1 / 47

Welcome to Environmental Law

Welcome to Environmental Law. Peter Greenwald Spring 2006 (909) 396-2111 pgreenwald@aqmd.gov pg@speakeasy.net. COURSE TOPICS. AIR POLLUTION WATER POLLUTION RISK MANAGEMENT AND SCIENTIFIC UNCERTAINTY REGULATION OF TOXIC SUBSTANCES HAZARDOUS WASTE LIABILITY

abel
Download Presentation

Welcome to Environmental Law

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Welcome to Environmental Law Peter Greenwald Spring 2006 (909) 396-2111 pgreenwald@aqmd.gov pg@speakeasy.net

  2. COURSE TOPICS • AIR POLLUTION • WATER POLLUTION • RISK MANAGEMENT AND SCIENTIFIC UNCERTAINTY • REGULATION OF TOXIC SUBSTANCES • HAZARDOUS WASTE LIABILITY • ENVIRONMENTAL IMPACT ANALYSES

  3. COURSE REQUIREMENTS • ATTENDANCE: • 5 MISSED CLASS RULE • CLASS PARTICIPATION: UP TO 3 POINTS, UP OR DOWN • FINAL EXAM: • ESSAY • OPEN BOOK; OPEN NOTES • MAY HAVE A CHOICE • PRACTICE QUESTIONS

  4. CLASS PROCEDURE • CASES ASSIGNED TO SPECIFIC STUDENTS IN ADVANCE • CLASS BEGINS WITH SUMMARY OF PRIOR SESSION • POWERPOINTS OUTLINE COURSE

  5. COURSE MATERIALS& OUTSIDE AIDS • CASEBOOK: FINDLEY, FARBER, FREEMAN • OUTSIDE AIDS: • HORNBOOK ON ENVIRONMENTAL LAW, RODGERS • NUTSHELL, FINDLEY-FARBER • EXAMPLES AND EXPLANATIONS, FERREY (NONE PARTICULARLY USEFUL FOR THIS CLASS)

  6. COURSE GOALS • UNDERSTAND KEY ENVIRONMENTAL LAWS • MAKE AND EVALUATE ARGUMENTS WITH STATUTES • APPRECIATE HOW ADMINISTRATIVE AGENCIES OPERATE • UNDERSTAND HOW LAWYERS DEAL WITH TECHNICAL ISSUES AND UNCERTAINTY

  7. IN SUM • CASES ASSIGNED TO SPECIFIC STUDENTS • LESS READING THAN MANY CLASSES • POWERPOINTS OUTLINE CLASS • OPEN BOOK — OPEN NOTE FINAL

  8. ATTRIBUTES OF THE CLASS • IT’S HARD • IT’S INTERESTING . . . • IT’S TOPICAL • IT’S POLICY ORIENTED • IT AFFECTS THE PUBLIC AND MANY INTEREST GROUPS • THE LEGAL SKILLS ARE ESSENTIAL & TRANSFERABLE

  9. ATTRIBUTES OF ENVIRONMENTAL LAW • INTERDISCIPLINARY • TECHNOLOGY • ECONOMICS • HEALTH • POLITICS • EVOLVING • INITIALLY HIGHLY ASPIRATIONAL • IMPLEMENTATION ISSUES LEAD TO DELAY, COMPLEXITY • INTERACTION OF LEGISLATURE, JUDICIARY, EXECUTIVE

  10. ATTRIBUTES OF ENVIRONMENTAL LAW, CONT’D • MULTI-LEVEL • FEDERAL • STATE • LOCAL • MULTI-PARTY • VARIETY OF REGULATORY TOOLS • HEAVILY STATUTORY AND ADMINISTRATIVE

  11. KEY STATUTES • NEPANational Environmental Policy Act, 1970 • CEQACalifornia Environmental Quality Act, 1970 • CAAClean Air Act, 1970 • CWAClean Water Act, 1972 • RCRAResource Conservation And Recovery Act, 1976 • TSCAToxic Substances Control Act, 1976 • CERCLA(Superfund) Comprehensive Environmental Response, Compensation and Liability Act , 1980 • Prop65, CaliforniaSafe Drinking Water and Toxic Enforcement Act, 1986

