rowberry fall 2011--enviro law notes
TRANSCRIPT
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
1/38
IntroMonday, August 15, 20118:46 AM
98% of enviro law is done outside of the courtroom
Compliance counseling
Rules of admin agencies**Don't read notes at end of cases**
Environmental:
"surroundings" Umvelt (german)
Etam said jury presenteth John Hight for casting the entrails of beasts upon good naves miskin to thegreat annoyance to the king's peace and people
List of acts:
Wednesday, August 17, 20118:57 AM
Neuse River Problem (pg. 3)
Neuse River is a watershed (where all water in area tend to flow) Hog farms--CAFOs (concentrated animal feeding operations)
o American Rivers proposes to stop permitting, also a moratorium__________________
Development & the Delhi Sands Flower-loving Fly
Lobbying
Important part of environmental law
Drivers of Environmental Conflicts
Scientific Uncertaintyo We dont know the benefits (or lack)
Market Failureo
Mismatches Scaleso Geographical spillovers
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
2/38
Who gets to make the decisions?
Conflicting Valueso Deep ecology
Every individual organismo Utilitarian
Greatest good for greatest number of peopleo Land Ethic
Rather individual tree or all human beings, looks at communities Environmental Justice
o How do we give poor justice?
Enviro Statutes / DelegationMonday, August 22, 2011
8:51 AM
Enviro Statutes
Act--
the formal product of a legislature or other deliberative bodyStatute--
A law passed by a legislative bodyAct can be an individual piece of legislationStatute can be more broad
Statutes & acts are essentially the same thingProcess of creating a statute
Problem --> Bill --> Negotiation --> Drafts --> Final Act (P.L.--Public Law)o Placed in Statutes at Large (chronological order of when acts passed)o Also codified (by topic)
Find statutes from today's classo "Popular Name" database in WestLaw
Antiquities Act of 1906
Gives President authority to reserve lands for the nation without approval of congresso Very effective b/c NOT narrow
Not much structureStatutes in General
Structure:o Head
Findings/Purpose
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
3/38
Mission statement Definitions
Legal, not commonsenseo Body
Delegation of authority Framework Enforcement Relationship w/ other laws Judicial review provisions
Where and how you can get review of an agency action Effective date
Sources of Statutory Interpretation
Plain meaning Intent
o Legislative history Context
o How createdo How interacts with other laws
Abandoned Shipwreck Act of 1987
What was problem trying to solve?
Who gets the treasure/salvage?What is "abandoned" shipwreck?
Not exactly defined in statute Left broad to be defined by the National Park Service
NOTE: statute will delegate to a department (Interior) and then the dept will delegate to an agency (NPS)
Why title given to US then transferred to the states?
Perhaps so any international dispute would be between the USWhat are "public lands"?
See def in statuteWhat are incentives federal gov't gives for states to create these parks?
Give funds for studies Gives guidelines
o Lightens burden on statesWhat is purpose of guidelines? "to maximize the enhancement of cultural resources"
o Lets states decide cultural resourcesHow are guidelines created?
"consultation" with public & private interestso Not clear what "consultation" means
Will see in many statutes
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
4/38
No penalties here in ASA
WHY?o To let states decide the penalties
STATUTES ARE ONLY THE FIRST STEP
Then regulations Then cases
Enviro Law happens at the REGULATIONS & CASES level
But you need to start with the statute b/c will give you the whole purpose__________________________________________________________________________
Kelley v. EPA
PROBLEM: owners & operators are liable under CERCLA --> are secured lenders "owners &operators"?
THINK ABOUT: Does EPA have the authority?
o Why or why not?
AEP v. ConnecticutMon. 8/29: Kelley (736Wednesday, August 24, 20118:45 AM
Montana v. Wyoming
Invoked Supreme Court's ORIGINAL JURISDICTION (btwn 2 states)o They appoint a "special master" to deal with pre-trial, etc. then he/she gives a report
Fight over water law (yellowstone river)o WY takes same amount but uses more of it (it doesnt work its way back to the river)
HELD: there is nothing in compact to stop WY from using the same amount of water DISSENT (Scalia)
AEP v. Connecticut
Background:
Clean Air Acto Gives EPA authority to regulate "air pollutants"
Groups filed petition for rulemakingo EPA denied petition b/c:
Can only regulate 6 pollutants (CO2 not one of those) States filed appeal (MA one of those states--Massachussetts v. EPA)
o Standing (whether states have standing--only one needed) "cases & controversies" (Article III, Con.)
