INTRODUCTIONRoots and rationale of EL The roots and rationale for environmental law Goals of EL

o (1) cost internalizationo (2) natural resource sustainability

two branches of environmental lawo (1) pollution controlo (2) natural resource management

Economic analysis and environmental law economics can help identify the optimal methods of preventing environmental harms

o (1) determining the appropriate level of regulation cost-benefit analysis

o (2) what tools shoud the government use once it deicdes it is going to step in and how far

types of market failure that may justify environmental regulationo (1) incomplete informationo (2) transaction costso (3) externalities

Environmental law, ecology, and ethics advocates use science to question and justify positions the stewardship obligationRisk assessment and risk management R (risk) = P (probability of risk occurring) x S (severity of the harm) Risk assessment…whether question Risk management…how much question

COMMON LAW BASELINE OF ENVIROMENTAL LAW Torts claims

o Negligenceo Public nuisanceo Private nuisanceo Anticipatory nuisance claimso Trespass claimso Strict liability claimso The public trust doctrine

Constitutionally rooted environmental claimso Statutory regimes do not replace CL regimes

However, state CL environmental claims are virtually non-existent

THE REGULATORY DESIGN OF ENVIROMENTAL LAW Goals

o Protect natural ecosystems of their components; force consideration of adverse environmental effects; protect public health; compensate adversely affected persons

Triggerso No thresholdo Risk

Strategies (standards)o Health-based, risk-based, or ambient quality-basedo Tech-basedo Open-ended balancingo Cost-benefit balancingo Generate and disclose information

ALLOCATING THE POWER TO PROTECT THE ENVIRONMENT: CONSTITUTIONAL FEDERALISM ISSUES

Rationales for federal environmental regulation Control interstate externalities Economies of scale and the benefits of resource pulling Avoid a “race to the bottom” Achieve uniform regulation and minimize transaction and compliance costs Avoid NIMBYism (not in my backyard) Process-based justificationArguments for enhancing the role of the states Afford greater citizen access and input to government States are more familiar with local needs States can adapt regulation more easily to local conditions States can and do protect the environmentWhat incentives do states have to protect the environment? Respond to local constituents who value the environment Attract new residents who value the environment Qualify for federal resources Restore useless property to productive use Minimize intrusive federal regulation Create a system more likely to project local industry Take credit for something the federal government would have done anyway

The question of the federal commerce power CC has provided the most consistent support for environmental regulation

o Advocates…broad reading; industry…narrow reading Broad reading prevails as of today

Three classes of activities subject to federal regulation under the CC (Lopez)o The use of the channels of interstate commerceo The instrumentalities of interstate commerce, or persons or things in interstate

commerceo Activities having a substantial relation to interstate commerce i.e. activities

with substantial effects on interstate commerce Lopez also made clear that Congress allows the adoption of a regulatory provision

that is part of a larger interstate effort

Also, the Court held that if the regulated activities are economic in nature than it is appropriate to aggregate all similar activities (including intrastate activities) in combination have an impact on interstate commerce

Raich (post L): aggregation is appropriate if failure to regulate the class of given intrastate, economic activities would undercut regulation of the interstate market.

Federal power and interpretation: commerce concerns as a tiebreaker So far, direct attacks on the Commerce Clause basis for federal environmental

legislation have generally failed to elicit judicial declaration of unconstitutionality. Even if this continues to happen, it would be a mistake to assume that Commerce Clause arguments are therefore of little importance.

Clear statement ruleo This is because where an administrative interpretation of a statute, such as the

Corp’s (D) interpretation, invokes the outer limits of Congress’s power to encroach upon a traditional state power, there should be a clear indication that Congress intended that result. (SWANCC; Rapanos)

Securing state cooperation Turns on two different methods of interpreting the 10th Amendment

o Model #1 -- 10th Amendment merely states a general principle…the federal government is merely a government of limited powers

Is the statute supported by an enumerated power… If the answer is yes, the statute is constitutional

o Model #2 – 10th amendment imposes independent constraints on the federal government’s power

Is the statute supported by an enumerated power? If so, does it nevertheless infringe on state sovereignty?

o If either the answer to question one is no or the answer to question two is yes, the statute is unconstitutional

State sovereign immunity What options remain to enforce federal environmental laws against states?

o SC’s broad interpretation of the 11th Amendment disallows state citizens from bringing suits against states, even in state court

o Congress lacks the authority to abrogate state sovereign immunityo (1) enforcement by the federal government

assumes that the federal government cares about environmental enforcement

o (2) waiver of sovereign immunity by the states must be explicit

o (3) exercise of power granted by § 5 of the 14th Amendment only applies to constitutional violations

o (4) exercise of the federal spending power condition disbursement of federal funds on waiver of immunity to suit

o (5) suits against municipal governments

does no good if state is the violatoro (6) suits against individual state officers

limited to injunctive reliefo (7) citizen suits for civil penalties

not availableo (8) the “good faith” of the states

!!!!!!

The power allocation choice: savings clauses, delegated programs, and preemption Supremacy Clause

o Preemption may be express (less common) or implied, the latter of which can be

Field preemption Determined scope provides both a ceiling and a floor

Conflict preemption Physical impossibility; purpose based (most cases deal with

implied, conflict, purpose based preemption)o A federal agency has power to preempt

Savings clause Delegated programs

o Cooperative federalism

Dormant CC limitations on state regulation Commerce clause vests affirmative authority to regulate interstate commerce;

DCCD is a negative restriction on the authority of the states to regulate interstate commerce

o the goal is to prevent states from engaging in a kind of protectionism that negatively affects interstate commerce

Dormant Commerce Clause Testso Under Philadelphia, a “virtual per se rule of invalidity” applies to state or

local laws that discriminate against interstate commerce; they are valid only if the adopting state or locality can show that it had no other means to advance a legitimate local purpose

Involves the strictest degree of scrutiny under the DCCD Laws virtually never hold up laws found discriminatory under the

DCCDo On the other hand, if the law is NOT facially discriminatory, then the

Pike test applies Under Pike v. Bruce Church, a non-discriminatory law:

That is directed to legitimate local concerns; And that has only incidental effects on interstate commerce is

valid, Unless the burden imposed on interstate commerce is clearly

excessive in relation to the putative local benefits

ADMINISTRATIVE LAW ISSUES

Introduction Two predominant issues of federal administrative law:

o (1) what is the proper role of each of the three branches of government in the administrative law process?

o (2) what procedures must agencies follow when they adopt, implement, and enforce administrative law?

