Environmental Law

1. Environmental Law Chapter 18

2. Federal Environmental Regulation • During 1960’s environment became major issue • Since 1970, explosion of federal regulation • Created Environmental Protection Agency (EPA) • Clean Air Act • Clean Water Act • Toxic Substances Control Act • Resource Conservation and Recovery Act • The Superfund • Species Protection • Global Environmental Issues See Exhibit 18.1

3. Pollution and the Common Law • Nuisance Law • Private nuisance: used to protest interferences with rights – either public (a right held in common by the community) or private • Trespass • physical invasion • Often hard to distinguish trespass and nuisance

4. Negligence, Strict Liability and Pollution • Negligence • Failure to use reasonable care to prevent pollution from causing a foreseeable injury. • Strict Liability for Abnormally Dangerous Activities • Applied to businesses producing toxic chemicals or emitting toxic pollutants. • Courts look at the location of a business relative to population centers.

5. Water Rights and Pollution • No common law right to pollute water • Most states rely on riparian water law • People living along streams & bodies of waters have right to use reasonable amounts of water, but must allow water to flow downstream in usable form. • Therefore, there is no right to use and pollute water that later affects downstream users. • Nuisance and other common-law rights used in the enforcement of riparian water rights. • Western states have variety of other water rights.

6. Whalen v. Union Bag & Paper Co. • Whalen used a creek to water livestock and plants. UB&P built a pulp mill upstream and polluted the creek. • Whalen sued for damages & an injunction to stop the pollution. • The trial court awarded $312/year and issued an injunction. • Appellate court reduced damages to $100/per year & eliminated injunction. Whalen appealed to NY Appeals Court. • The NY appeals court ruled that the injunction could not be eliminated simply because it would cause great expense for UB&P as compared to the slight damage done to Whalen. • The NY court of appeals reinstated the injunction and awarded costs to Whalen.

7. EPA establishes National Ambient Air Quality Standards (NAAQS) NAAQS established when air pollution “may reasonably be anticipated to endanger public health and welfare” Each state develops a State Implementation Plan (SIP) (long, very detailed) which must include: enforceable emission limits schedules and timetables for compliance measures for monitoring air quality & emissions adequate resources for implementing and enforcing SIP Clean Air Act 1970, Amended in 1977 and 1990

8. Clean Air Act Permit System • Clean air areas (better than NAAQS) • Called attainment areas or prevention of significant deterioration (PSD) areas • only slight increase allowed (maximum allowable increase) • can construct in PSD only if: • agree to Best Available Control Technology (BACT) • won’t exceed maximum allowable increase • Dirty air area • nonattainment areas –more restrictions than for PSD areas • emissions offset policy has three requirements for construction • use Lowest Achievable Emissions Rate (LAER) technology • any other plants they own meet SIP requirements • pollution from new plant must be offset by more than 1 to 1 from other plants in area • when plant operates air quality should improve • state laws are expanding requirements for new projects

9. Mobile Sources of Pollution • Vehicles are a primary source of pollution that affects the ozone • The law imposes direct controls on certain emissions • State Implementation Plans (SIPs) impose tougher standards • Vehicle emission inspections • Vapor recovery systems at gas stations • Reformulated gasoline • Alternative fuel sources • Forced carpooling considered

10. American Trucking Association v. EPA • Congress gave California permission to regulate emissions from in-use non-road mobile sources of pollution. • Applies to engines that run transportation refrigeration units (TRUs). • Other states may follow California’s rule or adopt no rule at all. • EPA must approve proposed CA regulation unless EPA finds standard unjustified given air conditions in CA (or compliance cost is too high). • California Air Resources Board Plan: To reduce particulate matter emissions from diesel TRU engines by 75% by 2010 and 85% by 2020. • 2009: Rule began – applied to trucks based in and operating in CA. • TRU owners must replace an old engine with new compliant one. • EPA reviewed & approved standard, finding cost was not unreasonable. • The American Trucking Association (ATA) challenged EPA’s decision as arbitrary and capricious. (Continued)

11. American Trucking Association v. EPA, cont. • HELD: ATA’s petition for review denied. • Regulation of mobile pollution sources: States and EPA share responsibility. • Mobile engines are either 1) new on-road, 2) new non-road 3) in-use on-road, and 4) in-use non-road. • ATA argues that California’s rules is de facto national rule because trucks passing through CA are subject to the rule. • That precludes other states from not following CA’s lead – contravention of those other states’ rights under the Act. • Court disagreed. This rule only applies in California. • If ATA’s members do not operate in CA, they need not comply. • EPA adequately considered costs of CA’s TRU rule. • Businesses can comply with about $2,000-$5000/unit. • EPA’s phased implementation helps to minimize costs. • EPA considered the cost and determined the rule reasonable. • Congress chose to permit California “to blaze its own trail with minimum federal oversight.”

