CHAPTER

1. 21 CHAPTER Environmental Law

2. Federal Environmental Law • Fed. environmental law began in 1970 as a result of three failures • Market failure--producers and consumers did not bear the costs they imposed on society by their pollution • Common law nuisance suits were limited • No way to impose pollution control technology • State and local governments could not stop pollution that occurred in one state but affected another state

3. Pollution and the Common Law • Common law nuisance suits • Public nuisance occurs when there is an unreasonable interference with a right held in common by the public • Private nuisance is a substantial and unreasonable interference with the enjoyment of land of another • The harm visited upon the pl. cannot simply be harm that is incurred by all members of the public

4. Common Law Suits • Often the remedies were crude and blunt • In general the courts simply awarded monetary damages to pls. • The courts did not have the power to require antipollution control technology • The courts had to weigh the benefits provided by the polluter versus the costs of the pollution • Generally the courts had the option to shut down the polluter or fine the polluter or dismiss the suit • The burden was on the victim to show that there was a less polluting method of production

5. Trespass and Pollution • When a polluter pollutes he trespasses onto the land of another • The plaintiff must show there is a physical invasion of her rights as a landowner • At common law, many victims would sue for negligence for failing to use reasonable care in handling pollutants, and • Strict liability has been imposed upon those who produce, emit or store hazardous waste

6. Water Rights and Pollution • In the east landowners adjacent to rivers and lakes have riparian water rights • These rights are violated if an upstream user significantly deteriorates the quality of the water for downstream landowners and users such as recreational establishments and fishermen • Dissatisfaction with the common law as a remedy led to federal regulation • Often the pollution occurred in one state and the effects were felt in another state

7. National Environmental Policy Act, 1969 • Every major federal action that affects the environment requires and Environmental Impact Statement (EIS) • The EIS assesses the short and long run adverse environmental consequences of the proposed federal action • Must describe the affected environment • Must discuss possible alternative actions that could accomplish the same goals • Must review possible irreversible effects

8. Federal Environmental Protection (1970) • The Environmental Protection Agency (EPA) was created in 1970 • In addition there are state EPAs that assist in efforts to control pollution • Clean Air Act (CAA) was passed in 1970 • Major amendments in 1977 and 1990 • The CAA requires EPA to establish National Ambient Air Quality Standards (NAAQSs) • Based on public health considerations as well as impact on animals, plants and the environment • EPA uses 7 major pollutants to develop its NAAQS

9. Clean Air Act • Based on the NAAQS, the entire nation is divided between • Non-attainment areas and • These are areas that are not in compliance with NAAQS • Prevention of Significant Deterioration (PSD) • Are in compliance with the NAAQS standard • EPA requires states to develop state implementation plans (SIP) • SIPs define the specific measures the state is taking to comply with the NAAQS’s

10. Clean Air Act • New plants in PSD or attainment areas • In very clean areas, the allowable increase of pollu6tion is very low for a new facility in the area • Owner must agree to use best available control technology (BACT) and not exceed allowable limits • Note that the allowable increases in pollution vary depending on how clean the air is before the contraction of the factory, etc. • For very clean areas, the allowable new pollution from a new source is very low • For moderately polluted areas, the allowable increases is greater • For dirty areas EPA will not allow increased pollution from a new source to cause the area to exceed the NAAQS

11. Clean Air Act • Nonattainment areas are not in compliance with NAAQS’s • A business wanting to construct new factories or sources of new pollution in such areas must: • Agree to use the lowest achievable emissions rates (LAER) technology which is more effective and expensive than BACT • Owners must certify that their other plants are complying with state SIP requirements • Pollution from the new plant will be offset by reductions of the same pollutants in the area • It means that factories sometimes have to pay for antipollution control technology for other firms

12. The Bubble Concept • The bubble concept is a variation on the offset policy in nonattainment areas • All of the firm’s plants in an areas are lumped together • The net impact of the new plant must be no net increase in pollution from that firm • There is no need under the bubble concept for the plant to use LAER at the new plant as long as there is no increase in pollution

