Enviro Law Flashcards
Environmental law attempts to o INTERNALIZE EXTERNALITIES (make polluters bare the full cost)
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the precautionary principle
Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
• Take action, don’t wait until you have 100% certainty.
environmental justice
• Disproportionate impacts fall unequally on the poorest classes and minorities b/c they aren’t very well politically represented
sustainability
Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs
public trust doc
• Everyone has the right to clean air, clean water, access to the beach; Ex: lake Michigan shoreline couldn’t be developed b/c of public trust doc: that resource is held in trust for future generations
Tragedy of the commons
• Everyone acts in their own self-interests but at some point you will exhaust the resource; pollution is reverse of tragedy of the commons, those putting pollution in the air/water is detrimental and at some point it must be cleaned up.
Coase Thereom
The Coase theorem encourages the most efficient outcome to opposing parties using a common resource
• all polluters and victims of pollution can collectively decide if they are bearing consequences of emissions then the polluter can pay those impacted for right to pollute
• all pollution can be bargained with some price/ downside: transaction costs high and not equal bargaining power
KEPONE Case Study Ex of how Regs would apply to that situation
o CWA: NPDES permits and threat of knowing endangerment to Company Execs
o CAA: compliance with SIP
o EPCRA: dissemination to local community of the nature and characteristic of the chemicals produced as well as emergency preparedness training for the local town;
o RCRA: regulation of waste disposal and hazardous waste
o CERCLA: applies if new facility is on a contaminated site
o SDWA: protection of groundwater for any industrial applications that may perform deep well injection on site
o OSHA: safety and health of employees/workers
o CZMA: siting restrictions for the facility if along a tidal area
o NEPA: N/A – only applies to fed agencies
o PPA: potential conditions to gaining permit include technology designs/adaptions to prevent or lower pollution.
o ESA: no harm to endangered species while constructing or operating plant
o ToSCA: all chemicals must be tested for hazards to human health and environment before being manufactured
Elk River Chem Spill demonstrates that Act isn’t working
o FIFRA: must register any pesticide type chemical before selling
o HMTA: any transport
Borland v. Sanders Lead Company *Trespass case: lead on farmer’s prop
• In Borland the trespass was the smoke from the Sanders Lead Co smoke stack containing lead particulates and SO2, invisible to the naked eye, settling on their property, making it unsuitable for raising cattle and growing crops.
o 1) physical invasion = particles
o 2) intention = D’s substantially certain consequences of any actions the D intended to take
• D attempted permit defense
• Borland citing Martin: “force and matter” test: lead particles coming down on the property is enough to maintain an action in trespass.
Boomer et al. v. Atlantic Cement Company *private nuisance from cement plant
• In Boomer, the particulate contaminate in the form of fine dust particles form the cement plant are forming on the P’s property, as well as noise and vibration.
o Court did a balancing test: gravity of the harm v utility of the conduct:
Dust, noise, vibration to residential P v. significant tax payer and job creator for the local area
o Court grants an injunction for so long until an amount is paid to Plaintiff.
New York v. Schenectady Chemical Company *public nuisance
o In Schenectady, waste was disposed of by an ind. Contractor in a swamp which polluted the public drinking supply.
o State brings public nuisance action.
o Court Rule: those contributing to a nuisance are liable jointly and severally and “it is fundamental that a plaintiff is free to choose his defendant.”
o LAW TODAY, CERCLA: If you generate the haz waste, you own it, and it follows you – always attached to you so you don’t get away with hiring contractor to dispose of it.
Join and several liability, last person left standing could pay for all of waste even if there were multiple polluters at the time and all pollution mixed.
Spur Industries v. Del Webb Development Co. “coming to the nuisance” case
- Outcome: D had to move but P had to pay for it.
- Coming to nuisance theory only works in private nuisance, not public nuisance. This is another advantage of public nuisance – no coming to nuisance defense.
Comer v. Murphy Oil:
• Lawsuit by MS landowners against oil, coal, utilty companies demanding D liable for damages caused by hurricane Katrina;
• District Ct dismissed saying P lacked standing and claims presented a political Q that were preempted by the Clean Air Act.