Person bringing suit needs to have standing to do so
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
5/38
Luvon v. Defenders of Wildlife (leading case on standing)1. Injury2. Causation3. Traceability
If the court gave you the remedy sought it would help yourinjury
MA standing argument: Coastal lands are eroding b/c of climate change Failure to regulate is causing If regulated, lands would not be eroding as rapidly
HELD (standing): states granted "special solicitude"o Interpretation of air pollutants
HELD: EPA does not have to regulate pollutants but can if it wants toC/A: NUISANCE (federal common law)
Procedure:o District Court punted (dismissed)o Appellate:
Is valid c/a **Sotomayor was on panel Opinion was 125 pages long
o Supreme court Grants cert when:
it takes 4 justices to grant cert Court split Cases of national importance
ISSUES: Political question Standing
o Split 4-4 Whatever happens in lower court stands No precedential effect
Meritso Does federal common law Public Nuisance exist for climate change issues
HELD: S. Ct. said that they do not have to decide Missouri sued Chicago over pollution (S. Ct. said was valid) Few areas of law are still under federal common law
o Displacement (If it does exist, is it displaced by federal law)1.Which institutional action is relevant (EPA? Congress? Both?)
Congress2.What does it take to displace the common law?
Whether statute "speaks directly to the issue"?
Rules v. Standards Rules--clear
Overinclusive, and underinclusive Standard--more fuzzy
Doesnt make sense to have a concrete rule
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
6/38
TAKE AWAY: EPA should take the lead and federal court will review your decisions
Kelley / RulemakingMonday, August 29, 20118:49 AM
Kelley v. EPA
PROBLEM: owners & operators are liable under CERCLA --> are secured lenders "owners &operators"?
THINK ABOUT:
Does EPA have the authority?o Why or why not?
HELD:
EPA did not have authority to define lender liability under CERCLAREASONING:
Congress did not explicitly give EPA power to "legislate""Legislative"
implementation"Interpretative"
Specific statutory provisionso Why ct held not interpretative?
EPA implemented a new regulatory regime & did not just defineDISSENT:
Problems w/ dissent:o CERCLA does not set standards, doesnt have a regulatory regime --> just determines
liability
AFTERMATH: Congress eventually adopted Congress' interpretation to exclude lenders from havingliability
BUT still did not delegate power to EPA to define lender
____________________________________________________________________
Rulemaking
Federal Register
Proposed rules
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
7/38
Published daily Separated by agencies
Code of Federal Regulations
Codified rules http://www.gpoaccess.gov/cfr/ What is interpreting the statutes and what is law
o Every statutes has its own regulations ***familiarize self with regulations that interpret statutes***
See "The Reg Map" Can download if searched on Google
_____________________________
Endangered Species Act
"take"o To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct "incidental take permits"
o Permits authorizing the incidental take of listed species in the course of otherwise lawfulactivities
"No surprises" policyo Created w/o public commento Later stuck in a Habitat Conservation Planning Handbook, which was open to public
comment
---Where are we on the Reg Map?
Step 6o 4 issues w/ No Surprises in handbook
1.No net benefit required2.Long-term certainty3.Should codify as regulation4.Exceeded authority
A settlement w/ Spirit of the Sage required them to solicit public commentsDept of Interior --> Fish & Wildlife ServicesDept of Commerce --> Nat'l Oceanic & Atmospheric Administration (NOAA)
***EPA does not fall underneath the Dept of Interior Not neat and tidy separations btwn agencies & departments
Public Comment Phase of No Surprises:
NAHB--pro "No Surprises" policyo Provided certaintyo Created more HCPs
Instead of trying to go around rules, builders are actually conserving the species
http://www.gpoaccess.gov/cfr/http://www.gpoaccess.gov/cfr/http://www.gpoaccess.gov/cfr/ -
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
8/38
Spirit of the Sage -- cono Policy too vague about "the wide array of authorities & resources" to use in unforeseen
circumstanceso Letter is all about posturing for litigation
Specificity is important Tell agency what you want them to do/not do and WHY
PermittingContinue permitting casesWednesday, August 31, 20119:01 AM
REVIEW:
Kelley summary: Delegations
o Agencies can only act on those powers which have been delegated (implicitly/explicitly)Analytical Framework:
1. What are agencies authorized by congress to do?__________________________________________________
Spirit of the Sage Council v. Norton
Spirit = enviros, native american tribes
Norton = head of Dept. of Interior
ISSUE: No Surprises rule & Permit Revocation Rule
Redefine: Legislative
o "grants rights, impose obligations, or produce other significant effects on private interests" Interpretative
o Internal procedures which have no effect on external partiesOriginal rule v. PRR
Original = Maintenance or recovery of population PRR = survival and recovery of species
o Made it even more difficult to revoke the permits ("this only effects the local population andnot the whole species")
AFTERMATH:
2007, FWS went through notice and commento Court ruled they were vaild
HYPO:
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
9/38
Admin agency handbookso Interpretive or legislative?