13. Mobile Sources of Pollution • Note that the states can adopt more strict standards than the federal NAAQS • Automobiles are the chief source of air pollution • Some states have adopted mandatory carpooling lanes, reduced allowable emissions from exhaust pipes, and require catalytic converters • 1990 Amendments to the CAA require • Substantial cuts in exhaust emissions of nitrogen oxide by 60 percent and emission of other pollutants by 35%

14. Toxic Pollutants • EPA has identified 189 substances that are declared as hazardous air pollutants • The goal is a 90 percent reduction in these pollutants and a 75 percent reduction in the cancer these pollutants cause • 1990 Amendments to the CAA require a 50% reduction in the acid rain pollutants • MACT (maximum available control technology) technology must be used to reduce discharges of hazardous waste

15. CAA Enforcement • EPA can bring suits, as can the states • If EPA brings a suit it can fine the company up to $25,000 per day • There are also provisions for citizen suits which are mainly initiated by environmental groups • Note that if these groups win a suit, they are entitled to reasonable attorney fees • Increasingly willful violations of EPA laws and regulations are being viewed as criminal acts plus large fines • Some state agencies and EPA can recover money from polluters by these suits • Most EPA actions lead to settlements rather than litigation

16. Clean Water Act (1972) • The Clean Water Act (CWA) was amended in 1977 and 1987 • The CWA • Sets national effluent standards on an industry by industry basis using BACT (Best Available Control Technology) • A permit system has been set up regarding point source discharges • Water quality standards set by the states must gain EPA approval • The CWA makes the discharge of a pollutant into navigable waters from a point source illegal unless the person has a permit

17. Point Source Pollution • A point source includes pipes, channels and ditches from factories into navigable water • As opposed to wind driven insecticides from farms which are not point sources • Industrial permits require polluters to list the pollutants that are emitted • The permit lists the quantities that the plant can emit into the water • The permit also lists the type of anti-pollution control technology required, best conventional technology (BCT), best available technology (BAT) and new source performance standards (NSPS)

18. Enforcement • A firm can be prosecuted for operating without a permit or exceeding allowable limits • Firms must report their own violations under the discharge monitoring reports (DMRs) • Again, citizen suits are common • If the firm is complying with the permit both in terms of the technology and the allowable pollution, it is insulated from suit • Note that EPA can change the terms of the permit to reflect advances in antipollution control technology

19. Clean Water Act • Nonpoint source pollution accounts for 50% of the total water pollution • Construction sites, agriculture, logging, and mining operations account for much of the nonpoint source pollution • Also runoff from sewers in large cities • Regulations have been tightened but except for large cities many of these entities do not have the resources for expensive antipollution control technology • Safe Drinking Water Act • Originally passed in 1974, amended in 1986 and 1996 • EPA has erected national standards • Based on health—primary regulations of EPA • Based on taste, odor, and appearance—secondary EPA regulations

20. Safe Drinking Water Act • The SDWA sets MCLs, Maximum Contaminate Levels • For water treatment facilities that cannot comply with MCLs, EPA prescribes a treatment technique • 1996 Amendments to the SDWA • Focus mainly on treatment of water before health problems surface, and • Every supplier of drinking water is required to supply to customers an annual statement that • Describes the source of the water • Level of contaminants, and • Any other water supply issues that affect public health

21. Wetlands • Anyone seeking to affect a wetland must get a permit from EPA • There have been literally large puddles protected as wetlands by EPA • When EPA asserts its authority and labels the land a wetland, the landowner cannot drain her own land • Unless the landowner has a permit issued by the Army Corp of Engineers to drain the wetland • The impact of these regulations are that land is sometimes worthless after EPA declares it a wetland • EPA now has had to pay landowners for these regulatory takings

22. Special Protection • Endangered Species Act (ESA) 1973 • EPA is authorized to determine endangered species and what their critical habitat is • Both private and public commerce is stopped if that commerce threatens a species on the endangered list • In 1995 Congress froze the number of endangered species because of the uncertainty that it creates

