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8/3/2019 E Law Outline Jonathan
http://slidepdf.com/reader/full/e-law-outline-jonathan 1/43
Frank M.
RCRA
• 1. Is the material a solid waste?
o Statute
s. 1003(27) of RCRA defines “solid waste” as “any [...] from a [...] and other
discarded material including [...] material resulting from [...] operations andfrom community activity.”-very broad definition -
S. 1004(27) ??
• a. Is the material “discarded”?
o Rule
The definition of solid waste only includes discarded material.
• In American Mining Congress I, the court held that the EPA need not
regulate spent material facilities recycle or reuse in an ongoing mfg or industrial process
o Application
1) Are the materials discarded?
• Materials are discarded if the facility has disposed of, abandoned , or thrown them away. AMC v. EPA I
2) Will the material be reused as a certainty?
• Materials are not discarded if they are destined for immediate reuse inanother phase of the industry’s on-going process and have not become
part of the industry’s on-going waste disposal problem. AMC v. EPA
IIo Potential reuse of materials is not enough to avoid being
classified as discarded – certain to be reused. 3) Is the reuse immediate or delayed ?
• What was the amount of time until reuse?o Few min – OK :In Association of Battery Recyclers, the DC
Circuit rejected the notion that temporary storage of thematerials even “for a few minutes” subjected them to
regulation as solid waste. Not regulable by RCRA – still
immediate re-use.o 6 months – NOT OK - In Owen Electric Steel Co., the 4 th
circuit held that slag produced, ‘cured’ on the ground, and sold
six months later was “discarded material,” despite its reuse.
[not immediate – too long]. Is regulable by RCRA.
3a) Is the reuse direct or indirect?
o Plain meaning of immediate
Could mean “direct” [as well as “at once”]
• Was the material recycled/reused in a directway?
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o Where will the recycling/reuse take
place?
Offsite – indirect
Onsite – is it used as part of theoriginal closed loop process or
not? If not, arguably indirect.4) Has the material being reused/recycled already been part of the
manufacturing process or is it raw material?
o In American Petroleum Institute, the court held that it was
waste before it was recycled b/c owner got rid of it then it was
recycled
What if it had not first been used in manufacturing
process? Raw ore instead of from the process
• Fact that it had been used first then discarded
was dispositiveo If have two diff things, one not used its
not covered Does this make any sense
Policy: want to encouragerecycling BUT it’s the same
exact harm
• Purposeo To discourage sham recycling
o To avoid environmental harm
2. If the material is a solid waste, is it a hazardous waste?
•
Statuteo RCRA s. 1004(5)
A solid waste, or combination of solid wastes, which because of its quantity,concentration, or physical, chemical, or infection characteristics, may-
• (A) cause or significantly contribute to an increase in mortality or an
increase in serious irreversible, or incapacitating reversible, illness; or
• (B) post a substantial present or potential hazard to human health or
the environment when improperly treated, stores, transported, or
disposed of, or otherwise managed.
• a. Is the material a “listed” waste?
o 40 CFR s. 261 –
o Is the waste at issue derived from another waste? Derived-from rule: wastes derived from the treatment, storage, or disposal of a
listed waste (such as ash residue from incineration of a listed waste) are
hazardous wastes.
If a substance is derived from [by statute by means of TSD] a listed hazardous
waste, then it too is a listed hazardous waste.
o Mixture rule for listed wastes;
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If the substance is a mixture of X and a listed hazardous waste, then the
resulting mixture is hazardous waste
• b. Is the material excluded from RCRA regulation?o Petroleum, nuclear waste etc.
• c. Is the material a “characteristic” waste?
o s. 1004(5) of subpart C 1) Ignitable 2) Corrosive 3) Reactive chemically 4) Exhibits “TC toxicity” 5)
Unstable 6) Fatal to humans in low doses or has an LD -50 or LC -50 7)Contains toxic constituents
• “Big 4”
o 1) Ignitability 2) Corrosivity 3) Reactivity 4) Toxicity
o Is there a mixture of wastes?
- Mixture rule for characteristic wastes: If the result of amixture of a substance with a characteristic and another
substance has a characteristic then it is a hazardous
waste. If not, then it is not. If a substance that is the
result of some TSD process on a characteristic wastehas a characteristic then it is a hazardous waste. If not,
then it is not.
- (Not hazardous if the resulting mixture no longer exhibits any subpart C characteristic).
o Does the mixed substance still exhibit a characteristic waste? If
so, still a hazardous waste
3. Are there any defences?
• RCRA s. 3001(i) – household waste exemption
CERCLA
1. Is this a release or threatened release?
2. Is this a hazardous substance?
3. Is this at a facility?
4. Which s. 107 liability category or categories does [defendant] potentially fall under?
• Statute
• s. 107
o 4 classes of potentially responsible parties bearing cleanup liability under
Superfund’s cost recovery provisions
1) current owners and operators
2) owners and operators at the time waste was disposed of at the facility 3) generators of waste
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4) persons who transported waste to the facility
Parties are liable for
• A) all costs of removal or remedial action incurred by the federalgovernment not inconsistent with the NCP
• B) any other necessary costs of response incurred by any person
consistent with the NCP• C) damages for injury to natural resources
• D) costs of health assessments
4a. Is [defendant] liable as a current owner or operator of the facility?
• Statute
o CIRCLA s. 107 lists “current owners and operators” as potentially responsible parties
bearing cleanup liability under Superfund’s cost recovery provisions
• Ruleo 1) In New York v. Shore Realty Corporation, the court held the then current owner of the
property liable even though it neither owned the site at the time of disposal nor caused the
presence or the release of the hazardous waste at the facilityo 2) In New York v. Shore Realty Corp, the court held that a showing of proximate cause is
not required before liability may be imposed on current or former owners or operators of
disposal sites.
o Reasoning
Statute uses passive verbs, does not need to actively be done – as long as the
def is not innocently unaware of situation.
• Continued leaching and seepage all constitute releases
o A release can be an ongoing process, doesn’t just happen once
when the substance is disposed of
o Policy
Not holding the current owner liable could
• a) undermine the statute b/c often the companies who caused the
problem are judgment proof
• b) it would also encourage companies to sell (person who is selling the property will have to pay more to sell the property b/c buyer is
assuming liability)
• Does [defendant] have an affirmative defense (s.107(b))?o act of god
o act of war o act or omission of a third party other than an employee or agent of the defendant or
one whose act or omission occurs in connection with a contractual relationship with
defendant.
1. Due care is required when a corporation bases its affirmative action on anact or omission of a third party. If [def] could show took due care – has a
defense.
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• In New York v. Shore Realty Corporation, the court held that a
company which was aware its tenant had dumped waste in the past andcould have readily seen that this activity would continue did not take
due care.
2. The act or omission refers to what happened during [defendant’s]ownership, not something which happened before.
• In New York v. Shore Realty Corporation, the court did not hold the
defendant liable for the initial release, but for the continued leaking,seepage, or dispensing of chemicals
3. The third party is the sole cause
• Does [defendant] have an “innocent purchaser” defense?o Congress amended s. 107(r) to add innocent landlord defense
[Defendant] is not liable if:
• 1) It did not have actual or constructive knowledge ...
o To satisfy, [defendant] must have made an all appropriate
inquiry
Involves due diligence process (law is murky)
• 2) It was a government entity who acquired property through
involuntary transfer
• 3) The land was inherited4b. Is [defendant] liable as a previous owner or operator of the facility?
• Statuteo CERCLA s. 107 lists “owners or operators at the time waste was disposed of at the
facility” as potentially responsible parties bearing cleanup liability under Superfund’scost recovery provisions
•Rule
o 1) “Prior owners and operators are liable under CERCLA only if they owned or
operated the facility ‘at the time of disposal of any hazardous substance.’” New York
v. Shore Realty Corporation
o 2) In New York v. Shore Realty Corp, the court held that a showing of proximate
cause is not required before liability may be imposed on current or former owners or
operators of disposal sites.
• Does [defendant] have an affirmative defense?
o See 4a
• Was the pollution caused by soil migration? (substance got on ground, seeped in, and spread
out underground)o Circuit split
The 4th Circuit in Nurad held the defendant liable under “passive owner
liability”
• Court wanted to avoid where “an owner could avoid liability simply
by standing idle while an environmental hazard festers on his property.” Where passive – can incur liability.
The 3rd Circuit in CDMG rejected passive owner liability. No liability.
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• pointed to active words defining disposal and that interpreting
otherwise would make innocent purchaser defense invalid.
• Distinction b/t leaking drums and soil migration (described above)
[operator; substantial control test, actual control test, etc...]
4c. Is [defendant] liable as an operator due to its position as a parent company of the subsidiary
company, [subsidiary company]?
• Statuteo CERCLA s. 107 lists “current ... operators” and “operators at the time waste was
disposed of at the facility” as potentially responsible parties bearing cleanup liability
under Superfund’s cost recovery provisions
• Ruleo A parent corporation that actively participates in and exercises control over the
operations of a subsidiary cannot be held liable as an operator of a polluting facilityowned or operated by the subsidiary unless the corporate veil is pierced. US v.
Bestfoods Reasoning
• A statute such as CERCLA does not advent the common law unless
Congress specifically states that it does
• Can the parent be held directly liable for operating the facility itself?o Issue is not whether parent operates the subsidiary but whether it operates the facility
Not direct liability: corporate offices in common, to have participation and
control, monitoring the subsidiary’s performance, supervision of the
subsidiary’s finance and capital budget decisions, articulation of general
policies and procedures
• An operator must manage, direct, or conduct operations specifically
related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with
environmental regulations
4d. Is [defendant] liable as a transporter ?