  12. INTRODUCTORY CONCEPTS • WHY IS ENVIRONMENTAL LAW HEAVILY STATUTORY? • LIMITATIONS OF FREE MARKET • LIMITATIONS OF COMMON LAW • PRIVATE & PUBLIC NUISANCE REMEDIES • EFFECT OF STATUTES ON REMEDIES • JUDICIAL REVIEW OF AGENCY ACTIONS IMPLEMENTING STATUTES

  13. LIMITATIONS OF FREE MARKET:THE TRAGEDY OF THE COMMONS (33) • EXTERNAL COSTS • MUCH OF ENVIRONMENTAL LAW SEEKS TO “INTERNALIZE” EXTERNAL COSTS, E.G. BY— • COERCIVE LAWS • ALLOCATE LIMITED POLLUTION “RIGHTS” • EMISSION FEES • LIABILITY FOR WASTES • PUBLIC INFORMATION • RESTRICT APPROVAL OF PROJECTS WITH ADVERSE IMPACTS

  14. LIMITATIONS OF COMMON LAW:BOOMER v ATLANTIC CEMENT CO. (273) • PRIVATE NUISANCE : SUBSTANTIAL AND UNREASONABLE INTERFERENCE WITH USE AND ENJOYMENT OF PROPERTY • COMMON LAW TOOL USED TO REMEDY POLLUTION

  15. BOOMERFACTS, AS STATED BY COURT • NEW YORK RULE: • NUISANCE WILL BE ENJOINED DESPITE DISPARITY OF ECONOMIC CONSEQUENCE, BUT . . . • ENJOINING NUISANCE IN THIS CASE WOULD CLOSE PLANT AT ONCE. (274) • DAMAGE “RELATIVELY SMALL” COMPARED TO — • VALUE OF PLANT, AND • CONSEQUENCES OF INJUNCTION. (274)

  16. BOOMER ISSUE “WHETHER THE COURT SHOULD RESOLVE THE LITIGATION BETWEEN THE PARTIES NOW BEFORE IT AS EQUITABLY AS SEEMS POSSIBLE; OR WHETHER, SEEKING PROMOTION OF THE GENERAL PUBLIC WELFARE, IT SHOULD CHANNEL PRIVATE LITIGATION INTO BROAD PUBLIC OBJECTIVES.” (273)

  17. BOOMER HOLDING • POTENTIAL REMEDIES: • POSTPONE EFFECT OF INJUNCTION FOR TECHNICAL ADVANCES • GRANT INJUNCTION UNLESS PAYMENT OF PERMANENT DAMAGES TO COMPENSATE FOR ECONOMIC LOSS TO PROPERTY, PRESENT AND FUTURE • COURT ALLOWS PAYMENT • PRECLUDES FUTURE RECOVERY

  18. BOOMER RATIONALE • CONTROL OF AIR POLLUTION REQUIRES TECHNICAL RESEARCH, CONSIDERATION OF ECONOMIC IMPACTS, AND EFFECT ON PUBLIC HEALTH. (Bottom 273) • COURT SHOULD NOT DO THIS AS BY-PRODUCT OF PRIVATE LITIGATION • JUDICIARY NOT EQUIPPED TO LAY DOWN EFFECTIVE POLICY. (274)

  19. BOOMER RATIONALE CONT’D • INDUSTRY-WIDE PROBLEM; RATE OF RESEARCH BEYOND CONTROL OF DEFENDANT • ORDER “SEEMS TO DO JUSTICE;” REDRESSES ALLEGED ECONOMIC LOSS. (275)

  20. BOOMER DISSENT • “LICENSING A CONTINUING WRONG.” • LITTLE FUTURE INCENTIVE TO CONTROL • PLANT HAS MODERN CONTROL DEVICES; DOES NOT MEAN BETTER DEVICES COULDN'T BE DEVELOPED • CEMENT COMPANY KNEW PLAINTIFFS THERE WHEN IT STARTED

  21. PUBLIC VERSUS PRIVATE NUISANCES & DEFENSES:SPUR INDUSTRIES v DEL WEBB DEVELOPMENT FACTS • PUBLIC NUISANCE ACTION • 1957: DEL WEBB BEGAN CONSTRUCTION • BY 1967, SUN CITY GREW CLOSE TO DEFENDANT’S FEED LOT • GOOD MANAGEMENT, BUT FLIES AND ODORS BLEW OVER SUN CITY; “ANNOYING IF NOT UNHEALTHY.” (283)