Relationships of federal agencies to the three branches of governmento Congress…delegation of regulatory authority…Agency

Congressional oversighto Agency…housed in the executive branch…Executive

Executive oversighto Congress/Agency…responsibility to review agency decisions…Federal

Courts Judicial oversight

Most of the EL will look at falls under informal rulemakingo Three step process:

(1) Publish notice of proposed rule making (2) Solicit comments from the public and think about them (3) issue final ruling by publishing it in the federal register

need an precise statement of basis and purpose

Access to the courts We need access to the courts, in whole, so as to provide a vehicle assuring that

agencies are acting consistent with their statutory delegations Requirements for standing to sue in federal court

o Constitutional requirements (derived from the “case or controversy” clause of Article III)

injury in fact (concrete and particularized, and actual or imminent…not hypothetical or conjectural);

geographical nexus (Lujan I) temporal nexus (Lujan II) injury to the plaintiff, not to the environment (Laidlow) Can Congress define new injuries? Procedural injury… Another ground put forth by the

plaintiffs pertaining to injury in facto Deprivation of the opportunity of being able to put

in our two cents with regards to the consequences of the project to be implements

o Any time there is a procedural injury (rather than a substantive injury), the requirements of redressability and causation are much less onerous

causation (i.e., a causal link between the defendant’s conduct and the plaintiff’s alleged injury in fact); and

contributing factor enough (Mass)

redressability (i.e., a likelihood that the relief requested by the plaintiff will redress the alleged injury)

incremental improvement enough (Mass)o Statutory requirements

For causes of action brought under the APA, the zone of interest test (i.e., that the plaintiff is “adversely affected or aggrieved within the meaning of a relevant statute” for purposes of § 702 of the APA); or

Requirements set forth (or waived) in other applicable legislation Imposed and waivable by Congress

o Prudential requirements (created by the courts themselves) plaintiff must assert his or her own rights, not the rights of a third

party; and plaintiff must not assert a “generalized grievance” imposes by courts, but waivable by Congress

Threshold Justiciability Doctrines (Other than Standing)o (1) The finality doctrine is derived from § 704 of the APA, which makes

reviewable in federal court only “final agency action.”o (2) The doctrine of exhaustion of administrative remedies allows courts

to dismiss suits on jurisdictional grounds if the P has not pursued all remedies available in the admin process of the agency whose decision is being challenged

o (3) The primary jurisdiction doctrine allows courts to defer ruling on an issue before it until the agency whose actions is being challenged has had the opportunity to provide its input through some kind of admin decision

Issue is concurrently before the agency and the Courto (4) Under the ripeness doctrine, courts defer ruling on issues that they

regard as having been brought before them prematurely two issues to consider when considering ripeness

whether the issue is fit for judicial resolution whether the P has suffered hardship

o all of these consider issues of timing APA provisions relevant to judicial challenges to an agency’s failure to act

o § 702 allows a person adversely affected or aggrieved by “agency action” to seek judicial review

o § 704 makes final “agency action” reviewableo § 551(13) defines “agency action” to include “failure to act”o § 706 (1) authorizes the fed courts to “compel agency action unlawfully

withheld or unreasonably delayed” The SUWA test for when a § 706(1) remedy is available under the

APA “[A] claim under § 706(1) can proceed only where a P asserts

that an agency failed to take a discrete agency action that it is required to take.”

the vagueness and generalized nature of the program and the language used in it enables the SUWA test to be defeated

o problem: agencies will just write vague and generalized programs so as to avoid the SUWA test

o the Court has held that there is a strong presumption that an agency’s decision not to enforce a statute is not reviewable

Standards of judicial review Once environmental Ps clear the standing and other threshold jurisdictional hurdles,

the issue becomes how thoroughly the courts will review the outcome of the agency’s decision making process.

o The answer tends to be context-specific, varying in accordance with the nature of the decision being challenged and the procedural context in which the agency made it

Judicial review of statutory interpretationo Chevron Step 0 question…Does Chevron even apply?o Chevron Step Zero: Mead

Under Mead, an admin interpretation of a statute qualifies for Chevron deference only when:

Congress delegated authority to the agency generally to make rules carrying the force of law; and

The agency interpretation being reviewed was promulgated in the exercise of that authority

Delegation of that kind of authority may be shown in a variety of ways.

The clearest are explicit delegations of authority to resolve legal questions in adjudication or enact regulations using the notice-and-comment process

Under this test, internal agency guidance documents do not qualify as rules that carry the force of law and are therefore not entitled to Chevron deference

Skidmore deference If Chevron deference does not apply, deference may be given

to the persuasiveness of the agency’s positiono Chevron test

(1) If the statute is clear, the SC deems the agency’s interpretation irrelevant

Congress has spoken clearly and it doesn’t matter what the agency says

(2) If the statute is ambiguous, the SC is obliged to defer to a reasonable interpretation of the statute by the agency

it doesn’t matter if the Court would have reached a different conclusion if it was the initial entity that interpreted the statute

o courts should be really reluctant to overturn agency in situations where Congress’s intent is unclear

o Why should courts defer to agencies when the intent of Congress is unclear?

(1) Because Congress delegated to the agency to address gaps of uncertainty in statute…separation of powers concerns…delegation of authority by Congress to the agencies

(2) Court will not be able to understand the intricacies of the statute as well as the agency does

(3) Democratic accountability Judicial review of statutory implementation

o The reviewability question in Overland Park Section 704 of the APA provides that “final agency action for which

there is no other adequate remedy [is] subject to judicial review.” But § 701(a) of the APA judicial review is not available if:

a statute precludes judicial review; or agency action is committed to agency discretion by law.

o Court’s selection of a standard of review in OP De novo is rarely appropriate Substantial evidence test does not apply

Substantial evidence test does not seem appropriate except in the context of formal adjudications, for which a trial-type hearing record was available to the reviewing court.

The Arbitrary and Capricious Test of APA § 706(2)(A) OP

o Whether the agency’s decision was based on consideration of the factors made relevant by the applicable statute; and

o Whether the agency made a clear error of judgment State Farm: Did the agency

o Rely on factors which Congress intended that it not consider

o Entirely fail to consider an important aspect of the problem

o Offer an explanation that runs counter to the evidence before it

o Reach a decision that it so implausible that it could not be ascribed to a difference in view or the product of the agency’s expertise

Boiled down question…Did the agency make a decision based on a rational basis?

Congressional control of admin environmental decisionmaking Although Congress has been willing to vest in many agencies decisionmaking

authority over environmental matters, it has a variety of techniques for limiting the scope of authority.

o One technique is to limit the authority of the President to appoint and remove agency decisionmakers

o Of greater practical, day-to-day relevance are the use of the appropriations process and the imposition of substantive statutory decisionmaking criteria as means for Congress to confine agency discretion.

Executive control of admin environmental decisionmaking P influences agency mainly through executive orders

o Require agencies to consider certain factorso Require agencies to clear certain decisions with presidential appointees

Important legal questions raised by executive orderso Do they violate separation of powers principles?

Most executive orders avoid conflict with organic agency statutes by ordering “to the extent permitted by law the agency must…”

o What is the role of executive authority in shaping agency policy?

ENVIROMENTAL ASSESSMENT: THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)

Congressional Purpose and judicial enforcement The two principle objectives of NEPA

o (1) Consideration of potential environmental impacts “stop and think” aspect of the statute

o (2) Disseminate information to the public “disclosure” aspect of the statute

NEPA applies to all federal agencies, but not private agencieso NEPA has played its greatest role in regulating development-oriented

agencies Relief available in a NEPA suit…at a minimum, courts have the authority to force

agencies to comply with admin procedures

Threshold issues: must an impact statement be prepared? Categorical exclusions

o First, did the agency properly create the categorical exclusion in question?o Second, even if it did, does the action in question fit within the scope of the

categorical exclusion?o Third, even if it does, were there extraordinary circumstances that preclude

reliance on the categorical exclusion? Environment assessment

o Impact statement o Environmental assessment

The environmental review process most often terminates without an impact statement being filed

Exemptionso Direct conflicto Functional equivalenceo Emergencies

Pretty narrowly construedo Nondiscretionary agency decisionso Specific congressional exemptionso Enforcement decisionso Statutory exemptionso National security exemption

The environmental assessment processo Used to decipher if an impact is so significant as to warrant the production of

an environmental impact statement (EIS)o EAs are much more easily and speedily produced in comparison to EISs o EIS requirements (4332 (2)(C):

(1) major non-dispositive…look to “significance” analysis

(2) federal categories of federal action projects funded by federal assistance federal approvals, permits, and controls the “small handle” problem in close call situations, apply a “but for” test

(3) action timing does not apply to nondiscretionary actions unclear if it applies to inaction

(4) significantly affecting two factors determining “significance”:

o (1) contexto (2) intensity

Intensity factors (CEQ § 1508.27) (5) human environment

the harm must be proximately caused by the action scope… Social and economic impacts are relevant, but only

when there is a perquisite physical impact that would trigger NEPA

o In reviewing an agency’s decision not to prepare an EIS under NEPA, we employ an arbitrary and capricious standard that requires us to determine whether the agency has taken a “hard look” at the consequences of its action, “based its decision on a consideration of the relevant factors,” and provided a “convincing statement of reasons to explain why a project’s impacts are insignificant.”