4e. Is [defendant] liable as a generator ?
• Statute
o s. 107(a)3
any person who by contract, agreement, or otherwise arranged for disposal or
treatment, or arranged with a transporter for transport 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
4f. Is [defendant] liable under s. 107(a)(3) as an arranger ?
• Statute
o s. 107(a)3
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any person who by contract, agreement, or otherwise arranged for disposal
or treatment, or arranged with a transporter for transport 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
o Rule Entity qualifies as an arranger when it takes intentional steps to dispose of a
hazardous substance. Burlington Northern case (ex: entering into a contract –
an intentional act)
• In Burlington Northern, the court held that to qualify as a an arranger,
the defendant must enter into the sale of the hazardous substance with
the intention that at least a portion of the product be disposed of during the transfer process by one or more of the methods described in
6902(3).
o Mere knowledge that spills and leaks continued to occur is
insufficient grounds to find defendant ‘arranged’ for disposal
Fact intensive and case specific• 2 extremes of arranger liability
o Liable – entity enters into transaction
for sole purpose of discarding a used and no longer useful haz
substance
o Not Liable – entity merely sold a
new and useful product and the purchaser, unbeknownst to the
seller, disposed of the product in a way that led to contamination(seller’s intent to dispose does not attach to purchaser)
• Unclear area
o Cases where the seller has some
knowledge of buyers planned disposal or whose motives for the“sale” of the substance aren’t clear o Policy: preventing people from
disguising their intent to sell/dispose of hazardous waste.
• If intention is required, what if leaking and spilling are included in disposal?
• [Aceto approach]
5. Is [defendant] one of multiple PRPs? If so, does [defendant] partly share responsibility?
• See above elements of s. 107
6. If [defendant] is partly responsible, is the harm caused capable of apportionment?
• Rule
o Although s. 107 imposes a strict liability standard, it does not mandate “joint and
several” liability in every case. Burlington Northern:
Is the harm capable of apportionment?
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• Not all harms are capable of apportionment, and CERCLA defendants
seeking to avoid joint and several liability bear the burden of provingthat a reasonable basis for apportionment exists. Burlington Northern
o Diversity of harm analysis
§433A of Restatement of Torts:
• When 2 or more persons acting independentlycause a distinct or single harm for which there isa reasonable basis for division according to the
contribution of each, each is subject to liability
only for the portion of the total harm that hehimself caused.
o But where 2 or more persons cause a
single and indivisible harm, each is
subject to liability for the entire harm
7. If [defendant] is held subject to joint and several liability, is it eligible for de minimis
settlement under s. 122(g)?
8. Can the [defendant] sue other PRP’s for their share of the liability?
• Statute
o Under S. 107, a party is subject to joint and several liability.
SOL is three to six years from completion of removal work or initiation of remediation work
o Under s. 113(f), liability is to be “equitably allocated” among PRPs.
SOL is three years from the date of judgment or settlement
“contribution protection” exists only for s. 113 actions
• s. 113(f) bars contribution from parties who have settled with thegovernment for matters addressed in the settlement
• Ruleo S. 107 and s. 113(f) allow private parties to recover expenses associated with
cleaning up contaminated sites.. US v. Atlantic Researcho PRPs can utilize s. 113 to seek contribution only after they have been sued for
cost recovery. Cooper Industries v. Aviall
9. What is the appropriate allocation of response costs among the PRPs?
• s. 113f
o Gore factors:
(1) ability of parties to demonstrate that their contribution to a discharge,
release or disposal of a hazardous waste can be distinguished,
(2) amount of hazardous waste involved,
(3) degree of toxicity of the hazardous waste,
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(4) degree of involvement of parties in the generation, transportation,
treatment, storage or disposal of haz waste,
(5) degree of care exercised by parties with respect to the haz wasteconcerned, taking into account the characteristics of such hazardous waste,
and
(6) degree of cooperation by the parties with Feerfal, State or localofficials to prevent any harm to the public health or the environment.
• These factors are neither an exhaustive nor exclusive list – the
primary emphasis is placed on the harm each party causes theenvironment and care on the part of the parties (US v Vertac)
10. Are there multiple states involved and is there a law (city/county/state ban) restriction on the
removal of waste? (dormant commerce clause)?
• Statute – commerce clause
• Rule: 1) Is the law a simple economic protectionism?
a. If so, the ban is "per se invalid" - against the commerce clause.2) Is the law directed to legitimate local concerns?
a. Pike test - balancing test - unless local concerns outweigh the commerceclause. If this, may have a case. (Philadelphia v NJ)
• If a ban on a specific facility, may be OK (Mayor & CC of Baltimore)
11. Is there an issue involving the Commerce Clause and Environmental Justice?
• If race or socio-economic issues are raised – bring this up.
• Louisiana Energy Services case
Clean Air Act
Quick summary:
• Is it a pollutant?
• Is it a criteria pollutant?
• If it’s not a criteria pollutant (regulated under CAA) – then no permit is required
• If it’s a criteria pollutant – then yes, discharger needs a permit
o How do you get a permit?
o Look at relevant control technology-standards In Attainment areas – PSD = BACT
In Non-attainment areas – then a modified or new source = LAER
In both – new sources = NSPS
If its routine maintenance (RMRR) – then still an existing source = RACT
BACT –
LAER – non-attainment areas
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1. Is the material a criteria pollutant under the CAA?
• Ruleo The following are declared by the EPA to be criteria pollutants:
Sulfur dioxide
Nitrogen oxides
Particulate matter • Big
• Small (more harmful)
Carbon monoxide
Lead
Hydrocarbons
Ozone
2. Is the source stationary or mobile? (All are regulated by CAA)
• If stationary, go to 3.o
Incinerators, chimneys, factories, any burning-machine, any machine can be asource, smoke-stack, building/structure/facility or source which may emit anemission – anything that emits a toxin in the air
• If mobile, go to ...
o Mobile sources are moving sources = motorized vehicles, planes, trains, trucks,
cars etc.
o Most states are pre-empted by CAA from promulgating their own regulations
concerning mobile sources – state can either use EPA’s (s.202 CAA – emissionsstandards for new motor vehicles or new motor engines) or a waiver to be able to
adopt CA’s standards.
3. If stationary source, is the source a new source or a modified source?• Statute
o CAA 111(2) – new source – “any stationary source, the construction or
modification of which is commenced after the publication of regulations (or proposed) prescribing a std of performance under this section which will be
applicable to such source.
o CAA 112(3) – stationary source – “any building, structure, or facility, or
installation which emits or may emit any air pollutant.
o CAA 111(4) – modification – “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 emitted”• Rule for modifications (2 steps)
o 1) whether there has been a physical or operational change
RMRR exemption – EPA always exempted certain alterations from being‘physical changes’ if constituted “routine maintenance, repair, or
replacement”
• Case-by-case, fact intensive nature of RMRR review
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o Impt Issues (Duke Erringer case)
1) What is considered “routine”
• Split b/t facility specific or industry as a
whole
2) whether what counted as routine maintenance in
EPAs prior findings should govern the caseo 2) whether there is an increase in emissions or a new air pollutant is emitted
Based on annual emissions, not the emissions rate
4. Is new/modified source in a Non-Attainment area?
• If a new source – LAER (technology-forcing)o Requirement of a new permit – get permit if
• Existing, but modified source – BACT
• Existing, but not modified (maintained only) - RACT
5. Is new/modified source in an Attainment area?
• PSD – which entails BACT
6. Can [defendant] get a variance?
• Will EPA approve the variance? Yes – if the SIP standards are effectively impossible to
meet.
2. If not, should the material be a criteria pollutant under the CAA?
o Statute
o CAA s. 302(g) – “air pollutant” means any pollution agent or combination of such
agents, including any physical, chemical, biological, radioactive ... substance or
matter which is emitted into or otherwise enters the ambient air. [very broad]
s. 108(a)(1)(A) – “any air pollutant...which in [the EPA administrator’s]
judgment, cause or contribute to air pollution which may reasonably be
anticipated to endanger public health or welfare” [limitation]
• s. 302(h) – includes, but is not limited to, effects on soils, water,
crops, ....weather ... as well as effects on economic values and on
personal comfort and well-being ...
•Rule
o Endanger does not mean an actual injury has to be present, it was enough that a
significant risk of harm. - Ethyl Corp and Lead Industries
o EPA can set the NAAQ’s w/ respect to vulnerable population. - Lead Industries
o EPA has discretion to set adequate margin of safety and does not need to limit the
NAAQ’s to clearly harmful effects (can regulate w/ respect to effects that are
more uncertain) Ethyl/Mass cases?
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3. If the material should be a criteria pollutant, how should it be regulated?
• NAAQS
• SIPS
• EPA approval of state plan
• FIPS
•
• Is it Carbon dioxide? – it could soon be a criteria pollutant (proposal made)
o May parallel the same legislation as lead (lead was most recently added to list of
criteria pollutants) – Mass v EPA case
Mobile
Stationary
DirectIndirect
Concerns
State v fed gvmt roles
Regulating regional air v permitting individual pollutersTranslating tech-based pollution stds to legal reqs
Air quality control regions – regions where air quality is monitored or controlled
Federal role (NAAQS)
-create nationally uniform quality stds for ambient air
-create tech based stds for individual polluters’ emissions Naaqs – geographically uniform standards for ambient air quality
States role (SIPS)
-enforce NAAQS by enforcing SIPS
Lisa’s notes:
NAAQ’s mandated by CAA – EPA sets them, SIPs are plans made by states to meet the
NAAQ’s, if EPA rejects SIPS, then EPA sets a FIP. In analyzing whether SIPs are sufficient,EPA cannot take costs into account.
