E Law Outline Jonathan

8/3/2019 E Law Outline Jonathan

http://slidepdf.com/reader/full/e-law-outline-jonathan 1/43

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RCRA

• 1. Is the material a solid waste?

o Statute

s. 1003(27) of RCRA defines “solid waste” as “any [...] from a [...] and other

discarded material including [...] material resulting from [...] operations andfrom community activity.”-very broad definition -

S. 1004(27) ??

• a. Is the material “discarded”?

o Rule

The definition of solid waste only includes discarded material.

• In American Mining Congress I, the court held that the EPA need not

regulate spent material facilities recycle or reuse in an ongoing mfg or industrial process

o Application

1) Are the materials discarded?

• Materials are discarded if the facility has disposed of, abandoned , or thrown them away. AMC v. EPA I

2) Will the material be reused as a certainty?

• Materials are not discarded if they are destined for immediate reuse inanother phase of the industry’s on-going process and have not become

part of the industry’s on-going waste disposal problem. AMC v. EPA

IIo Potential reuse of materials is not enough to avoid being

classified as discarded – certain to be reused. 3) Is the reuse immediate or delayed ?

• What was the amount of time until reuse?o Few min – OK :In Association of Battery Recyclers, the DC

Circuit rejected the notion that temporary storage of thematerials even “for a few minutes” subjected them to

regulation as solid waste. Not regulable by RCRA – still

immediate re-use.o 6 months – NOT OK - In Owen Electric Steel Co., the 4 th

circuit held that slag produced, ‘cured’ on the ground, and sold

six months later was “discarded material,” despite its reuse.

[not immediate – too long]. Is regulable by RCRA.

3a) Is the reuse direct or indirect?

o Plain meaning of immediate

Could mean “direct” [as well as “at once”]

• Was the material recycled/reused in a directway?

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o Where will the recycling/reuse take

place?

Offsite – indirect

Onsite – is it used as part of theoriginal closed loop process or

not? If not, arguably indirect.4) Has the material being reused/recycled already been part of the

manufacturing process or is it raw material?

o In American Petroleum Institute, the court held that it was

waste before it was recycled b/c owner got rid of it then it was

recycled

What if it had not first been used in manufacturing

process? Raw ore instead of from the process

• Fact that it had been used first then discarded

was dispositiveo If have two diff things, one not used its

not covered Does this make any sense

Policy: want to encouragerecycling BUT it’s the same

exact harm

• Purposeo To discourage sham recycling

o To avoid environmental harm

2. If the material is a solid waste, is it a hazardous waste?

•

Statuteo RCRA s. 1004(5)

A solid waste, or combination of solid wastes, which because of its quantity,concentration, or physical, chemical, or infection characteristics, may-

• (A) cause or significantly contribute to an increase in mortality or an

increase in serious irreversible, or incapacitating reversible, illness; or

• (B) post a substantial present or potential hazard to human health or

the environment when improperly treated, stores, transported, or

disposed of, or otherwise managed.

• a. Is the material a “listed” waste?

o 40 CFR s. 261 –

o Is the waste at issue derived from another waste? Derived-from rule: wastes derived from the treatment, storage, or disposal of a

listed waste (such as ash residue from incineration of a listed waste) are

hazardous wastes.

If a substance is derived from [by statute by means of TSD] a listed hazardous

waste, then it too is a listed hazardous waste.

o Mixture rule for listed wastes;

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If the substance is a mixture of X and a listed hazardous waste, then the

resulting mixture is hazardous waste

• b. Is the material excluded from RCRA regulation?o Petroleum, nuclear waste etc.

• c. Is the material a “characteristic” waste?

o s. 1004(5) of subpart C 1) Ignitable 2) Corrosive 3) Reactive chemically 4) Exhibits “TC toxicity” 5)

Unstable 6) Fatal to humans in low doses or has an LD -50 or LC -50 7)Contains toxic constituents

• “Big 4”

o 1) Ignitability 2) Corrosivity 3) Reactivity 4) Toxicity

o Is there a mixture of wastes?

- Mixture rule for characteristic wastes: If the result of amixture of a substance with a characteristic and another

substance has a characteristic then it is a hazardous

waste. If not, then it is not. If a substance that is the

result of some TSD process on a characteristic wastehas a characteristic then it is a hazardous waste. If not,

then it is not.

- (Not hazardous if the resulting mixture no longer exhibits any subpart C characteristic).

o Does the mixed substance still exhibit a characteristic waste? If

so, still a hazardous waste

3. Are there any defences?

• RCRA s. 3001(i) – household waste exemption

CERCLA

1. Is this a release or threatened release?

2. Is this a hazardous substance?

3. Is this at a facility?

4. Which s. 107 liability category or categories does [defendant] potentially fall under?

• Statute

• s. 107

o 4 classes of potentially responsible parties bearing cleanup liability under

Superfund’s cost recovery provisions

1) current owners and operators

2) owners and operators at the time waste was disposed of at the facility 3) generators of waste

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4) persons who transported waste to the facility

Parties are liable for

• A) all costs of removal or remedial action incurred by the federalgovernment not inconsistent with the NCP

• B) any other necessary costs of response incurred by any person

consistent with the NCP• C) damages for injury to natural resources

• D) costs of health assessments

4a. Is [defendant] liable as a current owner or operator of the facility?

• Statute

o CIRCLA s. 107 lists “current owners and operators” as potentially responsible parties

bearing cleanup liability under Superfund’s cost recovery provisions

• Ruleo 1) In New York v. Shore Realty Corporation, the court held the then current owner of the

property liable even though it neither owned the site at the time of disposal nor caused the

presence or the release of the hazardous waste at the facilityo 2) In New York v. Shore Realty Corp, the court held that a showing of proximate cause is

not required before liability may be imposed on current or former owners or operators of

disposal sites.

o Reasoning

Statute uses passive verbs, does not need to actively be done – as long as the

def is not innocently unaware of situation.