12. Toxic Pollutants • 1990 amended Clean Air Act lists 191 substances declared as hazardous air pollutants • EPA sets maximum emission rates (MERs) for each one • General goal: • 90% reduction in emissions for pollutants that had been uncontrolled • 75% reduction in cancer caused by air pollution • The rules are highly technical.

13. Enforcement • EPA has primary authority to enforce Clean Air Act & other environmental statutes • State agencies also are involved • Citizens can bring citizens suits • Environmental groups also bring citizens suits • Recently more environmental offenses have been criminally prosecuted • Over 100 criminal indictments per year • EPA and state agencies collect hundreds of millions of dollars in fines each year • Carrot-and-Stick Approach • U.S. Sentencing Guidelines punishment for environmental crimes reduce penalties imposed on a company if there is voluntary reporting of illegal actions, cooperation w/investigations, educating workforce, etc.

14. Passed in 1972, amended in 1977 and 1986 Objective: “restore and maintain the chemical, physical and biological integrity of Nation’s waters.” 5 main elements: national effluent standards for each industry water quality standards set by states w/EPA approval discharge permit program to enforce pollution limits special provisions for toxic chemicals & oil spills construction grants and loans for publicly owned treatment works(POTWs) Unlawful to dump pollutants in “navigable waters” without permit Almost all waters are under EPA jurisdiction Clean Water Act (CWA)

15. Point Source Pollution Water pollution coming from a pipe (point source) – easiest to ID Billions spent to treat – publically owned treatment works (POTWs) States must designate intended use of all surface water Water dumped into drinking areas must be cleaner than water in recreation areas Controlled with permit system – Industrial permits are under National Pollutant Discharge Elimination System (NPDES) Conventional pollutants (human waste) under best conventional technology(cost effectiveness will be considered) Toxic or unconventional pollution has tighter control under best available technologythat is the best control “capable of being achieved.” (costs not so important) Industrial Permits: If new plant or source of pollution created, even tighter controls callednew source performance standards(NSPS) (use best technology existing to minimize pollution

16. Enforcement • Permit system is a key to enforcement • States have primary responsibility for enforcing permits, subject to EPA monitoring and approval • Operating without a permit or discharge more pollution than allowed violates the law • Firms must monitor their own performance and file discharge monitoring reports (DMRs) (available for public inspection) • Lying about violations is more serious than admissions • Serious violations can lead to criminal prosecution • Citizen suits against polluters are common under the Clean Water Act

17. Peconic Baykeeper v. Suffolk County • 1992: Suffolk County, NY found presence of mosquito-borne disease – 1st time in 75 years; Several deaths occurred from West Nile Virus – also cases of malaria • Officials feared outbreak of encephalitis, a high fatality disease • NY State Commissioner of Health declared public health threat from Suffolk County mosquitoes • County sprayed for mosquitoes • Pesticides approved by EPA under FIFRA • Aerosol mists sprayed from trucks and helicopters into stagnant waters • Environmental group, Peconic Baykeeper, and 2 individuals sued County for violating the Clean Water Act • District Court held for County • Plaintiffs appealed (Continued)

18. Peconic Baykeeper v. Suffolk County, cont. • District Court held spray applicators attached to trucks & helicopters were not “point sources” – sources were “indirect” and into the air • Appeals court disagreed • Point source is “any discernable, confined and discrete conveyance . . . from which pollutants are or may be discharged. • Point source is broadly interpreted – embraces broadest possible definition of pollutants that might enter U.S. waters • Here spray apparatus attached to trucks & helicopters was the source of discharge. • Pesticides discharged “from” the source – not from the air • HELD: Trucks and helicopters were point sources • Environmental group wins.