  22. SPUR HOLDING • SPUR A PUBLIC AND PRIVATE NUISANCE • PRIVATE NUISANCE AFFECTS A SINGLE INDIVIDUAL OR SMALL NUMBER OF PERSONS IN ENJOYMENT OF PRIVATE RIGHTS NOT COMMON TO THE PUBLIC • PUBLIC NUISANCE AFFECTS RIGHTS COMMON TO A CONSIDERABLE NUMBER OF PERSONS OR AN ENTIRE COMMUNITY

  23. SPUR RATIONALE • STANDING TO SUE FOR PUBLIC NUISANCE • INDIVIDUAL PLAINTIFF MUST SHOW SPECIAL INJURY (DIFFERENT IN KIND) • ACTIONS TYPICALLY BROUGHT BY GOVERNMENT • COURT: DEL WEBB COULD BRING ACTION • SPECIAL INJURY—LOSS OF SALES

  24. SPUR RATIONALE, CONT’D • COMING TO NUISANCE DEFENSE : • APPLIES TO PRIVATE, NOT PUBLIC NUISANCE • IF DELL WEBB WAS ONLY INJURED PARTY, COMING TO NUISANCE WOULD BE DEFENSE (LIKE PRIVATE NUISANCE) • IF CITY HAD GROWN TO NEAR SPUR, SPUR WOULD HAVE TO ABATE (LIKE PUBLIC NUISANCE)

  25. SPUR REMEDY • “HAVING BROUGHT PEOPLE TO THE NUISANCE TO THE FORESEEABLE DETRIMENT OF SPUR, WEBB MUST INDEMNIFY SPUR FOR A REASONABLE AMOUNT OF THE COST OF MOVING OR SHUTTING DOWN.” (284) • A HYBRID REMEDY; BASED ON CIRCUMSTANCES

  26. LIMITATIONS OF COMMON LAW • PREVENTING HARM VERSUS REMEDYING? • WHICH PARTY USUALLY IN BETTER POSITION TO ARGUE EQUITIES? • WHAT IF MANY SOURCES CONTRIBUTE TO PROBLEM? • WHAT ABOUT HARM TO ENVIRONMENT ITSELF? • DISPARATE LITIGATION & TECHNICAL RESOURCES • NO ONGOING SUPERVISION; LEGAL PATCHWORK • PUBLIC NUISANCE STANDING ISSUES; COMING TO NUISANCE DEFENSE TO PRIVATE NUISANCE . . .

  27. EFFECT OF STATUTORY VIOLATION ON REMEDIES:TVA v HILL (703) THE SNAIL DARTER

  28. EFFECT OF STATUTORY VIOLATION ON REMEDIES:TVA v HILL THE TELLICO DAM

  29. EFFECT OF STATUTORY VIOLATION ON REMEDIES:TVA v HILL (703)FACTS • TELLICO DAM NEARLY COMPLETED; $100 MILLION SPENT • DAM WOULD ENDANGER SURVIVAL OF SNAIL DARTER • DISTRICT COURT REFUSED TO ENJOIN CONSTRUCTION • RATIONALE: CONGRESS CONTINUED TO APPROPRIATE FUNDS FOR DAM

  30. TVA v HILLSTATUTE: ENDANGERED SPECIES ACT • FEDERAL AGENCIES SHALL “ENSURE THAT ACTIONS AUTHORIZED, FUNDED, OR CARRIED OUT BY THEM DO NOT JEOPARDIZE THE CONTINUED EXISTENCE” OF AN ENDANGERED SPECIES OR “RESULT IN THE DESTRUCTION OR MODIFICATION OF HABITAT OF SUCH SPECIES WHICH IS DETERMINED . . . TO BE CRITICAL.” § 7.

  31. TVA v HILLHOLDING RE VIOLATION • DAM CONSTRUCTION A VIOLATION OF ACT • NO EXCEPTION TO § 7 • LANGUAGE, LEG HISTORY, STRUCTURE OF ACT SHOW ENDANGERED SPECIES TO BE AFFORDED HIGHEST PRIORITY (704) • NOT FOR COURT TO SPECULATE HOW CONGRESS WOULD RESPOND TO THIS SPECIFIC CASE (705) • NO AUTHORITY TO BALANCE COSTS (705)