• Continued leaching and seepage all constitute releases

o A release can be an ongoing process, doesn’t just happen once

when the substance is disposed of

o Policy

Not holding the current owner liable could

• a) undermine the statute b/c often the companies who caused the

problem are judgment proof

• b) it would also encourage companies to sell (person who is selling the property will have to pay more to sell the property b/c buyer is

assuming liability)

• Does [defendant] have an affirmative defense (s.107(b))?o act of god

o act of war o act or omission of a third party other than an employee or agent of the defendant or

one whose act or omission occurs in connection with a contractual relationship with

defendant.

1. Due care is required when a corporation bases its affirmative action on anact or omission of a third party. If [def] could show took due care – has a

defense.

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• In New York v. Shore Realty Corporation, the court held that a

company which was aware its tenant had dumped waste in the past andcould have readily seen that this activity would continue did not take

due care.

2. The act or omission refers to what happened during [defendant’s]ownership, not something which happened before.

• In New York v. Shore Realty Corporation, the court did not hold the

defendant liable for the initial release, but for the continued leaking,seepage, or dispensing of chemicals

3. The third party is the sole cause

• Does [defendant] have an “innocent purchaser” defense?o Congress amended s. 107(r) to add innocent landlord defense

[Defendant] is not liable if:

• 1) It did not have actual or constructive knowledge ...

o To satisfy, [defendant] must have made an all appropriate

inquiry

Involves due diligence process (law is murky)

• 2) It was a government entity who acquired property through

involuntary transfer

• 3) The land was inherited4b. Is [defendant] liable as a previous owner or operator of the facility?

• Statuteo CERCLA s. 107 lists “owners or operators at the time waste was disposed of at the

facility” as potentially responsible parties bearing cleanup liability under Superfund’scost recovery provisions

•Rule

o 1) “Prior owners and operators are liable under CERCLA only if they owned or

operated the facility ‘at the time of disposal of any hazardous substance.’” New York

v. Shore Realty Corporation

o 2) In New York v. Shore Realty Corp, the court held that a showing of proximate

cause is not required before liability may be imposed on current or former owners or

operators of disposal sites.

• Does [defendant] have an affirmative defense?

o See 4a

• Was the pollution caused by soil migration? (substance got on ground, seeped in, and spread

out underground)o Circuit split

The 4th Circuit in Nurad held the defendant liable under “passive owner

liability”

• Court wanted to avoid where “an owner could avoid liability simply

by standing idle while an environmental hazard festers on his property.” Where passive – can incur liability.

The 3rd Circuit in CDMG rejected passive owner liability. No liability.

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• pointed to active words defining disposal and that interpreting

otherwise would make innocent purchaser defense invalid.

• Distinction b/t leaking drums and soil migration (described above)

[operator; substantial control test, actual control test, etc...]

4c. Is [defendant] liable as an operator due to its position as a parent company of the subsidiary

company, [subsidiary company]?

• Statuteo CERCLA s. 107 lists “current ... operators” and “operators at the time waste was

disposed of at the facility” as potentially responsible parties bearing cleanup liability

under Superfund’s cost recovery provisions

• Ruleo A parent corporation that actively participates in and exercises control over the

operations of a subsidiary cannot be held liable as an operator of a polluting facilityowned or operated by the subsidiary unless the corporate veil is pierced. US v.

Bestfoods Reasoning

• A statute such as CERCLA does not advent the common law unless

Congress specifically states that it does

• Can the parent be held directly liable for operating the facility itself?o Issue is not whether parent operates the subsidiary but whether it operates the facility

Not direct liability: corporate offices in common, to have participation and

control, monitoring the subsidiary’s performance, supervision of the

subsidiary’s finance and capital budget decisions, articulation of general

policies and procedures

• An operator must manage, direct, or conduct operations specifically

related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with

environmental regulations

4d. Is [defendant] liable as a transporter ?

4e. Is [defendant] liable as a generator ?

• Statute

o s. 107(a)3

any person who by contract, agreement, or otherwise arranged for disposal or

treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by

any other party or entity, at any facility or incineration vessel owned or

operated by another party or entity and containing such hazardous substances

4f. Is [defendant] liable under s. 107(a)(3) as an arranger ?

• Statute

o s. 107(a)3

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any person who by contract, agreement, or otherwise arranged for disposal

or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by

any other party or entity, at any facility or incineration vessel owned or

operated by another party or entity and containing such hazardous substances

o Rule Entity qualifies as an arranger when it takes intentional steps to dispose of a

hazardous substance. Burlington Northern case (ex: entering into a contract –

an intentional act)

• In Burlington Northern, the court held that to qualify as a an arranger,

the defendant must enter into the sale of the hazardous substance with

the intention that at least a portion of the product be disposed of during the transfer process by one or more of the methods described in

6902(3).

o Mere knowledge that spills and leaks continued to occur is

insufficient grounds to find defendant ‘arranged’ for disposal

Fact intensive and case specific• 2 extremes of arranger liability

o Liable – entity enters into transaction

for sole purpose of discarding a used and no longer useful haz

substance

o Not Liable – entity merely sold a

new and useful product and the purchaser, unbeknownst to the

seller, disposed of the product in a way that led to contamination(seller’s intent to dispose does not attach to purchaser)

• Unclear area

o Cases where the seller has some

knowledge of buyers planned disposal or whose motives for the“sale” of the substance aren’t clear o Policy: preventing people from

disguising their intent to sell/dispose of hazardous waste.

• If intention is required, what if leaking and spilling are included in disposal?

• [Aceto approach]

5. Is [defendant] one of multiple PRPs? If so, does [defendant] partly share responsibility?

• See above elements of s. 107

6. If [defendant] is partly responsible, is the harm caused capable of apportionment?

• Rule

o Although s. 107 imposes a strict liability standard, it does not mandate “joint and

several” liability in every case. Burlington Northern:

Is the harm capable of apportionment?