Probably interpretive___________________________________________
Permitting Proceedings
Army Corps of Engineers
Sec.o --> division & district engineers (make local/regional decisions)
Big firms have "Legislative groups" (aka Lobby groups)___________________
Wind Farm Permitting
Pre-applicationo Talk with agency to determine needso Meet with private interests to discuss viabilityo Mostly concerned with FINANCINGo TIME: could be up to a year
Application Review Decision-making
o Agency always changes things, requiring more mitigationo One or more town hall meetings w/ town council, etc.
Common objections to windfarms Administrative Appeal & Judicial Review
o Agencies Bureau of Land Management
Land Corps of Engineers/EPA
Water FWS FAA Sometimes a lead agency may be appointed
o Admin Law Judge / Panel Usually more negotiation than court
o Judicial Review Usually starts at lowest level of trial court (could be federal or state, depending on
issue) Permit Compliance
oNote 8 principles to successful permitting (pg. 792)
SIGNIFICANT PUBLIC INVOLVEMENT is key______________________
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
10/38
Airport Communities Coalition v. Graves
Permit 404 (Wetlands)
Under Clean Water Act (issued by Army Corps of Engineers)ISSUE:
Whether permit issued is validSTANDARD:
Rational basis (lowest standard)o Rational connection in facts made
"Public interests analysis"
Probable impacts of a proposed activity Costs-benefits analysis
Cumulative impacts analysis
Hard to determine scopeo How far out in time do you go?o What all do you take into account?
General Judicial Review of administrative rule process1. Did agency follow procedures?2. Did they evaluate relevant procedures?3. Did they reach a reasoned decision?
*************if a battle of expert --> DEFER TO AGENCIES*****************
General Permits
NAHB v. US Army Corps of Engineers
Corps made it harder to qualify for a general permitISSUE:
Whether ACE exceeded their authority in modifying their Nationwide permits (NWP)
ACE conducted REGIONAL analysis for a
NATIONWIDE permit
Wanted flexibility to go back and check on permits
individually --> to ere on side of environment so theycan go back and regulate individuals
Wanted court to define "minimum adverseenvironmental effects" --> to provide certainty
Impossible to define on a national level b/c of regionaldiversity
Streamline Permits
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
11/38
Cost Benefit
Is it too quick/lack of protection
Defenders of Wildlife v. Kempthorne
FACTS:
Po FWS violated order of courto Challenge set of regulations
Healthy Forest Initiative "Alternative Consultation Process" (820)
CONSULATION FLOW under ESA
Action (agency) No effect "may affect"
o "not likely" (+ written concurrence from FWS)__________________________________________________________
o "Possibility of adverse impact" (NEPA) FWS Biological Opinion (separate report by agency)
No jeopardy on species Jeopardy + Reasonable & prudent alternatives
Either dont do the action or you can go forward in compliance withregulations
Alternative Consultation Process
Ball is in the court of the action agency "Consultation" not defined
o COURT: You can set up a different scheme but you cant bypass the consultation processaltogether Agency's rationale:
To promote efficiency Needed to act rapidly to prevent forest fires
9/11 + National Security = "Streamlined Process"
Example:o Wind Farms
Nat'l Security: getting off foreign oilInformal Consultation
Formal Consultation(LONG PROCESS)
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
12/38
Environmental ResearchWednesday, September 07, 20119:00 AM
FEDERAL
FDSys
Official versions of all public laws (statutes & codes) Can rely on in court FREE
THOMAS
From Library of Congress Back to early 90s Links to public laws Also has legislative histories, etc.