  32. TVA v HILLHOLDING REREMEDY • COURT NOT OBLIGATED TO ENJOIN EVERY VIOLATION OF LAW (705) • BALANCING EQUITIES & HARDSHIPS APPROPRIATE IN ALMOST ANY CASE • BUT, ONCE CONGRESS DECIDES PRIORITY, COURTS MUST ENFORCE (706) • RATIONALE: SEPARATION OF POWERS • COURT HAS NO EXPERT KNOWLEDGE OR MANDATE TO BALANCE EQUITIES (706)

  33. TVA v HILLDISSENT • POWELL & BLACKMUN: ACT SHOULD ONLY APPLY TO ACTIONS INITIATED AFTER DISCOVERY OF THREAT (707) • REHNQUIST: COURT RETAINED “TRADITIONAL EQUITABLE POWERS” • ACT “MERELY” PROVIDES: • “ANY PERSON MAY COMMENCE A CIVIL SUIT ON HIS OWN BEHALF TO ENJOIN ANY PERSON . . . WHO IS ALLEGED TO BE IN VIOLATION OF ANY PROVISION OF THIS CHAPTER. § 11(g)(1). (707)

  34. TVA v HILLLESSONS • CONGRESS CAN “FORECLOSE” THE EXERCISE OF THE USUAL DISCRETION POSSESSED BY A COURT OF EQUITY • PURPOSE AND LANGUAGE OF STATUTE, NOT BARE FACT OF A VIOLATION, COMPELS THAT CONCLUSION. (WEINBERGER CASE, 709)

  35. EFFECT OF STATUTORY VIOLATION ON REMEDIES:WEINBERGER v. ROMERO-BARCELO (709)(NOT ASSIGNED) • DISCHARGE INTO WATER WITHOUT REQUIRED CLEAN WATER ACT PERMIT • LOWER COURT DID NOT ENJOIN THE DISCHARGE; IT ORDERED DISCHARGER TO OBTAIN A PERMIT • COURT TEMPORARILY ALLOWED DISCHARGE TO CONTINUE • RATIONALE: • ACT DOES NOT IMMEDIATELY BAN ALL DISCHARGES; PHASED COMPLIANCE THROUGH PERMIT SYSTEM • ALSO, ACT DIRECTS EPA TO SEEK INJUNCTION IF “IMMINENT & SUBSTANTIAL ENDANGERMENT” • THIS INDICATES CONGRESS DIDN’T INTEND ALL DISCHARGES WOULD BE IMMEDIATELY ENJOINED • HELD: ACT PERMITS EXERCISE OF COURT’S EQUITABLE DISCRETION

  36. AVAILABILITY & STANDARD OF JUDICIAL REVIEW:CITIZENS TO PROTECT OVERTON PARK v VOLPE (126)FACTS (NOT ASSIGNED) • SECRETARY OF TRANSPORTATION APPROVED CONSTRUCTION OF HIGHWAY THROUGH OVERTON PARK • STATUTES PROHIBIT CONSTRUCTION THROUGH PUBLIC PARKS UNLESS NO “FEASIBLE AND PRUDENT” ALTERNATIVE

  37. OVERTON PARKISSUES • JUDICIAL REVIEWABILITY • STANDARD OF REVIEW

  38. OVERTON PARKTHE ADMINISTRATIVE PROCEDURE ACT (APA) • GOV’T ACTIONS SUBJECT TO REVIEW UNLESS— • STATUTORY PROHIBITION ON REVIEW OR • ACTION COMMITTED TO AGENCY DISCRETION BY LAW

  39. OVERTON PARKHOLDING — REVIEWABILITY • ACTION COMMITTED TO AGENCY DISCRETION IS A “VERY NARROW EXCEPTION” — I.E. STATUTE SO BROAD THAT “NO LAW TO APPLY” • THIS CASE: • AGENCY POSITION: “REASONABLE AND PRUDENT” REQUIRES WIDE-RANGING BALANCING; ALLOWS MUCH DISCRETION & IS NOT REVIEWABLE • HELD: NO SUCH BALANCING AUTHORIZED • PROTECTION OF PARKLAND TO BE PARAMOUNT • THERE THUS IS LAW TO APPLY • LESSON: VIRTUALLY ANY AGENCY DECISION IMPLEMENTING A STATUTE IS REVIEWABLE