Environmental impacts that must be consideredo Uncertaintyo Endangered specieso Indirect impacts o Risk and psychological stresso Causation

o MitigationScope of EIS Assuming…

o Lack of qualification for an exemption…statutory, regulatory, or court related

o Cannot qualify for the production of an EA What must an EIS include under § 4332(2)(C)

o (1) the environmental impact on the proposed action, most challenged/litigated segment along with (3)

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

o (3) alternatives to the proposed action, §1502.14 discussion of alternatives has been called “the heart of the EIS” primary alternative secondary alternative The “no action” alternative: 40 C.F.R. § 1508.25(b) The “purpose and need” requirement: 40 C.F.R. § 1502.13 judiciary role in reviewing the alternative requirement under EIS is

narrowo (4) the relationship between local short-term uses of man’s environment and

the maintenance and enhancement of long-term productivity, ando (5) any irreversible and irretrievable commitments of resources which would

be involved in the proposed action should it be implemented. Segmentation

o Florida Keys test Independent utility analysis

The project stands on its own and it makes sense to treat it as a separate proposal

Regional and program impact statementso Kleppe “proposal” test -- until an agency formally puts forth a proposal to

the outside world, there is no proposal triggering NEPA obligations o Three part CEQ statutory “proposal” test…

(1) goal (2) actively preparing to make a decision on how to accomplish that

goal (3) the ability to evaluate the effects meaningfully

o CEQ and SC do not particularly line up here No case specially addresses this inconsistency between the statute and

Kleppe Tiering EIS Scope (in sume)

o One single EIS must cover all connected actionso One single EIS must cover all cumulative actions

o Similar actions should be treated under a single EIS if its is the best approach to take

Adequacy SC has held that NEPA is 100% procedural Courts cannot reverse agency decisions on the grounds that they are not

environmentally soundo Agency decisions are subject to reversal if the agency considered irrelevant

factors or failed to consider relevant factors NEPA claims generally rest on procedural defects/violations…which are subject

to reversalo Not preparing an adequate document

Consideration of alternatives,; description of the effects; consideration of the cumulative impact of the project; mitigation measures

o Preparing an EA when an EIS was requirementso Document inadequately promotes NEPA’s two main objectives

Lack of proper environmental consideration and dissemination of information

Assuming a NEPA violation, what relief…o Remando Injunction

Is NEPA useless (considering it has no real substantive basis)? Remember: Under NEPA, courts are just validating that agencies have considered

environmental impacts and disseminated information pertaining to those impacts, NOT whether an agency’s decision making is correct

However, the power to hinder a project by issuing an injunction will force agencies to play into the purposes furthered by NEPA

BIODIVERSITY AND ENDANGERED SPECIES PROTECTION

Introduction to biodiversity conservation Environmental law is subdividing into two major objectives: the prevention of

pollution, especially toxic pollutants, and the conservation of biodiversityo The objective of biodiversity is to conserve species richness

Rationales for maintaining biodiversityo Utilitarian…leading rationaleo Esthetic o Moral/ethical

ESA applies to fed agencies only, not state agencies

TVA The ESA requires that highest priority be given to the preservation of endangered

species, whatever the cost. Section 7 of the Act (1536(a)(2)) plainly commands all fed agencies “to insure that actions authorized, funded, or carries out by them do not

jeopardize the continue existence of an endangered species…or result in the destruction or modification of [its] habitat.”

o 1536 (a)(2) … “no jeopardy” provision Cost-benefit ratio is completely irrelevant under the statute

o Economic waste of not finishing the dam does not matter The prohibition set forth by the statute is absolute

o The highest priority is place on the protection endangered species Appropriate remedy

o Injunction

Listing and critical habitat designation The listing itself does not require consideration of the economic impact (§ 1533 (b)

(1)(A))o Listing decisions are made solely on the best scientific and commercial data

available o Economic impact is irrelevant at the listing stage

In the critical habitat designation stage, economic is definitely relevant (§ 1533 (b)(2))

Cape Hatteraso Holding

Baseline approach is not invalid, the functional equivalence doctrine is invalid

FSW failed to require consultation for actions that jeopardize the recovery of the species even if they do not jeopardize the species’ survival

definition of conservation under § 1532(3) requires consultation until the species has recovered in full (and thus no longer needs protection)

protection of both survival and recovery of a species is required

effects of FSW’s narrowing of the consultation requirement (however, court’s holding broadens the requirement)

(1) consultation would not have been required for species in recovery. Thus, alternatives may be not be produced by the FSW that would have facilitated recovery.

(2) underestimate the economic impact of the critical habitat designation

designation of CHD may produce additional economic impacts that warrant consultation

A specific area may be excluded from a particular CHD when the benefits of exclusion outweigh the benefits of inclusion

o E.g., situations in which there is a fear that CHD will actually endanger the species

Owners of a given land will rush to develop land that is proposed for CHD

o NEPA applies to CHD

DOW The irreconcilable clash between ESA § 1536(a)(2) and CWA § 1342(b) Unless the action is discretionary (and it is not here), the EPA does not have to

consult with the FSW, it must merely delegate powers if the requirements are fulfilled (the nine requirements in this case)

o CWA trumps ESA, at least in this context Here, the statute may be read as discretionary and consultation is not required

The Section 9 Taking Prohibition 1538(a)(1)(B)

o …unlawful to take any such species within the US or the territorial sea of the 1532 (19)

o “take” … means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

Section 9 prohibits “any person,” which includes both fed agencies and private individuals, from “taking” an endangered species.

Violations of take prohibitiono Subject to criminal penalties

Take provision on applies to listed species of fish and wildlife, not plants On its face, the statute only applies to the taking of endangered, not threatened,

fish and wildlifeo However, by regulation, the statute is applied to threatened species

Babbitto 1539(a)(1)(B)

takings may be permitted by Secretary of Interior if the taking is incidental

incidental take permit provisiono The scope of the ESA’s taking provision

Harm; harasso Holding

The text and purpose of the statute supported the validity of the regulation (regarding the scope of the ESA’s taking prohibition)

texto Statute is ambiguous and the agency’s interpretation is

reasonable Purpose

o Statute is designed to protect ecosystems, wildlife, and habitat.

In some cases, activities not explicitly designed to kill wildlife may be considered a taking. This is so we can avoid the disutility of the incidental take permit provision. One example of an incidental take is the destruction of a given species’s habitat.

If have no incidental takes, then the incidental take permit provision would not make sense.

o And it was an amendment. All though this is not at issue here, incidental takes are

analyzed under a proximate cause analysis In short, harm does not have to be direct

o Questions left open (1) Reasonable for interior department to conclude in its regulations

that habitat modification could be considered to be a taking? Couldn’t the Court change this interpretation if another case

comes up? (2) Does death or injury already have to have occurred to be a taking?

Look at the regulation again Does risk = harm?

o Circuit split (3) Can inactivity ever amount to a taking?