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DECISION TREE:
• Is X a criteria pollutant?
o No? – then it’s OK – do not need a permit
o Yes? Is it RMRR (Routine Maintenance Repair Replacement)?
Yes – then it’s an existing source – and so RACT is required No – then it’s a new or modified source and subject to NSPS –so is it an
attainment area (complies with NAAQ’s)?
• Yes – then it comes under the PSD program = BACT is required
• No – then it comes under NSR – so, does it net out?
o No – then it’s subject to LAER
o Yes – it is OK as it is.
• BACT – determined on a case by case basis by the state. NSPS = triggered by not being RMRR (being new or modified) – NSPS triggers a floor
technology - Federally mandated – be as
• Attainment area – a geographical area – in compliance with NAAQ’s for that criteria
pollutant. Non-attainment area – the area is not in compliance with NAAQ’s for the
criteria pollutant.
• NSPS is a federally mandated control technology for any new or modified source and sets
a floor technology for each criteria pollutant that the new or modified source has to be as
good or better than. It’s an absolute floor – BACT may be above or below it. If BACT is below it, then NSPS sets the floor.
Clean Water Act - CWA
• Foundational prohibition – s.301(a) = discharge of ANY pollutant by ANY person - so
incredibly broad! What limits this broad definition?o s.502 (12) = any addition of any pollutant to navigable waters from any POINT
source - So - there has to be 3 elements:
1) pollutant, 2) navigable waters & 3) from any point source= so permit req’s only cover discharges from point sources that inv. the add.of a pollutant.
• CWA is comprehensive: prohibits all discharges of water pollutants unless the discharger
has a PERMIT that incorporates effluent limitations.
• CWA requires SEPARATE permits for discharges of dredged/fill material in regulated
wetlands (s.402 permit/s.404 permit – see below p.17)
1.Is it a discharge of a pollutant?
• s.301(a) – the discharge of any pollutant by any person shall be unlawful.
a) Is it navigable water?s.502(7) – “navigable waters” means the waters of the United States, including the
territorial seas
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o "navigable waters" do not have to be "navigable" and do not need to be "waters" =
held that it can be wetlands, so not necessarily "navigable" or "waters" (Riverside
Bayview Homes – very broad def. of navigable waters)
o Issue: whether isolated wetlands used by migratory birds are "navigable waters"
for benefits of interstate commerce? (SWANCC case)
SC used rigid/linguistic def. of "navigable”- big depart.from Riverside.
Held - non-navigable, isolated, intrastate waters (unlike the wetlands at
issue in Riverside) did NOT actually abut on a navigable waterway andwere NOT included as "waters of the US".
In SWANCC - had to be a signif. nexus betw. water regulated+nav. waters
o Rapanos case (plurality): held there is a significant nexus between the body of….
Scalia’s test = did not look at “navigable”, but what is "water s of the US"
(plural) = inc. ONLY relatively perm., standing or cont. flowing bodies of water "forming geographic features" - streams, oceans, rivers and lakes
(excludes puddles/dry channels) = consist. w/Cong + purposes of Act
“waters of US” does not inc. channels th/which water flows intermittently or
ephemerally or channels that periodically provide drainage for rainfall.
Scalia’s 2 part test:
• 1) water body adjacent to wetland contains water of the US
• 2) wetland has a continuous surface connection w/that
water making it difficult to determine where wetland begins
and ends
• Thus - wetlands with only an intermittent, physically remote
connection to "waters of the US" LACK the necessary
connection to covered waters that have a significant nexus as in
SWANCC.
Kennedy (disagreed w/Scalia) - significant nexus test (from SWANCCcase) – wetlands possess the requisite nexus, and thus come within thestatutory phrase “navigable waters”, if the wetlands, either alone or in
combination with similarly situated lands in the region, significantly
affect the chemical, physical and biological integrity of other covered
waters more readily understood as “navigable”. When in contrast,wetlands’ effects on water quality are speculative or insubstantial; they fall
outside the zone fairly encompassed by the statutory term “navigable
waters”. (Stevens:dissent –would defer to agency as to what is navigable)
Justice K's test is essentially the test which will need to be used for future
cases - along with plurality/dissent to get up to 5.
b) Is it a pollutant?
s.502(6) – “pollutant” means dredged, spoil, solid waste, incinerator residue, 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.
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o In 1993, ACE issued new rule (removed de minimis exception) to expand def. of
'discharge' to cover "any addition of dredged material into, inc. any REDEPOSIT of
dredged material within the waters of the US"
o This new rule subjects to fed.reg. virtually all excav./dredging in WETLANDS.
Incidental fallback does NOT require a permit (i.e. material taken from one
body of water to another in same geographical location/waters) Regulable re-deposits DO require a permit (redep. to/from new location,
or take redep., keep it out for a while then redep – need a permit)
Incidental re-deposits (fallbacks) of dredged materials could NOT be
regulated as "discharges" because they did NOT result in the net
ADDITION of any pollutants to receiving waters (soup falls from ladle)
Incidental spillage to water – permit is req. (Mokelumne River case)
Incidental re-deposit not only from original pollutant to be point source,
just need to convey redeposit to water (from a boat etc.-Mikosuccee case)
Water transfers made between distinct water bodies = this is an addition,
thus a discharge of a pollutant, so requires a permit (South Florida MD v
Miccosukee) – to protect the preservation of different water bodieso If punching holes in wetlands, so activity moved/mixed up contents of wetland
materials= sufficient to constitute a discharge of a pollutant (Deaton/Borden case)
c) Is it a point source? If yes - a permit is required under NPEDS permit system
s.502(14) – “point source” means any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discretefissure, container, rolling stock, concentrated animal feeding operation, or vessel or other
floating craft (boat), from which pollutants are or may be discharged. This term does not
include agricultural storm water discharges and return flows from irrigated agriculture.• EPA does NOT have the authority under the CWA to categorically exempt
categories of point sources from the permit program under §402. (NRDC v
Costle)
• Is a person a point source under the CWA?
o Held : A human being is NOT a point source (US v Plaza Health
Laboratories) –no structural sense to incorp. human into ‘point source’o Dissent : point source designation is more about controllability than character of
the point source (don’t want only non-point sources); this would allow pollution
to escape liability as give corporations incentive to evade statute by simply
putting a human being on the end of the chain of disposal
Discharge in this case was more like a point source, much morecontrollable and came from an identifiable point
Must distinguish betw.individual litterer and one acting on behalf of a
municipality or a corporation.
o Note - can argue that a human being w/a hose may be considered a point
source, if the hose is determined to be a point source.
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Examples of cases - activities that were/were not held to involve discharges from a
POINT SOURCE that did/did not require a NPDES permit:
1. Does dam that discharges water w/reduced O2 content req. permit as point
source?
•Held: dam was not required to obtain a permit. EPA properly determined thatCongress did not intend a dam to be a point source. (Nat.Wild. Fed. v Gorsuch)
2. Does discharge of dead fish from a hydroelectric plant's penstocks require a permit?
• Held: no permit was required - following the Gorsuch case.(National Wildlife
Fed. v. Consumers Power Co. 1988)
3. Is a permit required if toxic materials are discharged into a stream when a
settling pond used to process gold ore overflows during an unusually sudden snowmelt?• Held: YES - a permit was required b/c Congress defined "point source" to
embrace the "broadest possible definition of ANY identifiable conveyance fromwhich pollutants might enter the waters of the US" (US v Earth Sciences Inc
1979)
4. Are a series of surface impoundments designed to capture, contain and
evaporate toxic runoff from an abandoned mine, a point source, when their contentsoccasionally spill into a nearby river?
• Held: YES - impoundments were held to be a point source - although concurring
judge noted that as the facility was like a dam/was constructed to reduce pollution, would have been willing to defer to EPA if it had been determined that
facility was not a point source. (Committee to Save Mokelumne River v East Bay
Mun.Util.Dist 1993)
5. Is the application of aquatic herbicides to irrigation canals a discharge from a
point source that requires a permit?• Held: YES - (Headwaters Inc v Talent Irrigation District 2001)
6. Is a pump that moved polluted water (pollutant was phosphorous) from a
canal to a reservoir a point source that requires a permit?
• Held: YES. Court rejected arguments by Water District that s.402's permit
requirements ONLY apply when pollutants originate from a point source and not
when they merely pass through them.
d) Can the pollutant get a variance under s.301(n) – “fundamentally different factors”?
• Must apply to EPA for a variance
• EPA cannot take costs of BPT into account for variances (can for BADT andBAT)
What are the standards?
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• CWA divides sources between EXISTING and NEW sources
(Act does not require EPA to actually show that the technology is being used..)
• 1972 Act:
• For existing sources
BPT by 1977 (EPA must consider costs, not required to balance costs and
benefits as in BAT) BAT by 1983 (more stringent than BPT - as for BPT = EPA must balance
costs and benefits of alternatives)
BAT does not require that the technology is actually IN USE by industry
currently - as long as it can be shown to work - EPA can peg its effluent
limit on this technology.
