration of two broad factors: (1) Context, and (2) Intensity EPCRA: The Emergency Planning and Community Righttoknow Act -TRI: Toxic Release Inventory -TRI requires companies that use the listed chemicals and employ 10 or more people to file annual reports with the EPA. -PBT chemical: persistent, bioaccumulative, and toxic chemcials -Form R: Facilities submit TRI information for PBT chemicals on Form R -Form A: Facilities submit TRI information for non-PBT chemicals on the shorter Form A as long as they use under a certain amount. -1996: EPA issued a proposed rule (that has still not been enacted) in the form of an Advance Notice of Proposed Rulemaking (ANPR) statement, announcing its intention to expand the TRI requirements to include materials accounting data. Materials Accounting Chemicals: 1. Any chemicals coming into the facility 2. Any chemical being transformed into products or waste 3. Any chemical leaving the facility as products, releases or transfers -2001: The Aarhus Convention: -European countries entered into this agreement to create an international information disclosure agreement -The U.S. is not a party -2003: adopted a Protocol on Pollutant Release and Transfer Registers (PRTRs) -PRTRs, a subsidiary to the Aarhus Convention, set out international obligations similar to TRIs. -The Protocol is the first legally binding international instrument on PRTRs -Still has not been ratified and given force NEPA cases: Judges appointed by Democrats ruled in favor of environmental plaintiffs 60% of the time, while judges appointed by Republicans ruled in favor of environmental plaintiffs 28% of the time. --Those who care about a neutral administration of justice should be concerned by this Major Federal Actions Significantly Affecting the Quality of the Human Environment --The word Major has no independent meaning

--Whether an effect is significant is governed by CEQ regs 1508.27 (LOOK THIS UP) --Check for categorical exclusions --CATX --A categorical exclusion is where the agency concludes that all activities in a category dont need EIS because they will all have so minimal of an impact --MMS (Minerals Management Service), part of the Department of the Interior, used to have Off-Shore Oil Drilling covered by a CATX (categorical exclusion) --The BP Oil Spill Report called this out as a major flaw Types of actions that are subject to NEPA: 1. Actions that receive government funding 2. Government permitting 3. Direct government action --NEPA doesnt apply to the actions of the President --Only was Executive agencies do, not Presidential actions Kleppe Supreme Court Case: --When is it right to do a NEPA review? At what stage? --The Court looked at 102(C) for its answer --When they are ready for action CEQ Regulations Sec. 1508.8 Effects: Effects Inlcude: (A) Direct Effects (B) Indirect effects (C) Cumulative Impact The impact on the environment which results from the incremental impact of the action when added to other pact, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other action Issues with NEPA Compliance: -Categorical Exclusions -EAs and the mitigated FONSI -The Segmentation Problem -One large federal project is broken into small projects that each fall below a threshold -Independent Utility Testdoes the project have usefulness on its own, or is it only useful in connection with other related projects -FL Keysgovernment tried to say that the bridges were each unrelated, and the court said NO -The Small-Handle Problem -The larger project is state or privately run, but the fed has a small role -983 F.Supp2d 1052 -Needed a permit from the Army Corp of Engineers. This case involved a small government role

-Test: (1) How big is federal role? (2) How big is the overall environmental impact? -Failure to study indirect effects and cumulative impacts Page 329 cases: What was the flaw that led the courts to overturn the actions of the agencies? 1. NRDC v Grant (Chicod Creek) (1972): --They did not study the indirect affects. --Any further actions are enjoined until the agency files an EIS 2. Center for Biological Diversity v NHTSA --The Court remanded to the agency (NHTSA) to determine for itself whether to improve the EA or move right to the EIS.

4. THE CLEAN WATER ACT (CWA) OF 1972:

1. The CWA is fundamentally premised on technology-based standard-setting, but in recent years increasingly has included elements of harm-based standard-setting. . Sets federal floor standards for effluent, using: --BAT: Best available technology economically achievable --BCT: Best conventional pollutant control technology --BADT: Best available demonstrated control technology ***There are two types of BAT standards: 1. Equipment and design specification standards 2. Performance Standards --The CWA uses (2) performance standards, which allows companies to choose their equipment and not use the best available as long as their performance or total effluent output meets a certain level using a standard based on the best performers in a particular industrial group. --The EPA must review/update performance standards every 5 years, which provides incentives for industry to update technology --There is still some question as to whether the standards actually provide incentives not to develop new technology 2. Under CWAs National Pollutant Discharge Elimination System (NPDES), all point source dischargers of pollutants (pipes from factories, municipal sewage treatment plants, vessels, etc.) are assigned EPA-promulgated performance standards based on best technology standard available. --TBELs: the resulting technology-based effluent limitations --Effluent limited waterbodywater than can achieve fishable/swimmable standard through use of TBEL

--Water quality-limited --- stretches of water that will not achieve fishable/swimmable standard through TBEL alone. --Point-source discharges on water quality-limited stretch must also abide by harm-based effluent limitations, called (WQBELs) water quality based effluent limitations --WQBELs represent the more recent shift of emphasis towards harm-based standards, although technology-based standards remain a high-priority (Page 525) EPA National Water Quality Inventory, 1994 --Biodegradable organic materials in the surface water lowers the dissolved oxygen concentration; measured in terms of biochemical oxygen demand (BOD) --Dissolved oxygen concentrations of 2mg/L result in dead waterbodies --Chemical oxygen demand (COD) can be triggered by pollutants & their ensuing chemical reactions --Excess nutrients, especially excess nitrogen and phosphorus compounds, in the water can also lead to oxygen depletion by over-stimulating the growth of aquatic weeds and algae. --Probably caused by lawn & crop fertilizers --Siltation term used to describe sediment suspension and deposition in waterbodies. Silt and sediment can reduce water quality, and the clarity of the water, making it more difficult for life to survive. --Threats that are outlined in this 1994 report: 1. Low level of dissolved oxygen 2. Excess nutrients --Nitrogen and phosphorous 3. Sediment and siltation 4. Bacteria and pathogens 5. Toxic organic chemicals and metals --PCBs, carbon compounds --They are persistent 6. Acidity 7. Habitat Modification / Hydrologic Modification --Urban sprawl, removal of stream-side vegetation 8. Other Pollutants --Salts, oil, grease --EPA maintains a database of state-supplied water-quality information in its Assessment TDML Tracking and Implementation System (ATTAINS) --According to the most recent ATTAINS data, 50% of the nations assessed steams and rivers are impaired --Agriculture is often not considered a source and thus outside of regulation, although it is one of the top three probable sources of the level of impairment The CWAs enforceable requirements are derived from the interim goal of (2). --The Zero-Discharge goal of (1) is not an enforceable requirement of the CWA, but only a rebuttable presumption that all discharges are environmentally

deleterious and a declaration that pollution prevention is the most desirable form of pollution control. The CWAs provisions do not cover: 1. Non point source pollutants 2. Point or non-point source groundwater pollution 3. Hydrologic modification 4. Water diversions 5. Destruction of riparian zones 6. Re-suspension of pollutants emanating from contaminated sediments 7. Introduction of exotic species or flora 8. The expansion of impervious surfaces --Navigable Waters is generally defined as waters of the United States --In Rapanos v US, Scalia held for a 4-person plurality that navigable waters should be narrowly defined not to include wetlands that are not adjacent to flowing water. --Since there was no majority holding, lower courts have to decide for themselves which opinion to follow. Scalia, or Kennedy. Most follow the Kennedy view --Justice Stevens, who dissented, saw the issue as a straight forward application of the Chevron test. 1. A Point Source is any discernible, confined and discrete conveyance, including but not limited to: pipes, ditches, channels, wells, concentrated animal feeding operations, boats, etc. 2. A non-point source is any man-made source that is not a point source. Controlled by BMPs, which are low-tech. BMP is simply best management practices --The distinction is that nonpoint sources will be diffused sources of pollution, which are not discharged from a single location and will be carried over or through the soil by the stormflow process. Midwest States Coalition Case: In the scoping of what the agency said they would do, they said they would look at sulphur dioxide indirect effects. The plaintiffs in this case successfully argued that this statement opened the door to require that the agency look at all indirect impacts. --NEPA cases have been some of the most successful environmental cases CWA: --Seen as one of the high-points of environmental regulation; very successful --Drinking water is generally safer than it was in the 1960s. --Act revised in 1972 with the goal of cleaning up Americas waters Issues with CWA: 1. Waters v. Wetlands --What waters need to be cleaned up? What waters fall under the scope of this act? --Navigable Waters 2. Who should be controlled? Which polluters? Do only major sources need permits?

--What about the generalized nonpoint source runoff problem? This is general runoff that comes from the roof of peoples house, streets, etc. 3. Whats the control mechanism? --Options: A. Taxes B. Common law suits (by private litigants) C. Firm limits 1. Technology-based standard 2. Quality-based standard --Quality-based is the older-mechanism, and is the primary control mechanism of the CAA. --The big innovation that came in 1972 was a move away from quality-based standards, towards technology-based. The CWA originally used primarily a technology-based standard. Recently, however, the CWA has also been moving towards quality-based to combat the problem of when the best available technology fails to improve the water or maintain a reasonable water-quality standard. CWA Legislative Goals: (These are aspirational goals) --Discharge of all pollutants to be ended by 1985 --Interim goal that all waters of the US should be fishable by 1983 --The interim goal is the enforceable goal, not the idealistic primary goal --Discharge of chemicals in toxic amounts should be prohibited Types of Water Pollution: 1. Toxics 2. Bacteria and Pathogens 3. Sediments and Siltation (i) Settleable solids (ii) Suspended Solids 4. Pharmaceuticals 5. Nutrients (nitrogen and phosphorous which come from fertilizer on farms/domestic) 6. Heat --This is actually a regulated pollutant under the CWA --Electrical power plants and other facilities dump boiling hot water into rivers --They use water to cool equipment, then pump hot water back into stream 7. Look at full list of pollutants in 33 USC 1362 Sources of Water Pollution: 1. Industry 2. Electrical Utilities 3. Agriculture 4. Publicly owned treatment works (POTWs) 5. People Clean Water Act: How it all fits together: A. Goals: Water (1) Quality Standards, (2) Discharge Permits (NPDES)

B. Threatened & Impaired Waters Restoration Plans (TMDLs) Adjustments to Permits & Activities If water is still impaired, after monitoring, new TMDL --The overall goal is to move waters off the impaired list, and onto the good list What does the CWA apply to? 1. Surface waters and most wetlands 2. Oceans 3. Point-sources of pollution --Direct & Indirect dischargers 4. Non-point source of pollutants (ineffectively BUT doesnt apply to: 1. Deposition of pollution from the air 2. Return flows from agricultural irrigation 3. Pollution of groundwater 4. Water quantity and water rights issues

When is a NPDES permit required? (Sachs said to memorize this) For any: (1) addition (Also know definition of each element) (2) of a pollutant (3) from a point source (4) to navigable water ***From CWA 301(a) Example of nonpoint source pollution: --Suburban shopping center --Runoff from roof/parking lot --Oil from cars --Deposits of dirt, soot, other chemicals that settle on parking lot --Run off goes into watershed, which for nearby strip-mall is U of R lake Why do point sources get special treatment? --Hard to monitor --There were too many of them --Political reasons: every development a nonpoint source, so it would affect literally everything. It would make a politician very unpopular. Every single building would be affected by the application of nonpoint source standards --There was also a feeling in the 1970s that going after nonpoint sources would be federal regulation that told people how they could use their land (1984!! Government controls everything!!) Worst-case impact of nonpoint source pollution: hypoxic dead zone --Example: there is a dead zone in the Gulf of Mexico, created by the nonpoint source pollution that comes from all the farming activity in the Mid West that runs off into the Mississippi River (for farm land in the Mississippi River watershed, which is a lot)

***When is a NPDES permit required? For any: (1) addition (2) of a pollutant (3) from a point source (4) to navigable water Definitions (from 33 UCS 1362): 1. Addition: (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. --Unitary Waters Theory: All of the waters of the US are one body of water, so moving water from one body to another is not an addition. This means that moving polluted water to clean water is not an addition of a pollutant. This theory was upheld in the case Friends of the Everglades v South FL Water Management (2009) 2. Pollutant: (See lists of types of pollutants above) (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. This term does not mean (A) " sewage from vessels or a discharge incidental to the normal operation of a vessel of the Armed Forces" within the meaning of section 312 of this Act [33 USCS 1322]; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources. 3. Point Source: (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. 4. Navigable Water: (7) The term "navigable waters" means the waters of the United States, including the territorial seas. --What does waters of the U.S. mean? --The background of this issue is the Commerce Clause. All EPA activity pursuant to this task is done under the power of the Commerce Clause --The latest Supreme Court decision on this definition is Repanos v. U.S. (page 534 of the casebook) in 2006. The issue was whether the CWA definition of

navigable waters and waters of the US included wetlands adjacent to a stream. --Repanos was a 4-4-1 split. Two views emerged that lower courts can choose between: --Scalia view: Water is under the protection of the act if continuous surface water leads to flowing stream / traditional waterway --Kennedy view: Substantial Nexus Test. This means that there is a connection at sometimes of the year, or an underwater / groundwater connection. This a much more broad definition than Scalias. Most courts follow this view, but now all. --Stevens (dissent): Chevron test used, where he said that the Army Corp of Engineers view was reasonable, so he argued for deference Technology Standards: --Best Available Technology: BAT is the most stringent --Best Practicable Technology: BPT is the least stringent --New Source standards only apply to new sources, and are usually as strict as BAT but often times more strict --Criticisms: These standards tend to favor older sources of pollution as apposed to sources of pollution. Also, the performance-standards give a lot of flexibility to the polluters. Some argue that this allows polluters to use other means to reduce total pollution, such as cutting hours, spreading out production across several facilities, etc. The CWA is fundamentally premised on technology-based standard-setting, but in recent years increasingly has included elements of harm-based standard-setting. The CAA is the opposite. It primarily employs a strategy of harm-based standard-setting, but is moving towards technology-based standard-setting. Unitary Waters Theoryit was originally a theory, but now has been codified as a rule --It is not an addition of pollutants to transfer polluted water into clean water --Basis is this statutory term waters of the U.S. It is important that waters in plural --All waters in the U.S. are one water, so transferring water from one place to another changes nothing in regards to the overall quality of U.S. waters Friends of the Everglades v South Florida Management District (2009) --Court applied the Chevron deference and concluded that there were two reasonable interpretations: one is that the statutory language means any additions to any water of the U.S., the other is that it means any addition to the waters of the U.S. as a whole --The EPAs Unitary Waters Theory relies on the latter interpretation, so it is reasonable --Why would the EPA use this rule? Who does it benefit? --How agency actions are interpreted and prosecuted can very much depend on the political party in power

Technology-based Standards 1. Nationally uniform 2. New Source / existing source distinction --Vintage based standard, creates this distinction, and provides an incentive to keep old sources functioning as long as possible 3. Technology standards are really performance standards --Performance standard means that they dont explicitly mandate what technology is used, or mandate instillation of a certain type of technology, as long as the polluter meets a certain number. Performance standard gives a numerical limit, and then discharges are free to use any means to meet that standard Performance-based Standard Advantages --Flexibility --Some technological innovation --Measurable --Quality-based standards would be harder to measure --Sends message that industry needs to get better over time Disadvantages --Doesnt take into account local conditions --No incentive to go beyond --Businesses can use alternative means, such as cutting production or cutting hours --Cost + unintended consequences --Technology might no be good enough might still result in damage to water, depending on intensity --How good are technology-based standards at internalizing the externalities? --From the environmental perspective, youve just legalized the pollution --Conservatives (reactionaries) think that this is government command-and-control --Value of a human life = $9 million --- this is the EPAs valuation of a human life NYTimes article on drinking water in WV, where coal mine discharge has polluted drinking water: --Difficult balance, because regulation helps improve lives in the short run, while economic growth helps improve lives in the long-run Rybachek v U.S. Environmental Protection Agency, (1990) (p.539): Questions to ask re tech-based standards case: (1) What is the industry being regulated? (2) What are the pollutants being regulated? (3) What is the level of technology-controls that the statute imposes?

