Environmental Laws And Pollution Control

1. 17 Environmental Laws And Pollution Control

2. Government’s Regulation Of Itself • National Environmental Policy Act (1970) • Environmental Impact Statement- Scoping • EIS Criticisms • Fails To Consider Economic Injury • Considers Too Many Alternatives • Too Descriptive/Not Analytical • Document Of Compliance • Process Limits Usefulness

3. Environmental Impact Statement Requirements Major Action Federal Action Human Environment Detailed Statement Environmental Impact Statement Examines Adverse Environmental Effects Irreversible Commitment Of Resources Alternatives To Proposed Action

4. Environmental Issues • Gov’t Regulation Of Itself • National Environmental Act (NEPA) (1969) • Regulates Governmental Decisions affecting the Environment • Establishes policy goals • Imposes duties on federal agencies • Requires Environmental Impact Statements (EIS) Prior to Actions Affecting Quality of the Human Environment (see box, p. 510) • Sets up Council on Environmental Quality • Provides for federally funded studies and projects • State Environmental Policy Acts (e.g. CAMA)

5. Environmental Issues • Gov’t Regulation Of Itself • National Environmental Act (NEPA) (1969) • The criticisms of the EIS process. • a. Economic injury caused by abandoning or delaying projects. • b. Lack of consideration of economic reasonableness. • c. That environmental factors are often so complex that the EIS process may amount to little more than guesswork.

6. Environmental Issues • National Environmental Act (NEPA) • METROPOLITAN EDISON CO. v. PEOPLE AGAINST NUCLEAR ENERGY • 103 S.Ct. 1556 (1983) • FACTS: Residents (PANE) near the Three Mile Island nuclear plants challenged the Nuclear Regulatory Commission's decision to restart one of the plants. The plant had been closed for refueling at the time the other plant suffered a serious accident. The residents contended that the Commission failed to consider the psychological harm that reopening the plant and exposing the community to the risk of nuclear accident might cause. • ISSUE:Does the National Environmental Policy Act (NEPA) require an agency to evaluate the psychological effects of the risk of a nuclear power plant accident?

7. Environmental Issues National Environmental Act (NEPA) METROPOLITAN EDISON CO. v. PEOPLE AGAINST NUCLEAR ENERGY • 103 S.Ct. 1556 (1983) • DECISION: No. • REASONS: • 1. Where an agency action significantly affects the quality of the human environment, NEPA requires preparation of an environmental impact statement (EIS). • 2. NEPA does not require the agency to considerevery effect of proposed action but only the effect on the environment. • 3. Congress intended the term environment to mean "physical environment.” • 4. A "risk" of an accident is not an affect on the physical environment.

8. Environmental Issues • Petitioners brought this action against the Federal Energy Regulatory Commission contending that the Commission violated NEPA by failing to prepare an EIS before it issued a preliminary permit for the Clavey-Wards Ferry hydroelectric project. Held: No EIS was required. The preliminary permit did not authorize ground-breaking or other activities that might significantly affect the environment. Sierra Club v. FERC, 22 ERC 2024 (1985).

9. Environmental Issues • The Sierra Club sued to enjoin the Department of Interior from issuing mining leases on federal lands in the "Northern Great Plains" region until the department had prepared an EIS on the entire region. Held: NEPA requires an EIS only when a recommendation or report on a proposal for major federal action has been prepared. In this instance, there was no recommendation or report on a proposal for major federal action in the region. Several preliminary studies of individual states in the region did not constitute a "plan" that would require the preparation of an EIS. Kleppe v. Sierra Club, 427 U.S. 390 (1976).

10. Environmental Issues • According to the 9th Cir., the U.S. Forest Service decision not to prepare an EIS prior to granting a special use permit for the construction of a road through the Angeles National Forest violates NEPA. The road passes directly through an area occupied by a herd of desert bighorn sheep protected under state and federal law. Applying a reasonableness test, the court ruled that the environmental assessment failed to consider adequately the impact upon the sheep of the proposed action. The assessment contained no estimate of the volume of traffic likely to pass along the road and ignored other factors essential to an informed decision on whether the project might have significant environmental impacts and thus require an EIS. Foundation for North American Wild Sheep v. Dept. of Agriculture, 12 ELR 20968 (1982).