US Statutes at Large Library (HeinOnline) All fed statutes back to 1789 Must come to library to use
ProQuest Congressional
PDF, fully searchable Must come to library Congressional Research Service (CRS)
o Prepare expert reports for Congresso From 1916 to presento Usually 8-30 pages; great bibliographieso Not published
Legal Information Institute
Free access to US Code Text of many historic supreme court opinions
Justia
Click "more" at topo Regulator Tracker
Great way to get into Federal Register Breaks it up into easily discernible parts
Back to 2005Federal Register Docket ID on right column
o Take towww.regulations.gov Use to find related documents that underlie proposed rule All public comments are posted in PDF format
Federal Register Collection
Paid service @ library
http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/ -
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
13/38
All volumeseCFR
Not official But more regularly updated than CFR (only updated once a year)
FEDERAL AGENCIES
EPA Bureau of Land Management US Forest Service National Park Service US Fish & Wildlife Service
o Can find endangered animals/plants by county
GEORGIA
OCGA Free off legislature's website
GA Legislative Docs
Session laws since 1799 HTML only
Session Laws
PDF access 1787 on
GA Government Register
GA Regulationso Not officially available onlineo Does have online version
Has index (print version does not) Available on Sec of State's website
GA Environmental Protection Division (EPD)
State implementation plans for how to implement Clean Air Act, etc.o EPD very approachable
Other State Regulations
State Regulation Guides in library in reference section
How to do research in different states Even doing administrative research
www.administrativerules.gov
States links
http://www.administrativerules.gov/http://www.administrativerules.gov/http://www.administrativerules.gov/ -
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
14/38
Fifty-State Surveys
Subject Compilation of State Laws (HeinOnline)
Browse subjectsNational Conference of State Legislatures
www.ncls.orgo What states are doing
Track current legislation
Secondary Sources tab
Library subscribes to Environmental Law Reporter online Environment Complete
o What scientists are saying about ecology, etc
Judicial Review + NEPAWednesday, September 14, 20119:02 AM
Judicial Review
Administrative Procedure Act (APA)
Default rule for judicial review of agency decisions if there is nothing listed in statute STANDARD:
o Arbitrary & capriciousCitizens to Preserve Overton Park v. Volpe
Wanted to put interstate through public park Violates statute preventing such unless last resort
o RULE: Yes, courts should review agency actions HELD: reversed & remanded for more fact finding
Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (NRDC)
"new or modified stationary sources"
Must give agency discretion if:
1. Congress has not spoken directly to precise question at issueo Has spoken directly
STOP
http://www.ncls.org/http://www.ncls.org/http://www.ncls.org/ -
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
15/38
o Has not spoken directly STEP 2
2. Whether the agency's answer is based on a permissible construction of the statuteo Agency almost always wins
________________________________________________________________________________
National Environmental Policy Act (NEPA)
To improve decision-makers of agency actionso By using an Environmental Impact Statements (EIS)
Majorfederal actions ...significantly affecting the quality of the human environment
Process:
Environmental Assessmento FONSI -or-o EIS
What regulation does NEPA encompass?
All public federal actions and possibly even private involving permittingo RULE: If you need a license or permit or federal monies involved then the agency will have
to do an EIS
Does not prohibit unwise actions--only uninformed actionso Does not demand a specific result
REMEDY:o Stay on action until they comply
SCOPE of agency actiono Agency action on its own must have independent utility
Cant "segment"Thomas v. Peterson
Forest Service tried to segment road, separate individual timber sales RULE:
o Connected actionso Cumulative actions
Independent utility? Could be ok for a road if connecting 2 roads
"Significant" effects to human environments
Context
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
16/38
Intensityo 10 factors
"Categorical exclusions" Statutes which don't apply:
o Clean Air & Clean Water Acts Have a specific analysis built in
Fund for Animals v. Norton
ISSUE: Were alternative analysis in EIS adequate?o No. Was arbitrary & capricious
Did not consider the full range of alternatives (did not even consider impact of stoppingaltogether)
Endangered Species Act (ESA)Monday, September 19, 20118:57 AM
KEY: Listing Process
Who can list:o Agencyo Interested person
90 days to decide if move forward 12 months
12 monthso Possible 6 month extensiono Rare exception: Emergency Procedures
Can issue 240 day stayTennessee Valley Authority v. Hill
Why the ESA is the "pitbull"
BRIGHT LINEo If you find endangered species then you must grant them the HIGHEST PRIORITYo Endangered species are
invaluableAppealed to the "God Squad"
Rejected in 1979
Northwest Ecosystem Alliance v. US FWS
What is a "species"?
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
17/38
"distinct population segment" (Sub-Species)o Also, Distinct Population Segment (DPS)
Discreteness Significance
1. Ecological setting2. Significant gap in range3. Only surviving natural occurrence4. Marked genetic differences
STANDARD: Best scientific evidence available
o Peer-reviewed journalso Anecdotal evidence
Endangered Distinct Population Segment Act
Tucson Herpetological Society v. Salazar
ISSUE:
Is the lizard's range being significantly shrunk?Did the court get it right?