--This case involves the regulation of placer mining which is an extremely low-tech type of mining where you stand in a stream and sort through the water with a sluice box looking for gold --ISSUES: Sluice-box discharge water: 1. The EPA set a zero discharge of pollutants under a BAT standard. The mining company wanted a BPT standard? EPA labeled as non-conventional so that BAT applies. 2. Is there an addition so that this activity is subject to the CWA? --HOLDING: (1) Court upholds BAT standard. Non-conventional pollutant label is within agency discretion (2) Court says that there is an addition. Soil sediment from the banks of the river are being added to the water. --Hierarchy of stringency: (least) BPT BCT (most) BAT BAT: 1. Toxic pollutants 2. Non-conventional pollutants BCT: 1. Conventional pollutants a. pH, oil, grease, etc. Atlantic States Legal Foundation v Kodak, (1994): --Kodak had a permit to discharge certain pollutants, issued by the state of NY --This is a citizen suit alleging that they discharged other pollutants that were not covered under their permit --The court holds in Kodaks favor --Viewing the regulatory scheme as a whole, however, it is clear that the permit is intended to identify and limit the most harmful pollutants while leaving the control of the vast number of other pollutants to disclosure requirements --Section 402(k) the Shield Provision --- if you are complying with your permit, you are in compliance with the clean water act --This provides regulatory certainty for the businesses --How did the agency know which toxins to regulate in this instance? Kodak told them what they had it is because of Kodaks disclosure --This can be a huge loophole Narrative Limitations for Process Wastewater and Storm Water Discharges (a) There shall be no distinctly visible floating scum, oil or other matter contained on or in the wastewater or storm water runoff discharge. (b) The wastewater and storm water runoff discharge must result in no other materials in concentrations sufficient to be hazardous or otherwise detrimental to humans, livestock, wildlife, plant life, or fish and aquatic life in the receiving stream.

(c) Sludge or any other material removed by any treatment works must be disposed of in a manner which prevents its entrance into or pollution of any surface or subsurface waters. Additionally, the disposal of such sludge or other material must be in compliance with the Tennessee Solid Waste Disposal Act, T.C.A. 68-31-101 et seq. and the Tennessee Hazardous Waste Management Act, T.C.A. 68-46-101 et seq. (d) The wastewater and storm water runoff discharge must not cause an objectionable color contrast in the receiving stream. (e) The permittee shall use best management practices (BMPs) and good engineering practices to prevent contamination of the wastewater and storm water runoff discharge from materials associated with activities at ready mixed concrete plants. --The numerical limitations are followed by narrative limitations. The narrative limitations are fairly vague. This is one possible loophole in the legislation. What is another potential loophole? --Monitoring frequency? --The do there own monitoring, so they will know when monitoring time is coming up --Sample size is grab which means someone just grabs a handful V. MONITORING 1. Process Wastewater Monitoring Procedures (a) The permittee must monitor the treated wastewater for the parameters set forth in part IV above (Effluent Limits) of this permit. The monitoring frequency for these parameters shall be once per month. Monitoring process wastewater shall be performed in dry weather; i.e., when storm water contributes little or no volume to the monitored discharge. 2. Storm Water Monitoring Procedures (a) The frequency of monitoring shall be once per year for all parameters. The year shall begin on the same date as the permittee's term of coverage under the permit begins. For the term of coverage see subparagraph III.F above: Administrative Procedure for Obtaining Notice of Coverage (NOC). Permittees shall collect a sample of storm water runoff and run the appropriate tests for the following parameters Virginia VPDES permit for carwashes --Carwashes have to monitor the total flow or output of all water --Also, pH, TSS, and oil & grease --Monitored once every year Note: TSS = total suspended solids Second Layer of Regulation under the CWA: Water-Quality Based Standards --What happens if Tech-based standards are not enough to return the water to a sufficient quality? --CWA 301 --Subject to tech-based standards, and other standards quality-based --Even for a single river there might be several standards in play (different sections) --Elements of Water Quality Standards: Designated Uses, coupled with water quality criteria to achieve those uses (narrative or numeric)

--WWAL = Warm Water Aquatic Life --CWAL = Cold Water Aquatic Life --2C = Secondary Contact Recreation --1C = Primary Contact Recreation --A = Agricultural Water Supply --They apply criteria such as: no odor, or no levels of chemical X --CWA 303 (d): --The 303(d) Impaired Waters List --States must make a list of all waterbodies that do not achieve certain quality --If the waterbody is on that list, then (1) state must prepare a TMDL (2) All point sources must . ??? The process: --Develop Tech-based effluent limits for all pollutants of concern --Will limits assure compliance with applicable water quality standards? --If No, add this step: Develop water quality based effluent limits --Include applicable effluent limits in NPDES permits Connecting Water Quality Standards to Point and Nonpoint Sources; TMDLs -- 303 (d): States must set TMDLs for all water-quality limited waterbodies --The states must set TMDLs from time to time once they identify them as impaired, so there is really no deadline and states drag their feet and are in no hurry --TMDL is the total amount of a given pollutant that can be added to a given waterbody on a daily basis without violating the WQS --The state must then divide that total amount among various sources: natural source, nonpoint, point --This where we really get traction on regulation nonpoint sources --The process of dividing up that total amount can be very political how do you decide who gets to pollute? CWA 303(d): (d)(1): --(d)(1) Each State shall identify those waters within its boundaries for which the effluent limitations required by section 301(b)(l)(A) and section 301(b)(l)(B) are not stringent enough to implement any water quality standard applicable to such waters. --(d)(2) Each State shall submit to the Administrator from time to time, with the first such submission not later than one hundred and eighty days after the date of publication of the first identification of pollutants under section 304(a)(2)(D) Pronsolino v Nastri, (2002): The Garcia River was polluted by only nonpoint sources, so it was not regulated by tech/performance effluent limitation however the words are not stringent enough of 303(D) were nonetheless a trigger for water quality standards for this river. This is an example of applying water-quality standards even where there are not concurrent techbased effluent limitations

The Average River Hypothetical: page 569 1. Second home development: Fox Ridge with an on-site septic system --If there is any CWA action, it would be during development --On-site septic system in a nonpoint source --Water quality is pristine at this segment of the river, so there is no TMDL since it is not an impaired section 2. Purview Farms, a large multifaceted agricultural enterprise --An AFO with irrigated crops --A nonpoint source, but there is extensive runoff --There is a specific exemption for irrigation runoff from farm --Only CAFOs are point sources --There seems to be no way to regulate 3. Dratt Chemical Co --This is a point source --They need an NPDES permit to discharge effluents into the river --If the stream is still impaired after the NPDES limitation, then they will have to meet a water quality-based standard AVERAGE RIVER HYPO: Following are the answers to the parts of the Average River hypothetical that we did not cover in class (pp. 569-570). 4): Unpoll-Ute Indian Nation . Indian tribes, like states, can set water quality standards for waters within their boundaries. The tribe is free to set a strict standard, like None Detectable, for various pollutants. If the tribe does so, then upstream discharges of that pollutant will have to ensure that they dont cause a violation of the Tribes water quality standards, and this might mean tightening their permits. 5) Any building or filling of a wetland area will require a permit under Section 404 of the CWA. 6) The Citys sewers are overflowing during storms, resulting in unpermitted discharges of raw sewage. This exposes the City to enforcement by the EPA (or the State under delegation from the EPA). Cities that operate POTWs prepare a Combined Sewer Overflow plan to control these discharges, which usually includes things like using stormwater storage ponds, flow rerouting, and personnel training. Preventing sewer overflows entirely is usually a very expensive prospect for a City and can cost billions of dollars in sewer upgrades. 7) Nurd Autos disposal of heavy metals into drains that reach the Grossville POTW is regulated by a Clean Water Act permit. Nurd must comply with pretreatment standards, based on BAT, that will limit how much heavy metals it can send to the Grossville POTW. If Nurd violates those standards, it is subject to enforcement, but the enforcement is typically done by the POTW itself, and often, POTWs are reluctant to enforce against their own customers. Here, though, the City of Grossville might enforce against Nurd (assuming Nurd is violating the pretreatment standards), because Nurds

discharges are contaminating the sludge from the sewage treatment plant, creating a disposal problem for the City itself. 8) ZAAP Power Company States must certify that any federal project constructed in the state boundaries is consistent with state water quality standards. This is Section 401 of the CWA, which we did not discuss in class and which you are not responsible for knowing. However, note that this project WOULD be subject to NE CHESAPEAKE BAY FOUNDATION Roy February 22, 2011 Mouth of the bay does not have impaired waters because there is a great deal of oxygen that comes from James River and from Atlantic Ocean Land to water ratio is 15 times larger than any other estuary in the world. HUGE land mass as compared to the receiving body of water. This is a very big watershed. CBF Every 2 years, do State of the Bay report. 1983 Chesapeake Bay Agreement (first federal action) Bay Health Indicators: Pollution what we put in the Bay Fisheries what we take out Habitat the Bays ability to heal itself from environmental assault Measure Forested buffers Underwater grasses Wetlands Resource lands (farms, open space) Fisheries Rockfish Oysters Blue Crabs Amount of pollution per capita has been decreasing. Hard to see because population keeps increasing. Pollution from many sources harms the Chesapeake Bay: Agricultural Runoff Sewage Treatment Plants and Factories Urban and Suburban Stormwater Runoff Air Pollution Other Sources Algae blooms in VA Beach insufficient oxygen for water grasses to survive. Then can result in fish kills.

Nitrogen, phosphorous, sediment THREE major pollutants for the Bay. TMDL set for each of those three pollutants Roy: TMDLs are worthless because they are plans that are developed and then put on a shelf and not carried out. 92 impaired waters that have TMDLs that make up the big Bay TMDL Pollutants in MD, PA, WV and NY are where the pollutants actually come from that are affecting the waters in VA and MD so TMDL has to regulate the pollutants from those states in order to help the other states 303(d) and 317 are the relevant statutes. Watershed Implementation Plans TMDLs dont have implementation plans, so they are pretty ineffective CBF argued for WIPs developed by states, and those WIPs were all included in the current TMDL. Bay TMDL had federal backstops to account for the deficiencies from the state-made WIPs. (did this for point and non-point sources). Assessed whether the state would actually achieve the pollution reduction. Said that if they dont meet the restrictions, then the federal government will tighten their permits. Two goals for EPA Evaluation of Draft WIPS: achieve load caps for N, P, and sediment provide a high level of reasonable assurance None of the WIPs met the reasonable assurance test (see above, which is why the federal government created backstops) EPA issues a draft TMDL that merges WIP actions and federal backstop actions. Measurements for water quality standards: dissolved oxygen water quality underwater grass acreage Look at three claims for relief in Farm Bureau complaint. FINAL CHESAPEAKE BAY TMDL: (didnt get all of this before he changed the slide) faced with strict consequences from EPA, jurisdictions significantly improve final WIPS: VA committed to upgrade WWTPs in James River PA development of compliance initiative for agriculture EPA removes most backstops from the TMDL Those remaining are for NY wastewater, PA urban stormwater Tough Battles that Lie Ahead Lawsuits American Farm Bureau Federation and PA Farm Bureau sue EPA over TMDL in federal court (PA)

 Challenge model, EPA authority, lack of public participation phase 2 WIPS dealy of schedule local government engagement implementation state policy, legislative, and funding changes trading and offsets costs of reducing pollution from urban stormwater Most of the WIPS are very specific (things like saying MD housing subdivisions can no longer be built on septic systems, or VA passing law that reduces phosphorous from lawn fertilizer, etc.) these are all very specific, particular things that are being regulated, but they all together will have big effects

5.

The Clean Air Act (CAA) of 1970

The CAA: Review: Title I o Stationary Sources o Most of what we have been studied has been under Title I 107 --- AQCRs (air quality control regions) o In general these follow county lines o The states designate AQRs, but subject to federal approval o NAAQS are federally uniform, and do not vary in AQCRs 108, 109 --- NAAQS procedure The Current Criteria Pollutants: (p.471) 1. Ozone 2. Nitrogen Dioxide 3. Carbon Monoxide 4. Particulate Matter 5. Sulfur Dioxide i. This standard has been tightened since our book was published ii. Must meet standard for every hour of the day. Previously, only had to have average per hour lower than standard iii. Courts thought that older standard was inadequate for asthmatics 6. Lead --- NRDC v Train, (1976) CAA 108: ii. The Administrator shall publish a list which includes each air pollutant:

iii. (a) emissions of which cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare (b) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources, and (c) for which air quality criteria had not been issued before Dec 31, 1970 but for which he plans to issue air quality criteria under this section (p.468) Lead said by Court to meet the conditions of 108: The DOJ argued that under (c) they didnt have to regulate because they didnt have a plan to regulate, but were going to regulate a different way. Through phasing out lead from gasoline The Court rejects this argument, because if that was true then the mandatory language at the top would be surpfliulous Lead is the only pollutant to be added to this list of criteria pollutants, but greenhouse gases might someday be added. The EPA has made a finding that Green House harm public safety and health 110 --- SIP process The federal government has been taking away state control, using: Technology Controls Technology statutes mean federal control over state policies Over time, the CAA is looking more like a technology statute and less like a health-based statute i. The SIP process and technology controls: 1. Counteracted the advantage that rural states had over populous states 2. How do states allocate pollution among sources to ensure that the NAAQS are achieved (without bankrupting the economy)? 1. Technology Controls: i. NSPS (111) ii. HAPs (112) iii. Mobile Sources iv. Nonattainment sources (offsets + LAER) 111 --- NSPSs (new source performance standards) Nation-Wide i. New Sourcea new source is one that is constructed or modified after the publication of the standard of performance ii. Modification (definition also applies to NSR) 1. A modification is any physical change in, or change in the metod of operation of, a stationary source that results in: 1. An increase in emissions of a particular pollutant, or 2. Emission of a new pollutant iii. Interpretation: 1. EPA promulgated an exemption from the definition of modification for maintenance, repair, and replacement which the Administrator determines to be routine (RMRR) 2. Bush Interpretation: Bright-Line Test 20% 1. Must replace an existing component with identical purpose 2. Costs may not exceed 20% of total value of unit