• Appeals Court: this is not a political question and there is nothing that stops the court from addressing this. This is a common law tort and we can deal with this.
• Appeals Court decision vacated so the district court decision remains.
Summary: now you have EPA exercising authority under CAA to regulate GHG to address issues that P is complaining about so no need for common tort law actions going forward
Village of Kivalina v. Exxon:
• Dismissed, Clean Air Act preempts; relies on AEP v. Connecticut
CA v. GM (2007):
• Dismissed as presenting non-justiciable political questions; no appeal
!Bottom line: political Q is big hurdle to common law climate change actions
Mass. V. EPA (2005):
• Standing to sue EPA for not enforcing GHG emissions; Court: you have to regulate under Clean Air Act.
AEP v. Connecticut (2011):
• US Supreme Court affirmed dismissal of claims; holding they are displaced by provisions of the Clean Air Act authorizing EPA to address greenhouse gas regulation of power plant emissions”
now you have EPA exercising authority under CAA to regulate GHG to address issues that P is complaining about so no need for common tort law actions going forward
Branch v. Western Petroleum, Inc. *drilling waste water seeps onto farmer’s prop and contaminates the high quality water well
Rest 520: one carrying an abnormally dangerous activity is held strictly liable. • Western Petroleum engaged in abnormally dangerous activity.
Reasoning: proximity to P’s property and polluter pay’s principle: your conduct harmed drinking water of neighbor so you bare consequences
o if the combined result is a single and indivisible injury, the liability should be entire.
• Indivisibility can mean either the harm is not even theoretically divisible (death or total destruction of building) OR the harm is single in a practical sense in that the P is not able to apportion it among the wrongdoers with reasonable certainty.
“Where the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrondoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit
P is relieved of liability of showing what portion each D is liable; D has to sort it out among the other D’s the portion of liability; burden shifts.
What are the various defenses that may be asserted in environmental cases?
- Primary jurisdiction: exhaustion of the remedies; you can’t sue me in court, the DEP has primary jurisdiction and you need to pursue relief with them.
- Permit defense: polluting activity
- Failure to join indispensible party
- standing
- Balance of equities (Boomer)
- Sovereign immunity
- Act of God/war
- Statutory preemption (like Clean Air Act prohibits)
- Laches
- Joint tortfeasor release
- Vicarious liability
- Ind. Contractor
- prescription
- Frye: gatekeeper function: you can’t testify unless what you’re talking about is generally accepted in the particular field in which it belongs.
- To determine general acceptance: peer review, publications, etc.
“Daubert hearing” whenever plaintiff wants to put up an expert witness, judge has gatekeeping role: qualification of witness, will it assist trier of fact, and whether or not its reasonably relied upon by experts in the particular fild.
• NOT general acceptance test anymore, you probe how widespread the theories relied on by expert are used.
• It’s gatekeeping role to determine if this will get to jury.
Woburn solvents contamination (A civil action)
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P had to show where the chemicals came from. There was no doubt wells were contaminated, just where it came form.
o Plaintiff theories: Personal injury, public and private nuisance, negligence, intentional tort, strict liability
- Burden of proof: linkage between contamination of water and children’s leukiama.
- Defense: Rule 11: factual contentions must have evidentiary support; motion for summary judgment.
Anderson v. W.R. Grace, Beatrice Foods
elements of emotional distress arise out of plaintiff’s injuries, so plaintiff’s may seek to recover for them. Here: P illness (physical harm to immune system) caused them anxiety and pain.
the harm caused by D conduct must either have caused or been caused by the emotional distress.
emotional distress with respect to witnessing a fam member die is not immediate, but is built over time; Must be sudden.
Claims for increased risk of future illness not allowed, nature of P claim for increased risk of future illness is unclear
Recovery for “Toxic Proximity” is allowed if the market vlue of your prop declinces as a result of nearby presence of haz. materials.
• Prof: kind of a stretch but allowed.