Look at the regulation again Harass definition seems to point to the fact that an omission

could amount to a taking Legally speaking, the government could condemn land in order

to protect species

POLLUTION CONTROL…

4 approaches to controlling pollution Harm (or ambient quality)-based

o E.g., CAAo Uncertainty (margin of safeties used) often leads to a switch from a harm-

based to a tech-based standard Tech-based

o E.g., CWA Market-based Liability-based

THE CLEAN AIR ACT Harm (or ambient quality)-based statute Goal of the CAA

o purposes of the CAA are to protect and enhance the quality of the nation’s air resources so as to promote the public health and welfare and the productive of its population (7401 (b))

how do we achieve this overall objective?o The adoption and implementation of national ambient air quality standards

Primary standards protect public health (§ 7409 (b)(1)) Secondary standards protect public welfare (§ 7409 (b)(2))

For which pollutants does the EPA have to issue these national ambient air quality standard?

o Those that qualify for the list under § 7408 (a)(1)o 7408 (a)(2)…air quality criteria

There are only 6 air pollutants for which the EPA has ever issued national ambient air quality standard (NAAQS)

Should we be troubled that there is only 6? … no, there’s only 6 pollutants regulated under this particular program

o No, the EPA has other CAA programs that allow for regulation.

Air pollution: types, sources, impacts, and control techniques 7408(a)(1)…3 tests for including a substance on the list of pollutants

o danger testo many sources testo there must be a plan to issue air quality criteria

Economic issues are not considered in the promulgation of ambient air quality standards under the Clean Air Act.

o The function of the margin of safety was to allow for a buffer zone or margin of safety that is needed because of scientific uncertainty

Lead Indus. held that EPA has the authority under 7409 (b)(1) of the CAA to protect against the RISK of pollution rather than just than adverse EFFECTS

o Taking into account the change of harm to develop of the magnitude of this potential harm

The harm based approach (1) figure out goal

o EPA is responsible for adopting the NAAQS (goals)...7409 (2) calculate aggregate maximum aggregate emissions level…(3) divide up

aggregate maximum aggregate emissions levelo State governments are delegated authority to implement these statutory

programs in order to achieve nationally established pollution control objections…7407(a)

Cooperative federalismo 7410 (a)(2)

each implementation plan submitted by the state under the CAA should be adopted by the state after reasonable notice and public hearing

procedural aspect states must include 13 different things in the implementation plan

substantive aspecto if procedural and substantive aspects are met, EPA is required to

approve SIP…7410 (k)(3)o 1977 and 1990 Amendments reduced discretion provided to the states in

deciding how to implement to achieve standards states have not done the job…have no achieved NAASQ Congress strived to constrain fed control from the outset

7411…authorizes EPA to establish national uniform emission standards for new stationery sources

o new source performance standardso here we are talking about emissions standards, not goals

we are talking about goals, not means 7412…hazardous air pollutant standards 7521…EPA has the authority (always, since 1970) to adopt

admissions standards for new motor vehicleso states had never had control in any of these three areas

Congress imposed statutory-mandated deadlines for imposition of SIPs in order to counteract states’ natural incentive to do nothing (and avoid expenditures)

One way to combat states’ inclinations to delay is to impose sanctions for failing to adopt an adequate SIP

EPA may impose a fed implementation plan as a form of sanctions…7410 (c)(1)

Variety of options for divvying up allowed emissions (step 2, from above)

(1) Historical practice (2) Allocate emissions with regards to the emitter’s importance

to the state’s economy (3) what is technology feasible (4) allowances auction

o use funds to ameliorate environmental damage and finance alternative energy sources

o this model has not had that much success mobile source v. stationary source emissions

Congress has regulated stationary sources more so than mobile sources

People in the US “have a love affair with their cars”o There may be a “backlash” to the whole statutory

scheme if mobile sources are regulated, and we do not want this

Inadequacyo EPA may reject a plan as inadequate when it does not meet the procedural

and/or substantive aspectso 7410 (a)(2)(h)…EPA may call for revisions to a SIP when the plan is found to

be substantially inadequate state plan must have a revision provision in it confirmed in 7410 (k)(5)

EPA shall required the state to revise the plan when it is inadequate

o As a penalty, the EPA may adopt the federal plan for a state if the state entirely failed to submit a plan by the deadline or submitted an inadequate plan and did not fix this inadequate plan in the time allotted to do so

o States generally want to avoid the EPA’s take over of the implementation measures of the CAA

The way to avoid intrusion is the abide by requirementso VA…EPA does not have authority to tell the states that there is a problem and

exactly how this problem must be fixed

SIP call…direct the state to do what is minimally necessary to cure to defect stopping them from meeting CAA standards

It cannot mandate anything more What happens when a NAAQS does not work?

o The original deadlines for all states the achieve NAAQS for the original 5/6 pollutants was 1975/1976 (five years after 1970)

o Standards not met, extension to 1982/1983o Non-attainment areas…areas in non-compliance

7501 (2)o deadlines were extended again in 1990 until years from 1993 to 2010

standard meeting has not happenedo General principle from the 90 amendments

Further out of compliance that a state is the less time they get to meet the standards

Further out of compliance, longer the checklist, less discretion 7511 (5)(a)

checklists with regards to degree of non-compliance Nonattainment areas

o Air quality control region that has yet to meet the NAAQS for a particular pollutant

Rare that any area meets standards for all pollutantso Penalties are imposed

Important industries are hit with nonattainment feeso What if there are already factories within the NA?

(1) Shut down some of the factories so that they are no longer emitting cutting enough emissions will reduce pollutants to level of

compliance (2) Prohibit the construction/operation of any new sources that would

add to the already existing nonattainment problem in this area slap a moratorium

by in large, Congress has done neither of these things Why not?

o Economic reasonso Congress felt that these solutions were too draconian in

terms of economic impact to serve as viable solutions The prospect of shutting down plants and

throwing people out of work was unpalatable for Congress

So, what is the solution? … statutoryo Any area not meeting NAASQ 1 or more pollutants must amend their SIP to

produce an outcome where their pollutant emission goes above and beyond meeting the standards

o 7502 (c)…requirements for states’ with nonattainment areas Congress has resorted to a technology-based risk management

approach to achieve NAAQS All reasonably available control measures must be enacted

o E.g., reduction of current emissions if the technology so provides the ability to do so

Schedules and deadlines for compliance with the source being subject to penalties enforceable by the EPA and fed courts

Provide reasonable further progress toward compliance Reasonable further progress (7501(1))…such annual

incremental reductions in emissions of the relevant air pollutant as required and for the purpose of reaching the required standard by the required date

o Phrased in terms of “reduction in emissions” rather than levels of “ambient concentrations” … but the two are similar

Reduction in organic compost in specific percentages with regards to certain ozone nonattainment areas (7511(a))

Sierra Club… EPA was not authorized to grant conditional approval to plans that did nothing more than promise to do tomorrow what the CAA required today.

o Plans can not be open-ended

New Source Review (NSR)o The principle mechanism for evaluating new sources without exacerbating the NA

problemo New or modified (physical change or change in method that increases emissions)

major stationary sources must get a permit when they are first built or modified Major stationary source (7602 (j))…stationary source that can emit 100 times

or more per year of any air pollutant (7602(j))o NSR is actually composed of two different permit program run by the states

(1) new or modified major stationary sources in NA areas (2) new or modified major stationary sources in PSD areas

o 7502 (c)(5) permits for new and modified major stationary sources refers to 7503 for requirements

o requirements technology-based controls (7503 (a)(2))

using a tech-based tool to achieve our ambient goal 7503(a)(2)…show compliance with the lowest achievable emission

rate (7501(3)…meaning either the most stringent emission limitation imposed at this time by any SIP; or the most stringent control of emissions actually being achieved by a SIP anywhere in the country; whichever is more stringent…very rigorous) in order to qualify for a permit