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• Not all harms are capable of apportionment, and CERCLA defendants

seeking to avoid joint and several liability bear the burden of provingthat a reasonable basis for apportionment exists. Burlington Northern

o Diversity of harm analysis

§433A of Restatement of Torts:

• When 2 or more persons acting independentlycause a distinct or single harm for which there isa reasonable basis for division according to the

contribution of each, each is subject to liability

only for the portion of the total harm that hehimself caused.

o But where 2 or more persons cause a

single and indivisible harm, each is

subject to liability for the entire harm

7. If [defendant] is held subject to joint and several liability, is it eligible for de minimis

settlement under s. 122(g)?

8. Can the [defendant] sue other PRP’s for their share of the liability?

• Statute

o Under S. 107, a party is subject to joint and several liability.

SOL is three to six years from completion of removal work or initiation of remediation work

o Under s. 113(f), liability is to be “equitably allocated” among PRPs.

SOL is three years from the date of judgment or settlement

“contribution protection” exists only for s. 113 actions

• s. 113(f) bars contribution from parties who have settled with thegovernment for matters addressed in the settlement

• Ruleo S. 107 and s. 113(f) allow private parties to recover expenses associated with

cleaning up contaminated sites.. US v. Atlantic Researcho PRPs can utilize s. 113 to seek contribution only after they have been sued for

cost recovery. Cooper Industries v. Aviall

9. What is the appropriate allocation of response costs among the PRPs?

• s. 113f

o Gore factors:

(1) ability of parties to demonstrate that their contribution to a discharge,

release or disposal of a hazardous waste can be distinguished,

(2) amount of hazardous waste involved,

(3) degree of toxicity of the hazardous waste,

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(4) degree of involvement of parties in the generation, transportation,

treatment, storage or disposal of haz waste,

(5) degree of care exercised by parties with respect to the haz wasteconcerned, taking into account the characteristics of such hazardous waste,

and

(6) degree of cooperation by the parties with Feerfal, State or localofficials to prevent any harm to the public health or the environment.

• These factors are neither an exhaustive nor exclusive list – the

primary emphasis is placed on the harm each party causes theenvironment and care on the part of the parties (US v Vertac)

10. Are there multiple states involved and is there a law (city/county/state ban) restriction on the

removal of waste? (dormant commerce clause)?

• Statute – commerce clause

• Rule: 1) Is the law a simple economic protectionism?

a. If so, the ban is "per se invalid" - against the commerce clause.2) Is the law directed to legitimate local concerns?

a. Pike test - balancing test - unless local concerns outweigh the commerceclause. If this, may have a case. (Philadelphia v NJ)

• If a ban on a specific facility, may be OK (Mayor & CC of Baltimore)

11. Is there an issue involving the Commerce Clause and Environmental Justice?

• If race or socio-economic issues are raised – bring this up.

• Louisiana Energy Services case

Clean Air Act

Quick summary:

• Is it a pollutant?

• Is it a criteria pollutant?

• If it’s not a criteria pollutant (regulated under CAA) – then no permit is required

• If it’s a criteria pollutant – then yes, discharger needs a permit

o How do you get a permit?

o Look at relevant control technology-standards In Attainment areas – PSD = BACT

In Non-attainment areas – then a modified or new source = LAER

In both – new sources = NSPS

If its routine maintenance (RMRR) – then still an existing source = RACT

BACT –

LAER – non-attainment areas

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1. Is the material a criteria pollutant under the CAA?

• Ruleo The following are declared by the EPA to be criteria pollutants:

Sulfur dioxide

Nitrogen oxides

Particulate matter • Big

• Small (more harmful)

Carbon monoxide

Lead

Hydrocarbons

Ozone

2. Is the source stationary or mobile? (All are regulated by CAA)

• If stationary, go to 3.o

Incinerators, chimneys, factories, any burning-machine, any machine can be asource, smoke-stack, building/structure/facility or source which may emit anemission – anything that emits a toxin in the air

• If mobile, go to ...

o Mobile sources are moving sources = motorized vehicles, planes, trains, trucks,

cars etc.

o Most states are pre-empted by CAA from promulgating their own regulations

concerning mobile sources – state can either use EPA’s (s.202 CAA – emissionsstandards for new motor vehicles or new motor engines) or a waiver to be able to

adopt CA’s standards.

3. If stationary source, is the source a new source or a modified source?• Statute

o CAA 111(2) – new source – “any stationary source, the construction or

modification of which is commenced after the publication of regulations (or proposed) prescribing a std of performance under this section which will be

applicable to such source.

o CAA 112(3) – stationary source – “any building, structure, or facility, or

installation which emits or may emit any air pollutant.

o CAA 111(4) – modification – “any physical change in, or change in the method

of operation of, a stationary source which increases the amount of any air

pollutant emitted by such source or which results in the emission of any air

pollutant not previously emitted”• Rule for modifications (2 steps)

o 1) whether there has been a physical or operational change

RMRR exemption – EPA always exempted certain alterations from being‘physical changes’ if constituted “routine maintenance, repair, or

replacement”

• Case-by-case, fact intensive nature of RMRR review

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o Impt Issues (Duke Erringer case)

1) What is considered “routine”

• Split b/t facility specific or industry as a

whole

2) whether what counted as routine maintenance in

EPAs prior findings should govern the caseo 2) whether there is an increase in emissions or a new air pollutant is emitted

Based on annual emissions, not the emissions rate

4. Is new/modified source in a Non-Attainment area?

• If a new source – LAER (technology-forcing)o Requirement of a new permit – get permit if

• Existing, but modified source – BACT

• Existing, but not modified (maintained only) - RACT

5. Is new/modified source in an Attainment area?

• PSD – which entails BACT

6. Can [defendant] get a variance?

• Will EPA approve the variance? Yes – if the SIP standards are effectively impossible to

meet.

2. If not, should the material be a criteria pollutant under the CAA?

o Statute

o CAA s. 302(g) – “air pollutant” means any pollution agent or combination of such

agents, including any physical, chemical, biological, radioactive ... substance or

matter which is emitted into or otherwise enters the ambient air. [very broad]

s. 108(a)(1)(A) – “any air pollutant...which in [the EPA administrator’s]

judgment, cause or contribute to air pollution which may reasonably be

anticipated to endanger public health or welfare” [limitation]

• s. 302(h) – includes, but is not limited to, effects on soils, water,

crops, ....weather ... as well as effects on economic values and on

personal comfort and well-being ...