Donaldson v. Central Illinois Public Service Company
• Children developed neuroblastoma, a rare form of cancer, during the cleanup of the CIPS site and their acts or omissions during site cleanup (clean up of coal tar).
evidence of proximate causation, which includes both “cause in fact” and “legal cause”
o Cause in fact: using substantial factor test, showing that D conduct was a material element and substantial factor in bring about the alleged injury.
o Legal cause: examines the foreseeability of injury, whether the injury is of a type which a reasonable man would see as a likely result of his conduct.
- Court applied Fry general acceptance test to determine whether the testimony of P 3 experts was admissible.
- Frye was still law in IL at time of this case in 2002. 14 states currently apply Frye.
Landrigan v. Celotex Corp. (page 179) *the smokers case (colon cancer: did smoking or asbestos cause the cancer?)
- Relative risk: the ratio of the disease rate in those with the factor to the rate in those without (smokers for lug cancer is ex at top of page 180).
- Attributable risk: the proportion of the disease that is statistically attributable to the risk factor.
- Burden of proof is usually “more likely than not” so 2.0 is the magic number for relative risk.
- If relative risk is 1.9:1 then attributable risk is 47% and you haven’t sustained your “more likely than not” burden of proof.
- If relative risk is 2.1:1, then attributable risk is 52% = you’ve met “more likely than not” burden.
HARM BASED STANDARD
• 1) correlates concentrations of pollutants in the receiving body with undesirable human health and environmental effects;
• 2) selecting a target level (ex: ambient quality standard) for concentrations the regulator deems safe
• 3) prescribing the amount of pollution that individual polluters whose pollution affects the receiving body may emit or discharge in such a way that if each polluter complies, the ambient standard will be attained.
o Both the CAA and CWA illustrates the harm-based technique.
Technology Based Standard
set performance levels for pollution control based on available technologies.
o Do not require any specific way of achieving that level of performance, leaving room for innovation and cost savings if more efficient ways to meet standard are available.
• example:
o Regs of Hazardous Air Pollutants (HAPs) under the Clean Air Act.
o Technology Based Effluent Limitations (TBELs) under Clean Water Act
o MATS Standards
technology-forcing standard
when the legislature desires to achieve a pollution reduction result that cannot be met by any existing in-use tech. Legislature picks a time which it thinks a new, more effective pollution control technology can be brought on line.
o Ex statutes include vehicle tailpipe emissions and elimination of certain types of CFCs.
Disclosure
o disclosure requires a full inventory of environmental impacts of a proposed action during the planning process so alternatives can be studied to reduce environmental impacts.
Ex statute is NEPA;
Ex: Toxic Release Inventory (TRI) under the Emergency Planning and Community Right-to-Know Act (EPCRA)
What is a roadblock statute
• a flat prohibition on environmentally damaging behavior (Endangered Species Act)
market-based regulatory strategy
- market-enlisting techniques try to influence polluter behavior by aligning the marketplace economic incentives with the behaviors that will result in the desired environmental outcome (subsidies and pollution taxes are examples, as well as emissions trading programs such as the acid rain program under the Clean Air Act).
- Achieved desired reduction in pollutants by gradually reducing the number of allowances/permit.
• Traditional command and control approach would require each person in exercise to reduce carbon emissions by 20% (harsher than cap and trade).
- Cap and trade reduces reliance cost.
* TEQ (Tradable Energy Quotas ) provides more flexibility.
Enabling Statute
• Congress delegates to Agency the authority to enact such rules as necessary to enforce such functions.
• Clean Air Act: statute provides overall guidance, but EPA issues regulations based on that.
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- rulemaking is the issuance of regulations (prospective);
- adjudication is the process of making operative agency decisions by applying legal standards set out in statutes or regulations to the facts of particular cases
!• Agencies decide whether to act through a rulemaking or adjudicatory process
Advantages of rulemaking:
• a notice and comment period, idea is you’re going to get input through the comment process of all the stakeholders (politicians, private interest groups, etc.)
o Adjudication is just parties/litigants in front of you so not as broad participation.