It seemed to use the best evidence available but still got rejected by court
Delisting
45 species have been delistedo 20 have recoveredo 17 have had new infoo 8 have gone extinct
4 factors in determining whether a species is Endangered or Threatened
ESA: Federal/Private Party ResponsibilitiesWednesday, September 21, 20118:58 AM
How to access Endangered Species List on FWS website
________________________________________
Federal Responsibilities:
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
18/38
Listing Agencieso Fish & Wildlife Service (Interior)o National Marine Fishery Service (Commerce)o STEPS to list:
Identify "Critical Habitat" Physical & biological features which:
1. Essential to the conservation of the species -AND-2. Which may require special management considerations or protections
Done concurrently with listing STANDARD: "to the maximum extent prudent & determinable"
Establish a "recovery plan" ALL federal agencies
o Consultation duty (informal & possibly formal)o Jeopardy Prohibition
****LISTING is the trigger to requiring protection*****
National Resources Defense Council v. US Dept of Interior
ISSUE: does gnatcatcher bird need a critical habitat?NRDC DoI
Critical habitat no prudent b/c:--increased risk of destruction--no benefit bc most of habitat is on private land
Private land:o NOT affected unless require a federal permit
STANDARDS OF REVIEW:
For an agency Action:o Arbitrary & capricious
For an agency's Statutory interpretation:o Chevron test
1. Did Congress speak directly to it2. Is agency's interpretation based on a permissible construction of a statute
Private Responsibilities
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon
Def of "Harm" within def of "take":o An act which actually kills or injures wildlife
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
19/38
Habitat Conservation Plans
TWEN
Low effect HCP Larger area HCP
Clean Air Act (CAA)Monday, September 26, 20118:53 AM
Overview
"Cooperative federalism"o Federal gov't sets the standardso States enforce the standards
States can set more stringent standardso Is this a good idea?
"Race to the bottom" Becoming global instead of just national
National Ambient Air Quality Standards (NAAQS)
"Criteria Pollutants" (Primary): Human health + Adequate margin of safety
Nitrogen dioxide Carbon monoxide Lead Particulate matter Sulfur oxides
Acid rain Ozone
o Secondary standards for criteria pollutants Public welfare
Animals, wildlife, water & visibility Standards set for each CP must be reviewed every 5 years
SIPs (State Implementation Plans)
How the states get to the standardo What happens if states do not set a plan w/in 3 years?
EPA steps in to create a FIPNSR (New Source Review)
New or modified major stationary sources require permits
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
20/38
o What is a modification? Not clear
o Attainment areasPSD (Prevention of Significant Deterioration)
To assure that areas that are in attainment remain in attainmento Must implement the Best Available Control Technology (BACT)
Most effective technology already in use in the market placeNonattainment Program
New or modified sources must achieve the Lowest Achievable Emission Rate (LAER)o LAER:
"most stringent emission limitation" contained in any SIP -OR- that is "achieved inpractice", WHICHEVER IS MORE STRINGENT Technology-forcing provision
Mobile Sources California is exempt from CAA requirements for mobile sources
o Cars are often manufactured to the CA standardMajor Stationary Sources [Power Plants]:
Attainment --> PSD --> BACT
Non-attainment --> nonattainment Program --> LAER
CAA: NAAQS, SIPsWednesday, September 28, 2011
9:01 AM
Train
If pollutant meets the endangerment finding, EPA cannot refuse to list the pollutant--they do nothave discretion
Am. Trucking
When revising or setting NAAQS, EPA may not take economic considerations into accounto Remember: the standard of protection of CAA is to protect inner city cities
NO cost/benefit analysisUnion Electric
EPA cannot and may not use technological and economic infeasibility to reject a SIP.
Technologically-forcing provision If states want to be more stringent, then EPA cannot look over state's shoulder
Mobile Sources
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
21/38
Exxon Mobil
Oxygenated gasoline = ETHANOL
ISSUE:
Whether EPA's approval of Clarke County's more stringent standards is permissible.States can have more stringent standards for mobile sources as well.
Alaska DEC v. EPA
PSD program:
Class Io National parks
Class IIo Rest of the country
ISSUE: What role EPA has with respect to ADEC's BACT determinations
EPA does have authority to make sure states have BACT with a reasoned analysis (p. 218)
Enviro Defense v. Duke Energy Corp.
Duke replaced 29/30 tubes in coal power plant over a 40 year time span NSP standards -- hourly rate of discharge
o Then in 1980, a new standard comes down with an annual rate
Clean Water Act (CWA): Regulating Water PollutionMonday, October 03, 20118:55 AM
Overview
Actually called "Federal Water Pollution Control Act"
33 USC 1251Began in 1899 as concern for commerce (river navigation)
Purpose?
"to restore & maintain the chemical, physical, and biological integrity of the Nation's waters"TMDL Total Maximum Daily Load Max amount of a pollutant set that "impaired" waters can contain
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
22/38
NPDES
National Pollutant Discharge Elimination System "discharge of a pollutant"
o "any addition of any pollutant to navigable water from a point source" Point source
"any discernible, confined and discrete conveyance" such as pipe, ditch, channel,or tunnel"
TECHNOLOGY issues Non-point source
Run off EPA identified agricultural runoff as leading cause of problem in waters
yet it is not regulated under CWA LAND USE issues
South FL Water Management District v. Miccosukee Tribe of Indians
ISSUE:
Is the S-9 pump a point source? Whether the operation of the S-9 pump constitutes the "discharge of a pollutant"?