11. Environmental Issues • Gov’t Regulation Of Business (see chart p.509) • Solid Waste Disposal Act (1965) • Clean Air Act (1970) & Amendments • Clean Water Act (1972) & Amendments • Marine Protection, Research and Sanctuaries Act (1972) • Pesticide Control Acts (1972 & 1973) • Safe Drinking Water Act (1974) • Toxic Substances Control Act (1976) • Resource Conservation and Recovery Act (1976) • Comprehensive Environmental Response and Liability Act (1980) • Other Federal, State & Local statutes, regulations & ordinances

12. Environmental Issues • Suits by Private Individuals & NGOs • Citizen Enforcement Provisions (to overcome issue of standing) • Public Nuisance • Private Nuisance • Trespass • Negligence • Strict Liability • Public Trust Doctrine

13. Federal Environmental Protection Laws Resource Conservation, Toxic Substance (1976) Clean Air (1970) Solid Waste Disposal (1965) Insecticide, Fungicide (1973) Clean Air Amendments (1990) National Environmental Policy (1969) Safe Water Drinking (1974) Environmental Response (1980) Clean Water, Marine Protection, Pesticide Control (1972)

14. Government’s RegulationOf Business • Environmental Protection Agency (1970) • Pollution • Air • Water • Endangered Species • Pesticide • Solid Waste • Toxic/Hazardous Substances

15. Air Pollution • Clean Air Act & Amendments- Air Quality Standards • That the Clean Air Act directs the EPA administrator to establish air quality standards and to see that these standards are achieved according to a timetable. • Government regulation under the Clean Air Act is a joint federal and state effort. Discuss the responsibilities of both the federal government and the states. • Primary (Public Health) & Secondary Standards • Air Pollution Sources • Stationary • Mobile (Transportation) • Technology Forcing • Compliance Waivers/Variances

16. Air Pollution • Clean Air Act • Whitman v. American Trucking Associations, Inc. • 531 U.S. 457 (2001) • FACTS: The EPA set revised ambient air quality standards (NAAQS) for ozone and particulate matter. Several trucking associations (respondents) challenged the standards under Section 109(b)(1) of the Clean Air Act (CAA), arguing that the standards failed to take implementation costs adequately into account. • ISSUE: Does Section 109(b)(1) require that standards set under this section take into account implementation costs?

17. Air Pollution • Clean Air Act • Whitman v. American Trucking Associations, Inc. • 531 U.S. 457 (2001) • DECISION: No. • REASONS: • 1. “The text of § 109(b)(1), interpreted in its statutory and historical context and with appreciation for its importance to the CAA as a whole, unambiguously bars cost considerations from the NAAQS-setting process….” • 2. The respondents’ arguments are “lengthy, spirited, but ultimately unsuccessful….”

18. Air Pollution • In 1998, the seven biggest manufacturers of heavy diesel engines agreed to pay over $1 billion to cover fines, investments in cleaner engines, and other corrective actions to settle Clean Air Act violations. • In 2003, Alcoa and Archer Daniels Midland agreed to settle federal air pollution complaints by upgrading smelters at an estimated cost of $700 million.

19. Air Quality Index Source: Environmental Protection Agency, FY2003 Annual Report.

20. Clean Air Act Trends • Regulation- Point Source To Bubble Concept (Complex as a Whole) • Emissions Reduction Banking- Market Rights? • Prevention Of Significant Deterioration- Permitting Process/Smart Permits

21. Air Pollution • Emissions Trading • By 2003, worldwide trading of sulfur dioxide, a greenhouse gas, was estimated at over $4 billion a year. • From 1982 to 1992 carbon monoxide pollution declined 30 percent, airborne sulfur dioxide declined 20 percent, and airborne lead plummeted 89 percent, according to the EPA. But the EPA reported that 2003 cars had an average fuel efficiency 6 percent below 1988 cars. • The General Accounting Office estimated in 1999 that emissions trading saves utility companies $3 billion annually over previous air pollution approaches. Electric utility companies emitted in 1999 25% fewer tons of sulfur dioxide while producing 41% more electricity.