3. Cant alter basic design or exceed emissions limitations 3. NY v. EPA --- 20% set by Bush Interpretation EPA is unreasonable definition of modification 4. Returns us to the Clinton-era RMRR (routine maintenance & regular repair) which is a case by case determination 112 --- HAPs (hazardous air pollutants) --- MACT i. What flexibility do the states have left? ii. A lot of the control has been put in Washington iii. The main area of flexibility left to the states is in existing sources, and the control mechanism towards achieving the NAAQS Title II Mobile Source We are primarily responsible only for Title II 202(a) 209, 177 ---- This is the section that gives California the right to set tougher emissions standards There are now more cars/trucks than people in the U.S. VMTVehicle Miles Traveled keeps going up, even on a per capita basis, which keeps some counties out of attainment with the CAA standards Title IV Added in 1990 To combat the Acid Rain problem Sets up SO2 (sulfur dioxide) cap & trade program Why did we need this program? i. To get to older, existing sources ii. Title I really only puts strict limits on new sources

Nationwide Emission Limitations 1. NSPSsNew Source Performance Standards (111): (1970 Amendments) a. Industry-Specific Standards i. BADTbest system of reduction adequately demonstrated b. These limitations cover pollutants that do not meet the size thresholds of PSDs and nonattainment areas and cover pollutants other than criteria pollutants. c. EPA must assess costs & technological feasibility 2. HAPsHazardous Air Pollutants Limitations (112): a. These limitations are to provide a safety margin for the public health and may be read to disregard cost considerations or technological feasibility b. CANNOT consider costs or technological feasibility i. EPA can only consider health factors, with an ample margin of safety ii. NRDC v. EPAcant consider costs, upholding language --These two standards force all new-source emitters to adopt additional controls 3. Motor Vehicle Emissions Standards: Limitations cover various classes of mobile sources, the composition of fuels, and encouragement of alternative fuels. The CAA: Process: Designation of criteria pollutants CAA 109 sets the number of the NAAQS that will lead to public safety

o Federally uniform, do not vary by region, set by fed NAAQS are governed by 108, and 109 o Mobile (Title II) National standards set by fed (EPA) o Stationary (Title I) State-by-state control under EPA-approved SIPs (110) HAPs (112) NAAQS for Stationary, set by EPASIP plan to achieve NAAQS Setting NAAQS: 1. Primary NAAQS: Set by EPA at a level requisite to protect public health o This is mostly what we will be studying in this class o EPA cant consider costs in setting or revising the NAAQS Lead Industry v EPA (1980) --- upholding EPAs refusal to consider costs & technological feasibility Whitman v American Trucking, (2001) EPA cannot consider costs in setting primary & secondary NAAQS 2. Secondary NAAQS: welfare SIPs (or FIP, but rarely) --- must meet 13 requirements in CAA 110(a)(2) o EPA sets the NAAQS, then states create SIP of how to implement the required level to protect health o Not a document, just the totality of regulations o Governed by 110 AQCR: Air Quality Control Region o Sate draws boundaries, but Fed has ultimate control of defining boundariesstate must petition to change, subject to EPA approval. Promulgated as fed reg, thus fed law o Each AQCR designated as: (for each criteria pollutant)

1. Attainment a. PSD (more stringent on rural states) 1. Amount of increment between NAAQS and Baseline Air Quality (ppm) depends on the class1 i. Class I (highest) ii. Class II: (initial classification iii. ClassIII 2. 160-163 3. PSD program created in 1977 Amendments 4. Potentially applies wherever NSR does not 5. Sierra Club v Ruckelhausruling created PSD program (1972)
1

CARE v EPA ---- for choice of baseline year, court defers to agency even though change was already in progress, court defers to agency judgment to let it count as an offset

6. How does PSD work? i. First, there is a permitting process for major new or modified sources that will emit pollutants for which the region is in attainment. b. Less stringent emissions limitations 2. Nonattainment i. NSR ii. Nonattainment sources (offsets + LAER) iii. LAERlowest achievable emission rate iv. More stringent emissions limitations v. OFFSETS vi. The most stringent limitations are for new sources being built in nonattainment area 3. Unclassified a. PSD PSD: system of pre-construction permitting b. Sierra Club v Ruckelshaus, (1972): preamble of the CAA prohibited EPA from approving SIPs in relatively clean areas that would allow such areas to pollute their air to the level of the NAAQS c. Thus was born the Prevention of Significant Deterioration (PSD) program for: 1. Attainment AQCRs, or 2. Unclassified AQCRs 4. The 1977 amendments incorporated this new program 5. New and modified sources in PSD areas also required to use BACT New Source Review (NSR): To be distinguished from NSPS (which is nationally uniform) If new source review applies, then the pollution controls that apply to this source depend on if its in an attainment or nonattainment areaPreconstruction permitting in nonattainment AQCRs For major new or modified stationary sourcesmust get preconstruction permit. --Probably never have PSD (attainment, or unclassified) and NSR (nonattainment) applied to same polluter, because happen in different AQCR regions Nonattainment areas (the same as in the CARE case) LAER + offsets required For attainment areas, it must meet standard of performance equivalent to BACT (part of the PSD program) Note: BACT and LAER are pretty similar. So the major difference is the required offsets in nonattainment areas. What is a modification? Governed by 111 or 112(?) --- any physical change, or operational change, that results in increased emissions or emission of new pollutant o New York v. EPA o Issue: What is a modification under New Source Review? Bush says 20% o Rule struck down --- This returns to the Clinton-era routine maintenance and repair rule & case by case determination Basic Structure of the CAA: Harm Based o NAAQSharm-based ambient quality regulatory approach that relies on federal air quality standards designed to protect public health

o Sate regulation of stationary air pollution sourcesEPA sets NAAQS, but states enforce them (SIPs) o NAAQS: National Ambient Air Quality Standards o Ambient: regional air --- air quality of an entire region o CAA uses harm-based standard because the problem is so directly linked to human health. In the US 40,000 or so people die every year from air pollution Best Available Technology o Section 111 --- establishes best technology performance standard Applies to new, stationary sources of air pollution o Section 112 --- employs a more stringent tech based standard, MACT Maximum Available Control Technology (MACT) More stringent than standard than best tech performance standard 112 applies to hazardous air pollutants, such as: arsenic, benzene, etc o Also includes variations on Best Available Technology (BAT), such as requirements that major new and modified sources of air pollution install the Best Available Control Technology (BACT) o Technology elements in the CAA NSPSsApply to newly constructed/modified sources and mobile sources Have goal of achieving the NAAQS: Individual permit with tech-based emissions limitations State SIPS --- The SIP is not a document; it is not a book, or something you can send someone. It is just the totality of regulations, and whether or not they are sufficient to achieve standards Technology Forcing o Title II --- sets strict congressional standards for reductions of automobile and truck tailpipe emissions, and authorizes EPA to continue periodically to reduce allowable emissions. Title II also mandates the use of clean-fuel vehicles in the nations most polluted areas and requires limited production of clean-fuel vehicles by auto manufacturers Market-Enlisting o Title IV --- creates an innovative emissions trading program, primarily for SO2 (sulfur dioxide). This program under Title IV has become the paradigm for a host of proposals for shifting environmental regulations into market-trading systems

Evolution of regulatory strategies used by the CAA (four stages): Stage 1 --- 1970 o The CAA was first enacted in 1970 o Before this, reduction in pollution was voluntary o Provided for: a nationally uniform air quality standard, and state SIPs with a deadline by Congress

o Criteria Pollutants Harm-based approach Primary Standards Set at a level adequate to protect the public health after allowing for an adequate margin of safety These standards are the NAAQS o Thus, the CAA started with an endpoint, clean air at a safe level o Divided the universe of sources of pollution into two major categories: 1. Stationary Sources Subject to state-by-state control under: CAA Title I Allowed the states to choose how to reach adequate level of emissions reduction SIP --- States must develop SIP If the states refused, or drafted an inadequate SIP, the EPA could impose a federal implementation plan (FIP) o EPA is forbidden by Congress to impose gasoline rationing as part of FIP Congress did not leave all regulation of stationary sources completely to the states. For major new pollution sources, Congress directed EPA to develop New Source Performance Standards (NSPS), which were to require new stationary sources to employ Best Available Technology (BAT) for a facility of its kind. o Goal is to mitigate race to bottom 2. Mobile Sources Subject mostly to direct nationwide federal regulation under: CAA Title II Technology Forcing o Section 112 --- created a program for the regulation of Hazardous Air Pollutants o Harm-based, like the original NAAQS o NRDC v Train, (1976) --- citizen suit that played a crucial role in defining the contours of the CAAs statutory text and in creating a body of caselaw o EPA does not have discretion whether to list a pollutant if it meets the conditions of Section 108 if it meets those conditions, the EPA shall list. This is mandatory language o The first and only time that a pollutant has been added to the list since 1970 Stage 2 --- 1977 o NSR o RACT (< BACT) applied to previously grandfathered existing sources in nonattainment areas o Revisions to address two basic questions: 1. How clean should the nations air be? Sierra Club v Ruckelshaus, (1972): preamble of the CAA prohibited EPA from approving SIPs in relatively clean areas that would allow such areas to pollute their air to the level of the NAAQS

o Thus was born the Prevention of Significant Deterioration (PSD) program The 1977 amendments incorporated this new program New and modified sources in PSD areas also required to use BACT 2. How quickly should that level be achieved? The original 1970 act had ambitions deadlines. As expeditiously as practicable 1977 Amendment was a retreat from rigid goals o For nonattainment areas, it relaxed the standard, so that NAAQS were goals toward which only reasonable further progress was required o Due to political influences --- nonattainment areas tend to be the highly populated areas At the same time, Congress strengthened the requirements for stationary sources and for the inspection and maintenance of automobiles in nonattainment areas o All existing sources were required to employ Reasonably Available Control Technologies (RACT) o All major new sources were required to achieve Lowest Achievable Emissions Rate (LAER) and to offset their pollution by arranging pollution reduction at other facilities in the area Stage 3 --- 1990 o Revisions pursuant to the NAAQS attainment issue: Congress set strict compliance dates and stricter requirements for SIPs Tightened standard for mobile sources Specific sanctions were spelled out for states that did not comply with the new timetable Such as being cutoff from federal highway funs and other federally bestowed benefits Required EPAs promulgation of a FIP within 2 years of a states failure to submit an adequate SIP o Revisions pursuant to Hazardous Air Pollutants: Congress abandoned the harm-based approach in favor of a technology-based approach that called for the installation of the MACT Stage 4 --- The new millennium o Since the 1990 amendments, most of the significant CAA action has been undertaken by the executive branch or the states rather than by Congress o Addressed ozone and particulate matter with stronger NAAQS o Bush II narrowed the scope of the NSR program, and said that greenhouse gasses are not air pollutants o Era has been inconsistent due to political changes o Supreme Court overturned the Bush finding that GHG is not an air pollutant o The highly politicized debate about GHG control is the salient topic Harm-Based Ambient Standards Under the CAA

o NAAQS form the centerpiece of the CAA o Primary Standards Defined for each criteria pollutant on the basis of potential harm to human health o Secondary Standards The level at which pollutants would harm welfare, or crops/vegetation More stringent standard Generally not enforceable o Secondary Standards arent generally enforceable, so virtually all attention focuses on Primary Standards o Two major decisions that must be made as a part of using an ambient harm-based standard (which the NAAQS are): 1. Statutory drafters must decide by what means, and to what level of stringency, they will set the standards for sufficient quality 2. Then, a choice must be made about how to allocate allowable emissions within the commons so that the end result is attainment of the ambient standard o The NAAQS program is the leading example of a harm-based approach Allegedly creates trillions in value more than what it costs to impose Cooperative Federalism: Harm-based ambient standards and state plans (under CAA 107) to achieve them are a good example. The states have freedom and the responsibility to make the difficult and multifaceted determinations about how to limit pollution up to the allowable NAAQS limits. State Primacy: Why should primary responsibility for air quality theoretically be lodged with the states? CAA 107(a): Each state shall have the primary responsibility for assuring air quality within the entire geographic area comprising such state. What are the Standards for Setting NAAQS? o Few regulatory judgments have as widespread economic and political ramifications as do decisions about how strict the NAAQS should be set o One of the longest-running debates was whether the EPA was requiredor even allowedto consider economic costs in setting or revising the NAAQS o The issue first arose in Lead Industries v EPA, (1980), where the court upheld EPAs refusal to consider economic and technological feasibility in setting standards. o Then, in Whitman v American Trucking Ass, the D.C. Circuit Court said that the CAA was a violation of the doctrine of non-delegation of power if the EPA forbid consideration of costs. REVERSED by Supreme Court o The case was appealed to the Supreme Court. In Whitman v American Trucking Ass, U.S. Supreme Court (2001), the Supreme Court granted review of the longstanding issue of the relevance of costs under the CAA, affirming the EPAs long-held view. o Question: Does section 109(b)(1) of the Clean Air Act unconstitutionally delegate legislative power to the Administrator of the Environmental Protection Agency? May the Administrator of the EPA consider the costs of

implementation in setting national ambient air quality standards under section 109(b)(1)? Does the Court of Appeals have the jurisdiction to review the EPA's interpretation of Part D of Title I of the CAA, with respect to implementing the revised ozone NAAQS? o Conclusion: No, no, and yes. In an opinion delivered by Justice Antonin Scalia, the Court held that the CAA properly delegated legislative power to the EPA, but that the EPA could not consider implementation costs in setting primary and secondary NAAQS. Moreover, the Court held that the Court of Appeals has jurisdiction to review the EPA's interpretation of Part D of Title I of the CAA related to the implementation of the revised ozone NAAQS; however, the EPA's interpretation of Part D was unreasonable. Krier: The Irrational National Air Quality Standards (Cost/Benefit): The goal of CAA is to minimize sum of pollution costs + costs of controlling pollution Uniform standards dont take into account level of pollution and geography Market should be used to set value of clean airand we shouldnt spend more on clean air than it is worth. CAA limits choices, so resource have to be spent on air even if air isnt an issue in area and resource could be used to clean other types of pollution, like water pollution Argues for federal regional standards, instead of one uniform standard. He thinks that there should be regional variation Health shouldnt be protected at any price---economic argument that follows the actions of individuals---people dont value their health as priceless. People make choices everyday that set a value on their well-being Forcing air-quality standards on the poor limits their choices. It would be paternalistic to deny them the choice with what to do with those resources. They should be able to chose, and set a relative value and decide on trade off The problem with that is that you need economies of scale to achieve clean air There is a lot of research that singles out the CAA as providing the most benefit for every dollar spent, compared to other environmental regulation Who pays and who benefits from the CAA? --Low income and minority populations --This is because it targets urban areas, and populated areas, which are the primary target, being the most likely to be nonattainment areas NAAQS: (1) Attainment PSD Program (CAA 160-163) Less stringent emissions limitations (2) Nonattainment More stringent emissions limitations Offsets + LAER The most stringent regulations are for new sources being built in nonattainment areas