ANALYSIS Whether but-for the point source the pollutants would have been added to the receiving body of
water
Is this the discharge of a pollutant (if so you need a NPDES permit); i.e. is this a point source?AFTERMATH: EPA issued Water Transfers Rule
o Water transfers not subject to intervening industrial, municipal, or commercial use are notregulated under the CWA
Groundwater
Overconsumption?Water Quality Standards & TMDLs
State sets standards by:1. Identifying "designated use" of each water body2. Then protect the waters according to that use
o When water is "impaired" then states set TMDLs If state does not create a TMDL then EPA will set
Typical TMDL costs $1 million TMDL
o Bridge between NPDES and WQS
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
23/38
Answers the question of what happens when a WQS for a particular water body is notmet even though all the NPDES-regulated discharges into the water body arecomplying
Friends of Pinto Creek v. EPA
Already an impaired water for coppero EPA had to set the TMDL for Pinto Creek
Mine wants to build "diversion channels" (ditch) to route stream around the mine Creek was already at its maximum load
TMDL Process (p. 283)
Pronsolino v. Nastri
Did states need to create a TMDL for water bodies that are purely polluted by non-point sources(i.e. agricultural runoff)o YES, states still need to put water bodies that are impaired by non-point source
CWA: WetlandsWednesday, October 05, 20118:59 AM
Wetlands Overview
Section 404 Permit
Wetlands permitWetland
Area that is flooded at least part of the time 2 broad categories:
o Coastal wetlandso Inland wetlands
Most controversial
For preserving wetlands Against wetlandsMechanism for cleaning water
High biological productivity
Relevant 404 Agencies
Army Corps of Engineers EPA
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
24/38
Which waters are subject to Corps' authority?
Navigable waterso Waters of the U.S.
33 CFR 323.2 Swamps, marshes, bogs, and similar areas
Bayview Homes
RULE:o Lands adjacent to wetlands ARE protected
SWANCC
RULE:o Geographic limit of "wetlands" identification:
Isolated, seasonal wetlands NOT under scope od 404Rapanos
Not clearly isolated or clearly adjacento 1 mile from a lake
KENNDEDY RULEo Wetlands are those that have a significant nexus to navigable waters that are navigable in fact
or were at one time navigable in fact at some or could be made so Gives no real clarification
AFTERMATH:
Not a lot of guidanceo In practice:
If builder has work in in between area then they will consult with the Corps to do duediligence
Wetland BankingHow do you find the regulations regarding 404 permits?
Go to agency's websiteo EPA.gov
"Water"NAHB v. Corps of Engineers
ISSUE: Incidental fallback when dredging, etc. --> "any addition"
HISTORY OF RULE:
Tulloch rule Any redeposit, you need a permit
"incidental fallback" You dont need a permit unless you add material
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
25/38
Tulloch II Rebuttable presumption that you need a permit
RULE:
Volume of material being handled is irrelevant:o TIMEo DISTANCEo How do time and distance help us determine whether an addition has been made (as opposed
to volume)? Helps better show intention
EX: if you hold on to fill for 6 months and then drop it back in water, youintended to pollute
______________________________
Who is exempt from 404 permitting?
Routine, ongoing farming operations_______________________
General/Nationwide Permits
For low impact activitieso Individualized, non-industrialized activities
EX: replacing dock, etc.Individual Permits
2 step analysis:1. EPA guidelines --> must have good place to put fill
Alternatives analysis2. Public Interest analysis
Economic, environmental, and social interests Mitigation
1. Avoidance2. Minimization3. Compensatory mitigation
Mitigation banking Watershed Approach
Address situations where loss cannot be avoided or minimized and thuscompensation is required
More broad approach; instead of being local, more regional/watershedapproach
What are techniques we can use to balance industry with environmentalism?