7503(a)(1)(A) you have to show that new or increased emissions will be offset by

decreased emissions elsewhere in the NA in this way, if the permit is granted, emissions will be lower (more

than offset) in general so…

o you either have to shut down somewhere else already operating like bubble

o or, get someone else to shut down their plant and make it legally enforceable

however, these external offsets are fare less common than internal offsets (within the “bubble”)

like cap and trade thus, you force these people to lower their emissions

o everyone wins…other people have more money, you may emit, and the air is cleaner

NRS has been very controversialo Congress wanted to achieve CAA goals while promoting economic growtho It is economic burdensome to sources

Applying for a permit is very burdensome Even with permit, compliance to the stringent standard is very

difficult/expensive Industry lobbies EPA to make standard less stringent

What about NA areas and mobile sources?o Transportation controls for heavily polluted NA areas

E.g. mandatory carpool lanes, increase in bridge and highway tolls (provide incentive to take mass transit), centralized vehicle inspection and maintenance

What happens in the reverse situation…if ambient concentrations of the criteria pollutant are lower than the NAASQ?o Policy questions?

Is it okay for the state to dole out the right to emit that pollutant so that over time emissions will increase up to the point where they are abutting the NAASQ?

Is deterioration allowed? PSD (below as well)

o Limits on the incremental amount of pollution allowed in clean air areas

o PSD areas are divide into three classifications (7472) Class I…national parks, etc.

Most protection Class II

Less protection Most prevalent class distinction

Class III… Least protection Almost no Class III areas exist

o Increments of degradation are established Degradation is allowed if not significant What is significant is determined by the Class of the

area? Class I areas allows for less degradation

o II and III allow for some more

o Constraint is grounded in second half of the NSR program 7475(a)(1)

New or modified major stationary source in a PSD area Requirements (7475(a)(3-4))

Tech-based…best available control technology ((a)(4))

o Consideration of both economic and environmental factors

o Like most tech-based standards in the CWA, this is a performance standard rather than a design standard

The agency cares whether you hit the target, not how you got there

You will not get a permit if issuance will cause pollution to exceed the limited amount of degradation that the statute allows ((a)(3))

o In no case can PSD allocation violate the NAAQS

i.e. if Class II area is allocated a 20% increase in emissions, but the current concentration would allow only for a 5% increase before it abuts the NAAQS, then only the 5% increase may be allowed

o Degradation can only rise up to the levels of pollution required by the NAAQS

Not as rigorous as NA areaso NA areas are the really problematic

areas where public health is being jeopardized

Litigation involving NA and PSD o Both start with a new or modified stationary sourceo Modifications 7411 (a)(4)o Whether a physical change amounts to a modification so as to trigger NSR…

Emitter can use any 2 consecutive years of the past 10 years to determine the baseline amount of pollution in determining whether a physical change amounts to a “modification”

Thus, emitters would select the highest emitting 2 years in hopes to avoid determination of a “modification” and the triggering of NSR

7411…definitions/procedure Allows for the national uniform, tech-based standards for new major stationary

sources (b)(1)(A)

o EPA must require a list of categories of new stationary sources that cause or contribute to air pollution endangering public health or welfare

(a)(2)…definition of a new source (a)(1)

o once listed, a statute must provide a standard of performance for that category another tech-based approach to risk management…best available

technology Reilly

o Best available technology must be requiredo We refrain from state-regulation here so as to avoid a “race to

the bottom” Under 7411, states are divested of the ability to

undercut EPA tech-based standards Under 7416, states can apply more stringent controls

than EPA

Focused on NAASQ of CAA so as to get an understanding of ambient-quality harm-based standards

THE CLEAN WATER ACT CWA is technology-based

o CWA is mixed like the CAA though Under a tech-based approach you eliminate cause/effect problems

of source because the cause/effect does not need to be shown Harm-based standards serve as a safety net when there is so many

dischargers complying with tech-based standards in one area that the water still becomes foul

Disadvantages to tech-based approacho Tech-based approaches are inefficiento Discourages investments in pollution control technologies

CWA is a performance-based tech standard rather than design-based tech standard

Point v. nonpoint source Statute has almost no mechanisms for controlling NP

sources Direct and indirect dischargers New v. existing point sources

o Congress generally regulates new point sources more so than existing point sources

Harm-based v. tech-basedo Harm…how clean do we want the water to be?o Tech…how clean can we make the water?o CAA has aspects of both, but we will generally focus on the

tech-based aspects Federalism aspects…EPA applies standards to control direct

and indirect discharges and point and nonpoint sourceso Permit programso NPDES

Regulates point source dischargers States may apply to administer the NPDES

program 48 states have received this authority

NPDES program At a min, states must impose federal tech-based regulations

o EPA regs are the flooro However, states can go above and beyond and adopt more

stringent controls EPA has the power to revoke the entire state permit program

o More theoretical than practical Every state must adopt water quality standards and admit them to

the EPA for reviewo The EPA may review and veto these standards and apply

standards to be applied EPA maintains the power to review both its own permits and those

granted by the states

CWA Goals

o Goal of the CWA is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters

o National goal is that the discharge of pollutants be eliminated by 1985

o Interim (more realistic) goal…water quality provides for the protection and propagation of fish and the wildlife by July 1983

Fishable/swimmable goal of the CWAo How did Congress go about achieving this goal?

The CWA’s “No Discharge” general rule (1311 (a))…SLIDE

Central provision of the CWA “the discharge of a pollutant” (1362 (12))…SLIDE

o we focus on subsection A (1) addition of (2) a pollutant into (3) navigable waters (4) from a point source

“pollutant” (1362 (6))…SLIDEo broad definition

“navigable waters” (1362 (7))

“point source” (1362 (14)) “person” (1362 (5)) “except in compliance with 1342 (a)(1))

NPDES (cont) Miccosukee

o For purposes of a CWA requirement that a NPDES permit be obtained for the discharge of pollutants into the nation’s waters, such a discharge includes a point source that does not itself generate the pollutants.

o We have a (1) pollutant; (2) navigable water; (3) point sourceo The issue is whether there is any “addition”o Arguments that there is no addition (by the

government)…none taken (1) the prohibition of 1311(a) only applies when a

pollutant originates from a point source, not when it merely passes through a point source

rejected (2) unitary waters argument…no addition, merely

moving around pollutants in one unitary (American) water system

not decided but disfavored (3) even if not all bodies of water are part of a single

unitary body of water, these two amount to a single body of water…even if the unitary water argument is not adoptable

not decidedo Court remanded…District won in the 11th Cir. on remand

What changed?...EPA adopted standards on the unitary waters theory

EPA interpreted “waters of the US” under the unitary waters theory

o All water in the US is part of one body SC deferred under the second step of Chevron even

though it seemed to think this theory was a fundamentally bad idea

In most circuits, the unitary waters theory has been rejected

…After the decision in this case was handed down, the EPA concluded that water transfers – “activities that convey or connect navigable waters without subjecting the water to intervening industrial, municipal, or commercial use” – are not subject to NPDES permitting requirements.

The concept of navigable waterso Riverside

Wetlands are “waters” under the CWA, even if they are not regularly flooded by adjacent waterways.