22. Water Pollution • Clean Water Act • Navigable Waterways • Goals & Enforcement • No Discharge From Point Source Without Permit • Not Yet Reached- Non-Point Source • Install • First- Best Practicable Technology • Second- Best Available Technology

23. Water Pollution • Clean Water Act • SOLID WASTE AGENCY v. UNITED STATES ARMYCORE OF ENGINEERS • 531 U.S. 159 (2001) • FACTS: Several towns in northern Illinois applied for a permit to drain several ponds, some permanent and some seasonal, in order to use them as a solid waste disposal site. The Army Corps of Engineers denied the permit, citing § 404a of the Clean Water Act and stating that to fill the ponds would unduly harm various migratory waterfowl. • ISSUE: Are these ponds part of the “navigable waters” of the United States?

24. Water Pollution • Clean Water Act • SOLID WASTE AGENCY v. UNITED STATES ARMYCORE OF ENGINEERS • 531 U.S. 159 (2001) • DECISION: No. • REASONS: • 1. Section 404(a) grants the Corps authority to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” • 2. Although Congress may have intended to regulate some waters not “’navigable’ under the classical understanding of that term,” isolated ponds, some only seasonal are not navigable nor could they reasonably be made so. • 3. The Corps’ interpretation of “navigable” exceeds its authority.

25. Water Pollution • The Supreme Court has ruled that the EPA's interpretation of the Clean Water Act must be given deference. The Court held that neither statutory language nor legislative history of the act precluded EPA interpretation of the statute, which prohibits modification of toxic pollutant effluent limitations, as permitting the grant of different variances for certain covered pollutions. Chemical Manufacturers Association v. Natural Resources Defense Council, Inc., 105 S.Ct. 1102 (1985).

26. Water Pollution • Riverside Bayview Homes, Inc. began placing fill materials on its property near the shores of Lake St. Clair, Michigan. The Army Corps of Engineers filed suit to enjoin this placement without a permit. Held: The Corps properly interpreted "navigable waters" to include all freshwater wetlands adjacent to other covered waters. U.S. v. Riverside Bayview Homes, 54 LW 4027 (1985).

27. Water Pollution • In 2001, Koch Industries was fined $20 million after pleading guilty to releasing 91 metric tons of toxic benzene into waste streams. • In 2002, Georgia Pacific agreed to pay some $10.1 million to clean up the Fox River in Wisconsin following illegal discharge of toxic PCBs.

28. Endangered Species Act • Species Disappearing • Natural Causations • Human Effects • Considerations • Destruction Of Habitat- Critical • Disease/Predation • Commercial/Recreational Activity • Other Natural/Manmade Factors

29. Endangered Species Act • BABBIT v. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREATER OREGON • 515 U.S. 687 (1995) • FACTS: Small landowners, logging companies, and families dependent on the forest products industry in the Pacific Northwest and in the Southeast sued the Secretary of the Interior. They challenged the validity of the Secretary’s regulation defining the word harm in the Endangered Species Act (ESA) to include habitat modification and degradation. They alleged that application of the “harm” regulation to the red-cockaded woodpecker and the northern spotted owl had injured them economically. When the Court of Appeals ruled that the Secretary’s regulation was invalid, the Secretary petitioned the Supreme Court to hear the case. • ISSUE: Did the Secretary of the Interior exceed his authority in defining the word harm in the ESA to include habitat modification and degradation?

30. Endangered Species Act • BABBIT v. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREATER OREGON • 515 U.S. 687 (1995) • Decision: No • Reasons: • 1. Ordinary understanding of the word “harm”. • 2. Broad purpose of the act. • 3. Congressional intent to prohibit indirect takings.