What is a PSD increment? --Baseline Air Quality (ppm): Since of the increment depends on whether its a Class I, Class II, or Class III area -- 163 --NAAQS (ppm) set above the Baseline Air Quality --There is an allowable level of increment in between these two levels. The amount of increment allowed depends on the class --Class I: highest classification. Such as National Parks, wilderness areas --Class II: all PSD areas are initially classified as Class II --Class III: lowest classification of land use PSD --PSD programs stacked old, industrial areas against rural areas. There is a tougher limit on undeveloped areas. So, NYC and California and industrial areas got to take away the advantage that rural states had. There is a more stringent standard for rural areas. --The votes for the PSD came primarily from industrial states, who didnt want competition and didnt like businesses moving to rural states where land was cheap --The basic purpose of PSD is to say, lets keep our pristine areas pristine, and not let them get polluted CARE v. EPA (1981): A look at new sources in nonattainment areas (PSD) --Court gives EPA discretion in selecting the baseline year & allowing action to count as an offset At the time of this suit, the CAA actually prevented ANY new source of a pollutant from being built until the NAAQ for that pollutant was obtained this halted all development in big industrial cities In response, the offset program was implemented in 1977 amendments to the CAA This allows you to build a new source in a nonattainment area, but you have to come up with an offset for this. In 1990, Congress added that a whole series of provisions setting offset ratios. You have to have a minimum offset of 1.1 to 1 (offset 10% more of the pollution than you are producing which creates a net reduction). In worst air quality regions, ratio goes up to 1.5 to 1. o Offsets include things like upgrading all school boilers with new technology. Or converting 1000 school buses to natural gas or biodisel but it is the permittees obligation to find this offset. Dispute over the offset: The program of switching the asphalt was already being implemented by the state (switching it from oil based to water based asphalt) CARE was saying because this was already in the works, its not an offset. CARE was also saying that the year chosen as the baseline (the year chosen to calculate the offsets) was the highest year for usage of the old asphalt. CARE said they should have used a different year. o Holding defers to the state on all of these judgments, and EPA in approving the SIP Basically, there is no analysis here, just deference to the agency on these technical issues.

New Jersey v. EPA They decide the case at Chevron step 1, and they say that this interpretation is wrong. EPA cannot delete mercury from this list without making specific findings. Clinton EPA already put mercury on the list so cant be taken off 112(C)(9): you can delete sources from this list, but there must be a study and make a finding before this can happen. This required finding is that emissions from no source in the category or subcategory concernedexceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will results from emissions from any source the EPA couldnt find this, of course, because mercury is clearly harmful to human health. o Both this and NY v. EPA arise under Bush administration, which was trying to implement flexibility into the regulatory scheme o Technology standard here: MACT for Hazardous Air Pollutants (in particular mercury) is the issue in this case Background: 112 of CAA: o (B): List of Pollutants these were put into the statute by Congress because they were frustrated with the progress EPA had made in many years following passage of CAA 189 pollutants listed here, these are the ones that are regulated mercury compounds is included in this How are you regulated if you are on this list? o You are subject to technology-based standards; MACT standards. Even though these are the most detrimental of pollutants, they are just subject to MACT. o Which sources are regulated? 112(C): within a year of the passage, they have to create a list of sources that emit these listed pollutants, and then to regulate these. Special exception for Electric generating plants: o These are exempt from the flat out regulation by the administrator. o 112(N): requires a study to be conducted for these within 3 years about the pollutants they emit. o EGUs will be regulated if, after the study, the administrator deems that the results make it appropriate and necessary Study required by 112(N) is done during the Clinton administration. They decide it is appropriate and necessary to regulate emissions from EGUs. This is done 3 weeks before Bush comes into office, and he wants to change the program. o Bush wants to put a cap on the total mercury emissions, and set up a cap and trade system. A national cap for mercury is set, companies have to get a permit to emit mercury, but if they get a permit they can sell it and trade it in the market to other companies who are struggling to meet this limits. o The issue: 112 doesnt say anything about a cap and trade system for mercury.

EPA is trying to say they have the discretion to set this up. And that this flexibility is given via the Chevron doctrine. What happens next? EGUs are still on the list now, and therefore EPA is required to develop a MACT standard for mercury for coal-fired plants. o This will be different control technologies that will require coal fired plants to reduce mercury emissions by 70-80% EPA has to publish its final standards in November of 2011 Congress publishes the list in 1990 with mercury on it, regulations come out in 2011, and probably wont go into effect until 2014 this is just a really really long time to implement the statute. New York v. EPA Issue: What is a modification under New Source Review? Bush says 20% Rule struck down --- This returns to the Clinton-era routine maintenance and repair rule This is where things stand now. There is a case-by-case determination. Background: o New sources have much stricter standards than existing standards o Everyone knew at the time this would create a competitive disadvantage at the time for new sources (it is cheaper to keep an existing source than to build a new one). This is basically saying existing sources have little regulation, and new ones have a lot. Justification: At some point, old sources will need to shut down or upgrade and then will be subject to harsh regulations. Politically easier to regulate new sources as opposed to existing ones. Basically, if you do a major renovation for a power plant, you must install the new and stricter control technologies. When New source review standards enacted: EPA issues interpretative rule that says routine repairs and maintenance will not trigger NSR o i.e. replacing a pipe or a hose, it is not triggered. Its hard to know what the routine maintenance instead of a major repair o EPA originally thought this could be done on a case-bycase basis. When Bush Administration comes into office: They want a bright line rule. This would allow a coal-fired plant to spend up to 20% of the total value of the plant on an annual basis if you spend under this, you can do whatever you want to the plant under this level and it is routine maintenance and repair and wouldnt trigger NSR under CAA. o 112(A): Modification: means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously listed.

EPA making the same kind of Chevron-based argument Statutory ambiguity = court should defer to their discretion in setting the 20% level EPA trying to say that physical change is ambiguous This could mean any number of different changes/meanings. Its not clear what this means, so the court should defer to their interpretation. EPA is also trying to say any is ambiguous as well. Basically saying that this doesnt make physical change any more clear. State of New Yorks Arguments: Saying that any is an expansive term, so this means that literally ANY physical change triggers the NSR. Congress meant to capture all physical changes with the word any New York is saying that 112(a) has its own limit: NSR is only triggered if a physical change results in an emissions increase. Because congress wrote in that limitation in its definition (what court holds), lets not add any further limitations to word any any should be defined expansively and broadly, subject to the actual restriction contained in the statute. Had the court not rules on this at Chevron step 1, NY could have argued that the 20% threshold was not a permissible interpretation of the statute. Holding: Rule struck down This returns to the Clinton-era routine maintenance and repair rule o This is where things stand now. There is a case-by-case determination.

6.

CLIMATE CHANGE & GHG

Climate Change: [1] Whats happening? [2] Whats projected for 2100? [3] How do we handle the uncertainties? [4] Whats the legal response? There is a link between whats happening in Japan and climate change, and that is the fat tail Fat Tail is the slim probability extreme event The nuclear reactors in Japan were meant to withstand earthquakes, but the one they had was the largest in recorded history, which was a small-probability catastrophe. The earthquake-proof reactors were not built to withstand one greater than had ever been recorded The Fat Tail concept as applied to climate change is the extreme catastrophe event that is such a low probability that cost-benefit analysis ignores it

Overview of Global Warming: The Greenhouse effect o Since the industrial revolution the concentration of greenhouse gases in the atmosphere have greatly increased We have used core-samples (of ice in Greenland or Antarctica) to see the CO2 concentration in the air and the temperature going back 160,000 years o CO2 Concentration 550 ppm is double the pre-industrial level 275-ish ppm was the pre-industrial level Currently, we are just over 350ppm The hope is to keep concentration below 550 [2] 650ppm is predicted for 2100 with business as usual CO2 for the last 600,000 years: o Currently we are at 385PPM which is higher concentration than we have ever been in the last 600,000 years In the past 1000 years, each of the past decade has been among the hottest decade on record (Northern Hemisphere) o Globally, data goes back 140 years, but it shows huge increase in warming since 1980 There are two questions that need to be answered: o (1) Is global warming happening? (Yes, obviously) o (2) Is the warming caused by human activities? (Probably, but this is less certain) Lots of glacier retreat, and the NW passage is slowly opening IPCC (Intergovernmental Panel on Climate Change) Report: Highly criticized as being inaccurate, because one prediction was wrong, but it is echoed by many other scientists/groups Global warming is a misnomer, or misleading name, because it is not the warming that will cause the problems, but the effects that the warming causes that will create problems. Policy Issues: Mitigation Adaptation There is now growing consensus that we need to do both We need to ask ourselves, how can we mitigate the change, and how can we adapt to the change? Warming will be most severe at the polls: This is because the melting ice provides a feed-back loop The vapor and the heat feed off each other IPCC Fourth Assessment Report: Climate Change 2007 (2) Causes of Change:

o Changes in atmospheric concentrations of greenhouse gases (GHGs) and aerosols, land cover and solar radiation alter the energy balance of the climate system. o Global GHG emissions due to human activities have grown since pre-industrial times, with an increase of 70% between 1970 and 2004 o Carbon dioxide (CO2) is the most important anthropogenic GHG. Its annual emissions grew by about 80% between 1970 and 2004. The long-term trend of declining CO2 emissions per unit of energy supplied reversed after 2000. o Global atmospheric concentrations of CO2, methane (CH4) and nitrous oxide (N2O) have increased markedly as a result of human activities since 1750 and now far exceed pre-industrial values determined from ice cores spanning many thousands of years. (3) Projected Climate Change and its Impacts: o There is high agreement and much evidence that with current climate change mitigation policies and related sustainable development practices, global GHG emissions will continue to grow over the next few decades. o The IPCC Special Report on Emissions Scenarios (SRES, 2000) projects an increase of global GHG emissions by 25 to 90% (CO2-eq) between 2000 and 2030 with fossil fuels maintaining their dominant position in the global energy mix to 2030 and beyond. More recent scenarios without additional emissions mitigation are comparable in range o Continued GHG emissions at or above current rates would cause further warming and induce many changes in the global climate system during the 21st century that would very likely be larger than those observed during the 20th century (4) Adaptation and Mitigation Options o A wide array of adaptation options is available, but more extensive adaptation than is currently occurring is required to reduce vulnerability to climate change. There are barriers, limits and costs, which are not fully understood. o Societies have a long record of managing the impacts of weather- and climaterelated events. Nevertheless, additional adaptation measures will be required to reduce the adverse impacts of projected climate change and variability, regardless of the scale of mitigation undertaken over the next two to three decades. Moreover, vulnerability to climate change can be exacerbated by other stresses. These arise from, for example, current climate hazards, poverty and unequal access to resources, food insecurity, trends in economic globalisation, conflict and incidence of diseases such as HIV/AIDS. o Some planned adaptation to climate change is already occurring on a limited basis. Adaptation can reduce vulnerability, especially when it is embedded within broader sectoral initiatives. There is high confidence that there are viable adaptation options that can be implemented in some sectors at low cost, and/or with high benefit-cost ratios. However, comprehensive estimates of global costs and benefits of adaptation are limited

--We need an 80% reduction in U.S. emissions below 1990 levels by 2050, which is close to a 90% reduction from todays level --If we are going to meet the goal --This would involve a re-invention of the U.S. economy

[4] Whats the Legal Response? State/local o There have been several state-wide cap and trade laws o Renewable portfoliosstates say a certain percentage of their energy should come from renewable sources Federal government o EPAs regulation of GHGs under the CAA o Theres been a deal to raise fuel economy International o Kyoto Protocol --- first international treaty to actual put a number on the goal A lot of countries are going to miss their goal for 2012 Not seen as a huge success, but it is a good start o 2009 Copenhagen o 2010 Cancun Global capital follows innovation, so if the U.S. wants global capital to be invested in the U.S., we need to have policies in place that allow for/promote innovation. Big Picture: GHG & Climate Change: Any solution must be international o Kyoto ConferenceKyoto Protocol (1997) is the only binding international treaty to have reductions in GHG emissions o Expires in 2012 o US signed it, but then never ratified it o Other countries went ahead and implemented it though o Follow-up treaty negotiated in Copenhagen and then Cancun The problem with negotiating an international treaty on climate change is that it encompasses everything o At Copenhagen, there were forestry people, banks looking to capitalize on carbon-trading market, people from every industry, etc. Obama negotiated Copenhagen Accord: U.S. committed to a 17% reductions in GHG emissions below 2005 levels by 2020 This would get us back to 1990 levels 17% reduction is the amount set forth in the Waxman-Markey Bill o Which was a cap-and-trade bill passed by the House but rejected by the Senate The thought several years ago was that individual states would set GHG laws of varying stringency, which would be bad for business, so the business would run to Congress and demand one uniform federal regulation This didnt happen. The Waxman-Markey Bill was as far as that effort went

At this point, it is unlikely that we will see National climate change legislation, and international legislation is stalled, because it involves so many parties and so many different interest from countries of varying levels of development