  40. TYPES OF ADMINISTRATIVE ACTIONS & STANDARDS OF REVIEW • INFORMAL RULEMAKING • REQUIRED APA PROCEDURE: NOTICE & COMMENT • SPECIFIC STATUTE (E.G. CLEAN AIR ACT) MAY REQUIRE MORE PROCEDURES • STANDARD OF REVIEW: ARBITRARY & CAPRICIOUS • DEFERENTIAL (IN THEORY) • FORMAL ADJUDICATION • REQUIRED PROCEDURE: HEARING & RECORD (LIKE TRIAL) • STANDARD OF REVIEW: SUBSTANTIAL EVIDENCE • LESS DEFERENTIAL • INFORMAL ADJUDICATION (THIS CASE) • FREE OF PROCEDURAL REQUIREMENTS • STANDARD OF REVIEW: ARBITRARY & CAPRICIOUS

  41. OVERTON PARKARBITRARY & CAPRICIOUS STANDARD • AGENCY ACTION WITHIN SCOPE OF AUTHORITY • AGENCY’S CHOICE NOT ARBITRARY, CAPRICIOUS, ABUSE OF DISCRETION, AND IS IN ACCORDANCE WITH LAW • CONSIDERED RELEVANT FACTORS? • CLEAR ERROR IN JUDGMENT? • REVIEW MUST BE “SEARCHING AND CAREFUL” BUT COURT MAY NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF AGENCY • COURTS VARY WIDELY IN IMPLEMENTING (E.G. “HARD LOOK”)

  42. GOVERNMENT REGULATION OF AIR POLLUTION:TYPES OF REGULATORY SYSTEMS • HARM-BASED v TECHNOLOGY-BASED • HARM-BASED: • DETERMINE LEVEL OF POLLUTANT IN “AMBIENT” ENVIRONMENT NEEDED TO PROTECT PUBLIC • WORK BACKWARDS TO DETERMINE EMISSION LIMITS FOR SOURCES TO ACHIEVE THAT LEVEL • CAN BE “TECHNOLOGY-FORCING”

  43. TYPES OF REGULATORY SYSTEMS, CONT’D • TECHNOLOGY-BASED: • REQUIRE ALL SOURCES TO INSTALL EQUIPMENT MEETING SPECIFIED STANDARDS • STANDARDS GENERALLY BASED ON AVAILABLE TECHNOLOGY • MAY REQUIRE ADDITIONAL REGULATION TO ACHIEVE DESIRED ENVIRONMENTAL QUALITY • AVOIDS (AT LEAST INITIALLY) DISPUTES ABOUT FEASIBILITY AND “HOW CLEAN IS CLEAN ENOUGH”

  44. TYPES OF RULESWITHIN REGULATORY SYSTEMS • “COMMAND AND CONTROL” RULES • LIMITING AMOUNT OF EMISSIONS, E.G. PPM • SPECIFYING REQUIRED EQUIPMENT (E.G. GASOLINE VAPOR RECOVERY), OR • LIMITING HEALTH RISK CAUSED BY A SOURCE • MARKET PROGRAM RULES, “CAP & TRADE”: • CAP TOTAL EMISSIONS FROM ALL SOURCES • ISSUE EMISSIONS ALLOCATIONS, AND • ALLOW TRADING OF ALLOCATIONS • PERMIT RULES

  45. NATIONAL AMBIENT AIR QUALITY STANDARDS (NAAQS) NONATTAINMENT AREAS STATE IMPLEMENTATION PLANS (SIPS) MEASURES TO ATTAIN NAAQS BY DEADLINES PERMITS ETC NATIONAL STANDARDS FOR HAZARDOUS AIR POLLUTANTS (NESHAPS) ENFORCEMENT & CITIZENS SUITS MOBILE SOURCE RULES (FEDERAL & CA) CLEAN AIR ACTOVERVIEW

  46. THE CAA: HELPFUL DISTINCTIONS • STATIONARY v. MOBILE SOURCES • NEW v. EXISTING SOURCES • MAJOR v. NON MAJOR SOURCES • “CRITERIA” v. HAZARDOUS POLLUTANTS • ATTAINMENT v. NONATTAINMENT AREAS

  47. “CRITERIA POLLUTANTS” FOR WHICH NAAQS HAVE BEEN ESTABLISHED LISTED ON PAGES 298-99: • CARBON MONOXIDE • NITROGEN DIOXIDE • OZONE (VOCs + NOx) • PARTICULATE MATTER • SULFUR DOXIDE • LEAD

More Related