• wider applicability; applies prospectively basically to everybody (Adjudications on the other hand apply retroactively).
Rulemaking provides much more flexibility in the process: it’s basically a notice and comment, analyzing the comments, and explains that based on the comments this is how we will proceed;
• Adjudication requires all the cross-examination, discovery, etc., much more tedious.
• informal rulemaking: Public notice; opportunity to comment (no required process)
• formal rulemaking: hearing on the record; formal trial-type process. (right to discovery, motions, production of evidence, cross examination).
o Usually factual issues, not legal questions.
Rybachek v. EPA
o Rybacheck thought placer mining Settleable Solids Rule that the volumje of process wastewater which may be discharged from a dredge plant site shall not exceed 0.2 ml/liter of settleable solids too strict
- “supportable by the record” Suggests substantial evidence test which suggests a formal rulemaking process;
- Substantial evidence test = formal rulemaking
EPA decision upheld
Hill v. TVA
agency is sued as itself a defendant (the actor taking the action) because of its own allegedly illegal programmatic actions.
• Issue: could dam be stopped to save the Snail Darter?
• standard of review: the arbitrary, capricious (easier than substantial evidence)
What standard of review is typically applied where factual findings are being challenged in appeals from informal agency actions (informal rulemakings or adjudications)?
: the arbitrary, capricious, or abuse of discretion test
What standard of review is typically applied where factual findings are being challenged in appeals from formal, “on the record” agency actions?
substantial evidence requirement
What standard of review is typically applied where a legal interpretation underlying the agency action is at issue?
contrary to law
Citizens to Preserve Overton Park v. Volpe
standard of review is a “narrow” one, will not sub their review for that of the Agency; it’s a messy opinion and standard of review isn’t explicitly identified.
• Court sent it back due to inadequate record (admin record was not before teh court); the agency didn’t tell the story
What are the threshold tests that must be satisfied (or procedural barriers to be overcome) before a party can seek judicial review of an agency’s actions?
- justiciability/reviewability
- if discretionary act of Agency is not subject to judicial review, although there is the arbitrary and capricious standard
- standing, injury in fact, can your injury be redressable
- Causation
- exhaustion of remedies (“weve delegated authority to this particular agency with expertize in the area….”)
- and ripeness (must be a dispute; can’t be advisory opinion).
Vermont Yankee v. NRDC – uranium disposal issue
). Court can’t step in and tell an agency it must do more than what the APA requires.
Hard Look Doctrine (from Vermont Yankee v. NRDC)
when congress has set a statutory standard for agencies to apply, courts must see enough evidence on the record to be satisfied that the agency itself took a “hard look” at all relevant facts and the statutory standards that applied to them.” The determination is subjective.
(• It does not appear this was applied in Vermont Yankee, the court focused on the issue and error of the Appellate court applying additional procedural requirements on the Agency.)
Chevron v. NRDC
Chevron Two-Step:
- Step One: Given the statutory language, is the intent of Congress (in the eyes of the reviewing court) clear? If so, the court will itself declare that interpretation, whether the agency agrees or not.
- Step Two: If the court decides the meaning is not clear, then the court must review the agency’s interpretation deferentially, upholding it if the court thinks the agency’s answer is based on “a permissible construction of the statute.”
HERE: Congress hadn’t spoke precisely to the question at issue so the Court proceeded to step 2 to conclude that EPA’s interpretation was permissible and reasonable.
o Prof: if chevron applies it’s pretty much over, very deferential to agency.
Why is the National Environmental Policy Act (NEPA) described as a “disclosure” statute
NEPA is a broad stop and think, disclose to the public, administrative law.
• NEPA Section 101 references public trust doctrine; it’s a “motherhood” statute
• Agencies must produce a publicly reviewable physical document reflecting the required internal project analysis.
• Enforcement Mechanism: None
• Section 102, specifically 102c is the guts of NEPA;
o disclose the environmental impact and evaluate the alternatives.