• For NEW sources:
BADT:
• Can be set by looking at process changes in the industry itself.
EPA can say we will set the limit at X, based on our feeling thatindustry could do better recycling, more process changes - if this is
done, then effluent levels would meet the limits.
• 1977 Act:
1) Industry said it was too hard to achieve BAT by 19832) BPT was retained as a "floor" (minimum level) for all sources (esp. extensions)
= BADT was retained for NEW sources
• But for existing sources, BAT requirement was replaced as follows: (3
requirements)1) For Toxic pollutants (e.g. lead) - BAT by 19842) For Conventional pollutants (e.g. oil) - BCT (Best Conventional Technology)
(so for existing sources – BCT and BAT; new sources – BADT)
3) Non-conventional pollutants - BAT (but a waiver possible for costs or water quality)
Water quality can be a waiver, but not a factor for setting the limit in the
1st place
• EPA cannot take an individual facilities costs into account (so EPA has the power
to put companies out of business)
• Thus - standard is = EPA says that a company can only emit X amount of [lead] -
how you get to X limit - the industry has to use BAT or BCT etc. - by demonstrating
that it is possible with that technology standard.
Levels of Technology Standards:1) BPT (least stringent) 2) BCT 3) BAT 4) BADT (most stringent)
Four Different Standards:
1. Best Practicable Technology Currently Available (BPT)
i. Original version (1972) of CWA required all existing sources to achieve BPTcontrols within five years.
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ii. Set for classes or categories of point sources, and takes costs into account
(consider total cost of technology, benefits achieved, existing controls, etc.)
2. Best Available Technology Economically Achievable (BAT)i. Stricter standard than BPT, under original CWA all existing sources were
supposed to achieve BAT by 1983, and toxic polluters were supposed to achieve
it immediately.ii. 1977 amendments extended BAT compliance to 1984 for toxic polluters, and
changed the standard for conventional polluters from BAT to BCT (so more
strict)iii. BAT requires consideration of cost, but just to determine what is actually
feasible, not as a form of cost-benefit balancing.
3. Best Conventional Technology (BCT)
i. Stricter than BPT but not as strict as BAT, BCT was conceived because it wasclear that existing sources were not going to be able to meet original statutory
deadlines.
ii. BCT asks EPA to take into account the reasonableness of the relationship between
costs and benefits. The two cannot be completely incommensurate, but EPA doesnot need to cost-justify everything that it requires under BCT.
iii. Note: In practice BPT and BCT standards have merged, and apply to
conventional pollutants, and BAT applies to toxic pollutants.
4. Best Available Demonstrated Technology (BADT)
i. The strictest standard of the four, it applies to all new sources.
ii. Similar to the CAA BDAT standard, it requires the "degree of emission limitationachievable through the application of the best system of emission reduction
which, taking into account the cost , has been adequately demonstrated."
CWA – s.301, s.402, s.404:
• Interaction between s.301(a): (discharge of ANY pollutant by ANY person is
UNLAWFUL except in compliance w/ certain sections - inc. a PERMIT under s.402 and
s.402 (discharge of a pollutant permits) and s.404 (discharge of dredged or fill
material permits)
(WETLANDS)a) s.402 permit – individual permit - NPDES Permit Program = s. 402
o Permit system for discharge of pollutants is governed by s.402's national
system = NPDES program and must incorporate effluent limitations
(restrictions on the quantities of pollutants that may be discharged - mandated by s.301).
b) s.404 permit – nationwide (general) permit
o ACE is charged with administering permit system allowing dredged or
fill materials into navigable waters/wetlands under s.404o Permits for discharge of DREDGED or FILL material = s. 404
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o General permits may be issued on state, regional, or nationwide
basis for minimal activitieso If can show you have minimal cumulative impact on environment, you
won't necessarily need an individual permit (under s.402), and can get
a nationwide general permit (s.404)
o Exemptions to s.404 permit requirement:o Discharge from normal farming, ranch operations, forestry etc.
o But can’t convert a wetland to another use/where virgin
wetlands involved. o Definition of “fill material”: Issue: Whether ACE’s permit allowing gold mine to
discharge slurry into AK lake violate CWA as a discharge that did not meet EPAstandard of s. 306 - Here, we have navigable waters, have point sourceo Q: are tailings from mine a ‘pollutant’? (Coeur Alaska v. SE Alaska CC)
o Yes, CWA includes crushed rock as ‘pollutant’- but what permit is req?o -NPDES permit or 404 permit for dredged/fill material?
o Here - regulation problem: slurry meets def. of ‘pollutant’ and ‘fillmaterial, so meets def. of req a permit under both 402 and 404= plain language argument for both permits (s. 301: “except as in
compliance w/ this section ... AND ... 404” - word ‘and’ means both
permits are required – but this is overlapping authority, so either/or.)o Court held s. 402 does not apply: Rule: Where a s. 404 permit may be issued,
s. 402 may not be issued – Ginsberg dissent: s. 404 is permissive, court may
issue a permit; does not create an exception to s. 306(e) (national standards of
performanceo s. 306 trumps s. 404 permissive oneo Def. of ‘fill material’ is incredibly broad; worried it will create a loophole
If you pollute a little bit you’re subject to s. 402
So, instead of polluting a little bit, you pollute a lot to fill up the
water body to get out of s. 404 (then only have to deal w/ ACE)
Majority: ‘fill’ has to serve some sort of purpose
Trash or garbage is excluded from regulatory definition of ‘fill
material’o If s.404 permit does apply, what is req for a permit?
o Permit must be denied if practical altern’s avail that would have a less env.
impact; ACE is quite lenient re: practical altern’s; easy to say v. costly.
Water Quality-based Controls:
• Under CWA Congress went primarily with tech-standard/assigning a numeric limit
• Water-quality standards were kept as a back-up – s.303, multi-step process for regulating
water- quality largely done by states, states are drivers here.
o Arkansas v Oklahoma – CofA held: EPA's issuance of A’s permit for a sewage
plant was arbitrary - b/c it misinterpreted O's water quality standards. No actual,detectable violation
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o Could EPA’s interpretation of state standards be given deference? Yes - b/c the
EPA regulation effectively incorp into fed law those state standards, so entitled to
deference
o What could O do? O can always sue under a common law nuisance claim.
Under which law? = A's state law (Oulette case - preemption of source
state law).
• s.401 = another way that water-quality based controls are used = Water quality Certification:
PUD No.1 of Jefferson County Case:
o Did the dam have to obtain a certification? Yes.
o 2 elements s.401: 1) it needed a fed license, 2) project resulted in discharge into nav waters.
• What was the discharge? 1) release of the dredge material during construction 2) water after it has
been used to make electricity = so the basic jurisdictional terms were satisfied.
• What was the state trying to do? - tried to impose a minim. stream flow req. to protect the fish.
oWas the stream flow req related to the discharges? Is it a limit on the quality of the water being discharged? = NOT directly related to the discharge per se.
Why does the dam need to get certification if NOT related to the discharges?
b/c s.401(d) covers MORE than just discharges - certif must set forth: “any
applicant for a license will comply with…… “- s.401(d) is much broader than
just the discharge = covers the applicant. So state could impose limits on the
applicant - as long as threshold condition of a discharge is met.
First establish a discharge, then apply limit on applicant.
What limits what the state can actually do?
• Still have to look at s.303 - is s.303 listed as part of s.401(d)? NO.
SC - s.401(d) - to 301 - to 303.. So water quality standards can be used as a
limitation on a state's certification - even if not directly related to water
quality standards at issue, but state is trying to use a minimum stream flow,they do not refer to water quality - so does the state lose on this ground:
Is the minimum stream flow a numerical water criteria? NO.
• = so is it a water quality standard? NO.
State can adopt measures (water quality standards) to protect designated
uses, without setting numerical criteria.
But what if the minimum stream flow is about quantity, not quality?
• Court said that quantity is closely related to quality.
• If you decrease quantity of water - then you have a more concentrated
amount of pollutanto e.g. 5g of salt in bottle of water, if let some of water evaporate -
and still have 5g of salt, then have more concentrated amount of salt pollutant.
Justice Thomas - believed that min flow req is unrelated to any discharge; that
discharge is an emission (amount flowing/issuing out); that the minim. stream req
is a limitation on amount of water that project can take in - two are opposite
Justice O'Connor - functional view based on purposes of CWA.
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Total Maximum Daily Loads (TMDLs):
• s.303(d)(1)(A) CWA - requires states to ID those waters for which effluent limitations for
nontoxic pollutants are NOT stringent enough to achieve water quality standards
TMDL (Total Max. Daily Loads):
• States must ID “quality-limited waterways” (impaired waterways) where effluent
limitations “are not stringent enough” to implement water quality standards
• s.303(d)(1)(C) - requires states to establish TMDL's of these pollutants "at a level
necessary to implement the applicable water quality standards" subject to EPA review
and approval. Set TMDL’s w/in 10 yrso TMDL includes ALL sources - Natural background, Point sources and Non-point
sourceso a pollutant by pollutant analysis. For each pollutant, the maximum amount
allowed so that the water body will continue to meet water quality standards.