Massachusetts v. EPA, U.S. (2007): This is the most important environmental ruling of the past decade, to say the least There is no direct harm cause by GHGs, but they indirectly cause harm through the intervening mechanism of global warming The petitioners asked the EPA to regulate under 42 U.S.C. 7521: o (a) Authority of Administrator to prescribe by regulation o Except as otherwise provided in subsection (b) of this section (1) The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. Such standards shall be applicable to such vehicles and engines for their useful life (as determined under subsection (d) of this section, relating to useful life of vehicles for purposes of certification), whether such vehicles and engines are designed as complete systems or incorporate devices to prevent or control such pollution. The petitioners were asking for regulation under Title II of the CAA. They were only asking for regulation of Mobile Sources. This suit doesnt touch on the issue of Stationary Sources, which is the major source of polluters EPA declined their motion, arguing that: o The CAA does not authorize EPA to issue mandatory regulations to address global climate change o That even if the agency had the authority to set GHG emission standards, it would be unwise to do so at this time o Regulations would either conflict with the standards of the Department of Transportation or be superfluous o The Political History dictates that climate change is so important an issue, that unless Congress spoke with exacting specificity, it should not act but wait for Congress to do so This lawsuit was very much a high-stakes gamble o Standing Issue: If they didnt have standing, it might foreclose all such future environmental issues o If the Court ruled that GHGs arent within the scope of the CAA, then it would foreclose the possibility of ever regulating under the CAA Would have to wait for Congress to pass climate change legislation Alternatively, the plaintiffs could have chosen to wait for a new, more liberal president whos EPA would simply make the finding without the lawsuit Issues:

o (1) May the EPA decline to issue emission standards for motor vehicles based on policy considerations not enumerated in the Clean Air Act? (NO) o (2) Does the Clean Air Act give the EPA authority to regulate carbon dioxide and other greenhouse gases? (YES) Conclusion: o By a 5-4 vote the Court ruled in favor of Massachusetts. STANDING: The opinion by Justice John Paul Stevens held that Massachusetts, due to its "stake in protecting its quasi-sovereign interests" as a state, had standing to sue the EPA over potential damage caused to its territory by global warming o The Court rejected the EPA's argument that the Clean Air Act was not meant to refer to carbon emissions in the section giving the EPA authority to regulate "air pollution agent[s]". The Act's definition of air pollutant was written with "sweeping," "capacious" language so that it would not become obsolete o Finally, the majority ruled that the EPA was unjustified in delaying its decision on the basis of prudential and policy considerations. The Court held that if the EPA wishes to continue its inaction on carbon regulation, it is required by the Act to base the decision on a consideration of "whether greenhouse gas emissions contribute to climate change." Chief Justice Roberts's dissenting opinion argued that Massachusetts should not have had standing to sue, because the potential injuries from global warming were not concrete or particularized (individual and personal) Justice Scalia's dissent argued that the Clean Air Act was intended to combat conventional lower-atmosphere pollutants and not global climate change o Uses Chevron-step2 to suggest that the Court should defer to the agencys interpretation of what constitutes a pollutant EPA did not issue their Endangerment Finding on GHGs until 2009, after there was a change in the administration o At this point, EPA had satisfied the demand of the Court. They dont have to issue a similar finding for Stationary Sources. The case only pertained to mobile sources Public Welfare: includes impacts on weather and climate The Court ruled that GHGs are pollutants under the CAA and, thus, that the agency is required to determine whether GHGs emitted from vehicles endanger public health or welfare (or at least explain why it could not do so using statutory groundswithin the scope of the statute, that there is too much scientific uncertainty) o The Court did leave a small window, saying that the EPA didnt have to make a finding if they determined that there was too much scientific uncertainty however, this would make them look very foolish in the scientific community For Bush, this was a political bomb So, to save face, he started a stalling tactic, so that nothing would have to be done while he was still in office o EPA issued an Advance Proposal of Proposed Rulemaking o This period of notice/comment stayed open until he left office EPA issued their endangerment finding on the first day of the Copenhagen Conference

Pollutants for which a positive endangerment finding has been made are listed as criteria pollutants and the agency must determine what air quality standard is necessary to protect public health or welfare. In principle, the agency could set separate standards to protect health and welfarethese are termed primary (health) and secondary (welfare) standards.18 In practice, however, the EPA almost never does this, and the only difference between the two types of standard is that the CAA does not include a timeline for compliance with secondary standards. Both of these initial determinationsendangerment and the level at which a NAAQS is setare designated in the CAA as purely scientific.20 The EPA is not permitted to consider compliance costs. To date, the EPA has set a NAAQS for only six pollutants: o sulfur dioxide (SO2), o tropospheric ozone, o nitrous oxides (NOx), o particulate matter (PM; two particles sizes are regulated separately), o lead, and o carbon monoxide.

NRDC v Train (1967) (page 468 of casebook) o This was a very similar situation o Sued to force EPA to regulate lead o They issued a NAAQS for lead, because a positive endangerment finding is a trigger under the CAA that requires the agency to issue Air Quality standars The EPA does not want to issue a NAAQS for GHGs They will have to argue that under 108(1)(c) they have discretion not to regulate but this is the exact same argument that the Court struck down in NRDC v. Train They are arguing that times have changed now, and that the Court should defer to their judgment under Chevron Test Why dont they want to set a NAAQS: o Ambient air quality standard for entire nation, so entire U.S. is either in attainment zone or in nonattainment zone o Also, its a global problem, so if the State of Delaware is out of attainment, what can it do to affect the global level of GHG? Not much States would have to create SIPs, but what possible plan could they have to attain the level? o What would the standard be? There is a lot of dispute as to what constitutes a safe level of GHGs Major Emitting Facility --- this determines who has to get a permit, and be subject to new source standards o Under PSD (Prevention of Significant Deterioration) program o Anyone emitting more than 250 tons per year This is not that much of CO2 Would probably include every apartment complex, every strip mall, almost every building complex There would be too many sources covered Tailoring Rule:

o So, EPA came up with the tailoring rule to combat this problem o They said that the level for PSD program as applied to GHGs would be 25,000 tons per year o But, this Tailoring Rule could be challenged they might not have the ability to make this change. A court might find it beyond their discretion. How is 25,000 a reasonable interpretation of 250? o Who would have standing to challenge the Tailoring Rule? REGGIRegional Greenhouse Gas Initiative --A cooperative effort on East Coast --Only GHG cap-and-trade initiative --The Regional Greenhouse Gas Initiative (RGGI) is the first market-based regulatory program in the United States to reduce greenhouse gas emissions. Ten Northeastern and Mid-Atlantic states have capped and will reduce CO2 emissions from the power sector 10 percent by 2018. --Very low standards GHG Politics: Very hot topic on Capital Hill There is a proposed bill to overturn Mass. v. EPA, o Which would deem that GHG cant be regulated as a pollutant under the CAA o BUT, bill was rejected by the Senate Standing / EPAs Tailoring Rule: Tailoring Rule said that even though the statute said 250 tons, for GHGs it will be 25,000 Which polluter will have standing to bring a claim? o Less than 250? No standing, because there is no injury in fact. They are not injured or even touched by the rule No redressability o Between 250 and 25,000? No standing, because they are not injured in fact by the rule No redressability They are not injured or affected by the rule o Over 25,000? No standing here either It seems like this is one of those rare situations where no one has standing They are injured by the rule, but they will be no matter what---because if the rule is repealed it would go back to 250 and this polluter would still be affect, so there is no redressability Business perspective of GHG debate: Uncertainty of future regulation makes businesses reluctant to debate Regulatory uncertainty makes it difficult for businesses to make long term energy investments

Many in business what there to be regulations, regardless of which method/mechanism is used, to end the uncertainty so that businesses can make long-term energy investments Some changes are happening regardless, such as design change

Problems with Command & Control that led to economic ideas: Too beurocraticdoesnt take into account local needs No incentive to do better than the cap AEP v. CT --- (we read the briefs of each side): --The States are seeking injunctive relief. They present the case as a run-of-the-mill torts case. They want to abate the nuisance. --There are 4 Issues: 1. Standing a. This is the only issue where we can predict where the justices will align b. It will probably pass standing 5 to 4, with Roberts, Scalia, Alito, and Thomas against 2. Political Question a. Baker v. Carr, 1962 b. Gave us our modern test for political question, a 6-part test i. Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department (i.e. foreign affairs or executive war powers)? ii. Is there a lack of judicially discoverable and manageable standards for resolving the issue? iii. The impossibility of deciding the issue without an initial policy determination of a kind clearly for nonjudicial discretion. 1. In the Utility Companys brief, they talk about the policy determinations that a judge would have to make 2. How would a judge decide what percentage of global warming was caused by that utility company, and separate it from international emissions 3. There is no standard for judging GHG emissions. There is no precedent for granting injunctive relief here iv. The impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government. v. Is there an unusual need for unquestioning adherence to a political decision already made? vi. Would attempting to resolve the matter create the possibility of embarrassment from multifarious pronouncements by various departments on one question? c. Nixon v. U.S., later case that deals with the Political Question Doctrinecourt says it wont rule if impeachment by the Senate must be by the entire Senate, or whether Congress can set up a sub-committee d. States Argument: i. There is not the same separation of powers concerns as with previous Political Question rulings.

ii. Baker v. Carr didnt say which of the factors should be given the most weight iii. This is a simple torts suit (clearly, however, it is not) iv. They constantly remind us in their brief that they just need to get to discovery, to an evidentiary hearing. They note that, while issues such as causation might be difficult to prove, that that difficulty shouldnt preclude their opportunity to attempt to do so before a court 1. They just want to get to Discovery 2. But, this is a Court that has recently handed down Twombly and Iqbal v. Just because the issue has been politicized doesnt mean that this is a Political Question under the Doctrine vi. The fact that theres been a lot of media coverage on the topic doesnt mean that this is a Political Question vii. The CAA doesnt displace 3. Federal Common Law of Nuisance a. There is a wide disparity between how the two parties treat Georgia v. Tennessee Copper b. It is not one state suing another state. It is one state suing a private partyjust like in this case i. The States 1. The states brief leads with Georgia v. Tennessee Copper ii. The Utilities: 1. The utilities on the other hand, lead with Erie v. Tompkins, saying There is no federal general common law. a. After rejecting the existence of Federal Common Law, the brief mentions that there was this one casebefore Erie where this thing sort of happened once (Georgia) b. Milwaukee I, however, said that there is a federal common law of nuisance. Federal common law survived Erie in some limited forms, and this is one of those c. The Utilities call this dicta they are going for the hailmary 4. Displacement a. The two most important cases for the Displacement issue are Milwaukee I, and Milwaukee II b. Again, the two parties portray these cases differently i. Utilities: 1. The say that federal common law of nuisance can only be between two states 2. The attempt to argue that the city of Milwaukee was acting as an administrative district of the state, so they really were a state c. Milwaukeemonths after suit began, CWA was passed. That issue went to the Supreme Court, and the case was dismissed because the CWA displaced the federal common law, which only fills in the gap where there is no statute on the books

d. Issue in this case: does the CAA similarly displace this claim? i. Utilities: 1. Yes, the CAA speaks directly to this issue a. CAA displaces federal common law 2. They cite EPA v. Massachusetts and say that GHGs are regulated under the CAA ii. States: 1. EPA v Massachusetts only deals with mobile sources 2. There is yet no regulation for GHGs from stationary sources 3. Unlike the CWA, which is comprehensive, the CAA allows pollution until there is regulation issued a. Draw distinction between CAA and CWA, and comprehensive quality standards versus technology standards b. New Sources versus existing sources How do you get to 5 Justices? It is more complicated, because Sotomayor has recused herself So, there is a real chance of a 4-4 split This would mean that the decision of the lower court stands, but it has no binding authority But, it will be hard for the States to get 4 justices The Utility companies will get 4 for certain Sachs thinks that this will be dismissed by 6-2 He thinks the political question issue, and lack of judicially manageable standards will be important

7.

MARKET BASED APPROACHES & COST-BENEFIT

Market Incentives in Environmental Law: 1. Taxes a. Raises government revenue b. Many think that, while taxes might have many advantages, that cap-and-trade would be easier to get passed simply because it is not called a tax c. Thats why Republics are now referring to cap-and-trade as cap-and-tax 2. Cap-and-trade (allowance system) a. Issue permits/allowances to pollute b. Can hold the permits, or sell them on the market c. The market does the allocation, sets the price

d. Like TMDL program, in that we are working backwardssee how much pollution the environment can handle, and then work backwards to permit pollution to that levelacknowledges a right to pollute e. Government has to set the capif it is too high, then the system is superfluous. If it is too low, then it will stifle business unreasonably. If it is set perfectly, it will equal a tax f. Examples: i. Title IV of the CAA (NATIONAL) ii. National C&T system for CO2 (NATIONAL) iii. RGGI (STATE/REGIONAL) iv. Californias program (STATE/REGIONAL) v. EU Emissions Trading System (ETS) (INTERNATIONAL) 3. Credit Systems a. Instead of making expensive reduction, they can make reductions in another area b. CARE casepolluter was allowed to get a credit for changing asphalt types c. RECLAIM in Los Angeles (page 621) d. Averaging Program: like a credit system, but there is no administrative process to certify the credits certification is automatically done

Examples: Garbage Proposals Pay as you throw --- (tax) o Certainty in the price of garbage bag Cap-and-trade o Certainty in the amount of waste being put into the environment (cap) o They decide that to go this rout: Every year, the garbage bags that will be auctioned off are a different color. Every year, there will be fewer bags available Fungibility: It is very important for any trading system, especially credit systems, that the thing being regulated must be fungible 3-Types of Emission Trading Programs (from casebook) 1. Reduction Credit 2. Averaging 3. Cap-and-Trade Experiences with EPA ET: Starting in the mid 1970s, the EPA and the states developed 4 limited emissions trading programs to increase flexibility and reduce the sots of compliance with air emissions standards for stationary sources under the CAA: 1. Netting 2. Offsets 3. Bubble 4. Banking Waxman-Markey Bill:

Started out with free allocation Allowances were initially given away o Environmentalists didnt like this, because they saw this as a windfall profit for big polluters o But, big polluters said that this is not a windfall profit, because they need these allowances to cover their opportunity cost and to allow them to continue to operate at current levels, and also they are going to have to pay the most to change their practices Safety-Valvethere is a safety valve in this bill, that says that if the price goes above a certain amount, the government will flood the market to stabilize and meet demand o So, in the garbage bag hypo, if during Christmas there was a huge demand for garbage (all that wrapping paper has to be thrown away) and the price of a garbage bag went above the safety valve price, then the government would flood the market o BUTthe flood of the market punishes the responsible users and benefits others by suddenly giving away for free what was a valuable asset o BUT, if there is no safety valve, then when the price sky-rockets, businesses will pressure Congress to repeal to law or suspend it or advance future bags

Credit Systems: In an allowance system, the default is that you are not allowed to emit anything. If you get a permit you can, but otherwise, zero emissions are allowed In a credit system, you are allowed to amass credits through positive actions elsewhere Kyoto Protocoluses a credit system Very important that the commodity be fungibleso that replace A in China is equivalent to the B polluted in Indonesia Carbon brokers/bankers, who would trade in credit Hot air creditcredits that have exaggerated value Certifying agenciescertify that the credit has real value o Problemthe reduction is speculative, counter-factual its hard to say that I saved the forest by x amount, or I prevented x amount of damage, because that damage never actually happened, so its impossible to prove that it never happened o How can we make sure that the credits we put on the market are real credits? --Measurement of emissions is more expensive per output for smaller emitters Emissions Hotspots Trading programs, such as credit system in RECLAIM, create hotspots of pollution that tend to be centralized around low-income and minority neighborhoods This is an environmental justice issue Using pollution credits, companies are allowed to avoid reducing local emissions of hazardous chemicals in exchange for reducing regional emissions Cap & Trade versus Tax:

Sachs favors Cap & Trade as opposed to a tax system There is more uncertainty as to how much actual reduction you will get with a tax Cap & Trade will help us reach international emissions reductions, because you are more certain of the reductions (the cap) Because of hot spots emissions trading is only useful for truly global/regional pollutants otherwise they create hot spots Private sector costs savingsfor the polluters that would have to pay the most for reducing their emission, they can buy credits from polluters located where the prevailing market rate is lower For example, a company that just built a new plant 5 years ago: they would have to pay more to update o Cap&Trade equalizes that costs of reducing emissions Who gets the benefits of these savings? The private firms, and hopefully they pass that savings onto their customers

Background: o American Trucking --- Court affirmed that NAAQS should be set without regards to cost o Congress has rejected Cost-Benefit as a catch-all framework o The question is where to set the level of reductionwhat should be the goal? o Cost benefit analysis says that pollution reduction should be set at the level where costs would exceed to benefits to move up any further o Two Statutes: 1. ToSCAcost-benefit balancing; items are not all quantified ---Market Access / Front-End Control Law ---ToSCAs Standard of Review (SOR) is substantial evidence rather than the more deferential arbitrary and capricious standard --- 2605(a) If the Administrator finds a Reasonable basis that activity/substance posses an unreasonable risk of injury to health or the environment, then he shall apply the requirements of this statute o (5) Requirement of pre-market notice 2. SDWAmore formal version of cost-benefit analysis; formal; everything is quantified; the value of human life is quantified o Discount Rate & Present Value of Future Income o American Dental v. Martin --- Agencies deserve deference in their decisions as to how to represent regulatory costs (cost ratio to lives saved, versus lives saved per regulated industry) o Setting the Value of Human Life: Wage Premium Studyto set the value of human life, look to how humans place values on their own safetylook to see extra wage required to lure workers to riskier jobs Contingent Valuationsurveys used to see the value that people set on their lives also used to see what people are willing to pay to protect things like endangered species, viewsheds, etc.