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
26/38
Public LandsWednesday, October 12, 20119:01 AM
Overview
4 governing agencing:o (Dept. of Interior)
1. BLM2. NPS3. FWS
o (Dept. of Agriculture)4. Forest Service
Roughly 28% of US land is owned by USo Half in Alaska
3 different land policies:o Multiple use
Bundle of prescribed useso Dominant use
Primary use specified, but may accommodate secondary so long as primary is satisfiedo Single us
One prescribed use
National Parks
Dominant uses Created by the Organic Acts
o Act creating federal agencies to manage federal land Organic Act of 1916 --> created NPS
o Purpose: Conservation Enjoyment
National Parks & Conservation Assoc. v. Babbitt
Glacier Bay National Park 1978
o Max cruise ships per season limited to 89 per day 1992
o Want to increase by 72%
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
27/38
1996o 30% initially then to 72% over 2 yearso Also increased amount for pleasure craft
Standard?o Arbitrary & capricious
AFTERMATH:o Congress passed legislation allowed them to increase by 30% "pending EIS"
Wilderness Areas
Purpose:o In their natural condition and thus secure for present and future generations the benefits of
wildernesso An area where the earth and its community of life are untrammeled by man , where man
himself is a visitor who does not remain
Norton v. Southern Utah Wilderness Alliance (SUWA)
Managed by BLM w/ 2 goals:1. Multiple-use management2. Sustained yield
Wilderness Study Areaso Designated by DoI
Until designated by Congress as a Wilderness Areao BLM has a Non-impairment Standard to comply therewith
do no harm to area while under this designation CLAIM:
o BLM failed to act STANDARD to compel agency to act:
1. Discrete agency action Discrete = single (not broad) action Ex: issuance of a permit
2. Required action
-- NO
Land-use plan Not a discrete agency action --> Just guidelines
General mandates:o Left to agency
Discrete decisions
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
28/38
o Can be overruled by courts
Cultural Heritage Preservation361-375; 380-382; 384-387; 388-392
Monday, October 17, 20118:52 AM
National Historic Preservation Act
Purposeo Preserve history
National Register of Historic Placeso Administered by NPSo Criteria
1.Significant event in history2.Significant person3.Distinctive work4.Yield information
o Why list? Tax incentives --> federal grants Protection from government agencies
Section 106o Federal agencies must take historic places into consideration before using federal funds on
any undertaking Does not prohibit action--just need to take it into account
1. Establish "Undertaking" Anything federal government gives funding for or gives permits for
2. Coordinate with other reviews (i.e. NEPA)3. ID appropriate SHPO
SHPO main job is to work with federal agencies
RCRAWednesday, October 19, 20118:59 AM
CERCLA, cont.Monday, October 24, 20118:59 AM
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
29/38
Overview
U.S. v. E.I. du Pont
Two actions:
Removalo Short-term --> immediate threat
Remedialo Long-termo Most work done here
Clean-up process:1. Site identification2. Preliminary Assessment3. Hazard-ranking system
o Site score of 28.5 or higher = eligible for placement on National Priorities List Scorer worse (higher) when worse impacts to people4. Enforcement Option
o See short/long above5. Proposed Action Plan + Feasibility Study6. Choose plan or alternative7. ROD
o Public comments before RODo Includes:
Comparative analysis Performance standards Explanation of Significant Differenced (ESD)
Plan is flexible8. Remedial Designo Nuts and bolts of how things get done
o "Consent Decree" Private party, etc has consented to take upon self process of cleaning up a site
National Priorities List
Purpose:
To id sites that warrant attentionB&B Tritech
About the HRS scoring systemo B&B didnt agree with being ranked on NPL
HELD:o Ct declined to opine on EPA's decision but strongly recommended that EPA remove B&B
from NPL
________________________________________________________
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
30/38
Who Pays??
107(a) Potential Responsible Parties, p. 406:
1. Current owners or operators2. Past owner or operator3. Generator or arranger4. Transporters
NY v. Shore Reality Corp.
If there are parties identifiable, EPA will issue ordero Otherwise, will do on own
Strict Liabilityo For current owners --> causation does not matter
___________________________
Burlington Northern, part 1
Category 107(a)(3): Arranger/Generator
RULE:
ARRANGERo Only when a party takes intentional steps to dispose of a hazardous substance
Here, Shell was not intending to dispose, only arranging for transportation --> ShellNOT a PRP
o Even though Strict Liability, must intend to dispose (mere knowledge that leaks occur doesnot make you a PRP)
Burlington Northern, part 2
Divisibility & Apportionment
Specific facts here considered (NOT USED BY ANY OTHER COURTS):1. Size of parcel2. Time3. Volume
TAKE AWAY for this company? Keep better records
MID-TERM REVIEWWednesday, October 26, 20118:57 AM
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
31/38
Important to answer the question, and nothing extraneouso 3 questions:
1.Identify federalpermissions
Likely arguments opponentswill raise + WHY
Strategies to overcome theseobjections + WHY
404--Wetlands Permit(CWA) --> Navigablewater
--improper permit (mitigation;alternative/research; publicinvolvement)
--best available tech;worked with the city councilextensively; low "arbitrary& capricious standard"
NPDES (pointsource?) permits (tellIF you do this, thenyou need this permit)
--SAME as above
Ind. Take Permit(ESA)--Trout isthreatened
--No take (harass, hunt, shoot,harm [no habitat modification] --
NEPA (any federalgrants of permits willneed NEPA)--is it a major or minoraction? [minor=changeof federal personnel,dock at house]-----is it whole resortor segmenting
(Independent UtilityTest)
STRUCTURE
1. Outline like above first2. You know you have 4 sections (4 different permits)
o Intro Tell what you will talk about (I will go through each permit individually)
o Each section should have a heading (not just new paragraph) EX: Intro sentence --> "you need" Give statutes/authority next "" with footnote to USC Tell why these authorities relate to the facts -- LAYMAN terms
Under each heading have 3 paragraphs (what is the permit, objections, overcome) Dont have to be long
Climate ChangeMonday, October 31, 20119:01 AM
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
32/38
What do our industrial processes add to the cause of global warming?