= if states do NOT set TMDL's, EPA has a non-discretionary duty to set them (must).• Pronsolino case: P argued TMDL's did not apply to waters polluted by solely nonpoint
sources; that s. 303(d)(1) (c) applied to point sources only (subject to effluent
limitations); here, waters were NOT subject to effluent limitations in 1st place, so CWA
did not apply
• Different interp’s of statute, so 2-step Chevron analysis - Court held: there is nothing in
s.303 which distinguishes point from nonpoint sources.
• Rule: State must establish a TMDL for ALL point source, nonpoint source or
combination of pollutant discharges, except where effluent limitations do the job of meeting water quality standards.
Enforcement of TMDL’s:
• NO enforcement for nonpoint source discharges (no permits required).
• States make list of waterways (s.303), send list to EPA for approval
• State is not required by statute to enforce/implement TMDLs (may lose fed grant money)
• If state wants to enforce TMDL's: impose NPEDS permits for point sources only.o (May need permit due to other reasons – logging - logging permit)
o If waterway is affected from point & nonpoint sources, only POINT sources are
subject to a permit, even if majority of discharge comes from a NONpoint source.
Tragedy = NO permit to impose on nonpoint sources under CWA.
o Thus – not much effective control for nonpoint = this penalizes point sources
(they get hammered by TMDL's - as only people the state can go after) even if
they are a small contributor of pollution.
HYPOs:
1. Gun Club - shoots lead pellets:
Discharging pollutants into water w/out NPEDS permits?
• Is there a discharge of a pollutant w/out a permit? s.502(12)
• Has the club discharged a pollutant into a navigable water? Yes
• Is the discharge from a point source? (is a gun a point source?) - yes.
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• Yes, club has violated the CWA and should get a permit
2. Industry wide effluent standard - should it be the standard for the Gun Club?
• EPA - should create a sub-categ. for the gun club as club does not manuf the lead discharge
• Could the club get a variance? Club should be able to demo. a fundamental difference here.
• What are some different type of limits?
o Permit could limit location/amount of firing
3.If levels of lead exceed the water quality standards, how can s.303(d) set additional limitations
with TMDL's? - follow procedure above
Environmental Impact Assessment:
NEPA – National Environmental Protection Act
s. 102(2)(c) - EIS
• Requires federal agencies to consult with other agencies that have some jurisdiction or
special expertise regarding the environmental impacts at issue
• An environmental impact statement (EIS) must be prepared by any agency whose
“major federal actions significantly [affect] the quality of the human
environment...”
o “include in every recommendation or report on proposals for legislation and other
major Fedreal actions significantly aecting the quality of the human environment,
a detailed statement...”
• Once an EIS is prepared there is mandatory public disclosure provision w/ public
comment period
Calvert Cliffs (77) (procedural nature)
• Held that agency duties under NEPA are judicially enforceable (“[o]ur duty, in short, is to
see that important legislative purposes heralded in the halls of Congress, are not lost or
misdirected in the vast hallways of the federal bureaucracy.”)
• Held that s. 102 of NEPA imposed inflexible procedural duties, requiring a strict standard
of compliance by federal agencies
o The mandate to prepare an EIS and consider to the fullest extent possible all impacts on the environment, could not be brushed aside at an agency’s discretion
• Ensured that strict compliance w/ NEPA reqs. would be enforced by courts
• NEPA imposes a “systematic balancing analysis” that weighs environmental
consequences against technical and economic considerations
Stryker’s Bay Neighborhood Council (substantive nature)
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• Held that NEPA did not impose judicially enforceable substantive requirements, stating
that “once an agency has made a decision subject to NEPA’s procedural requirements,the only role for a court is to insure that the agency has considered the environmental
consequences.”
• Established that while NEPA may affect substantive decisions, it cannot demand
particular substantive results, only a mandatory process
Admin process
• Categorically excluded – projects predetermined to have no significant impact on theenvironment
o No EIS
• Project EIS in dispute
o Environmental assessment
Whether or not the project will have a significant effect on the env andrequire an EIS
• Yes – EIS
• No – announce a “finding of no significant (environmental)impact”
o “briefly present[s] the reasons why an action ... will not
have a significant effect on the human env and for which an
EIS therefore will not be prepared. It shall include the EA
or a summary of it” 40 CFR 1508.13
• Categorically included – projects that, because of size or impact, always require and EIS
If EIS is required
• Draft EIS – prepared and shared w/ relevant federal, state, and local agencies, those who
apply to the agency for permits, and citizens
• Comment period
• Final EIS (FEIS)
• Final decision
102(2)(c)
• Threshold decision
Is a proposal 1) major 2) federal 3) an action 4) significantly affecting the5) human 6) environment?
Major Federal Action• Statute
• 40 CFR s. 1508.18
Major federal actions includes “actions with effects that may be major andwhich are potentially subject to Federal control and responsibility
• Broad: Permits licenses rules regulations policies, even in some
circumstances reaches failure to act
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• May include failure to act if that failure would have been
reviewable under the APA or other applicable law as agency action
• Major o Can the agency avoid “major” by dividing up the project into segments?
Rule
• Do the separate segments have “logical termini” and “independentutility?” Lange v. Brinegar (9th); Swain (5th)
• Federal
o Is the federal project a small part of a larger product (small handle problem)?
Case law
• Permit Requirements - Eighth Circuit held that in reviewingconstruction of a transmission line the ACE could restrict
consideration of whether an EIS was needed the to area in and
around the navigable waters. Winnegabo Tribe of Nebraska v. Ray.
• Federal Funding - Tenth Circuit held that the agency should focuson the impact of the entire project even though the Federal
Highway Admin segmented the project into four parts b/c
Congress had designated that the federal funds could not besegmented.. Ross v. Federal Highway Admin
• Settlement Involvement - Eleventh Circuit held that an EIS was not
required where the federal government was involved in reaching asettlement between a state and a private entity. US v. Southern FL
Water Mgmt Dist.o In dicta held that NEPA obligation may arise where federal
funding or permits are used to implement the settlement.
• Action
oHas there been a decision not to take any action?
Cases
• Court said a decision not to do something (apply pesticides),
effectively electing a course of temporary inaction does not trigger NEPA. Thus, inaction or a failure to act is not an action considered
under NEPA. Minnesota Pesticide v. Espy
• A failure to act might require EIS if that failure 1) would bereviewable under admin procedure act, 2) especially where agency
has a nondiscretionary duty to act. CEQ reg and case mentioned in
class but not in reading.
Significantly Affects
• Significantlyo Statute (40 CFR s. 1508.27) – Requires consideration of both context and
intensity
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(a) Context. This means that the significance of an action must be
analyzed in several contexts such as society as a whole (human, national),the affected region, the affected interests, and the locality. Significance
varies with the setting of the proposed action. For instance, in the case of a
site-specific action, significance would usually depend upon the effects in
the locale rather than in the world as a whole. Both short- and long-termeffects are relevant.
(b) Intensity. This refers to the severity of impact. Responsible officials
must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in
evaluating intensity:
1. Impacts that may be both beneficial and adverse. A significant effectmay exist even if the Federal agency believes that on balance the effect
will be beneficial.
2. The degree to which the proposed action affects public health or safety.
3. Unique characteristics of the geographic area such as proximity to
historic or cultural resources, park lands, prime farmlands, wetlands, wildand scenic rivers, or ecologically critical areas.
4. The degree to which the effects on the quality of the humanenvironment are likely to be highly controversial.
5. The degree to which the possible effects on the human environment are
highly uncertain or involve unique or unknown risks.
6. The degree to which the action may establish a precedent for future
actions with significant effects or represents a decision in principle about a
future consideration.
7. Whether the action is related to other actions with individually
insignificant but cumulatively significant impacts. Significance exists if it
is reasonable to anticipate a cumulatively significant impact on theenvironment. Significance cannot be avoided by terming an action
temporary or by breaking it down into small component parts.
8. The degree to which the action may adversely affect districts, sites,
highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of
significant scientific, cultural, or historical resources.
9. The degree to which the action may adversely affect an endangered or
threatened species or its habitat that has been determined to be critical
under the Endangered Species Act of 1973.
10. Whether the action threatens a violation of Federal, State, or local lawor requirements imposed for the protection of the environment.
o Cases
Ninth Circuit, using 4, 5, and 6, held that the likely impact of whale
hunting on the whale population in the local area (versus CA overall)where the tribe wanted to hunt was a matter of “hot dispute” surrounded
by considerable uncertainty and that an EIS should be prepared that
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includes consideration the precedential effect of allowing the Tribe to
hunt. Anderson v. Evans
Ninth Circuit using 3, 4, and 5, held that the unique characteristics of
Glacier Bay, the substantial controversy surrounding the potential effects
of increased vessel traffic, and great uncertainty surrounding those effects
required the NPS to prepare an EIS or its plan to permit more cruise shipsto operate in Glacier Bay. NPCA v. Babbitt
• Effects
o Statute (40 CFR s. 1508.8) – Effects include:
(a) Direct effects, which are caused by the action and occur at the sametime and place.
(b) Indirect effects, which are caused by the action and are later in time or
farther removed in distance, but are still reasonably foreseeable. Indirect
effects may include growth inducing effects and other effects related toinduced changes in the pattern of land use, population density or growth
rate, and related effects on air and water and other natural systems,
including ecosystems.• Effects and impacts as used in these regulations are synonymous.