23. Ocean Dumping • Ocean Dumping--the Marine Protection, Research and Sanctuaries Act of 1972 • Prohibits dumping into the ocean of radiological, chemical and biological warfare agents • If the dumping would unreasonably harm human health, or would harm the marine environment • The dumper must obtain a permit from EPA to dump • The Act is not that significant because most tankers are not registered under U.S. law

24. Oil Pollution Act of 1990 • Any onshore or offshore oil facility, tanker, vessel owner etc. who discharges oil into navigable waters or in nearby shores is liable for the cleanup • The Oil Pollution Act of 1990 was a reaction to Exxon Valdez incident • Created a national Oil Spill Liability Trust Fund • OPA increases penalties for regulatory non-compliance by allowing recovery from those responsible for oil spills • Recoveries could be attributable to damages not only natural resources, private property and costs to local govt.

25. Land Pollution • Toxic Substances Control Act (TSCA), 1976 • Before a producer can sell a new toxic chemical, it must notify EPA • EPA may order tests and then determines what restrictions are necessary or whether the chemical should be banned • EPA has the power to ban a dangerous chemical entirely or require relabeling • Pesticides are regulated by the Federal Insecticides, Fungicide, and Rodentcide Act (FIFRA) 1947 • Such products be registered with EPA for 5-year intervals • Registration is given when the product does what it is supposed to do, is labeled properly and does not create unreasonably adverse effects on the environment

26. Resource Conservation and Recovery Act (RCRA) 1976 • The RCRA deals primarily with the disposal of hazardous waste • Hazardous waste is solid waste that may cause an increase in mortality or serious illness or poses a substantial potential risk to humans when not properly treated • In order to treat, store, or transport hazardous waste, EPA requires that the operator obtain a manifest • When the generator ships the hazardous waste a manifest is given to the transporter • When the waste reaches the dumpsite, the operator must send the manifest to the owner

27. Superfund • Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) • Generators of hazardous waste are taxed and the proceeds of the tax go to a superfund • The superfund is used to clean abandoned hazardous waste dumps • When EPA spends superfund dollars to clean up hazardous waste, it then seeks to recover those expenses from responsible persons who include a large group

28. Hazardous Waste Cleanups • Among the potentially responsible persons are: • Current owners of the waste site • Prior owners at the time the waste was dumped • Any generator who arranged for the dumping at the waste site • Any transporter who selected the waste site • All of the above are strictly, jointly and severally liable--each of the above are liable for all the costs regardless of how small their blame • CERCLA does allow for a contribution action filed by a def. to sue other defendants for their share of the harm

29. Hazardous Waste Cleanups • Hazardous waste cleanups entail expensive litigation • Because so many parties are liable and will seek to avoid prosecution, 80% of the Superfund monies go to pay legal bills • Purchasers of land must conduct environmental audits to make sure the land is not an abandoned waste dump • The Asset Conservation, Lender Liability and Deposit Insurance Protection Act provided insulation to lenders from liability if they foreclose on land for hazardous waste cleanups • Lenders are exempt from suits as long as they do not participate in management for any land that they acquire through foreclosure

30. CERCLA Defenses • Third party defense (innocent owner defense) • A potentially responsible person must show that the release of hazardous waste was solely caused by a third party • who is neither an employee nor a contracting partner of the responsible person • The potentially has no reason to believe that hazardous waste was released on the land • This rule causes landowners to hire firm to do due diligence audits of land to comply with CERCLA • Other defenses include: acts of God, and war

31. Radiation • Nuclear power is regulated under the Atomic Energy Act of 1954 • The fed. agency regulating nuclear energy is the Nuclear Regulatory Agency (NRC) • NRC supervises construction and maintenance of nuclear plants • The fed. govt. cannot decide what to do with hazardous waste (Nuclear Waste Policy Act of 1982) • State and local govts. also have their own anti-pollution regulations • In general more strict state and local regulations are not preempted by federal antipollution laws