Dredge and fill permit program (1344(a)) SC held that an area can be considered to be a wetland

if it is… (1) inundated by surface water, OR (2) saturated by ground water

SC held that it was reasonable to hold that an adjacent wetland as a navigable water

SC held that adjacent wetlands were covered because there was a significant nexus between the adjacent wetlands and river

o SWANCC The US Army Corps of Engineers has jurisdiction only over

navigable waters or waters that abut navigable waters. Issue… if intrastate wetlands that are NOT

ADJACENT to navigable waters could be defined as navigable waters

No SC is not willing to adopt a reading that reads

“navigable” out of the statuteo There still must be some nexus between

the wetland and a navigable body of water Chevron deference issue Permits/prohibitions

Expulsion of fill materials requires a dredge and fill permit…discharge of a pollutant requires a NPDES permit

Same definitions/scope for each…o Discharge of the pollutant in navigable

waters However, it may be a close call in determining

whether expelling fill materials must be viewed as a land regulation rather than an environmental regulation. However, the dumping of pollutants is clearly and environmental regulation.

o Rapanos The term “waters of the US” in the CWA encompasses only those

relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams,” “oceans,” “rivers,” and “lakes,” and does include channels through which water flows intermittently or ephemerally, or channels that periodically

provide drainage for rainfall, so that wetlands that do not contain and are not adjacent to waters that are navigable in fact, or do not have a continuous surface connection to such waters, are not covered by the CWA.

Whether a permit is required for wetlands adjacent to tributaries? no answer…because there is no majority opinion in the

Rapanos case plurality (Scalia)

2 limits on the Corps’s jurisdictiono (1) continuous surface connection between wetlands at

issue and traditionally navigable bodies of water difficult to determine where the wetlands end

and the waters begin…good sign of continuous connection

o (2) relatively permanent, standing, traditional bodies of water…streams, oceans, rivers, and lakes

connection must be with one of these bodies of water and the wetland at issue

concurrence (Kennedy) Test…the significant nexus test

o Significant nexus between wetlands the court is trying to regulate and traditionally navigable waters

Who’s opinion is most important? COAs have splintered on this issue We can look at both Kennedy’s and Scalia’s decisions

After the opinion, the Corp issued guidelines (no force of law, may or may not represent the last word on CWA jurisdiction)

Certain wetlands categorically meet the significant nexus Other cases will have to be resolved on a case-by-case basis

Establishment of tech-based effluent limitations Once EPA establishes tech-based regulations for an

industrial category, they constitute floors – that must be incorporated into all NPDES permits (subject to limit variances in the Act).

The CWA’s “no discharge rule” (1311 (a))o Getting around the “no discharge rule” …

Starting point…zero dischargeo 1342…NPDES permit programo 1344…Dredge and fill permit program

“Except as in Compliance with § 1342(a)(1)”o (A) all applicable requirements…

1311…most important The permit shield provisions (§ 1342(k))

o 1319 and 1365…enforcement provisions of the statute “permit shield” allows you to avoid enforcement

brought against you by the EPA or private citizens § 1311(b) Effluent Limitations

o point sources must achieve effluent limitations effluent limitations…

o initial level of control (1311(b)(1)A) and a secondary more stringent level of control under 1311(b)(2)(A)

two phase system pushing towards the elimination of all pollutants from our nation’s waters

Two phase systemo Phase 1

BPT (best practicable control technology available) limitations…what point sources could accomplish if they employed the BPT available

How does EPA figure out the BPT? Factors listed in 1314(b)(1)(B) EPA must establish BPT based on the performance

of the average of the best plants in the industry Anybody who is discharging pollutants must abide

by BPTo Applies to any discharge of any pollutions

across the boardo Phase two

Effluent limitations are determined by industrial category

Remember that ELs are performance standards, not design standards

o What counts is the end result…best practicable tech could achieve such a level, but the source is free to achieve that level in any what that it so chooses, so long as the level is met

The CWA’s tech-based effluent limitations for existing industrial point source discharges

Nice chart Different regulatory options depending on what

kind of pollutant is being dischargedo This two phase approach only applies to existing point

sources New point sources are regulated on 1316, which is

similar to CAA 7411 A national, industry-wide approach

o Dupont SC held that EPA can issue ELs across categories

for Phase 2 SC held the same result for Phase 1 as they did

for Phase 2 Therefore, in both phases, the EPA is allowed to

issue ELs in the form of category wide limitations Condition…if ELs are allocated by industry-wide

categorization then variances must be available Category-wide regulations are more likely than

point source by point source regulation to promote uniform, industry-wide standards

o Fisheries it is okay if the EPA takes the BPT standard from

a similar industry if it can be reasonably translated to the industry being regulated

Two phase system (cont) Phase 1…cost-benefit analysis (1314 (b)(1)(B))

o Same level of regulation applies regardless of the kind of pollutant

o Standard…BPT Set categorically across industries

Phase 2…no requirement to engage in cost-benefit analysis (1314 (b)(2)(B))

o Cost is considered in isolation CBA generally results in less stringent controls

o Phase 2 controls are more stringent than the Phase 1 controls

Intentionally so, as EPA is more focused on eliminated these more dangerous pollutants

o Standard is determined by the pollutant being dischargedo Represents an incremental step past BPT

Deadline was to come years later after the BPT was supposed to be achieved

Phase 1 deadline was originally set for 1977, and Phase 2 deadline was originally set for either 1989 or 3 years after compliance with BPT

Everybody ought to be complying with Phase 2 by now

o Remember: goal is to move from status quo to the eliminate of all discharges

o Practicable…good; available…better; conventional…conventional

BAT v. BPT (1) BPT stage (phase 1), EPA performs CBA

analysis…BAT stage (phase 2), EPA only does a cost analysis

(2) BPT: average of the best performers within an industry…BAT: single best performer

o Calculating BPT… Focuses on all plants of industry using

the best technology and then looks at the average level of the performers using that best technology

o Calculating BAT Focuses on the single best performer

within a given industry More rigorous standard

Congress took the risk that business may not be able to effectively comply with these tech-based controls

Congress was okay with some companies going out of business

BCT Step from BAT to BPT is not as big as the

step from BAT to BCTo this is because “conventional pollutants”

are not as harmful as “toxic pollutants” BCT does not push quite as far as BAT does

These differences in standards is exemplified in the difference of the factors considered under each standard

BCT…two-tiered CBA o (1) regular cost-benefit analysiso (2) CBA comparing compliance between

public plants and industry plants the first compares the costs and

benefits of moving from BPL-Level controls. The second ensures that the BCT-Level controls for industry don’t require much more of them than the CWA requires for public sewage treatment plants.

Why have two different BAT boxes? Difference in back-end adjustments

o Fundamentally different factors determining back-end adjustments/variances

Differences relating to the factors EPA takes into account when it is issuing the regulations and determining standards in the first place.

o FDF (fundamentally different factors) has been codified and applies at all levels of the statute

o Back-end adjustment must be in relation and proportional to the degree of the fundamental difference

Few back-end adjustments available for those who discharge toxic and non-toxic/non-conventional pollutants

Back-end adjustments are pretty rareo Not typically awarded, nor not typically

even sought Other tech-based controls under the CWA…nice chart

o new sources are more stringently regulated (1316) new sources are on notice of standards; it might be

more economical for new sources to abide by standards starting from the ground up

1316…nearly equivalent to Phase 2 BAT controlso POTWs

only one level of control for sewage treatment plants…secondary treatment

o Indirect dischargero Biosolids disposal

Tech-based provisions are the CORE of the CWA

NPDES permits and ELso If there is no set ELs for a particular industry…EPA is to craft

ELs on the particular case-by-case basis best professional judgment provision

Water quality standards WQSs are the back-up mechanism if the tech-based

standards does not produce clean water If a state wants to adopt WQSs, what does it have to do?...