19. Nonpoint Source Pollution construction sites, run-off from street, mining operations and agriculture, etc. difficult to solve technologically – political issues expensive to treat no easy way to capture contaminated water to treat it Cities have old-fashioned storm water-sewage systems – same pipes carry runoff & sewage Wetlands formerly destroyed, are now protected problem: they breed mosquitoes use permit system permit to dredge or fill wetlands may require restoration to wetlands mitigation banking: construction project ”buys” other wetlands or restores wetlands in exchange for the right to fill some wetlands Nonpoint Source Pollution and Wetlands

20. Toxic Substance Control Act passed in 1976 (TSCA) EPA controls, tracks chemicals Biotechnology monitored Manipulation of biological processes to produce chemicals of living organisms for commercial use Pesticides Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) Most are toxic, some extremely so States can also regulate Registration of pesticide good for 5 years if: product does what it claims it will registration material accurate, label accurate on proper product use will do what it should w/out “unreasonable adverse effects on the environment” Land Pollution – Heavy Regulation

21. Covers toxic substances in market or at disposal transportation, storage, treatment and disposal Old procedure out of sight, out of mind Now must have permit from EPA to runtreatment, storage and disposal sites (TSD) Hazardous wastes defined Ignitability; reactivity; toxicity Manifest system TSD sites must keep manifest waste must be packaged and labeled appropriately identifies origin, shipping route and final destination provides “cradle to grave” control over hazardous waste Resource Conservation and Recovery Act

22. Superfund • Clean up old hazardous waste sites • Since may have many responsible parties for a site, they can be held liable • current owners • prior owners at time of waste disposal • waste generator who arranged for disposal at site • transporter who selected site • Joint and several liability • Most Superfund money is spent on legal and engineering costs rather than actual clean up. • Owners can be responsible for cleanup of toxic waste they did not generate, • Is resulting in a movement toward an environmental audit of property prior to its purchase • EPA is responsible for cleanups at federal facilities. • Because of potential liability, some property is abandoned (brownfields) & not used productively – no one wants to have to clean the site.

23. Species ProtectionHabitat Protection • 1973 Endangered Species Act (ESA) • Covers all species, not just humans • Fish and Wildlife Service (FWS) ofDepartment of Interior primarily responsible for ESA • Little federal $ to accomplish goals, so usually activity is blocked or altered – very controversial area as well • Secretary of Interior declares species of animal or plant life “endangered”and establishes the “critical areas of habitat”of such species that is listed • “Endangered”means any species which is in danger of extinction throughout all or a significant portion of its range • Federal court stopped logging on federal land in Washington, Oregon and California to protect habitat of spotted owl at cost of $25 - $50 billion

24. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon(in text) • Logging and other activities have the possibility of harming the spotted owl. • Private landowners and logging companies challenged Secretary of Interior’s definition of the word “harm” in the Endangered Species Act, stating that the Secretary went beyond what Congress intended in the Act. • The court of appeals agreed, and the Interior Secretary and the Fish & Wildlife Service (FWS) appealed. • HELD: Judgment reversed. The U.S. Supreme Court stated that Congress gave broad interpretive power to the Secretary when it enacted the Endangered Species Act.

25. Ozone Chlorofluorocarbons (CFCs) are “eating” ozone layer which protects earth from ultraviolet radiation Producers of CFCs agreed to phase out production in the Montreal Protocol Global Warming Looked at by developed nations but as yet not a major unified approach International Cooperation CFC production control Montreal Protocol provided fund, set up by wealthier nations, to pay poorer nations to sign agreement to ban CFCs Global Environmental Issues

26. Massachusetts v. EPA • 12 states, local government & private organizations sued EPA. • Said EPA did not live up to Clean Air Act obligation to regulate greenhouse gases resulting from vehicle emissions. • EPA said regulations were sufficient. Appeals court agreed. • Plaintiffs appealed. • EPA is to protect Massachusetts and others from emissions of motor vehicle engines. • Harms from such emissions are well recognized. • Already environmental changes such as global retreat of mountain glaciers, reduction in snow-cover, earlier spring melting of rivers/lakes, rise of sea levels, etc. are occurring. • EPA says the motor vehicles do not contribute significantly to injuries. Problem lies w/developing nations’ industrial pollution. • S. Ct. HELD: EPA has the statutory authority (and duty) to regulate the emission of gasses form motor vehicles. • Risk of catastrophic harm, though remote, is real. • Regulating vehicle emissions will not by itself reverse global warming, but that does not mean the court lacks jurisdiction to decide that EPA has a duty to slow or reduce it.