Effects includes ecological (such as the effects on natural resources
and on the components, structures, and functioning of affectedecosystems), aesthetic, historic, cultural, economic, social, or
health, whether direct, indirect, or cumulative. Effects may also
include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency
believes that the effect will be beneficial.
o Cases
Psychological harm is not to be considered. Regardless of the gravity of
the harm alleged, NEPA does not apply unless the harm has a sufficientlyclose connection to the physical environment. Supreme Court in Metro
Edison v. PANE
Where an agency has no ability to prevent a certain effect due to itslimited statutory authority over the relevant actions, the agency cannot be
considered a legally relevant “cause” of the effect. Dept. of Transportation
v. Public Citizen
• Where the preparation of an EIS would serve “no purpose” in light
of NEPA’s regulatory scheme as awhole, no rule of reason would
require an agency to prepare an EIS. Id.
• Proximate cause has to be tied back directly to a citizen. Id.
Cumulative impacts regulation requires agency to assess the “impact of
the action when added to other past, present, and reasonably foreseeable
future actions regardless o what agency (Federal or non-Federal)
undertakes such other actions.” Center for Bio Diversity v. Nat Highway
Traffic Safety Admin
• Though there might be an “individually minor” effect on the
environment, rules are “collectively significant actions taking place
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over a period of time” and must provide contextual information
about cumulative and incremental env impacts. Id.
Agency must explain why its rule will not have a significant impact.
Making “vague and conclusory statements” unaccompanied by
“supporting data” does not constitute a ‘hard look’ at the env
consequences of the action as NEPA requires. Id. Baseline problem – check others notes
When in the planning process should the EIS be prepared?
• When theres a proposal for major federal action
• Statuteo 40 CR 1508.23
Defines a proposal as existing “at that stage in the development of an
action when an agency subject to the Act has a goal and is actively
preparing to make a decision on one or more alternative means of
accomplishing that goal and the effects can be meaningfully evaluated.”• Says a proposal exists as soon as an agency has a goal even if the
agency does not definitely declare that a proposal exists
o Says that a proposal might exist in fact even without a
formal report or recommendation
• Preparation of an EIS should be completed in time for inclusion in
any recommendation or report on the proposal.
o There needs to be an EIS when the agency is making the
decision, not after the decision has already been made
Balance – agency has to have something in mind tolimit scope of the EIS but cannot already have made
a decision
• The trigger point of when the EIS needs to
be prepared must be located
• Cases
o When is there a proposal for federal action
Rule
• Mere contemplation or study of a project are not enough. Kleppe v.
Sierra Club
o Reasoning: Statute says “proposal” so there has to be a
proposal. Id.
• The court basically held that an idea becomes a proposal whenagency says so. Id.
o A great deal of discretion is given to the agency in deciding
when there has been a proposal and when NEPA is
triggered. Id.
• The forest service was required to prepare an EIS at the earliest
possible time (before the first step was taken) otherwise the EIS
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would come too late to consider cumulative effects. Thomas v.
Peterson
• What if the agency has to act out of emergency?
o Statute
40 CFR 1506.11
• Where emergency circumstances make it necessary to take an actionwith significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action
should consult with the Council about alternative arrangements.
Agencies and the Council will limit such arrangements to actionsnecessary to control the immediate impacts of the emergency. Other
actions remain subject to NEPA review.
o Must consult with the CEQ on alternative arrangements
o Urgency is a way to avoid NEPA review
Must balance the equities of the alleged irreparable injury with the public
interest and other factors. Winters v. NRPC
• Courts often defer to military matters.
• How broad or narrow should the EIS be? (issue of scope)
• Statuteo 40 CFR 2508.25(a)(1) - CEQ regulations require “connected actions” to be
considered together in a single EIS
Connected actions:
• 1) automatically trigger other actions which may require EISs
• 2) cannot or will not proceed unless other actions are taken
previously or simultaneously
• 3) are interdependent parts of a larger action and depend on the
larger action for their justificationo 40 CFR 2508.25(a)(2) – CEQ regulations require “cumulative actions” to be
considered together in a single EIS.
Cumulative actions are actions “which when viewed with other proposed
actions have cumulatively significant impacts”o Case
Because 1) timber sales could not proceed without the road and the road
could not proceed without timber sales 2) cost-benefit analysis considered
that the timber itself most justified building the road 3) timber sales werelargely behind road construction, they were connected actions. Thomas v.
Peterson
Because road construction and timber sales would result in sedimentdeposits that would detriment several species located around a nearbyriver they were cumulative actions. Id.
• What if fed gvmt takes some action but reserves some action for later?o Rule
NEPA requires agency review at the point of commitment; proper time of EIS is at the point when the agency has obtained a maximum range of
options prior to the decision. Sierra Club v. Peterson
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• Agency was required to perform EIS before leases were issued.
Because at that point it has made an irreversible and irretrievablecommitment of resources and thus irrevocably authorized activities
that might have significant impacts. Id.
• What if the agency reserves the right to block any and all environmental
activities after the commitment has been made (i.e. the lease has beenissued)?
• The agency could delay EIS if retained authority to block all
activities later. Sierra Club v. Peterson
When is there a duty to consider alternatives, and what range has to be considered?
• Agencies are not required to consider every alternative, only those that are feasible.Vermont Yankee Nuclear Power Corp. v. NRDC
o Considers the information an agency should have before it makes its decision
(can’t bring in obscure German article ex.). Id.
o Proponents of an alternative are required to shoulder the burden of presenting
substantial evidence on its merits. Id. How specific does the comment have to be?
• Comment must be specific enough to require reasonable minds to
inquire further
o Simply making a comment saying to consider energy
conservation is not sufficient. Vermont Yankeeo Rule
The more specific and feasible the alternative, the more likely it is the
agency has to consider
• What triggers a duty can change over time (where energy
conservation might not have triggered a duty in 72, might today)
• What if possible feasible alternatives is virtually infinite?
o Requires an agency to consider a representative range of alternatives
CA v. Block – can be rejected if agency hasn’t ... an important alterative ...
• A truly representative example is fine
• Must consider representative range
• What about unrealistic alternatives?o ?Resource v. Wompenson? – might be in tension w/ CA v. Block but really don’t
conflict
• Have to consider a range, but not those unlikely to be implemented
Quality of analysis
• Sierra Club v. USACOE
o Rule: Inadequate when it practically is fraud
• Marsh v. Oregon Natural Resources Council
o ...
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Standing
To have standing to sue, a plaintiff must allege:
• Action will cause IIF (Injury in fact)
• Causation (injury is traceable to challenged action)
• Redressibility (court can provide a remedy)
• Interest is within zone of interests (protected in statute)
o“zone of interests” 4
th
prong of standing doctrine:
Courts have used this to reject efforts by industry groups to use env. statutes to their
benefit. (e.g. Nevada LAA v US Forest Service - Court held: a group of ranchers
pursuing procedural violations of NEPA and NFMA in order to block reductions in
grazing levels did NOT have standing b/c the purpose of NEPA is to protect the env, not
the economic interests of those adversely affected by agency decisions.)
o SC in Automobile Workers v Brock: recognized that org’s have standing to assert the interests of
their members, if: 1) At least ONE member would have standing to sue individually, and
2) if interests the organization seeks to protect are "germane to the organization's purposes"
Thus = if the subject of a lawsuit is ENVIRONMENTAL - then an env group who has amember sufficiently affected by a decision to qualify for standing can sue in its org capacity.
Sierra Club v. Morton: Mineral King ski resort case. NO standing for Sierra Club here - unless
its members can show a more particularized and concrete injury, w/in zone of interests in statute
• But, Supreme Ct. recognizes that harm to aesthetics/ecology is cognizable as IIF
• Organization can sue if:
o Members have standing
o Interest is germane to organizational mission
(Justice Scalia has tried to restrict standing - to preserve separation of powers)
Q: How specific do allegations of injury need to be?o Lujan v NWF - members use unspecified track of land was not specific enough,
didn’t live close/use exact public land so no standing
Scalia: area is too unspecified for an action
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o Lujan v Def of W - someday intentions to visit animals - not specific/imminent
enough injury that law requires.o End result? Blackmun - P's just needed to buy plane tickets?
Purposes - that P's were good representatives for lawsuit
Brock: An org. may sue on behalf of its members b/c interests of members speak to those of org
Lujan v. Defenders of Wildlife (1992): Q = specificity of imminence to injury
- No standing to apply ESA to foreign actions without a plane ticket to see the animals that are
threatened by actions. Scalia = formalistic req’s – need tickets as proof of travel plans (note:
Scalia’s footnote in Lujan II: redressability – where concrete interests on a professional level)
• Injury in fact? No
o Only hypothetical that you might travel somewhere and might not see certain
animals b/c of federal action. Someday intentions not good enough
o Animal/vocational nexus: too diffuse of an interest >> use political process
o Kennedy/Souter Concurrence: implies that plane tickets back to areas would be
enough; must send someone to the place where the impacts of the overall reg.
change are manifested
o Blackmun/O’Connor Dissent: requiring description of concrete plans to return to
areas is ridiculous and unhelpful formalism
Counter to L v DoW : Espy case: regular visits are sufficient for standing
• Procedural right/injury theory: anyone has standing to sue under this act if the
government doesn’t follow proper procedures
o Public interest in administration of laws: Undifferentiated procedural injury: too
general
Mass v EPA: EPA argued any harm causes by climate change was too remote to give P (MA) standing to
sue. But – Court held that the fact that Mass is a state - states are not normal litigants - they are entitled toa "special solicitude in a standing analysis". Court granted Mass standing on common law action on basis
of HARM suffered from CO2 emissions (note: CAA case – state as a sovereign) against EPA.