They ask what would we have to pay you to accept cancer? and what would you be willing to pay to prevent polluted drinking water? because just the 2nd question has a wealth bias o Red Book (1983) --- endorsed a bifurcation of the regulatory process: (p.577) 1. Risk Assessment (1) Hazard Identification (2) Dose-Response Assessment (3) Exposure Assessment (4) Risk Characterization 2. Risk Management 4 Fundamental Flaws of Cost-Benefit Analysis: 1. The standard economic approaches to valuation are inaccurate and implausible 2. The use of discounting improperly trivializes future harms and the irreversibility of some environmental problems 3. The reliance on aggregate, monetized benefits excludes questions of fairness and morality 4. The value-laden and complex cost-benefit process is neither objective nor transparent OIRA & Cost-Benefit: Executive Order 12866 Regulatory Impact Analysis o A cost-benefit analysis Lengthens to regulatory process An Executive Order cant trump a statute it cant substantively change a statute The current head of OIRA is a huge advocate of CBAs TSCA / ToSCA (Toxic Substances Control Act): Section 5 o Applies to new potentially toxic chemical substances, manufactured since the 1977 (when TSCA was enacted it grandfathered every chemical that was already on the market) Section 4 o Under 4, the EPA can authorize testing of existing chemicals that were grandfathered into the act If theres a reasonable basis to conclude that the chemical may present an unreasonable risk of harm Sachs thinks that this is a weak statute, mainly because of the grandfathering clause. 99% of the chemicals on the market today were in existence before 1977. So, most chemicals that are on the market today have never been tested for their health & environmental effects Under 4, about 200 have been tested out of about 84,000 that have been introduced into the stream of commerce Section 6 o This is the section that would allow the EPA to remove a chemical from the market o The language has been interpreted to require that the Administrator make specific findings about each of the less burdensome alternatives

o Regulatory action (ban) if the Administrator has a reasonable basis to conclude that the chemical will present an unreasonable risk Corrosion Proof Fittings v. EPA, (1991): o Overturning EPAs blanket ban on asbestos under the TSCA o The requirement that the risk be unreasonable necessarily involves a balancing test like that familiar in tort law: The regulation may issue if the severity of the injury that may result from the product, factored by the likelihood of the injury, offsets the harm the regulation itself imposes upon manufacturers and consumers o Congress plainly intended EPA to consider the economic impact of any actions take by it under the TSCA o Footnote 18: (p.587) Toothpick Footnote: This is a very famous footnote where the Court notes that more people are dying from choking on toothpicks than from asbestos o Under the Toxic Substances Control Act (TSCA), EPA issued a ruling that effectively banned asbestos. o The Appellate Court overturned EPA's ban and ordered them to come up with a better risk-mitigation strategy. o The Appellate Court found that, under the TSCA, EPA is required to consider not only the negative effects of asbestos, but also the positive effects. In theory, lives would be saved by using the fire-retardant asbestos material. o Since EPA only considered the negative effects of asbestos, they did not properly calculate the risk of asbestos use vs. the risk of banning asbestos. o In addition, the Appellate Court found that EPA did not properly consider the risks of regulating asbestos, and how new asbestos control technology could mitigate asbestos exposures. EPA mentioned the problems of intermediate levels of regulation, but did not calculate the costs and benefits of these intermediate levels. They only considered a very broad ban, or not really regulating it at all. EPA might have looked at individual uses of asbestos and banned the dangerous uses, but do something less severe for uses that were not likely to result in serious health effects. o The Appellate Court found that the EPA did not quantifiably calculate the long term health benefits of banning asbestos, but then used these 'unquantified benefits' to come to the conclusion that asbestos should be banned. o Although the Appellate Court noted that it is not their responsibility to determine what was reasonable, the cost-benefits that EPA themselves used in their analysis ($30-$40 million in costs per life saved), didn't seem to be all that reasonable. o Since this case was decided in 1991, the EPA has never tried to ban a chemical under the TSCA o Only 5 chemicals have been removed ever under the TSCA o Congress wrote in a very industry-friendly provision

8.

CERCLA & SUPERFUND

Super Fund & Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) CERCLA Every time real estate changes hands, CERCLA comes into play If you are about to buy land, and you discover that it is contaminated, what happens? o You can walk away from the deal o Ask for a discount o Ask seller to buy an environmental insurance policy, in case the clean up costs much more than anticipated RCLAto be distinguished from CERCLA Governs the citing and building of landfills across the U.S. The preventive statutetries to prevents spills from reaching the environment CERCLA is remediallooks backwardstries to determine who should pay for the spills once they happen CERCLA It is a liability statute o So, it cant be violated o Instead, it finds some parties liable o For the exam, dont say that you violated CERCLA, which would be like saying you violated negligence you are found liable under CERCLA CERCLA is remediallooks backwardstries to determine who should pay for the spills once they happen CERCLA OVERVIEW: This is a polluter-pays statuteit puts the burden of cleaning up the spill on the polluters Transaction Coststhere are large transaction costs, mostly relating to indentifying with certainty who the polluter was. The greater the certainty needed, the high the cost. This is because hydrology, etc. and expensive science is needed to trance a pollutant. Every party tries to disprove their involvement many times there are multiple polluters Think A Civil Action Reporting of Releases (103) o There are heavy fines for failing to report when you know about a contamination Government Cleanup (104) o authorizing EPA to enter onto and clean sites itself Cleanup Orders (106) o authorizing EPA to order private parties to remediate sites Cost Recovery Actions (107) o Focus on 107lays out four categories of parties

o Government (107(a)(4)(A)) allowing EPA to recover costs of cleanup of site from responsible parties o Private (107(a)(4)(B)) allowing private parties to recover costs of cleanup of site from responsible parties. Contribution Actions (113) allowing private parties to recover costs of cleanup of site from other responsible parties.

107(a)The Heart of CERCLA (4 Responsible Parties): (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, Shall be liable for all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; any other necessary costs of response incurred by any other person consistent with the national contingency plan; damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and the costs of any health assessment or health effects study carried out under section 9604(i) of this title.

A.

B. C.

D.

The Superfund Response Process: Community relations (public involvement) take place throughout the process. Site discovery can come from a variety of sources; citizen complaints, aerial surveys, and record-reviews The other process steps will be covered in more detail as we progress through the course Enforcement/Cost-Recovery: o PRPPotentially Responsible Party o PRP Letterthey make a settlement offer if you comply with the EPA process, and make a good faith offer, they will settle with you The PRP Letter The Governments Invitation to the Dance Sent to all or some of the parties whom EPA suspects are liable under CERCLA 107(a). Requests voluntary participation in jointly funding the site investigation (called RI/FS), or in funding the entire remediation.

EPA hasnt yet proven that the recipient is liable under 107(a), its just an allegation, but its a powerful allegation. o You can challenge the PRP letter, by writing a letter back. There is a chance that EPA will sue you.

Why is the current owner a PRP? 1. Anti-Windfall Rationale a. An innocent purchaser probably got the site at a discount price already. Then, the former owner would have to pay to clean it up. So, the innocent purchaser could get site at discount (which probably included current condition), then have that same party pay to clean up land, then sell land at full price 2. Ignorance is not Bliss What is the Impact of this? Any person buy property in the U.S. has to ask themselves, am I about to buy contaminated property? When CERCLA was passed in 1980, it scared off a lot of people who would want to buy a former industrial site when the liable of doing so was so huge o Disincentive to develop brown fields Redevelopment of urban site creates huge liability if property is later found to be contaminated o Encouraged new/future development to occur in undeveloped areaencouraged urban sprawl o CERCLA affects where we choose to develop land o CERCLA works against urban renewal CERCLAA Sledgehammer Statute Remedial Purpose Strict Liability Retroactive Joint & Several Liabilityunless there is a reasonable basis for apportionment Burlington Northern (2009) o Apportionmentburden of proof is flipped to EPA to show that you are liable Nearly every defendant would want to apportion the harm The harm = the response cost (the response cost is a term of art) Some will say, I only owned the land for 3 of the 30 years, so I should pay for only 10% but this argument is rejected because it says nothing about culpabilitythose 3 years could have been the years where heaviest amount of pollution was done Another argument is that only 5 of the 100 barrels found were minethis was also rejected, because it is unclear which barrels polluted the most Only exception where defendant gets apportionif there are two sites, and defendant can prove that he only polluted into one of the sites This was the status until Burlington Northern --- which changed the status of Joint & Several liability and apportionment o Why Joint & Several?

Torts analogy Shifting the burden to the defendants to prove that they are not liable (Res Ipsa) Prevent litigation over what percentage should be attributed to each party Keep government from paying for orphan shares ..when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance, he maysecure such relief [in court] as may be necessary to abate such danger or threat. The President may alsotake other actionincludingissuing such [unilateral administrative] orders as may be necessary to protect public health and welfare and the environment.

5 Triggers of CERCLA Liability: 1. There must be a release or threatened release 2. Of a hazardous substance 3. Form or at a facility a. Look up definition of a facility --- it is very broad 4. Resulting in incurrence of response costs 5. AND defendant is in one of the four categories listed in CERCLA 107(a) Burlington Northern v. United States, (2009): Facts of the Case: 1. Is Shell Oil Company liable for "arranging" (107(a)(3) arranger) the disposal of hazardous substances under the CERCLA when it merely sold and shipped a product that only caused contamination while under the control and ownership of the purchaser? i. NOno intent --This case was seen as a huge change in CERCLA case lawcourts will have to be more open to apportionment arguments. Also, this makes it more difficult for PRPs to work together, since they will all be attempting to get out if another has a greater share --Also, makes it more likely that the government Super Fund will have to pay --Super fund was funded by a tax on the chemical and oil industries from 1980 to 1995. Then, that tax expired. Now, it is funded by a general tax on everyone. Superfund Remedial Program The basic steps to the Superfund long-term remedy process are Preliminary Assessment: Determines whether this site potentially poses a threat. Site Inspection: Gathers data for Hazard Ranking System (HRS) scoring to determine whether the threat posed is sufficient to include the site on the National Priorities List (NPL) (that is, make the site a Superfund site). Remedial Investigation: Process of characterizing the site, sufficient to make clean-up technology decisions. Feasibility Study: Process of evaluating and comparing alternative approaches to site clean up.

Record of Decision: Decision document that records the approach that will be taking in site clean up. Remedial Design: Design and engineering performed to be able to construct or install the remedy Remedial Action: Installation or construction of the remedy Operations and maintenance: Operation of the constructed remedy (for example, operation of a pump-and-treat system) Construction Complete: Designates completion of clean up activities. NPL site deletion: Removal of the site from the NPL (no DOE sites have been deleted). Community Relations: Community relations activities (otherwise known in DOE as public involvement activities) take place throughout the process. Each of these steps will be covered in more detail later in the course.

CERCLA Embodies a particular implementation strategy, that of remedial cost internalization Had to overcome Article I 9 of the Constitutionno ex post facto laws or bills of attainder Huge cost burden (strict liability + joint & several liability) mitigated to some extent by the fact that 107 liability is premised upon a governmental response pursuant to 104 and the National Contingency Plan National Priority Listmade as part of NCP Holds corporations as well as individuals liable o Corporate officers have been held liable o Argument that their actions were the actions of the corporation, and therefore should be shielded from personal liability has not succeeded Against the common law, CERCLA gets a higher measure of damages, because it is the extent of the clean up, not merely the extent of plaintiffs loss Is Joint & Several always necessary? o CERCLA itself does not impose either strict liability or joint & several, it left both of these open to judicial interpretation o Courts have read both requirements into the statute o So, theres some question about whether joint & several is always fair U.S. v Monsanto (1988) --- denied apportionment and upheld use of joint & several liability because there was a lack of evidence of the individual and interactive quantities of the substances deposited In deciding whether or not to appropriate the harm, the starting point is Restatement 2nd of Torts: o Where two or more persons cause a single and indivisible harm, each is subject to liability for the entire harm Burlington Northern & Santa Fe Railway Co v. U.S. o Upholding apportionment o Will it now be up to the U.S. to pay orphan shares? o Will it be harder to get PRPs to settle? Or to do voluntary clean ups? Or to work together, since each will want only their share?