Calvert Cliffs(case) establishes that you can use nepa to halt projects if the environmental assessment has not been performed.
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• CEQ (Counsel on Environmental Quality) is an executive branch agency in the Office of the President overseeing NEPA. Dependent agency
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o If there is any federal permit required that’s enough for federal involvement and use of NEPA. It doesn’t necessarily need to be a government project. federal funding, state/local gov actions, legislative,
o CEQ regs: Major means impact to society as a whole, any aspect of environment that can affect humans, direct/indirect impacts on social health
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Segmentation:
tactic to avoid NEPA analysis; entire project is divided into smaller segments and the least destructive segment is built first so the impact statement is limited to that segment.
• Courts have fashioned an “independent utility test” to determine whether the segmentation is lawful under NEPA regs that required consideration of “connected actions.”
o The test: the court determines whether the segmentation has “independent utility” or is merely an attempt to evade NEPA’s requirements.”
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What is a “programmatic” EIS, and how is it used?
- Doing same thing in # of diff locations, don’t need EIS for each site; this activity has same impact at all locations so you get a programmatic EIS;
- Ex: mountain top removal: it’s exact same at each site/location so programmatic EIS applies to all locations.
Timing of EIS: needs to be done before project begins;
include in an environmental impact statement (EIS)?
• A discussion of significant environmental impacts, and
• Alternatives to the proposed action
NRDC v. Grant
when the failure to file an impact statement is challenged, it is the court (that decides) that must construe the statutory standards of ‘major federal action’
• Standard of Review for agency determination not to prepare an EIS: usually informal process, factual = arbitrary and capricious standard under Administrative Procedure Act.
Court decides whether an EIS is adequate; standard of review does a court apply when it is reviewing the adequacy of an agency’s EIS: arbitrary and caprcious standard;
Center for Biological Diversity v. National Highway Traffic Safety Administration (NHTSA)
o EA (Enviro Assessment) before EIS.
o EA: prelim step to det. whether action may sign. affect environ and trigger requirement for EIS.
EIS: contains a discussion of significant environmental impacts and alternatives to the proposed action
Court here: you need to consider full range of alteratives; did your analysis really consider the incremental benfits of reducing greenhouse gases associated with more stringent CAFÉ standards.
the EA did not evaluate the incremental impact thate emissions will have on climate change or on the environmnent more generally.
The agency considered a very narrow range of alternatives
- With respect to NEPA doctrine, agency must take a HARD LOOK at environmental consequences; .
- Even small incremental impacts can add up and that doesn’t preclude you from doing the analysis; you must do the analysis (Mass v. EPA).
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Mid-States Coalition for Progress v. Surface Transportation Board
- Government board had to issue a license so an environmental impact statement is required.
- The EIS did not examine the effects that may occur (increased pollutants associated with coal burning that aren’t capped) as a result of the reasonably foreseeable increase in coal consumption due to increased accessibility of coal in the Powder River Basin.
• Prof: You’re not just looking at direct impacts, analysis requires consideration of indirect impacts (shipping dirty coal to more markets to increase use of coal and more pollutants). IF you facilitate the export of coal internationally, that facilitates pollution into the atmosphere and that must be taken into consideration for a rail line or coal export marine terminal. This is how broad you have to go for Environmental Impact.
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How is NEPA used as a “small handle” to obtain environmental review of a project that is otherwise not subject to such a review?
- If a transaction or project involving private entities utilizes federal land or requires a permit from a federal agency then NEPA applies; federal funding, state/local gov actions, legislative,
- Use small role of fed gov to get NEPA review on a project
Emergency Planning and Community Right-to-Know Act
EPCRA
Section 313 establishes the Toxic Release Inventory (TRI) which requires facilities that “manufacture, process, or otherwise use, listed toxic chemicals in amounts above designated thresholds and that employ ten or more FTEs to file annual reports with the EPA.
facilities must file reports detailing:
o Whether chemical manufactured, processed, or used
o Estimate of maximum amounts of chemicals on site
o Treatment methods
o Quantities of chemicals released to environment.