•Rule

o Endanger does not mean an actual injury has to be present, it was enough that a

significant risk of harm. - Ethyl Corp and Lead Industries

o EPA can set the NAAQ’s w/ respect to vulnerable population. - Lead Industries

o EPA has discretion to set adequate margin of safety and does not need to limit the

NAAQ’s to clearly harmful effects (can regulate w/ respect to effects that are

more uncertain) Ethyl/Mass cases?

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3. If the material should be a criteria pollutant, how should it be regulated?

• NAAQS

• SIPS

• EPA approval of state plan

• FIPS

•

• Is it Carbon dioxide? – it could soon be a criteria pollutant (proposal made)

o May parallel the same legislation as lead (lead was most recently added to list of

criteria pollutants) – Mass v EPA case

Mobile

Stationary

DirectIndirect

Concerns

State v fed gvmt roles

Regulating regional air v permitting individual pollutersTranslating tech-based pollution stds to legal reqs

Air quality control regions – regions where air quality is monitored or controlled

Federal role (NAAQS)

-create nationally uniform quality stds for ambient air

-create tech based stds for individual polluters’ emissions Naaqs – geographically uniform standards for ambient air quality

States role (SIPS)

-enforce NAAQS by enforcing SIPS

Lisa’s notes:

NAAQ’s mandated by CAA – EPA sets them, SIPs are plans made by states to meet the

NAAQ’s, if EPA rejects SIPS, then EPA sets a FIP. In analyzing whether SIPs are sufficient,EPA cannot take costs into account.

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DECISION TREE:

• Is X a criteria pollutant?

o No? – then it’s OK – do not need a permit

o Yes? Is it RMRR (Routine Maintenance Repair Replacement)?

Yes – then it’s an existing source – and so RACT is required No – then it’s a new or modified source and subject to NSPS –so is it an

attainment area (complies with NAAQ’s)?

• Yes – then it comes under the PSD program = BACT is required

• No – then it comes under NSR – so, does it net out?

o No – then it’s subject to LAER

o Yes – it is OK as it is.

• BACT – determined on a case by case basis by the state. NSPS = triggered by not being RMRR (being new or modified) – NSPS triggers a floor

technology - Federally mandated – be as

• Attainment area – a geographical area – in compliance with NAAQ’s for that criteria

pollutant. Non-attainment area – the area is not in compliance with NAAQ’s for the

criteria pollutant.

• NSPS is a federally mandated control technology for any new or modified source and sets

a floor technology for each criteria pollutant that the new or modified source has to be as

good or better than. It’s an absolute floor – BACT may be above or below it. If BACT is below it, then NSPS sets the floor.

Clean Water Act - CWA

• Foundational prohibition – s.301(a) = discharge of ANY pollutant by ANY person - so

incredibly broad! What limits this broad definition?o s.502 (12) = any addition of any pollutant to navigable waters from any POINT

source - So - there has to be 3 elements:

1) pollutant, 2) navigable waters & 3) from any point source= so permit req’s only cover discharges from point sources that inv. the add.of a pollutant.

• CWA is comprehensive: prohibits all discharges of water pollutants unless the discharger

has a PERMIT that incorporates effluent limitations.

• CWA requires SEPARATE permits for discharges of dredged/fill material in regulated

wetlands (s.402 permit/s.404 permit – see below p.17)

1.Is it a discharge of a pollutant?

• s.301(a) – the discharge of any pollutant by any person shall be unlawful.

a) Is it navigable water?s.502(7) – “navigable waters” means the waters of the United States, including the

territorial seas

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o "navigable waters" do not have to be "navigable" and do not need to be "waters" =

held that it can be wetlands, so not necessarily "navigable" or "waters" (Riverside

Bayview Homes – very broad def. of navigable waters)

o Issue: whether isolated wetlands used by migratory birds are "navigable waters"

for benefits of interstate commerce? (SWANCC case)

SC used rigid/linguistic def. of "navigable”- big depart.from Riverside.

Held - non-navigable, isolated, intrastate waters (unlike the wetlands at

issue in Riverside) did NOT actually abut on a navigable waterway andwere NOT included as "waters of the US".

In SWANCC - had to be a signif. nexus betw. water regulated+nav. waters

o Rapanos case (plurality): held there is a significant nexus between the body of….

Scalia’s test = did not look at “navigable”, but what is "water s of the US"

(plural) = inc. ONLY relatively perm., standing or cont. flowing bodies of water "forming geographic features" - streams, oceans, rivers and lakes

(excludes puddles/dry channels) = consist. w/Cong + purposes of Act

“waters of US” does not inc. channels th/which water flows intermittently or

ephemerally or channels that periodically provide drainage for rainfall.

Scalia’s 2 part test:

• 1) water body adjacent to wetland contains water of the US

• 2) wetland has a continuous surface connection w/that

water making it difficult to determine where wetland begins

and ends

• Thus - wetlands with only an intermittent, physically remote

connection to "waters of the US" LACK the necessary

connection to covered waters that have a significant nexus as in

SWANCC.

Kennedy (disagreed w/Scalia) - significant nexus test (from SWANCCcase) – wetlands possess the requisite nexus, and thus come within thestatutory phrase “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”. When in contrast,wetlands’ effects on water quality are speculative or insubstantial; they fall

outside the zone fairly encompassed by the statutory term “navigable

waters”. (Stevens:dissent –would defer to agency as to what is navigable)

Justice K's test is essentially the test which will need to be used for future

cases - along with plurality/dissent to get up to 5.

b) Is it a pollutant?

s.502(6) – “pollutant” means dredged, spoil, solid waste, incinerator residue, sewage

sludge, munitions, chemical wastes, biological materials, radioactive materials, heat,wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and

agricultural waste discharged into water.

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o In 1993, ACE issued new rule (removed de minimis exception) to expand def. of

'discharge' to cover "any addition of dredged material into, inc. any REDEPOSIT of

dredged material within the waters of the US"

o This new rule subjects to fed.reg. virtually all excav./dredging in WETLANDS.