Greenhouse gases?
CO2 Methane Chlorofluorocarbons
"Global Warming Potentials" (GWPs)
Quantifies warming potential of gases EPA looks at this to determine this potential
IPCC
Detrimental effects:
Rising sea level Extreme weather Diseases--range is expanding Loss of biodiversity Migration
Clean Air Act: Mass. v. EPA
Regulation of auto emissions Section 202(a)(1)
o "shall" Compulsory
o "any air pollutant" discretion
o "in his judgment"o "cause or contribute"
STANDING:o Injury
Rising sea levels in Masso Causation
US cars attribute 6% of worldwide CO2 emissionso Redressability
You dont have to redress completely -- it can be incremental HELD:
o EPA must do an Endangerment Finding, then if exists, you must regulate Internal political-related issues going on within administrative agencies DISSENT:
o No standingo This is a political issue --> courts should not solve this issue
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
33/38
NEPA
How would you use NEPA to prohibit climate change?
ESA Increase in temperature will harm the animal
International Responses
Kyoto Protocolo
Compliance CounselingWednesday, November 02, 20119:07 AM
Planning
What questions would you like answered?o What kind?o Where exactly?o How used?o Plans/specs?o Land?o Staff-internal?o Timeline?o Political capital?o Goals?o Risk tolerance?o EMS?o Financing?o Permits?o Our role? --business? Legal? Scientific?
NEPA ESA CWA? Agencies:
o FAA (if taller than 200 feet)o BLM
Monitoring
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
34/38
Environmental Compliance Auditso Checklistso Self-monitoring
Non-compliance
Self-disclosureo EPA
You get 100% mitigation of civil punitive components Also will not likely recommend criminal prosecution
Compliance Strategies
Environmental Management Systems (EMS)o
Plan-Do-Check-Act1. Environmental policy2. Planning3. Implementation4. Checking / corrective action5. Management review
o Systematic and ongoingo Helps insulate you from some liabilityo Helps promote good public relations
Environmental LitigationMonday, November 07, 20119:01 AM
Common Law
1. Nuisance2. Toxic torts (Negligence)3. Fraud4. Product liability
Lockheed Martin Corp. v. Carrillo[Toxic Tort]
Sought class certification:o People who drank water
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
35/38
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
36/38
2. Causation3. Redressability
____________________
4. Prudential -- Zone of InterestFriends of the Earth v. Laidlaw Environmental Services
60 day notice of intent to sue Letter RULE:
o Standing for ongoing violations Depend on case facts
Mootness
Case might become moot if subsequent events make the continuance of the suit would not cause thebad act to be less likely to occur
EnforcementWednesday, November 09, 20119:01 AM
Overview
Nobody is in 100% compliance all the time
Specific deterrence General deterrence
2% chance of being inspected by EPA
Self-reporting
What's the incentive?o Worse penalties if dont self-report
Players
Fedso DOJo EPA
10 regional offices Program-specific Divisions
Divided by medium (air, water, wildlife, etc.)o States
Smaller facilitiesMonitoring
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
37/38
Self-reporting Neighbors, etc. Referral from states Random inspections
Civil PenaltiesFactors for whether to prosecute/fine:
Good faith? Severity Internal procedures Repeat offender Economic benefit Ongoing Degree of cooperation
Administrative Proceeding
1. Initial decision from Admin Law Judge2. Environmental Appeal Board (EAB)o Panel of 3 ALJs
3. Federal District Court ALJ opinions are not legally binding but are good guidance with the individual agency
Civil Remedies:
1. Monetary fines2. Injunctions3. Supplemental environmental projects
Weinberger v. Romero-Barcelo
No NPDES permit ISSUE:
o Does the court have discretion to impose an injunction or is it mandatory?To grant a federal injunction:
1. Irreparable injury2. Inadequacy of legal remedies
Criminal
U.S. v. Ahmad
INTENT
____
-
8/3/2019 Rowberry Fall 2011--Enviro Law Notes
38/38