What are the pollutants currently designated by the EPA as “criteria pollutants”? Why are the National Ambient Air Quality Standards (NAAQS) for these pollutants referred to as “harm-based” standards?
carbon monoxide; lead; nitrogen dioxide; particulate matter 10 and 2.5; Ozone; and Sulfur Dioxide.
• They are referred to harm based standards based on scientific evidence of potential harm to human health and welfare. They are the most ubiquitous and best understood air pollutants in the U.S.
What is the difference between a harm-based standard and a technology-based standard?
- Harm based: Set based on level of harms trying to avoid. Harm based does vary based on whether your’re on attainment or non attainment area; they are variable.
- Technology based: Set based on best available technology (can consider cost when establishing a tech based standard). Tech doesn’t vary by state, standard across U.S.
***o Industry prefers harm based, implemented at state level
What are the standards applied by the EPA in determining whether to designate a pollutant as a “criteria pollutant”? What are the standards that EPA applies in determining the NAAQS for that pollutant?
• scientific evidence of potential harm to human health and welfare.
dangers of public health or welfare
NRDC v. Train
• Once you determines something is danger to public health then you’ve got to develop a national ambient air quality standard for it.
Setting NAAQS:
- costs not considered; cnanot consider costs.
- scientific certainty not required.
What is the process for enforcing NAAQS? What is the role of states? What is a SIP? What is a FIP, and when does it come into play?
- SIP could be subpar if it looks like it won’t be effective. SIP must demonstrate commitment to meet Federal Air Quality Standard .
- WV with existing plant emission rules: we aren’t doing a SIP, EPA go ahead and do your FIP, but we’re not going to play. Consequence for State is that they lose control.
o It needs to appear from SIP plan that it will be achieved and maintained.
o Lots of flexibility using fees, marketable permits, auctions of emission rights (states own cap and trade program). Try to use market based approach if possible.
Whitman v. American Trucking Association
Consideration of implementation costs when determining NAAQS forbidden
• Breyer, Dissent: consideration of costs permitted
o Trucking association arguing about separation of powers: improper delegtion of authority, violates non-delegation doctrine; no guidance or standard for agency to comply with.
DC circuit bought this argument and remanded to EPA to establish a determinate standard.
• Supreme Court: can’t consider costs for determining NAAQS.
o Industry would side with Breyer dissent that consideration of costs are permitted.
Lead Industries Association v. EPA
scientific certainty NOT required when EPA establishes a NAAQS.
all that is required by the statutory scheme is evidence in the record which substantiates his conclusions about the health effects on which the standards were based.
Air Pollution Control District v. EPA
Issues of transboundary pollution
- Downwind issue:
- Here KY was downwind from IN, so things happening in IN affect whether KY is in non-attainment.
- EPA didn’t do anything as a response.
- Only 3% from IN to KY isn’t enough….
- Deferential standard of review; its okay for EPA to now resolve all these disputes.
- More of a hands off approach (case was 1984)
- Court says it was a reasonable course of action
Outconme may seem unfair to KY, downwind from IN pollution. BUT This avoids the pitfalls of some vague equity based approach that would inevitably embroil EPA in bitter interstate disputes involving protracted evidentiary matters concerning the precise extent of interstate pollution.
- NOTE Diff. result under Tech Based Standard: - - Tech Based Standard advantage is that it applies equally across the country so it would minimize the downwind impacts.
- Now: good neighbor provision: cant do things in one state that significantly contribute to non-attainment in a down wind state.
Attainment and Nonattainment Areas
What is LAER? When does LAER apply, and how is it determined? Is it a technology-based or harm-based standard?
• LAER is the lowest achievable emission rate
• applies to NEW SOURCES IN non attainment areas.
• Technology based standard
o b/c new source in non attaintment so its high standard to apply beforeEPA allows another source in there.
o LAER also requires deals with other polluters so overall you achieve overall progress.
What is RACT? When does RACT apply, and how is it determined? Is it a technology-based or harm-based standard?