Incidental fallback does NOT require a permit (i.e. material taken from one

body of water to another in same geographical location/waters) Regulable re-deposits DO require a permit (redep. to/from new location,

or take redep., keep it out for a while then redep – need a permit)

Incidental re-deposits (fallbacks) of dredged materials could NOT be

regulated as "discharges" because they did NOT result in the net

ADDITION of any pollutants to receiving waters (soup falls from ladle)

Incidental spillage to water – permit is req. (Mokelumne River case)

Incidental re-deposit not only from original pollutant to be point source,

just need to convey redeposit to water (from a boat etc.-Mikosuccee case)

Water transfers made between distinct water bodies = this is an addition,

thus a discharge of a pollutant, so requires a permit (South Florida MD v

Miccosukee) – to protect the preservation of different water bodieso If punching holes in wetlands, so activity moved/mixed up contents of wetland

materials= sufficient to constitute a discharge of a pollutant (Deaton/Borden case)

c) Is it a point source? If yes - a permit is required under NPEDS permit system

s.502(14) – “point source” means any discernible, confined and discrete conveyance,

including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discretefissure, container, rolling stock, concentrated animal feeding operation, or vessel or other

floating craft (boat), from which pollutants are or may be discharged. This term does not

include agricultural storm water discharges and return flows from irrigated agriculture.• EPA does NOT have the authority under the CWA to categorically exempt

categories of point sources from the permit program under §402. (NRDC v

Costle)

• Is a person a point source under the CWA?

o Held : A human being is NOT a point source (US v Plaza Health

Laboratories) –no structural sense to incorp. human into ‘point source’o Dissent : point source designation is more about controllability than character of

the point source (don’t want only non-point sources); this would allow pollution

to escape liability as give corporations incentive to evade statute by simply

putting a human being on the end of the chain of disposal

Discharge in this case was more like a point source, much morecontrollable and came from an identifiable point

Must distinguish betw.individual litterer and one acting on behalf of a

municipality or a corporation.

o Note - can argue that a human being w/a hose may be considered a point

source, if the hose is determined to be a point source.

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Examples of cases - activities that were/were not held to involve discharges from a

POINT SOURCE that did/did not require a NPDES permit:

1. Does dam that discharges water w/reduced O2 content req. permit as point

source?

•Held: dam was not required to obtain a permit. EPA properly determined thatCongress did not intend a dam to be a point source. (Nat.Wild. Fed. v Gorsuch)

2. Does discharge of dead fish from a hydroelectric plant's penstocks require a permit?

• Held: no permit was required - following the Gorsuch case.(National Wildlife

Fed. v. Consumers Power Co. 1988)

3. Is a permit required if toxic materials are discharged into a stream when a

settling pond used to process gold ore overflows during an unusually sudden snowmelt?• Held: YES - a permit was required b/c Congress defined "point source" to

embrace the "broadest possible definition of ANY identifiable conveyance fromwhich pollutants might enter the waters of the US" (US v Earth Sciences Inc

1979)

4. Are a series of surface impoundments designed to capture, contain and

evaporate toxic runoff from an abandoned mine, a point source, when their contentsoccasionally spill into a nearby river?

• Held: YES - impoundments were held to be a point source - although concurring

judge noted that as the facility was like a dam/was constructed to reduce pollution, would have been willing to defer to EPA if it had been determined that

facility was not a point source. (Committee to Save Mokelumne River v East Bay

Mun.Util.Dist 1993)

5. Is the application of aquatic herbicides to irrigation canals a discharge from a

point source that requires a permit?• Held: YES - (Headwaters Inc v Talent Irrigation District 2001)

6. Is a pump that moved polluted water (pollutant was phosphorous) from a

canal to a reservoir a point source that requires a permit?

• Held: YES. Court rejected arguments by Water District that s.402's permit

requirements ONLY apply when pollutants originate from a point source and not

when they merely pass through them.

d) Can the pollutant get a variance under s.301(n) – “fundamentally different factors”?

• Must apply to EPA for a variance

• EPA cannot take costs of BPT into account for variances (can for BADT andBAT)

What are the standards?

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• CWA divides sources between EXISTING and NEW sources

(Act does not require EPA to actually show that the technology is being used..)

• 1972 Act:

• For existing sources

BPT by 1977 (EPA must consider costs, not required to balance costs and

benefits as in BAT) BAT by 1983 (more stringent than BPT - as for BPT = EPA must balance

costs and benefits of alternatives)

BAT does not require that the technology is actually IN USE by industry

currently - as long as it can be shown to work - EPA can peg its effluent

limit on this technology.

• For NEW sources:

BADT:

• Can be set by looking at process changes in the industry itself.

EPA can say we will set the limit at X, based on our feeling thatindustry could do better recycling, more process changes - if this is

done, then effluent levels would meet the limits.

• 1977 Act:

1) Industry said it was too hard to achieve BAT by 19832) BPT was retained as a "floor" (minimum level) for all sources (esp. extensions)

= BADT was retained for NEW sources

• But for existing sources, BAT requirement was replaced as follows: (3

requirements)1) For Toxic pollutants (e.g. lead) - BAT by 19842) For Conventional pollutants (e.g. oil) - BCT (Best Conventional Technology)

(so for existing sources – BCT and BAT; new sources – BADT)

3) Non-conventional pollutants - BAT (but a waiver possible for costs or water quality)

Water quality can be a waiver, but not a factor for setting the limit in the

1st place

• EPA cannot take an individual facilities costs into account (so EPA has the power

to put companies out of business)

• Thus - standard is = EPA says that a company can only emit X amount of [lead] -

how you get to X limit - the industry has to use BAT or BCT etc. - by demonstrating

that it is possible with that technology standard.

Levels of Technology Standards:1) BPT (least stringent) 2) BCT 3) BAT 4) BADT (most stringent)

Four Different Standards:

1. Best Practicable Technology Currently Available (BPT)

i. Original version (1972) of CWA required all existing sources to achieve BPTcontrols within five years.