• But court did not rely on any special doctrines with regard to a state as a P for standing -
Mass has satisfied the most demanding standards of standing - it can have special
solicitude, but Mass does not need any here.• Held: P had standing to challenge EPA's denial of their rulemaking petition.
o Dissent - Chief Justice Roberts, Scalia, Thomas and Alito - argued plaintiffs
lacked standing as any harm caused by climate change was too speculative andtoo remote. CJ Thomas = argued that responding to any problems caused by
climate change was function of Congress, not federal courts.
After Lujan, some courts went off the deep end by requiring a showing of harm to ecosystem for
standing:
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• Earth v. Gaston Copper Recycling Corp. (1999):
o Held = NO standing because water samples proving that pollutants resulting from permit
violations reached P’s canoe in the middle of the lake weren’t taken
• Friends of the Earth v. Laidlaw Env. Services (2000):
o Roebuck, SC polluters and rare ex. of taking an appeal on behalf of env. group over govt.
objectionso Maj. made it easier for citizen groups by reversing above cases and requiring a showing
of injury to P, not to the env.
o Redressability prong – as long as violations continued after suit was filed, deterrent
impact from civil penalties (abating conduct that injured P and continues to threaten
injury) is redress
o Reverses Steel Co. which held all remedies insufficient, including civil penalties since
they go to treasury and not P
• Mootness issue – suit not barred unless it is absolutely clear that the wrongful behavior could not
be reasonably expected to occur in the future
• Qui tarn – private parties have standing to seek recovery on behalf of the fed. govt. under False
Claims Act from Ds alleged to have defrauded the govt.
• Party stands in shoes of govt. since injury in fact was to US, not them
INTER-STATE ISSUES:
• Is there a flow of pollutants from one state to another affecting the state?o RCRA, NEPA unimplicated
o CERCLA unimplicated except for the Dormant Commerce Clause, covered supra
(CERCLA 10)o See CAA
Cap & Trade System with Ozone.
One state’s SIP can’t contribute significantly to nonattainment inanother state
• Michigan v. EPA: (state challenge to SIP plan under
Section 110(a)(2)(D)(i)) EPA can consider costs in reducing what
is “significant”
States can petition EPA to address individual source that causes
violation
•
Section 126 petitions; largely found meritorious by EPA(creates a mandatory duty for EPA to respond). Appalachian
Power Co. v. EPA
o See CWA
Arkansas v. Oklahoma
• Sewage plant – state is liable if it creates any real and measurable
difference in water pollutant levels – here, plant did not, so A was
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not liable—the only multistate issue is whether EPA can account
for downstream states in setting levels, which they can.o Dormant Commerce Clause (See, again, CERCLA 10)
Discriminatory/economic protectionism
Burdens outweigh benefits to locals
Fees to compensate for in-state outlay? Flow controls? Government provision of monopoly service?
• Is it covered by a statute and/or by common law (nuisance/trespass)?
COMMON LAW DOCTRINES:
• Trespass: A physical invasion of another’s exclusive possession of property
1. Strict liability
• Nuisance:
1. Private: Intentional and Unreasonable (gravity v. benefit)
2. Public: Interferes w/ public right (health, property, good)
1. Law of source state applies
Constitutional Challenges:
• Anti-commandeering: States must have a meaningful choice (conditioning funding ok)o New York v. U.S.
• Commerce Clause:
o Channels
Water?
o Instrumentalities
Resource itself
o Activities that substantially impact Damaging activity
Overall goals of statute (CERCLA: U.S. v. Olin)
o SWANCC: Court didn’t reach commerce clause issue, but suggested that
Congress may need to be more specific at the outer reaches of its power
• Non-delegation:
o American Trucking: requisite is intelligible principle
o Mich v. EPA: ok to set Ozone NOx budget, states have choice in how to get there
EXTRA NOTES:
STANDING: (from Harvard Law Env Outline – Spring 2006)
a. Private Access to the Courts under Federal Regulatory Statutes: Standing
and Citizen Suits
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i. General and Important Points:
1. Different standing requirements at different stages of litigation.
2. Differentiate between Constitutional standing requirements andadditional statutory standing requirements.
3. Know what specific statutory provision is at issue when
considering the Zone of Interest test (See Bennet v. Spear)ii. Article III: Case or Controversy Requirement:
1. Article III of the Constitution extends judicial power of review
only to an actual “case or controversy.”2. Three Constitutional standing requirements:
a. Actual Injury : Injury in fact.
b. Causation : Injury suffered must be fairly traceable to the
defendant’s alleged conduct.c. Redressability : Injury suffered must be redressable by
judicial order or judgment.
3. Note: Congress is not permitted to relax or remove any of these
three constitutional requirements for standing.4. Note: Satisfying Article III
a. The amount of evidence required to satisfy the Article IIIrequirements is different depending on the stage of the trial.
b. E.g., at the pleadings stage mere allegations will suffice; at
the summary judgment stage (which is where Lujan takes
place) there must be enough evidence for a reasonable juryto find standing; at the trial stage standing begins to merge
with the merits.
iii. Sierra Club v. Morton , 405 US 727 (1972) [CB: 974]1. Facts :
a. Set in Mineral King Valley (Sierra Nevada); area
designated in 1926 as a special game refuge and used primarily as a recreation area; pristine wilderness.
b. In 40s and 50s US Forest Service considers development
for skiing; in 1965 it allows development bids. Winning bidis from Disney, plans a huge complex (Sierra Club had
originally supported a smaller proposal).
2. Issue : Does Sierra Club have standing under §702 of the APA?
3. Administrative Procedure Act (APA ) (5 USC §§551 to 559, 701 to706) [Supp: 21]
a. §10(a) [5 USC §702] of the APA: “A person suffering legal
wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof.”
b. Note: There were no more specific statutes under which theSierra Club could assert standing, so they sued under the
APA.
4. Hold : No. APA requires an injury in fact that is within the “zone of
interests” of the organization.
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a. Aesthetic and ecological injuries are cognizable interests
for standing purposes;
b. A plaintiff must show injury in fact (actual injury to the person or to a member of the organization) for standing
purposes.
5. Reasoning : (Stewart)a. Injury in Fact: Note: The injury in fact prong requires that a
party suffer a direct injury to a cognizable interest.
i. Cognizable Interests :1. Sierra Club receives no economic harm and
no physical injury.
2. Aesthetic and Ecological Injury :
a. traditionally, at common law, thiswas not a cognizable injury.
b. SC acknowledges aesthetic and
ecological injury as a cognizable
interest for purposes of standing[CB: 976], although not in this case.
ii. Direct Injury :1. rationale: don’t want people with abstract,
ideological objections suing in court. Even
though the Sierra Club is clearly interested
in preserving the Sierra Nevada, how wouldyou draw the line between that and any other
organization that claimed a similar mission
(slippery slope; CB: 977).2. response: Shouldn’t every individual and
group have standing when the government
does something unlawful?a. (me) What is the horrible at the
bottom of the slippery slope? That
anybody can sue when thegovernment does something
unlawful? Is that so bad?
b. counter : We don’t want to have that
many attorneys general in everysituation.
3. Worries : Efficiency problems,
administrative problems, collusive or badfaith suits, ineffective suits brought by
parties without adequate resources, etc.
4. Sierra Club : the slippery slope may be aconcern, but why not set the bar very high
for standing. If any group should have
standing, clearly it should be the Sierra
Club.
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b. Organizational Standing :
i. At least one member must have been able to bring
suit individually.ii. The interests protected by the lawsuit must be
germane to the organization (“zone of interest”
requirement)iii. Neither the claim brought nor the relief requested
may depend on the presence of the individual in the
suit.6. Dissent (Douglas):
a. Environmental issues should be litigated in the name of the
inanimate objects affected. They should have standing
themselves (c.f., the fiction of a ship, or of a corporation). b. Note: First and only time this argument has been raised by
the SC.
7. Further Developments
a. Mineral King:i. Sierra Club initially ignored amicus briefs that
alleged specific injuries suffered by identifiableSierra Club members.
1. Rationale: Sierra Club was attempting to
achieve standing as an organization.
2. Go for the broadest holding and precedent possible, knowing they could always fall
back on individual members if they lost.
ii. Following this case the Sierra Club refilled the suit,alleging injury in fact to individual members.
b. Standing Generally (SCRAP)
i. SCRAP (group challenging increased railroad ratesthat made recycling more expensive) case
represents the high water mark for APA standing.
ii. Court found standing to be attenuated but goodenough in SCRAP; today there is no chance it
would satisfy standing requirements.
iv. Lujan v. National Wildlife Federation , 497 US 871 (1990) [CB: 983, note
case]1. Issue : How specific do allegations of harm or injury by
organization members need to be?
2. Hold : (Scalia) Fairly specific. “[Scalia] concluded that ‘avermentswhich state only that one of respondent’s members uses
unspecified portions of an immense tract of territory, on some
portions of which mining activity has occurred,’ wereinsufficiently specific.”(CB: 983)
v. Lujan v. Defenders of Wildlife, 504 US 555 (1992) [CB: 984]
1. Generally : the most important standing case in environmental
law, this was actually an ESA case.