Arranger has an element of intent, which Shell did not satisfy by merely placing a product into the stream of commerce

CERCLA --- Who will pay? (107) 1. Current owner/operator 2. Past owner/operator 3. Arrangers a. Generators b. Not every generator is an arranger 4. Transporters The 5 Triggers of CERCLA Liability 1. There must be a release or threaten release 2. Of a hazardous substance 3. From a facility 4. Resulting in incurrence of response costs 5. Defendant is in one of the 4 categories listed in 107(a) Apportionment: Even if you succeed, not an escape from liability Only an escape from joint & several --- But, still liable for your apportioned share U.S. v. Wade (Wade II) --- relaxed causation standard for CERCLA Attempted to defend with a causation argument -- Court rejects these arguments There is a relaxed causation standard for CERCLA Because technological limitation would have made it impossible to fingerprint defendants, to require full causation (torts standard) would eviscerate the statute Given two interpretations, one which renders the statute useless should be rejected CERCLA has an oil exclusion, so it didnt apply to the Gulf Oil Spill. That is covered by a different statute CERCLA Defenses: allows for certain limited defenses: There are 3, listed in 107: o Act of God o Act of war o 3rd Party defense At the time defendant acquired the facility, did not know and had no reason to know (completed AAIall appropriate inquiries) Defendant is government entity which acquired the facility by escheat, other involuntary transfer, or exercise of eminent domain Defendant acquired the property by inheritance or bequest still must do AAI? --The first two defenses are construed so narrowly, that they never come up in case law --The midnight dumper is covered by the 3rd Party Defense, but not if that person is your employeeeven if not acting within the scope of his employment

 101 (35), and 101 (40): Gives definitions of bonafide purchasers and Congress wrote a protection into the definition 101 (35) o Contractual relationship will not apply to purchaser if he did not know or had no reason to know Reason to know To establish this, defendant must demonstrate that he carried out AAI Under CERCLA an owner, operator, arranger or transporter of hazardous substances is strictly, retroactively, jointly and severally liable for environmental cleanup and liability to third parties. However, if an owner or prospective purchase conducts an AAI, they may qualify (liability exemption) as a: o (i) Innocent Landowner (CERCLA section 101(35)(A)); o (ii) Contiguous Landowner (CERCLA section 107q); and o (iii) Bona-Fide Prospective Purchaser (CERCLA 101(40) and 107(r)). 107(a) ---- Four categories of liable parties: 1. The owner and operator of a vessel or a facility, 2. Any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, a. And in (1), but or in (2) b. Not a valid defense, because courts have read and in (1) to mean or c. This was a hastily drafted statute 3. Any person who by contract, agreement, or otherwise arranged for disposal or treatment of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and 4. Any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, There is also a special protection for banks/lenders Comes from the definition section for what constitutes an owner Enacted in 1996, along with the 1996 Congressional Act, overruling Kelly, and reinstating the 1990 EPA rule protecting lenders 101 (20) (E)-(G) UPS / Shipping / Transporters: 107(a)(4)protection for transporters if they didnt select the site o It was common to hire a transporter to dispose of waste for you suppose the site where the transporter has been taking your waste becomes a CERCLA site: Hypo #1: If the transporter selects the dumping site, then they can be liable. If not, then they have a defense

Hypo #2: If transporter does select the site, can the generator still be liable? Youd argue that you shouldnt be liable, but there is a contractual relationship between you and the transporter, so you can still be liable This is the nature of CERCLA strict liability This is an example of CERCLAs harshness Even if you directly stated a desire to have everything done perfectly, you can still be liable for the transporters mistake Hypo #3: (This was a real case) (Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 )There is a metal smelter in Canada, called Teck-Cominco. It is just north of Washington State, in Trail, British Columbia. Trail Smelter Arbitration of 1941. Contamination was coming down the Columbia River into Washington State. EPA issues a warning, to which Teck-Cominco says go to hell, were in Canada. Native American tribe in the U.S. files suit in against EPA to require them to enforce rules The Court says that the facility is the river, which is in the U.S. and that there are no extraterritorial issues Teck then argues that they are not an arranger o They argue that in order to arranger for disposal, you have to make an arrangement with someone else o Held: Because the United States Court of Appeals for the Ninth Circuit views a statement regarding 42 U.S.C.S. 9607(a)(3) in Kaiser Aluminum as offhand, unreasoned, and ambiguous, rather than as an intended choice of a rule, it considers the Ninth Circuit's law to be represented by Cadillac Fairview/California I. And under Cadillac Fairview/California I, the phrase "by any other party or entity" refers to ownership of the waste, such that one may be liable under 9607(a)(3) if they arrange for disposal of their own waste or someone else's waste, and that the arranger element can be met when disposal is not arranged by any other party or entity. o The alternative explanation would open up a massive loophole in CERCLA Hypo #4: Useful Product defenseyou are selling a useful product, not disposing of wastethis was Shells argument in Burlington Northern The salient question was the definition of arrange o Arrange has an element of INTENTalthough disposal could be unintentional, the specific intent required by arrange showed that Congress sought to apply arranger liability only to entities that expressly intended to dispose of hazardous substance o This creates a narrow window for someone making a useful product that knows that somewhere down the line that item will be disposed of, but that that is not its intent in shipping the good Hypo #5: U.S. v. NEPACCO, (1988):

Deney Farm MichaelsCEO Millsowned Deney Farm Leeworked at NEPACCO NEPACCOchemical company o Government wants to recover money for cleaning up the spill at the farm but the farm has no money. Instead, goes after Michaels, Mills, and Lee. o Michaels and Lee are not guilty as owners/operators of the facility because the Superfund Facility in this case is the farm o But, they are guilty as arrangers Case is very straightforward against Leehe was the supervisor who oversaw the dumping Michaelsthe case is slightly more attenuated, but the court is saying that anyone that has ultimate authority to control the disposal of waste

Private COA under CERCLA, but only for cleanup costsneed torts actions for personal injuries or loss of amenity value Requires 4 elements for private COA: 1. The site is a facility 2. Defendant is liable party under CERCLA 107(a) 3. A release or threatened release of a hazardous substance has occurred at the facility 4. Plaintiff has incurred response costs consistent with the NCP in responding to the release or threatened release

(4) has been the most ardently litigated requirement, due to the broad readings given to CERCLA liability issue (other elements are easy to prove) Which costs constitute recoverable costs in 107 cost recovery actions? KeyTronic (1994) Cooper Industries v Availl (2004) Atlantic Research (2007) Can a PRP that voluntarily undergoes cleanup then seek joint & several liability against other PRPs in a cost recover suit? o Split after Cooper Industries v Availl, but Atlantic Research court answered in the affirmative o Atlantic Research successfully sought recovery from U.S., claiming it was also liable as a PRP 113(f) & 107(a) provide COAs to plaintiffs in different procedural postures a. 113(f) authorizes a contribution action to PRPs with common liability stemming from an action instituted under 106 or 107 a. Equitable distribution of reimbursement b. 3-year SOL

b. 107(a) authorizes a cost-recovery action by a private party that has itself incurred cleanup costs a. Joint & Several b. 6-year SOL Thus, a plaintiff cannot simply choose 107s 6-year SOL over the shorter SOL for contribution Or choose type of reimbursement Procedural circumstances dictate which to use, but there may still be some overlap Going forward, plaintiff should bring suit under both to maximize the likelihood of obtaining the broadest possible remedy and we can expect judicial clarification when the next defendant files a motion to dismiss arguing that one or alternatively the other is an inappropriate remedy

Question: Private party not entitled to bring 113(f) after Availl? (bottom of page 719) Deadham Water v. Cumberland Farms Dairy --- in a private 107 suit, plaintiff gets to use the relaxed standard of causation that the government does when it sues a PRP Governments relaxed causation articulated in Wade II Contribution Protection for parties that settle with EPA or the state under 113(f)(2) To encourage settlements I the apportionment setting, it is as if no party has the burden of proof on the apportionment issue o Method of Apportionment: 1. Pro rata contribution a. Equal shares for each party 2. Comparative fault determination Terms of art: Cadillac cleanups Sweetheart settlements CERCLA & NCP NPL o RI/FS for specific site ROD (record of decision) selecting the principle remedial actions to be taken Remedial Design (RD) o Remedial action Natural Resources Fed, states (and their subdivisions), and Indian tribes are designated trustees empowered to sue by 107(f) to recover damages to natural resources

Measure of damages: lesser of rule struck down in Ohio (1989) Dept. of Interior now says trustee should consider a wide range of restoration alternatives and select the most appropriate one

Operator liability ---- even though statute says owner and operator it is construed as owner or operator What happens if you are the manager of a business? In charge at a site that is disposing of hazardous wastedoes this make you an operator? o U.S. v. Best Foods --- not every manager or CEO is going to be an operator it takes more than this. Court said that operate is: It is someone who manages, operates, or directs activities specifically related to pollutionthat is, decisions relating to leakage or disposal of hazardous waste, or compliance with environmental regulations Today: Who can sue whom? Private litigation How contaminated sites are actually cleaned up in the U.S. 106(a) --- The Governments Sledgehammer The President can be read as the Administrator, since the authority has been delegated o when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance, he maysecure such relief [in court] as may be necessary to abate such danger or threat. o The President may alsotake other actionincludingissuing such [unilateral administrative] orders as may be necessary to protect public health and welfare and the environment. 106 --- prospective relief o Court order to abate the danger o Anyone who is in a position to abate the danger can be ordered to do so under this provisionnot just the PRPsit is very broad Local firefighters can be ordered to help, etc. Used more for remedial actions o The second provision gives additional powera unilateral order without needing to go to court UAOunilateral administrative order Typically limited to actions that will take less than 2 years and cost less than $2 million For removal actions Facing EPAs UAO, what would you do? No pre-enforcement review of a UAO o 113(h) Threat of triple damages o 107(c)(3)

o If you resist a UAO, and it later turns out that you were required to comply Do you wait till the bottom of the ninth inning to finally convince a judge that you are not liable under 107(a)? Most just comply with this instead of waiting 5 years for a court to rule, and risking triple damages if they lose o Called Hobsons Choice This falls particularly hard on small businesses that cant afford to wait 5 years

G.E. v Jackson (2010), which our book calls: G.E. v. EPA, (2009) There have been many challenges to these provision, this case being the most notable one Deprivation of property without due process of law o Loss of funds in complying, and loss of stock price from reputation hit Not subject to triple damages until they actually go before court Ability to avoid damages if you had sufficient cause for disobeying the UAO Court rejects GEs argument U.S. v Parson --- 1989 --- court awarded triple damages for the first time 107 --- formal lawsuit (normal followed by an immediate settlement) Contribution Action --- PRPs all sue each other to determine the apportionment of the payout o Governed by 113 o CERCLA 113(f) Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this titleIn 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 9606 of this title or section 9607 of this title. o Gore factorsAl Gore was a Senator, and proposed a list of factors for determining how the contribution should be apportioned these factors never made it into the statute, but courts nonetheless rely on them: Gore Factors for allocation in contribution suits: Distinguishable discharge Amount (volume) Degree of toxicity Degree of involvement in generation, transportation, treatment, storage or disposal; Degree of care used; Degree of cooperation with government to prevent harm to health/environment

Typically, this does not go to a court or to a jury PRPs would rather work it out themselves then let a judge/jury assess their culpability Cooper v. Aviall Services (2004) 113 does not authorize a suit against a PRP unless an enforcement action filed against would-be plaintiff first under 106 or 107(a). 113(f)(1) actions can and must be brought against other PRPs only "during or following" a section 106 or section 107(a) civil action The decision is thought to discourage voluntary clean-ups by PRPs because now they will insist on being sued first by the government A UAO under 106 is not a civil action So, the court holds that you cannot voluntarily incur cleanup costs, and then, concurrently, without the government suing you first, you cannot sue others for contribution action The court put the emphasis on the first past of the statute (during or following see statute above) the last part seems to say whoops, nevermind (nothing in the subsection shall diminish the right to bring an action) --- Thomas said that this last part is meant to not preclude state law actions so that nothing in the act shall preclude someone from bringing state-created remedies (state tort action) So, cant sue under 113 if voluntarily cleaned up / no government action o Then, later see U.S. v Atlantic Research (2007) which was also written by Justice Thomas After Cooper v Aviall Reduces the inclination to comply with cleanup Parties now say: come sue me first Possible hindering early settlements Contribution Protection: Who can be sued in a contribution action under 113? Any other PRP, except those that have already settled their liability with the government. 113(f)(2) A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. See also 122(g)(5) and 122(h)(4). 113 --- no joint & several Big question left open: Can a PRP who cooperates at the site sue for cost recovery under 107, rather than contribution under 113? Atlantic Research answered this 107(b) 4 categories of parties from (a) shall be liable for any other necessary costs of response incurred by any other person consistent with the national contingency plan o Who is any other person Two competing views: anyone other than the government, or any other innocent party who was not a PRP, had no liability This is what the circuit split was over, that Atlantic Research settled

Can a PRP who cooperates at the site sue for cost recovery under 107, rather than contribution under 113? In 2007, the Supreme Court decided Atlantic Research Corp., which held, 9-0, that any other person in 107(a)(4)(B) must refer to PRPs as well. Justice Thomas: [I]f PRPs do not qualify as any other person for purposes of 107(a)(4)(B), it is unclear what private party would. The result: Now both innocent parties AND PRPs can sue PRPs under 107(a)(4)(B). o 107(b) 4 categories of parties from (a) shall be liable for any other necessary costs of response incurred by any other person consistent with the national contingency plan Who is any other person Two competing views: anyone other than the government, or any other innocent party who was not a PRP, had no liability This is what the circuit split was over, that Atlantic Research settled The broader view of any other person should prevail If this is true, who would ever sue under 113? o You would much prefer to do 107 But, thats where we are right now Ask yourself, what is this person suing for? If they are suing because theyve paid too much and others should pay? o 113 --- contribution action If on the other hand, the factual predicate is that you are a party that was ordered to do a clean up, and you believe that you paid too much, and you sue other parties o 107 --- because you are not looking for contribution, but recovery of your own cost of response Atlantic Research successfully sought recovery from U.S., claiming it was also liable as a PRP o 113(f) & 107(a) provide COAs to plaintiffs in different procedural postures 1. 113(f) authorizes a contribution action to PRPs with common liability stemming from an action instituted under 106 or 107 a. Equitable distribution of reimbursement b. 3-year SOL 2. 107(a) authorizes a cost-recovery action by a private party that has itself incurred cleanup costs c. Joint & Several d. 6-year SOL Who Can Sue Whom? 1. A Non-PRP who does a voluntary clean-up can bring an action against a PRP to recover response costs under 107(a)(4)(B) 2. A PRP who participates in the clean-up can also bring an action against another PRP to recover response costs under 107(a)(4)(B)

3. A PRP that has been sued under 106 or 107 can sue for contribution under 113(f) 4. A PRP that has not yet been sued under 106 or 107 may NOT sue for contribution under 113(f), Aviall Services, but may have an action under state contribution law 5. PRPs that settle with the government have contribution protection. They pay the amount of the settlement, but they are immune from further lawsuits from other PRPs After RI/FS, consider other alternatives using 9 Criteria: 1. Protective of human health and env. 2. Comply with ARARs (applicable or relevant and appropriate requirements) a. First 2 are the most importantboth must be met 3. Long-term effectiveness 4. Reduction in toxicity, mobility, or volume 5. Short-term effectiveness 6. Implementability 7. Cost 8. State Acceptance 9. Community Acceptance National Contingency Plan The basic steps to the Superfund long-term remedy process are Preliminary Assessment: Determines whether this site potentially poses a threat. Site Inspection: Gathers data for Hazard Ranking System (HRS) scoring to determine whether the threat posed is sufficient to include the site on the National Priorities List (NPL) (that is, make the site a Superfund site). Remedial Investigation: Process of characterizing the site, sufficient to make clean-up technology decisions. Feasibility Study: Process of evaluating and comparing alternative approaches to site clean up. (RI/FS) --- remedial investigation and feasibility study Record of Decision: Decision document that records the approach that will be taking in site clean up. Remedial Design: Design and engineering performed to be able to construct or install the remedy. Remedial Action: Installation or construction of the remedy Operations and maintenance: Operation of the constructed remedy (for example, operation of a pump-and-treat system) Construction Complete: Designates completion of clean up activities.. NPL site deletion: Removal of the site from the NPL (no DOE sites have been deleted). Community Relations: Community relations activities (otherwise known in DOE as public involvement activities) take place throughout the process. Each of these steps will be covered in more detail later in the course. CERCLA: A clean up can take 20 years Cost analysis

o Least cost: keep people away --- institutional controls --- for example: change in deed that says that land can never be used for residential purposes o Moving up to more expensive options, such as excavation o Might cost $1,000 to fence off the site, or $40 million to completely excavate o There is no strict cost-benefit analysis requiredit is much more of a rough analysis than that o So, one criticism is that we are choosing too expensive options Sachs is amazed at the extent/strictness of legislation on the back-end but not on the front-end o All of these chemicals are unregulated, and EPA & gov are very lax about allowing the products to enter the market with few restrictions o So, disjunction between that and the CERCLA hammer on the back-end

9.