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ii. Set for classes or categories of point sources, and takes costs into account

(consider total cost of technology, benefits achieved, existing controls, etc.)

2. Best Available Technology Economically Achievable (BAT)i. Stricter standard than BPT, under original CWA all existing sources were

supposed to achieve BAT by 1983, and toxic polluters were supposed to achieve

it immediately.ii. 1977 amendments extended BAT compliance to 1984 for toxic polluters, and

changed the standard for conventional polluters from BAT to BCT (so more

strict)iii. BAT requires consideration of cost, but just to determine what is actually

feasible, not as a form of cost-benefit balancing.

3. Best Conventional Technology (BCT)

i. Stricter than BPT but not as strict as BAT, BCT was conceived because it wasclear that existing sources were not going to be able to meet original statutory

deadlines.

ii. BCT asks EPA to take into account the reasonableness of the relationship between

costs and benefits. The two cannot be completely incommensurate, but EPA doesnot need to cost-justify everything that it requires under BCT.

iii. Note: In practice BPT and BCT standards have merged, and apply to

conventional pollutants, and BAT applies to toxic pollutants.

4. Best Available Demonstrated Technology (BADT)

i. The strictest standard of the four, it applies to all new sources.

ii. Similar to the CAA BDAT standard, it requires the "degree of emission limitationachievable through the application of the best system of emission reduction

which, taking into account the cost , has been adequately demonstrated."

CWA – s.301, s.402, s.404:

• Interaction between s.301(a): (discharge of ANY pollutant by ANY person is

UNLAWFUL except in compliance w/ certain sections - inc. a PERMIT under s.402 and

s.402 (discharge of a pollutant permits) and s.404 (discharge of dredged or fill

material permits)

(WETLANDS)a) s.402 permit – individual permit - NPDES Permit Program = s. 402

o Permit system for discharge of pollutants is governed by s.402's national

system = NPDES program and must incorporate effluent limitations

(restrictions on the quantities of pollutants that may be discharged - mandated by s.301).

b) s.404 permit – nationwide (general) permit

o ACE is charged with administering permit system allowing dredged or

fill materials into navigable waters/wetlands under s.404o Permits for discharge of DREDGED or FILL material = s. 404

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o General permits may be issued on state, regional, or nationwide

basis for minimal activitieso If can show you have minimal cumulative impact on environment, you

won't necessarily need an individual permit (under s.402), and can get

a nationwide general permit (s.404)

o Exemptions to s.404 permit requirement:o Discharge from normal farming, ranch operations, forestry etc.

o But can’t convert a wetland to another use/where virgin

wetlands involved. o Definition of “fill material”: Issue: Whether ACE’s permit allowing gold mine to

discharge slurry into AK lake violate CWA as a discharge that did not meet EPAstandard of s. 306 - Here, we have navigable waters, have point sourceo Q: are tailings from mine a ‘pollutant’? (Coeur Alaska v. SE Alaska CC)

o Yes, CWA includes crushed rock as ‘pollutant’- but what permit is req?o -NPDES permit or 404 permit for dredged/fill material?

o Here - regulation problem: slurry meets def. of ‘pollutant’ and ‘fillmaterial, so meets def. of req a permit under both 402 and 404= plain language argument for both permits (s. 301: “except as in

compliance w/ this section ... AND ... 404” - word ‘and’ means both

permits are required – but this is overlapping authority, so either/or.)o Court held s. 402 does not apply: Rule: Where a s. 404 permit may be issued,

s. 402 may not be issued – Ginsberg dissent: s. 404 is permissive, court may

issue a permit; does not create an exception to s. 306(e) (national standards of

performanceo s. 306 trumps s. 404 permissive oneo Def. of ‘fill material’ is incredibly broad; worried it will create a loophole

If you pollute a little bit you’re subject to s. 402

So, instead of polluting a little bit, you pollute a lot to fill up the

water body to get out of s. 404 (then only have to deal w/ ACE)

Majority: ‘fill’ has to serve some sort of purpose

Trash or garbage is excluded from regulatory definition of ‘fill

material’o If s.404 permit does apply, what is req for a permit?

o Permit must be denied if practical altern’s avail that would have a less env.

impact; ACE is quite lenient re: practical altern’s; easy to say v. costly.

Water Quality-based Controls:

• Under CWA Congress went primarily with tech-standard/assigning a numeric limit

• Water-quality standards were kept as a back-up – s.303, multi-step process for regulating

water- quality largely done by states, states are drivers here.

o Arkansas v Oklahoma – CofA held: EPA's issuance of A’s permit for a sewage

plant was arbitrary - b/c it misinterpreted O's water quality standards. No actual,detectable violation

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o Could EPA’s interpretation of state standards be given deference? Yes - b/c the

EPA regulation effectively incorp into fed law those state standards, so entitled to

deference

o What could O do? O can always sue under a common law nuisance claim.

Under which law? = A's state law (Oulette case - preemption of source

state law).

• s.401 = another way that water-quality based controls are used = Water quality Certification:

PUD No.1 of Jefferson County Case:

o Did the dam have to obtain a certification? Yes.

o 2 elements s.401: 1) it needed a fed license, 2) project resulted in discharge into nav waters.

• What was the discharge? 1) release of the dredge material during construction 2) water after it has

been used to make electricity = so the basic jurisdictional terms were satisfied.

• What was the state trying to do? - tried to impose a minim. stream flow req. to protect the fish.

oWas the stream flow req related to the discharges? Is it a limit on the quality of the water being discharged? = NOT directly related to the discharge per se.

Why does the dam need to get certification if NOT related to the discharges?

b/c s.401(d) covers MORE than just discharges - certif must set forth: “any

applicant for a license will comply with…… “- s.401(d) is much broader than

just the discharge = covers the applicant. So state could impose limits on the

applicant - as long as threshold condition of a discharge is met.

First establish a discharge, then apply limit on applicant.

What limits what the state can actually do?

• Still have to look at s.303 - is s.303 listed as part of s.401(d)? NO.