• Reasonably Available Control Technology (RACT)
- applies in EXISTING non attainment areas (existing stationary sources).
- Technology based standard.
Attainment Areas:
- PSD: prevention of significant deterioration.
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Cross States Air Pollution Rule (CSAPR) replaces CAIR
- transboundary pollution issue, how to deal with transboundary issue
- Issue is the good neighbor provision; shouldn’t be doing something in on estate that signficinatly contributes to pollution in another state.
o The current State of law on trans boundary pollution:
EPA’s cost effect allocation of emissions reductions among upwind States is a permissible, workable, and equitable interpretation of the Good Neighbor Provision
States don’t have to have a 2nd opportunity to provide a SIP.
LOT OF DEFERENCE. “Chevron Deference” Congress spoke to extent it laid out good neighbor decision, EPA interpretated it, SCOTUS says CASPR upheld.
Massachusetts v. EPA; decision requires EPA to regulate GHG as pollutant.
• Court said: EPA cannot avoid taking action unless they actually explain why…EPA refused to comply with clear statutory command. EPA has offered no reasoned explanation for its refusal.
broad term “air pollutant” – fairly broad scope; air pollutant turns out to be basis for decision.
o Endangers public health or welfare
o Endangerment finding triggers the courts holding (Section 202 requires endangerment finding before EPA can regulate something as pollutant).
Clean Air Mercury Rule CAMR
• Findings EPA made in Dec 2000 order that it was “appropriate and necessary to regulate coal and oil fired EGUs under Section 112 because mercury emissions from EGUs, which are the largest domestic source of mercury emissions, present significant hazards to public health and the environment.
CAMR Approach:
• Plant specific standards, but also established the ability to do a cap and trade (national mercury emissions cap, allocated each state a mercury emissions budget, supplemented by a voluntary cap and trade program).
o Issues with regulating mercury under cap and trade program:
Mercury has a unique set of impacts; Mercury has more localized impacts so if you allow cap and trade then some utility’s can continue to ignore mercury emissions so regions around those coal plants become hot spots (allowing polluters to continue to pollute; others control their emissions more cost effectively).
New Jersey v. EPA
What findings did EPA fail to make when it adopted the CAMR in March 2005? What standard of review did the court apply in overturning EPA’s decision?
• EPA failed to make findings required by Section 112c9 in delisting the EGUs;
o Epa had to make finding via 112c9, that it was adequate to protect public health. Had to Undo the appropriate and necessary finding from 2000, but didn’t do that.
o Error of law under Chevron step 1, EPA not following process violated plain text of the statute (what congress clearly directed).
What is MACT and how is it determined? Is it a technology-based or harm-based standard?
• Maximum Achievable Control Technology (MACT) Standards.
o 2 step process:
the MACT floor is established based on what is currently achieved by sources – costs may not be considered.
EPA may regulate beyond the floor
• Technology based approach.
In re Northern Michigan University Ripley Heating Plant
^^Case illustrates new source in attainment area, must apply for PSD, requires BACT which means Best Achievable so use low sulfer not high sulfer coal and don’t burn wood for 30 days (minimal wood burning).
proposed facility in Attainment or unclassifiable area for So2, CO, ozone, PM, and NOx (accordingly, PSD compliance is required under federal law for an attainment or unclassifiable area; PSD program is N/A in nonattainment area).
University sought a PSD permit, which included BACT (Best Available Control Tech)
• Standard of review: clearly erroneous standard.
court points out that there ate least 2 coal fired, lower sulfer polluting facilities, both employing low sulfur coal or other low sulfur emission technological features apparently achievable but inexplicably rejected for the NMU facility. (Why limit coal supply to high sulfur stuff when low sulfur coal is readily available)
• MDEQ offers few connecting threads of logic or date to sustain these fuel choices, justify them as enabling NMU to ahieve emissions limitations clean enough to be BACT, or support the redefining the source claim. Decision lacks a coherent, clearly ascertainable basis, or careful and detailed look, and we are unable to conclude that it meets the requirement of rationality
International Harvester v. Ruckelshaus
*strict EPA emissions standards on big 3 auto
Clean Air Act standard a technology-forcing standard b/c it forces the industry to broaden the scope of its research, to study new types of technologies and control systems.