o (1) establish a designated use….1313(c)(2)(A) EPA regs prohibit the downgrading of use designations if

it is still attainableo (2) adopt water-quality criteria for each segment of the

water body being considered…1313(c)(2)(A) criteria…scientific info, not legal standard maximum concentration of a particular pollutant that

will allow for achievement of a the designated useo (3) apply nondegradation policy…1313 (d)(4)(B)

3 tiers of nondegradation (similar to CAA)…SLIDE Tier 1…least protected Tier 2…middle protected Tier 3…most protected

establish TMDLs (by the state)

allocate the TMDLso amount of a pollutant that can go into a water body without

violating the water-quality criteriao Required Elements of a TMDL…SLIDE

chain of events….establish water quality standards, establish TMDLs that enable the meeting of water quality standards, divvy up the TMDLs

Role of EPA in making sure TMDLs are established at a level that could reasonably meet water-quality standards

Pronsolino (9th Cir.)o Waters that are impaired only by nonpoint sources of pollution

are subject to the CWA listing and TMDL requirements. o Based on the language of the CWA alone, the list must

contain any waters for which the particular effluent limitations will not be adequate to attain the statute’s water quality goals.

o Furthermore, there is no general division throughout the CWA between the regulatory schemes applicable to point and nonpoint sources.

o The TMDL expressly recognizes that implementation and monitoring are state responsibilities, and for that reason the EPA (D) did not include implementation and monitoring plans within the TMDL. In addition, the CWA requires that each state include in its continuing planning process adequate implementation for revised WQSs. Therefore, the TMDL is an informational tool for the creation of the state’s implementation plan independently required by Congress. CA (P) can chose if and how it would implement the Garcia River TMDL.

States have to adopt TMDLs, however once they adopt them, there is no EPA requirement for states to implement them

Thus, there is no intrusion on the state authority…no federalism problem

1341o Certification requirement 1341 (a)o 1341 (d)

if a state includes a condition under one of its certifications, then the federal permitting agency must include that condition under its own permits

Recap of CWA Statute starts with the goal

o Limiting all pollution dischargeso Realistic goal…fishable and swimmable waters

o Statutes are all structured around these goals Core provision of statute (1311)

o No discharge rule Permits that allow you to avoid the no discharge rule

o Dredge and fill…1344 Substantive requirements

permit must be issued for water-dependent use all feasible steps for mitigation must be taken

o NPDES…1342 Covers discharges of pollutants other than dredge and

fill material Compliance must be met with 1313 (b) ELs

1370…states can be more stringent if they want 1342 (d)…federal veto power over issuance of state

permits that do not comply with state WQSs tech-based sources have done pretty well in the last 40 years

o two weak links: failure to regulate nonpoint sources disabling of the EPA’s ability to use TMDLs to achieve

better water quality Quick recap

o In terms of big picture for the CWA, the tech-based regs are federally set by effluent limitation standards and can be made more stringent by the states’ NPDES permit program.

o Then, as a second-tier reg the harm-based water-quality standards exist and the TMDLs are used in attempt to achieve those standards.

States must achieve their WQSs if full compliance with the 1311 and 1316 tech-based standards does no accomplish that, states must adopt TMDLs that reflect the aggregate amount of pollution that may be discharged into the impaired waters without violating the WQSs. Presumably, this will be less than is currently allowed by a combination of the tech-based regs. In effect, that means either controlling nonpoint sources or requiring point sources to do better than the tech-based controls require.

CRITICISMS OF AND ALTERNATIVES TO TRADITIONAL REGULATORY APPROACHES Criticisms of “command-and-control regulations” … not

good to call it command-and-control…better referred to as “traditional regulation”)

o It is not sufficiently tied to cost-benefit analysiso It does not get as much pollution control benefit for each

dollar spent The uniform regulatory approach does not allow for the

economic efficiency that would be achieved by taking a

market approach Counter-arguments

Uniform regulations allow for easier administration and dissemination of information across industries than would be if analysis was done on a case-by-case basis

Very difficult to trace environmental problems back to their sources…thus, it is impossible to craft solutions on a case-by-case basis

Uniform standards produce greater consistencyo Competitors in the same industry are

generally subject to the same levels of control…no competitive advantages provided

May be some difference in situations where one polluter is polluting into a protected area (e.g., PSDs)

o However, Cannot really take all these criticisms at face

valueo Less scrupulous business people, politicians,

etc. use these argument to disguise deregulation as regulatory reform

Arguments made by these people (using climate change):

Prove ito show that the facts prove

climate change to exist Its not my fault

o Its not my gases causing climate change

I can’t help ito There’s no technology out

there, and even if there is I cannot afford it

That’s not fairo You regulate me and not

themo Its so unfair that it is a 5th

Amendment taking without just compensation

What do critics like then?o Main criticism…traditional regulation is inefficiento So, critics advocate a market approach…assuming that

people and firms engaged in environmentally

damaging behavior will act rationally, and all the government needs to do is to provide the incentives sparking polluters to act upon their own self-interest

Key aspects of the market approach: Polluters with the lowest levels of pollution will

benefit the most economically and thus the existence of these kinds of polluters will be augmented

Transaction costs are fewer in the market approach than in the government adoption of regulations and the implementation of said regulations

o Possible regimes Pollution taxes…favored by most economists (but not

going to happen…stigma against taxes) fee or tax for each unit of pollution produced polluters can generate as much pollution as they

can afford a profit maximizing companies will not spend to

control pollution than it stand to profit easy for government to set up and administer not used by federal government

o implementation problemso political obstacles

emission tax system would provoke public outcry

left…polluters should not be given to right to pollute

right…all taxes are bad Emissions trading…has made better in roads than

pollution taxes, but it has not replaced traditional regulation

Serves as a supplement to traditional regulation, rather than as a substitute

Forms of emissions trading programso Allows for polluters to trade permits to emits

if they fall under caps limiting their emissions

o Allows regulated sources to buy and sell permit emissions among one another

o Most successful US regime…cap and trade program designed for acid deposition control (§§ 7651-7651o: acid deposition control)

Goal of the program…reduce emissions (such as SO2) of pollutants that lead to acid deposition

Initially, allowances were allocated 7651c (e)…allocation of allowances allowances can be bought and sold

o facility is better off selling an allowance when the gain to be had is greater than the gain to be had from greater production/pollution

o facility is better off buying an allowance when the price is less than the cost of reduction

o sometimes allowances are purchased and retired from the system permanently

double penalty for exceeding emissions (1) fine for exceeding (2) reduction to proper emissions level

this program has been quite successful much lower cost than many predicted

o Would such a cap and trade program work as well for greenhouse gas emissions?

Acid rain context is characterized by some factors that facilitate the cap and trade program for reduction

(1) Technology for reducing SO2 was already in place, not so for the reduction of carbon emissions

o Only proven way to reduce carbon emissions is through cleaner energy

(2) acid rain program covers a relatively small group of sources…the coal/fire industry

o limited transaction costs for engaging in emissions trades

o greenhouse gases come from a diverse array of sources…thus, emissions trades would come with much higher transaction costs

o benefits of emissions trading with regards to pollution control benefits are mostly economic low cost polluters overcontrol and high cost polluters

undercontrol…either way we get a set aggregate of pollution

overall emissions are reduced over time…overall reduction of pollution

o problems with emissions trading (using market-based approaches…generally as a supplement to command-and-control regulations)

hot spots facilities that buy pollutants are sometimes

concentrated geographically this kind of shift in air pollution can create

dangerous environments for those living near multiple stationary sources

often located in low-income and racial minority neighborhoods

hot spots are not an issue when there are not localized concentrations

o e.g., greenhouse gases emitting in DC have the same effect as greenhouse gases emitted in Beijing

environmental justice problemo considered solution…provide those living

near hot spots with financial compensation those engaged in trades may not properly report

their activities those making reductions that in turn generate

credits may not in fact have made the reduction that they purported to have made

exacerbated by inadequate agency monitoring considered solution…trades take place on

something other than a one-to-one basiso i.e., if you want to sell 10 allowances, you

must reduce your own emissions by 20 built-in margin of safety

fear that the financial industry would manipulation emissions markets has decreased support for cap and trade programs in Congress

o public interest will not be supported, the beneficiaries will really be the traders making money

trading programs are potentially susceptible to slippage for political reasons

strong temptation for politicians to simply increase the cap and thus increase emissions

if you have a declining cap and allowances and credits are becoming scarcer, the price of the credits will increase. Smaller businesses on the margins may be driven out of business, which may result in increased concentrations of industries in given sectors.