31. Endangered Species Act • In 1998 a 20-year research effort concluded that over one-tenth of the planet’s plant species were threatened with extinction. In the United States some 29 percent of plants (16,000 species) were threatened. The study maintained that loss of habitat and competition from human introduction of non-native species were the two main reasons for the threats.

32. Pesticide Control • Pesticides Dangerous To Wildlife & Humans • Federal Insecticide, Fungicide, & Rodenticide Act (1947) • Federal Environmental Pesticide Control Act (1972) • Pesticides Must • Be Registered/Properly Labeled • Meet Claims Of Effectiveness • No Adverse Effects

33. Pesticide Control • Regulation of pesticides takes place at the federal level. Regulation consists of a regulation process backed up by the power to ban and limit the use of pesticides. • Pesticide runoff into waterways is a major environmental problem.

34. Solid Waste Disposal • Clean Air Act • Noise Control Act (1972) • Solid Waste Disposal Act (1965) • Promotes Research • Technical/Financial Assistance

35. Composition Of Landfill By Volume

36. Toxic/HazardousSubstances • Toxic Substances Control Act (1976) • Evaluate Chemicals Before Economically Important • Substantial Risk Of Injury • The control of toxic chemicals may be divided into regulation of their use, regulation of their disposal, and regulation of their cleanup. • Resource Conservation & Recovery Act (1976) • Determine If Waste Hazardous • Waste Properly Transported • Manifest System- Proper Disposal

37. Superfund • Comprehensive Environmental Response Compensation, & Liability Act (CERCLA)(1980) • Hazardous Release Requires Gov’t Notification • Gov’t Order Responsible Parties To Clean Up • Responsible Parties- Remediation • Current/Former Operators/Owners • Waste Transporters

38. Superfund UNITED STATES v. BEST FOODS 524 U.S. 51 (1998) • FACTS: The United States sued CPC International, Inc., under CERCLA to recover the costs of hazardous waste generated by the now defunct Ott Chemical Co. (Ott II). Ott II had been a wholly-owned subsidiary of CPC, its parent corporation. The federal district court ruled that CPC was an “operator” of the hazardous waste facility that Ott II owned. The court of appeals reversed and the Supreme Court granted certiorari. • ISSUE: Can CPC be an “operator” under CERCLA of the hazardous waste facility?

39. Superfund • UNITED STATES v. BEST FOODS • 524 U.S. 51 (1998) • DECISION: Yes. • REASONS: • 1. A general rule is that a parent corporation is not liable for the acts of its subsidiaries, but • 2. Under CERCLA an “operator” of a facility is liable for improper disposal of hazardous waste. • 3. CPC’s environmental affairs director was “deeplyinvolved” in environmental issues at Ott II. • 4. This raises “an issue of CPC’s operation of the facility through William’s actions and the court of appeals judgment is vacated.

40. Superfund • A number of states have passed environmental cleanup laws, including New York, California, Ohio, New Jersey, Illinois, Wisconsin, and Arkansas. These laws supplement federal law and are implicitly forcing property buyers to factor potential cleanup costs into their purchase prices.

41. Superfund • Alcan Aluminum Ltd. was one of twenty alleged polluters of a certain site. Only Alcan refused to settle with the government. Under joint and several liability the government ordered Alcan to pay the remaining $474,000 of the $1.3 million it would take to clean up the site. Alcan went to court. Held by CA3: The district judge erred in requiring Alcan to pay the remaining balance of the clean-up costs without determining whether it was responsible for such a large portion of the damages. U.S. v. Alcan, 91-5481 (CA3).

42. Superfund • The owners of Vineland Chemical Co. improperly disposed of water containing arsenic. Held by D. N.J.: The owners must pay penalties of $1,223,000 and face liability for clean up that could approach $66 million. United States v. Vineland Chemical Co. (4/30/90).