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2. Facts : Defenders brought sought under the citizen suit provision of
the ESA to challenge US AID projects that would jeopardize the
(non-domestic) habitat of several endangered species.3. Standing Analysis:
a. Identified individual members will be harmed
i. Standing Theory : Members who have traveled toIndia and Sri Lanka and intend to go back at some
point will be harmed by the extinction of the
species. They can’t return to visit.ii. Court’s Analysis (Scalia):
1. Actual or Imminent Injury not satisfied
a. Lack of specific intention to return
(e.g., a plane ticket) means thatstanding is not satisfied.
b. Scalia: “Such ‘some day’ intentions
– without any description of concrete
plans, or indeed even anyspecification of when the some day
will be – do not support a finding of the ‘actual or imminent’ injury that
our cases require”(CB: 985)
c. Critique
i. (me): creates perverseincentives. A race to
complete the harms before
somebody can buy a planeticket.
ii. (Blackmun, dissent): This is
empty formalism, a mere pleading requirement.
iii. But it does set a minimum
standing requirement, whichmight help narrow the
available parties with
standing.
2. Redressability not satisfiediii. Dissent (Stevens)
1. The majority applies the notion of
imminence to the wrong action.2. The injury in question is the destruction of
the species, not the moment at which an
individual would have seen the species butdoesn’t. Once the species is gone the
opportunity to see it vanishes – regardless of
when that would have been exercised.
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3. Critique (majority): If destruction of the
species is the standard for imminence then,
in reality, there is no standing requirement.This would allow everyone to have standing.
4. Counter-critique: But there can be a
determination of whether the plaintiff wouldhave been injured at some future time (e.g.,
demonstrable intent to return to Sri Lanka
vs. someone who had never been and couldnot demonstrate intent to go).
iv. Hypos : What counts for standing under this theory?
(notes: 16-17)
1. What if I enjoy watching PBSdocumentaries of an animal that is
threatened with extinction?
2. What if “adopt” an animal by sending
money and receiving a photo in return?3. Issue : Is emotional attachment, even strong
emotional attachment, enough to confer standing?
a. Humane Society v. Battit suggests
that it is not.
b. Rationale: Giving money to anorganization that protects animals
generally does not confer standing,
so neither does giving money for the protection of one animal.
b. Ecosystem Nexus Theory
i. Standing Theory : damaging one part of theenvironment affects everyone else, even those at a
distance (“Circle of Life” theory)
ii. Court’s Analysis (Scalia):1. Inconsistent with Lujan v. National Wildlife
Federation “which held that a plaintiff
claiming injury from environmental damage
must use the area affected by the challengedactivity and not an area roughly ‘in the
vicinity’ of it”(CB: 985)
2. critique: (Blackmun, dissent) Different typesof harms are at issue
a. In this case the extinction of a
species spreads throughout theecosystem, and actually affects
distant people.
b. In NWF: “the Court required specific
geographical proximity because of
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the particular type of harm alleged in
that case: harm to the plaintiff’svisual enjoyment of nature frommining activities”(CB: 990-991,
Blackmun dissent) (my emphasis)
iii. Dissent : “It cannot seriously be contended that alitigant’s failure to use the precise or exact site
where animals are slaughtered or where toxic waste
is dumped into a river means he or she cannot showinjury”(CB: 991, Blackmun dissent)
iv. Counter-response : Chain of causation is far too
attenuated to supply standing. Must show some
actual harm to get past summary judgment.c. Animal Nexus, Vocational Nexus Theories: similar to
ecosystem nexus theory
d. Procedural Injury Theory
i. Standing Theory : Alleged procedural interest because the government didn’t engage in an ESA
required consultation with Commerce Dept. (notes:18-19)
ii. Court’s Analysis (Scalia):
1. Procedural injuries, in other contexts, do
confer standing.2. but this is only when the procedural injury is
attached to an underlying injury to a legally
protected interest (e.g., personal health, property, etc.). That means you have a direct
personal stake in the appropriate procedures
being followed.3. Where, as here, there is a free-floating
procedural injury there is no standing.
iii. Separation of Powers (Scalia vs. Blackmun)1. Scalia: Allowing standing here would enable
Congress to usurp Executive’s prerogative
to enforce the laws; enabling everyone to
enforce any law undermines Executive’srole as the law enforcement branch.
2. Blackmun: Scalia’s view allows the
judiciary to encroach on Congress’ ability tocreate new (and broad) rights of action.
vi. Bennett v. Spear , 520 US 154 (1997) [Handout I: 1]
1. Facts :a. ESA case; FWS issued biological opinion stating that dam
would jeopardize two threatened species of fish and their
habitat
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b. Bureau of Reclamation (overseeing dam and irrigation
project) indicates that it will adopt FWS recommendations
c. Farmers sue (under ESA and APA §706) alleging that the biological opinion violated provisions of ESA; upset about
loss of water for irrigation.
2. Standing Issues : (Scalia, majority)a. Constitutional Standing
i. No Injury in Fact: no actual lose of irrigation water yet , so no injury in fact.
1. the water might be distributed evenly so that
there is enough for the farmers.
2. the Bureau might choose to ignore the
recommendations; the biological opinion isnot a final document
ii. Hold : Minimum Article III requirements have been
met.
1. Rationale: Early stages of litigation so it isenough that farmers allege they will lose
irrigation water.2. Rationale: Everyone knows that biological
opinions have coercive effect. Not a final
action but Bureau has indicated that it will
follow recommendations from FWS, so itmight as well be final.
b. ESA Standing
i. “Zone of Interest” (ZOI) Requirement under ESA?1. Congress has expanded the ZOI under the
ESA to the limits of what would be
permitted under Article III2. Analysis: Broad language in citizen suit
provision suggests that Congress wanted to
create an expansive right of action.ii. Hold : Any individual who satisfies Article III
(Constitutional) standing requirements can bring
suit under ESA.
1. Thus, there is no real “zone of interest”requirement for claims brought under the
ESA.
1. Note: This is somewhat striking comingfrom Scalia, but it is consistent with Lujan
(Congress cannot dispose of the minimum
requirements of Article III, but it can goright up to them).
c. APA Standing
i. SC considers ESA standing before APA standing
because:
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1. APA authorizes review only when there is
no other adequate remedy, which is why
ESA standing claim must be consideredfirst. (Handout I: 3)
2. also note: ESA allows recover of litigation
costs; APA does not.ii. “Zone of Interest” (ZOI) Requirement under APA:
1. note: Applies only to APA claims, not to
ESA claims.2. Extra-constitutional standing requirement:
can only sue under APA if you can
demonstrate that the interests that you are
trying to vindicate are protected by therelevant statute.
iii. Satisfaction of ZOI requirement (Analysis):
1. EPA argues that ZOI is not satisfied because
the ESA is designed to protect endangeredspecies, not economic interests. The relevant
ZOI is species preservation.2. Response (Scalia, majority):
a. Congress intended ESA to account
for economic and social interests as
well, to prevent over-enforcement of the ESA. Scalia holds that FWS
violated the mandate to consider the
“best available scientific andcommercial data.” (ESA §7;
Handout I: 7)
b. Consider ZOI with respect to thespecific statutory provision. In this
case, economic interests are within
the relevant ZOI.vii. Friends of the Earth v. Laidlaw Environmental Services , 528 US 167
(2000) [CB: 1010]
1. Facts : Since 1987 Laidlaw was discharging mercury into SC river
in excess of NPDES permit; FOE files a lawsuit in 1992 (seeksinjunction, fines, attorneys fees); Laidlaw comes into compliance
in 1995.
2. Standing Analysis :a. Initial Standing:
i. Injury in Fact?
1. Laidlaw argues that there was nodemonstrated environmental harm from the
over-release of Mercury (finding of fact at
the District Court level).
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2. SC Holds : There is injury in fact. For
standing purposes it is the injury to the
individuals that matters, not the injury to theenvironment. (CB: 1012)
ii. Reasonable Fear ?
1. unreasonable : Plaintiffs are worried for nothing – there is no environmental harm.
This is sanctioning an irrational fear (e.g.,
people half a world away who change their behavior) as an injury for purposes of
standing.
2. reasonable :
a. There may be long-term harm to theenvironment and to individuals;
might be reasonable to alter behavior
notwithstanding the District Court’s
findings. b. And the plaintiffs are actually using
the affected area: “plaintiffsadequately allege injury in fact when
they aver that they use the affected
area and are persons ‘for whom the
aesthetic and recreational values of the area will be lessened’ by the
challenged activity”(CB: 1012)
b. Standing after 1995 (Mootness):i. Issue : does post-suit compliance by Laidlaw render
FOE’s suit moot?
ii. Argument : Laidlaw argues that the suit is moot because the redressability prong of Article III
standing is no longer satisfied.
iii. SC Holds : Not moot.1. rationale: Even civil penalties can have a
deterrent effect – and that satisfies the
redressability requirement. (CB: 1013)
2. Penalties deter future violations.iv. Dissent (Scalia)
1. Deterrence must be actual, not speculative.
2. The fact that Laidlaw came into compliance(in fact, by shutting down) makes him
skeptical that there is any marginal deterrent
effect produced by the civil penalties.3. critique
a. (me): but it serves as a deterrent for
future polluters. Can’t escape
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penalties by shutting down the plant
and then popping back up elsewhere.
b. (Stephenson): Scalia’s proposalwould substantially increase the
downside risk for an environmental
group bringing a suit. They mightgain compliance but it is just
important that they receive attorneys
fees, in order to be able to bring thenext suit.
4. counter : This is a good thing – encourages
immediate compliance to avoid penalties.
(note: I find this unpersuasive)