Environmental law may not have qualms with this, but antitrust law may

Possible solution…subsidies Philosophical/moral problem…pollution

credits/allowances given companies the legal

right to pollute even if it harms the surrounding environment

Some regards this legal right to pollute as immoral

HAZARDOUS WASTE

RCRAo approach to risk management…a technology-based, with a little

ambient quality-based mixed ino two goals

(1) minimize hazardous waste legitimate recycling is good; sham recycling is bad and

is regulated (2) safely dispose of hazardous waste

o Prevents improper hazardous waste management Regulatory statute designed to prevent improper hazardous

waste management from occurring in the first placeo 6902 (a)(4-5)…RCRA goals…

(4) take into account human health and the environment when handling hazardous waste

(5) properly management hazardous wasteo cradle to grave program

generation to disposal of waste and everything in between is to be regulated

o 6902 (a)(6) objectives include minimizing hazardous waste

o one way to avoid RCRA is to not manage hazardous waste in the first place

o hazardous waste generators must show the EPA that they have adopted a certified waste management program

o RCRA is divided into 2 main parts…Subtitle C and Subtitle D both apply to the management of solid waste

6903(27)…solid waste…any garbage, refuse, slug, and any other discarded material resulting from industrial activities, with certain exception

o solid waste actually includes liquid and gaseous materials as well

o scope of the definition of “solid waste” is the single most complicated issue in RCRA

reused and recycled waste does not take you out of the definition of solid wastes

Subtitle D…applies to nonhazardous solid waste Not really federally regulated

Authority for controlling nonhazardous solid waste is mostly delegated to the states

Subtitle C…applies the hazardous solid waste 6903(5)…Hazardous…solid waste that does some

very bad things SLIDE How do we know when a solid waste is actually

hazardous?o EPA has listed some hazardous solid wastes by

nameo If not on list…

A solid waste is hazardous if it exhibits one of the four following traits

(1) toxicity (2) ignitable (3) corrosive (4) reactive

A solid waste also becomes hazardous if it subject to EPA’s mixture or derived rules

Nonhazardous waste mixed with a hazardous waste…resulting mixture is a hazardous substance

Anything derived from changing the chemical composition of a hazardous waste is regarded as hazardous as well

Chemical generator must go through all these steps to determine whether the waste is hazardous

If the waste is not hazardous, the waste is regulated by the state (Subtitle D)

What if the waste is determined as hazardous?...Subtitle C

o Generators must comply with EPA’s manifest system so as to create a paper trial enabling the EPA to follow waste from the cradle to the grave

o Generators of waste do not need a RCRA permit unless it is deemed to be engaged in stored (i.e., holds it for 90 days)

o Generators typically hand over the wastes to transporters

Transporters are regulated Must comply with manifest system Must comply with EPA packaging and

labeling requirements Must minimize any adverse

environmental effect that occur while they are in possession of the waste

Must apply with regulators set forth by Department of Transportation

o TSD (treatment; storage; disposal) facilities are subject to regulations

All terms are defined in 6903 Treatment…6903 (34)

o Neutralize or render waste less hazardous through chemical alteration

Storage…6903 (33)o Containment on a temporary

basis that does not amount to disposal

Disposal…6903 (3)o Discharge, deposit, injection,

dumping, spilling, leaking or displacement…

Very broad TSD is prohibited without a Subtitle C permit

granted by EPA or an authorized state Substantive qualifications for a

permit:o You comply with all standards

issued by EPA under 6924 Tech-based performance

standards Record keeping and

reporting requirements Design standards Locations standards Regular monitoring Corrective action Financial responsibility

requirements…insurance requirements, etc. that allow permit holder to make good; obligations continue for long after closure of the facility

6924 (c-m)…prohibition of certain wastes on land, except for when you first treat the waste

LEAN

o On the merits, the court found that threats to be minimized under 6924 (m) included the threat posed by leaving waste where it currently was.

CERCLA Improper hazardous waste management that occurred in the past

o Backward looking in large part Government cleans up substances then seeks recovery for the

government’s cleanup Reflects to the liability-based approach to risk management

o Threat of liability deters bad behavior Two objectives

o (1) creation of the authority in the fed government to cleanup hazardous substance releases or the threat of hazardous substance releases that could potentially affect the environment

o (2) designating liability for these careless waste management releases so as to provide a deterrent for future releases

where does the Superfund come from?o General revenues from the US Treasuryo A lot of the money in the fund initially came from taxes

imposed on businesses likely to be responsible for the release of hazardous chemicals

o Additional taxes were placed on the petroleum industry Quid pro quo…taxes exempted the petroleum industry

from CERCLA liability (petroleum was not included on the hazardous chemicals list)

o Money gained by the fed government in CERCLA litigation Authorization to continue to collect special taxes ended in

1995o What’s left in the fund is a lot less…Superfund cleanups are

being paid today far more by ordinary tax payers than the companies that are often responsible

o Litigation judgments still go into the fund, but have turned out to be far less than what has been needed

Superfund was designed to finance the cleanup of orphan sites, where no wrongdoer can be definitively fingered

Liability standards in CERCLA are different from liability standards in traditional tort actions

Section 9607(a) Liability…VERY GOOD SLIDES o In order to make a prima facie case under 9607(a), the

government has to prove that there was a release or threatened release of a hazardous substance from a facility by one of the four categories of PRPs

o RCRA hazardous wastes are a subset of CERCLA hazardous substances

National Contingency Plano How CERCLA cleanups by the government are to occur, with

regards to both procedure and substance CERCLA liability is retroactive

o Retroactive liability is imposed so long as there is a rational reason for doing so

What does the government have to show?o CERCLA is a strict liability statute…if you did it, you are liableo Some limited defenses

You can avoid CERCLA liability if you can show that the release was due solely to an act or God or an act of war

9607 (b)(3)…most important affirmative defense release that generated the cleanup was caused

solely by an unrelated third party CERCLA authorizes the imposition of joint and several

liabilityo One can recover of the entire amount of damages from one of

the parties responsible (among numerous responsible parties)o If the harm is not apportionable or divisible, joint and several

liability is appropriateo JS liability acts to shift the burden to the D

D has to prove to the court that the damages are divisible so as to avoid the imposition of JS liability

Traditionally very few PRPs successfully avoid JS liability

o If successful, D may engage in a contribution action under 9613 (f)

Burlington Northerno Increase in the ability to escape JS liability for CERCLA PRPs

CERCLA loosens the causation requirement for the government

o 9607 (a)…government has to prove that there was a release or threatened release that caused the government to incur response costs

o however, Monsanto holds that the federal government does not have to “fingerprint” the hazardous waste as released by the company found liable for the costs incurred by the government in cleanup