ENDANGERED SPECIES ACT (ESA)

ESA of 1973 Road-Block StatuteThou Shall Not --- Especially 9 Agency that implements: Dept. of the Interior (FWSFish & Wildlife Service) Also, for any marine animalDept. of Commerce (NMFS/NOAA) ESA 7 ESA 9Shalt not take an endangered species o Specifically, for government agencies Can ESA be used to address climate change? Polar bear is having habitat harmed by global warmingcaused by GHGs What are the reasons for protecting endangered species? o Anthropocentric Reasons Find cure for cancer Useful benefits of resources o Non-Anthropocentric Reasons Maintaining particular animals Species Ecosystems o Biodiversity What people think about ESA & its results is based on preconceived notions a lot of times Modificationswhich have softened the blow of ESA o God Squad --- Endangered Species Committee o Incidental take permits

ESA 1. CITIES a. International

2. Domestic protections for animals in the U.S. a. What we are going to focus on b. TRIGGERlisting of a species pursuant to 4, and in some cases, designation of critical habitat i. 7federally funded activities 1. A provision forbidding federal agencies from harming species ii. 9applies to private property/actions 1. A provision forbidding the killing or taking of endangered species What is an endangered species? 1. Definition provided in 3 2. BUT a species is listed only if it is endangered 3. Secretary of Interior must designate a critical habitat for an endangered species under 7 a. Only been done for about 10% of the species on the list b. Formal rulemakingdraw maps, which are published in CFR c. Not done often, because Agency wants to put resources into finding/listing species, and that protection happens automatically under 9, so it can take its time in designating critical habitats under 7 4. 7(a)(2) No Jeopardy Requirement a. Each Federal agency shall, in consultation with and with the assistance of FWS or other agency critical habitat TVA v Hill, U.S. (1978): Lawsuit originated from a UT law students term paper (Hill) NEPA disclosures led to finding the Snail Darter Tellico dam near Knoxville Chief Justice Burger is doing the strict structure of the statute Dam got builtCongress exempted the dam from the ESA in an unrelated bill The Tennessee Valley Authority (TVA) was building the Tellico dam on the Little Tennessee River. After construction had started, the US passed the Endangered Species Act (16 U.S.C. 1351). TVA was building the Tellico dam with Federal money. As construction progressed, researchers found a small endangered fish (the snail darter) that lived in the river upstream of the dam. It was determined that completion of the dam would wipe out the darters. The Department of the Interior (DOI) (and the Secretary of the Interior, Hill) declared the darter to be an endangered species, declared the river to be a critical habitat, and sued for an injunction to stop construction of the dam. Under ESA 7(2), all Federal agencies must ensure that action actions authorized, funded, or carried out by them were not likely to jeopardize the continued existence of any endangered species or result in the destruction or adverse modification of such species' critical habitat. The Trial Court found for TVA. DOI appealed. The Trial Court agreed that construction of the dam would most likely result in the extinction of the darter. However, they decided not to issue an injunction.

The Appellate Court reversed and issued the injunction. TVA appealed. The Appellate Court found that the plain language of the ESA required a permanent injunction, for at least as long as the darter was on the endangered species list. The US Supreme Court affirmed and upheld the injunction. TVA argued that they should be grandfathered in because the dam was constructed before ESA was passed. However, the US Supreme Court found that the completion of the project required actions to be 'carried out', which was prohibited under ESA 7(2). TVA argued that a balancing approach should be used and the fact that taxpayers had already spent over $100M on the dam should mean that the project shouldn't be derailed by a few fish, but the Court found that Congress intended endangered species to be afforded the highest of priorities and to halt and reverse the trend toward species extinction, whatever the cost because the value of endangered species was "incalculable."' That would be an absurd result. TVA unsuccessfully argued that Congress had implicitly repealed ESA because they kept appropriating money for completion of the dam even after it was known to be interfering with the critical habitat. However, the courts have traditionally disfavored repeals by implication. Sometimes known as the "dog did not bark" doctrine. The Court did not appear to be happy about this decision, but felt that they were obligated to interpret the laws as written, no matter how dumb they though the law was. "In our Constitutional system the commitment to the separation of powers is too fundamental for us to preempt congressional action by judicially decreeing what accords with 'common sense and the public weal.' Our constitution vests such responsibilities in the political branches." After this case was decided, Congress made significant amendments to the ESA and there is now a provision for granting exemptions. Two years after this case was decided, Congressional proponents pushed through an appropriations rider that expressly authorized completion of the dam notwithstanding the provisions of the ESA. The dam was completed, and the darters died out soon after. The good news is that small populations of snail darters have been found in other rivers

ESA: Critical Habitat & No Jeopardy o Two ways of protecting If the Critical Habitat has not be designated, there can still be No Jeopardy protection

Formal Consultation: Action Agency & Expert Agency Action Agencyinitiates formal consultation o Both agencies assemble info on species & its habitat 90 days (draft takes 90 days) Expert agency drafts Biological Opinion (BO)

45 days (they have 45 days to review) Action Agency review BO o Expert Agency issues final BO, including reasonable and prudent measures or alternatives o This could be the final road block, if the Expert Agency decides that its impossible to avoid that endangerment of the species

National Assoc. of Home Builders v. Defenders of Wildlife 1. Arizonas application to gain control of CWA permitting program from EPA 2. Look up 402(b) of the CWA 3. 402(b) says that EPA shall approve a transfer to the state if the state has met the 9 nine criteria --- those criteria are met, but EPA doesnt want to transferfor political reasons they think Arizona will issue too many permits 4. Battle of the shalls 5. Does the ESA create a 10th criteria? a. CWA (1972) --- 402(b) EPA shall delegate if 9 criteria are met b. ESA (1973) --- 7 No Jeopardy 6. The normal way that courts interpret statutes is that they build on each otherthe later enacted statute builds on the earlier ones statutes piles ontop of each other a. So, normally there would be a 10th opinion b. That is not what happens here 7. Discretionary / non-discretionary requirements a. Court says that they use Chevron deference to determine that ESA 7 only applies to actions in which there is discretionary Federal involvement or control b. Since the EPAs ability to transfer control of CWA permitting under 402(b) is non-discretionary, the ESA shouldnt apply c. TVA v. Hillthere are no exceptions to ESA 7

ESA 9(a)(1): With regard to endangered species of fish 7 wildlife, no person shall: o Take any species within the U.S. or the territorial seas of the U.S. Applies to threatened species as well ESA Statute defines Take Take means to harass, harm, pursue, hunt, shoot, wound, kill, capture, or collect, or to attempt to engage in any such conduct The Act does not further define the termso, this is all Congress gave us. o Dept. of Interior defines Harm Harm means a significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering

Is the definition of harm reasonable? Would it get Chevron deference? o One mode of interpretation is to define a word, using the definition or meanings of the other words around it All of the words have something in commonthey involve a person doing actual harm to an animal o The countervailing mode of interpretation is that Congress doesnt write in surplus languageEVERY SINGLE WORD IS IMPORTANT & HAS A MEANINGso to the extent that harass would otherwise have the same definition, harm must mean something different Babbit v. Sweet Home (1995) o Gives Chevron deference to the Dept. of Interior definition of harm o In ESA 9 o Congress defines Take in the ESA statute using the word Harm Dept of Interior defines the word harm The ESA runs counter to personal-property rights, more so than any other statute o Person cannot use property in a way that harms endangered species o If a species is found on your property, you can be deprived of economically use of the land o Only where the ESA takes ALL economically viable use of land, does the government compensate the landowner under the Takings clause o Otherwise, private landowners must bear the burden o Scalia says that we are turning private landowners into the custodians of a national zoological park

--Jonathan Adlers article on the ESA Puts the burden on private-property ownersturns asset (land) into a burden Gives incentive for landowners to destroy habitat if they find it on their land There is one outthe 10 incidental take permit, which will delay project 6 months o Must submit an HCP habitat conservation plan o NO citizen-suits on 10 decisions (page 452) Shouldnt the government compensate landowners? Like with conservation of open space, if it is an national priority, why shouldnt we all pay for this protection instead of forcing that burden on private land owners (conservation easements) Justification for having the landowners pay is similar to the justification for having landowners pay for wetland protections zoning laws, etc., limit what you can do with your property ESA must be re-authorized every 5 yearscurrently runs on 1-year re-authorizations

This article appeared in the Wall Street Journal, 12/31/2003 The Endangered Species Act after 30 Years -BAD FOR YOUR LAND, BAD FOR THE CRITTERS

Jonathan H. Adler This week, the Endangered Species Act turned 30. Signed into law by President Nixon on Dec. 28, 1973, the ESA quickly became one of the most powerful -- and controversial -environmental laws. Feared by private landowners yet lauded by environmental activists, it is the source of substantial government power on private land, and can stop federal projects in their tracks. No wonder some call it the "pit bull" of federal environmental laws because it's short, compact and has "one hell of a set of teeth." Yet for all the ESA's force, it is surprisingly ineffective. Indeed, it may be the greatest failure of all federal environmental laws. The purpose of the ESA is to save species from the brink of extinction. The Act's primary provisions seek to identify endangered and threatened species and adopt measures to "recover" them from endangered status. For a species to be on the list is like being in the emergency room; it may be a necessary condition, but it is not one that should continue. The purpose of the law is to help endangered species populations to the point at which they no longer need federal protection. The ultimate measure of the ESA's success is the extent to which it is effective at recovering species from endangered status. By this measure, the law is an abject failure. In the past 30 years, fewer than 30 of the over 1,000 domestic species have been taken off the endangered and threatened species lists. Of these, more have been delisted by reason of extinction than because of recovery due to regulatory protection. Indeed, many of the alleged "successes" of the ESA are nothing of the kind, involving species that were either never in danger of extinction -- so-called "data errors" -- or were helped by factors unrelated to the ESA. Several bird species, including the brown pelican and bald eagle, may have been helped by the ban on DDT in 1972, a full year before the ESA was enacted, let alone came into force. ESA defenders contend that while the law may not recover many species, it prevents some from disappearing altogether. Yet the evidence suggests otherwise. To be sure, the ESA has stopped some federal projects that may have destroyed vital habitat, and the law has encouraged greater conservation efforts on federal lands; but there is increasing reason to believe that the law does little, if anything, to save most endangered species. Indeed, for the vast majority of species that dwell in, or otherwise rely upon, habitat on private land, the law appears to do more harm than good. The primary problem is that the ESA effectively penalizes owners of land upon which endangered species depend. The presence of a listed species can freeze the use of private land, barring everything from timber cutting and ditch digging to plowing a field or building a home. In Riverside County, Calif., the ESA even prevented private landowners from clearing firebreaks on their own land lest they disturb the habitat of the Stephens' kangaroo rat. In the ensuing fires, several homes burned, as did much of the rat habitat the law was supposed to protect. In the simplest terms, the ESA turns ownership of endangered species habitat from an asset into a liability. As Sam Hamilton, former Fish and Wildlife Service (FWS) administrator for Texas, noted: "The incentives are wrong here. If I have a rare metal on my property, its value goes up. But if a rare bird occupies the land, its value disappears." Faced with the risk of stringent land-use restrictions and declining property values, landowners respond accordingly: they avoid the creation -- and sometimes actively destroy -- endangered species habitat on their own land. Throughout North Carolina, timber owners

are dramatically shortening their cutting rotations and cutting trees at a much younger age -- at significant economic cost -- so as to avoid regulatory proscriptions that could force them to lose their investments altogether, according to a recent study in the Journal of Law & Economics by Dean Leuck and Jeffrey Michael. Similarly, in the Pacific Northwest, land-use restrictions imposed to protect the northern spotted owl made private landowners fear the lost use of their land. According to the FWS, "this concern or fear has accelerated harvest rotations in an effort to avoid the regrowth of habitat that is usable by owls." The ESA's regulatory strictures are turning private landowners away from conservation. A study in December's Conservation Biology reports that just as many landowners responded to the listing of Preble's meadow jumping mouse by destroying potential habitat as undertook new conservation efforts. And a majority of landowners would not allow biologists on their land to assess mouse populations out of fear that land-use restrictions would follow the discovery of a Preble's meadow jumping mouse on their land. The negative effect of federal endangered species regulation on species conservation efforts has been known for a long time. Yet for years environmental activists claimed the ESA was an important environmental law that only needed to be enforced. Wildlife law specialist Michael Bean of Environmental Defense was among the first to come clean, acknowledging the "increasing evidence" that private landowners "are actively managing their land so as to avoid" land-use restrictions under the ESA, "and they're trying to avoid these problems by avoiding having endangered species on their property." This is not the result of anti-environmental sentiment, Mr. Bean observed. Rather, the actions are "fairly rational decisions" driven by the incentives the ESA creates. Such concerns led the Clinton administration to adopt administrative reforms to soften the Act's impact, thereby mollifying private landowners and deflating ESA reform efforts. Through policies known as "safe harbor" and "no surprises," the FWS sought to protect landowners who took measures to help endangered species on their own land. In effect, the new policies declared key portions of the Act inoperative for landowners who made good environmental decisions. Yet insofar as such reforms have been effective, they are likely illegal under the ESA. A federal judge invalidated key aspects of "no surprises" earlier this month on procedural grounds, leaving the FWS to try again. The problem is not ESA implementation, but the law itself. So long as federal law effectively punishes property owners for owning and conserving species habitat, conservation efforts will flounder. It may be necessary and appropriate to tightly regulate government projects and federal lands for the benefit of imperiled species. Yet when strict rules are imposed on private landowners, species conservation regulations undermine the very goals they aim to advance. A more promising approach would seek to work with landowners rather than against them. Federal efforts to encourage wetland conservation and restoration have been a tremendous success, as have private efforts by groups like Ducks Unlimited to encourage conservation of waterfowl habitat on private land. Alas, the ESA often prevents similar efforts on behalf of those species most in need. The Bush administration's cooperative conservation program represents a modest step in the right direction, but much more is needed. Despite its flaws, the ESA remains remarkably resistant to reform. Save a just-enacted exemption for some military activities, there has been no significant revision to the law since 1982. The law is "broke," but there is no political will to fix it. Many Congressional Republicans and Democrats from rural districts would like to reform the ESA, and ease its grip on private

land, but they are afraid to touch it. Mere mention of ESA reform is enough to send the green lobby into conniptions. While the Act many not save species, it is terribly effective at controlling land-use, and that is a power environmentalists are unwilling to cede. Ironically, the very power they seek to save is what makes the ESA not worth saving. It seems the Washington-based environmental lobby cares less about saving endangered species than about saving the Endangered Species Act. Until they have a change of heart, effective species conservation efforts will have to wait. Mr. Adler is an assistant professor at the Case Western Reserve University School of Law