Legislation had a 1 year escape hatch, but EPA wouldn’t grant it.
EPA had no clear basis for denying extension, National Academy of Science report was in there saying it wasn’t achievable, so the auto industry ultimately got an extension.
This is example of technology forcing; like 111b for carbon dioxide; is CCS technology adequately demonstrated for coal? One of the motives for EPA is to force industry to invest in CCS. Some argue it still kills new coal plants and its just like this case b/c the standard can’t be met. Counter by EPA is Kemper plant in MS, so its feasible but not widespread
EPA technique: be aggressive to force technological standards as long as standards reasonably attainable.
a. NPDES: National Pollutant Discharge Elimination System
a. The permit authorizing you to release a certain designated pollutant from a point source; authority to pollute.
b. BAT: Best Available Technology Economically Achievable
a. BAT does not have to compare cost and benefit it’s a reasonable standard.
b. You use BAT to set the standard and industry is free to use any tech they want to in order to get there; EPA doesn’t prescribe the technology.
c. For TOXIC pollutants
c. BCT: Best Conventional Pollutant Control Technology
a. For conventional pollutants
d. BPT: Best Practicable Control Technology Currently Available
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e. BADT: Best Available Demonstrated Control Technology
a. When you have a new source performance standard then you use BADT.
f. TBELs: Technology Based Effluent Limitations
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g. WQBELs: Water Quality Based Effluent Limitations
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h. POTWs: publicly owned treatment works (POTW)
Water treatment faciliites
a. NSPS: New Source Performance Standards
New Sources
What are the differences between § 402 permits and § 404 permits
- 402 establishes the NPDES permit program to regulate point source discharges of pollutants into waters of the United States.
- Under 402, States issues the permit SPDES but EPA will do it if State doesn’t with NPDES.
• 404 CWA Section 404 establishes a program to regulate the discharge of dredged and fill material into waters of the United States, including wetlands. Responsibility for administering and enforcing Section 404 is shared by the U.S. Army Corps of Engineers (USACE) and EPA. Must not violate water quality standards.
five elements of the prohibition of § 301 of the Clean Water Act
- Have to have NPDES permit to authorize discharge; unlike CAA, requires a permit for every discharge within scope of CWA.
- Discharge, pollutant, point source, waters of united states, w/o permit.
Clean Water Act define a “point source
any discernible, confined and discrete conveyance. . . from which pollutants are or may be discharged.
• Examples: pipe, ditch, tunnel, channel, tunnel, conduit, well
navigable water is waters of the U.S.
• most courts will use Kennedy’s nexus test from Rapanos case: wetland’s come within the term 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.
“addition of a pollutant” under the Clean Water Act
• Discharge is defined as an addition
• It doesn’t include pollutants already present;
• So if a dam is taking water behind the dam and putting it on the other side; we don’t include dam as discharging a pollutant.
• Conventional pollutants:
o Total suspended solids
o Biochemical oxygen demand
o Fecal coliform
o pH
o oil and grease
• it’s a higher standard for toxic pollutants, lower standard for conventional pollutants.
Discernable, defined, discrete conveyance: if water can create a chanelling and get into waters of U.S. then you can get there.
- Ex: a backhoe can be a point source; if the wetland is a water of the U.S.
- Ex: if transferring one body of water to another via a tunnel. Yes:
**Its whether you are changing character of the water. If you change quality of water then it’s a point source.
• Ex: fishing boat taking fish out of water and dumping excess scales oil into the ocean IS a point source; biological matter is covered as a pollutant.
mountaintop removal, mountaintop mining is point source IF runoff is channeled, can become a point source (def: discrete conveyance).
helicopter spraying pesticides
trap and skeet shooting ranges over a wetland point source b/c lead is a pollutant
concentrated animal feeding operations is a point source
: placer mining is a point source (see Rybacheck case)