SC - s.401(d) - to 301 - to 303.. So water quality standards can be used as a

limitation on a state's certification - even if not directly related to water

quality standards at issue, but state is trying to use a minimum stream flow,they do not refer to water quality - so does the state lose on this ground:

Is the minimum stream flow a numerical water criteria? NO.

• = so is it a water quality standard? NO.

State can adopt measures (water quality standards) to protect designated

uses, without setting numerical criteria.

But what if the minimum stream flow is about quantity, not quality?

• Court said that quantity is closely related to quality.

• If you decrease quantity of water - then you have a more concentrated

amount of pollutanto e.g. 5g of salt in bottle of water, if let some of water evaporate -

and still have 5g of salt, then have more concentrated amount of salt pollutant.

Justice Thomas - believed that min flow req is unrelated to any discharge; that

discharge is an emission (amount flowing/issuing out); that the minim. stream req

is a limitation on amount of water that project can take in - two are opposite

Justice O'Connor - functional view based on purposes of CWA.

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Total Maximum Daily Loads (TMDLs):

• s.303(d)(1)(A) CWA - requires states to ID those waters for which effluent limitations for

nontoxic pollutants are NOT stringent enough to achieve water quality standards

TMDL (Total Max. Daily Loads):

• States must ID “quality-limited waterways” (impaired waterways) where effluent

limitations “are not stringent enough” to implement water quality standards

• s.303(d)(1)(C) - requires states to establish TMDL's of these pollutants "at a level

necessary to implement the applicable water quality standards" subject to EPA review

and approval. Set TMDL’s w/in 10 yrso TMDL includes ALL sources - Natural background, Point sources and Non-point

sourceso a pollutant by pollutant analysis. For each pollutant, the maximum amount

allowed so that the water body will continue to meet water quality standards.

= if states do NOT set TMDL's, EPA has a non-discretionary duty to set them (must).• Pronsolino case: P argued TMDL's did not apply to waters polluted by solely nonpoint

sources; that s. 303(d)(1) (c) applied to point sources only (subject to effluent

limitations); here, waters were NOT subject to effluent limitations in 1st place, so CWA

did not apply

• Different interp’s of statute, so 2-step Chevron analysis - Court held: there is nothing in

s.303 which distinguishes point from nonpoint sources.

• Rule: State must establish a TMDL for ALL point source, nonpoint source or

combination of pollutant discharges, except where effluent limitations do the job of meeting water quality standards.

Enforcement of TMDL’s:

• NO enforcement for nonpoint source discharges (no permits required).

• States make list of waterways (s.303), send list to EPA for approval

• State is not required by statute to enforce/implement TMDLs (may lose fed grant money)

• If state wants to enforce TMDL's: impose NPEDS permits for point sources only.o (May need permit due to other reasons – logging - logging permit)

o If waterway is affected from point & nonpoint sources, only POINT sources are

subject to a permit, even if majority of discharge comes from a NONpoint source.

Tragedy = NO permit to impose on nonpoint sources under CWA.

o Thus – not much effective control for nonpoint = this penalizes point sources

(they get hammered by TMDL's - as only people the state can go after) even if

they are a small contributor of pollution.

HYPOs:

1. Gun Club - shoots lead pellets:

Discharging pollutants into water w/out NPEDS permits?

• Is there a discharge of a pollutant w/out a permit? s.502(12)

• Has the club discharged a pollutant into a navigable water? Yes

• Is the discharge from a point source? (is a gun a point source?) - yes.

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• Yes, club has violated the CWA and should get a permit

2. Industry wide effluent standard - should it be the standard for the Gun Club?

• EPA - should create a sub-categ. for the gun club as club does not manuf the lead discharge

• Could the club get a variance? Club should be able to demo. a fundamental difference here.

• What are some different type of limits?

o Permit could limit location/amount of firing

3.If levels of lead exceed the water quality standards, how can s.303(d) set additional limitations

with TMDL's? - follow procedure above

Environmental Impact Assessment:

NEPA – National Environmental Protection Act

s. 102(2)(c) - EIS

• Requires federal agencies to consult with other agencies that have some jurisdiction or

special expertise regarding the environmental impacts at issue

• An environmental impact statement (EIS) must be prepared by any agency whose

“major federal actions significantly [affect] the quality of the human

environment...”

o “include in every recommendation or report on proposals for legislation and other

major Fedreal actions significantly aecting the quality of the human environment,

a detailed statement...”

• Once an EIS is prepared there is mandatory public disclosure provision w/ public

comment period

Calvert Cliffs (77) (procedural nature)

• Held that agency duties under NEPA are judicially enforceable (“[o]ur duty, in short, is to

see that important legislative purposes heralded in the halls of Congress, are not lost or

misdirected in the vast hallways of the federal bureaucracy.”)

• Held that s. 102 of NEPA imposed inflexible procedural duties, requiring a strict standard

of compliance by federal agencies

o The mandate to prepare an EIS and consider to the fullest extent possible all impacts on the environment, could not be brushed aside at an agency’s discretion

• Ensured that strict compliance w/ NEPA reqs. would be enforced by courts

• NEPA imposes a “systematic balancing analysis” that weighs environmental

consequences against technical and economic considerations

Stryker’s Bay Neighborhood Council (substantive nature)

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• Held that NEPA did not impose judicially enforceable substantive requirements, stating

that “once an agency has made a decision subject to NEPA’s procedural requirements,the only role for a court is to insure that the agency has considered the environmental

consequences.”

• Established that while NEPA may affect substantive decisions, it cannot demand

particular substantive results, only a mandatory process

Admin process

• Categorically excluded – projects predetermined to have no significant impact on theenvironment

o No EIS

• Project EIS in dispute

o Environmental assessment

Whether or not the project will have a significant effect on the env andrequire an EIS

• Yes – EIS

• No – announce a “finding of no significant (environmental)impact”

o “briefly present[s] the reasons why an action ... will not

have a significant effect on the human env and for which an

EIS therefore will not be prepared. It shall include the EA

or a summary of it” 40 CFR 1508.13

• Categorically included – projects that, because of size or impact, always require and EIS

If EIS is required

• Draft EIS – prepared and shared w/ relevant federal, state, and local agencies, those who

apply to the agency for permits, and citizens

• Comment period

• Final EIS (FEIS)

• Final decision

102(2)(c)

• Threshold decision

Is a proposal 1) major 2) federal 3) an action 4) significantly affecting the5) human 6) environment?