43. Superfund • The chemical supplier of a wood processing plant helped build part of the plant and furnished the plant with a toxic chemical used in wood processing. When the EPA forced the plant owner to clean up its plant site under Superfund, the owner sued the chemical supplier for contribution. Held by the Seventh Circuit: Superfund imposes clean-up liability on any party who was "owner" or "operator" of a site at the time hazardous wastes were deposited. Looking at the law of independent contractors and joint venturers, the court concluded that the chemical supplier was neither an owner nor an operator. Edward Hines Lumber Co. v. Vulcan Materials Co., 861 F.2d 155 (1988). In U.S. v. Fleet Factors Corp. (12/22/88) the Eleventh Circuit ruled that a lender who had a security interest in a fabric printing firm was not an owner or operator even though customers of the firm made payments directly to the lender. U.S. v. Aceto Agriculture Chemicals Corp. ruled that pesticide manufacturers that hired a pesticide formulation facility to process their pesticides were liable for clean up costs because they "arranged for" and "contributed to" handling and disposal of hazardous wastes. (CA8, 4/25/89).

44. Superfund Cost Recoveries In $ Billions Source: Environmental Protection Agency, FY2003 Annual Report.

45. Business Proposed Reforms To Superfund • Prorate Liability • Exempt Small Contributors Of Waste • Site Cleanup Meet Health & Safety Standards

46. Suits ByPrivate Individuals Citizen Enforcement • Tort Theories • Nuisance- Public v. Private • Other • Trespass • Negligence • Strict Liability

47. Suits ByPrivate Individuals • The plaintiff Friends of the Earth sued defendant incinerator company for allegedly discharging illegal mercury discharge into the North Tyger River. Held by Supreme Court: Friends of the Earth is an appropriate plaintiff with standing to sue because it alleged that its members suffered “injury in fact” by being denied the recreational and aesthetic values of the river. Friends of the Earth v. Laidlow Environmental Services, 528 U.S. 167 (2000).

48. Suits ByPrivate Individuals • In Gwaltney v. Chesapeake Bay Foundation, Inc. the U.S. Supreme Court ruled that the citizen enforcement provision of the Clean Water Act conferred no jurisdiction over "wholly past violations," but did convey jurisdiction based on good faith allegations of "continuous" or "intermittent" violations. 108 S.Ct. 376 (1987). The significance of this case is that it may reduce (or eliminate) the possibility of a citizen suit arising from a one-time, past violation of the act. Already Gwaltney has inspired new litigation interpreting that case. See, e.g, Public Interest Research Group v. Carter-Wallace, Inc., 56 LW 2621 (1988).

49. Suits ByPrivate Individuals • Plaintiffs sued a lead company to recover for damage to their agricultural property from accumulations of lead particulates and sulfur oxide deposits. The circuit court rendered judgment for the lead company, and the land owners appealed to the Alabama Supreme Court. Held: (a) Compliance with the Alabama Air Pollution Control Act did not protect defendant from liability for damages caused by pollutants coming from its smelter; (b) the fact that because of its closeness to the lead plant, plaintiffs' property had a higher value as commercial property than as residential or farm property did not bar recovery; (c) if an intrusion interferes with the right to exclusive possession of property, the law of trespass applies but if the intrusion is to the interest in use and enjoyment, the law of nuisance applies (i.e., in this case if there were merely discomfort and annoyance to the plaintiffs, the action would lie in nuisance, whereas if particles accumulated that caused damage to the property itself, then trespass would lie. The court pointed out that both causes of action might be present.) Borland v. Sanders Lead Co., 369 So.2d 523 (1979).

50. Ethical Considerations • Areas of Concern? • Waste & Pollution • Use of Natural Resources • Preservation of Environmentally Sensitive Areas • Preservation of Biodiversity • Consider Endangered Species Act, Noah/Ark, Note: Under Jewish Law: The medieval Jewish commentator Nahmanides explained the biblical injunction against slaughtering a cow and her calf on the same day (Leviticus 22:28) and the taking of a bird with her young (Deuteronomy 22:6). "Scripture will not permit a destructive act that will cause the extinction of a species, even though it has permitted the ritual slaughtering of that species (for food). And he who kills mother and sons in one day, or takes them while they are free to fly away, is considered as if he destroyed that species." The Sefer Ha-hinukh offers a similar explanation, stating that there is divine providence for each species and that God desires them to be perpetuated.