Major Federal Action• Statute

• 40 CFR s. 1508.18

Major federal actions includes “actions with effects that may be major andwhich are potentially subject to Federal control and responsibility

• Broad: Permits licenses rules regulations policies, even in some

circumstances reaches failure to act

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• May include failure to act if that failure would have been

reviewable under the APA or other applicable law as agency action

• Major o Can the agency avoid “major” by dividing up the project into segments?

Rule

• Do the separate segments have “logical termini” and “independentutility?” Lange v. Brinegar (9th); Swain (5th)

• Federal

o Is the federal project a small part of a larger product (small handle problem)?

Case law

• Permit Requirements - Eighth Circuit held that in reviewingconstruction of a transmission line the ACE could restrict

consideration of whether an EIS was needed the to area in and

around the navigable waters. Winnegabo Tribe of Nebraska v. Ray.

• Federal Funding - Tenth Circuit held that the agency should focuson the impact of the entire project even though the Federal

Highway Admin segmented the project into four parts b/c

Congress had designated that the federal funds could not besegmented.. Ross v. Federal Highway Admin

• Settlement Involvement - Eleventh Circuit held that an EIS was not

required where the federal government was involved in reaching asettlement between a state and a private entity. US v. Southern FL

Water Mgmt Dist.o In dicta held that NEPA obligation may arise where federal

funding or permits are used to implement the settlement.

• Action

oHas there been a decision not to take any action?

Cases

• Court said a decision not to do something (apply pesticides),

effectively electing a course of temporary inaction does not trigger NEPA. Thus, inaction or a failure to act is not an action considered

under NEPA. Minnesota Pesticide v. Espy

• A failure to act might require EIS if that failure 1) would bereviewable under admin procedure act, 2) especially where agency

has a nondiscretionary duty to act. CEQ reg and case mentioned in

class but not in reading.

Significantly Affects

• Significantlyo Statute (40 CFR s. 1508.27) – Requires consideration of both context and

intensity

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(a) Context. This means that the significance of an action must be

analyzed in several contexts such as society as a whole (human, national),the affected region, the affected interests, and the locality. Significance

varies with the setting of the proposed action. For instance, in the case of a

site-specific action, significance would usually depend upon the effects in

the locale rather than in the world as a whole. Both short- and long-termeffects are relevant.

(b) Intensity. This refers to the severity of impact. Responsible officials

must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in

evaluating intensity:

1. Impacts that may be both beneficial and adverse. A significant effectmay exist even if the Federal agency believes that on balance the effect

will be beneficial.

2. The degree to which the proposed action affects public health or safety.

3. Unique characteristics of the geographic area such as proximity to

historic or cultural resources, park lands, prime farmlands, wetlands, wildand scenic rivers, or ecologically critical areas.

4. The degree to which the effects on the quality of the humanenvironment are likely to be highly controversial.

5. The degree to which the possible effects on the human environment are

highly uncertain or involve unique or unknown risks.

6. The degree to which the action may establish a precedent for future

actions with significant effects or represents a decision in principle about a

future consideration.

7. Whether the action is related to other actions with individually

insignificant but cumulatively significant impacts. Significance exists if it

is reasonable to anticipate a cumulatively significant impact on theenvironment. Significance cannot be avoided by terming an action

temporary or by breaking it down into small component parts.

8. The degree to which the action may adversely affect districts, sites,

highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of

significant scientific, cultural, or historical resources.

9. The degree to which the action may adversely affect an endangered or

threatened species or its habitat that has been determined to be critical

under the Endangered Species Act of 1973.

10. Whether the action threatens a violation of Federal, State, or local lawor requirements imposed for the protection of the environment.

o Cases

Ninth Circuit, using 4, 5, and 6, held that the likely impact of whale

hunting on the whale population in the local area (versus CA overall)where the tribe wanted to hunt was a matter of “hot dispute” surrounded

by considerable uncertainty and that an EIS should be prepared that

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includes consideration the precedential effect of allowing the Tribe to

hunt. Anderson v. Evans

Ninth Circuit using 3, 4, and 5, held that the unique characteristics of

Glacier Bay, the substantial controversy surrounding the potential effects

of increased vessel traffic, and great uncertainty surrounding those effects

required the NPS to prepare an EIS or its plan to permit more cruise shipsto operate in Glacier Bay. NPCA v. Babbitt

• Effects

o Statute (40 CFR s. 1508.8) – Effects include:

(a) Direct effects, which are caused by the action and occur at the sametime and place.

(b) Indirect effects, which are caused by the action and are later in time or

farther removed in distance, but are still reasonably foreseeable. Indirect

effects may include growth inducing effects and other effects related toinduced changes in the pattern of land use, population density or growth

rate, and related effects on air and water and other natural systems,

including ecosystems.• Effects and impacts as used in these regulations are synonymous.

Effects includes ecological (such as the effects on natural resources

and on the components, structures, and functioning of affectedecosystems), aesthetic, historic, cultural, economic, social, or

health, whether direct, indirect, or cumulative. Effects may also

include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency

believes that the effect will be beneficial.

o Cases

Psychological harm is not to be considered. Regardless of the gravity of

the harm alleged, NEPA does not apply unless the harm has a sufficientlyclose connection to the physical environment. Supreme Court in Metro

Edison v. PANE

Where an agency has no ability to prevent a certain effect due to itslimited statutory authority over the relevant actions, the agency cannot be

considered a legally relevant “cause” of the effect. Dept. of Transportation

v. Public Citizen

• Where the preparation of an EIS would serve “no purpose” in light

of NEPA’s regulatory scheme as awhole, no rule of reason would

require an agency to prepare an EIS. Id.

• Proximate cause has to be tied back directly to a citizen. Id.

Cumulative impacts regulation requires agency to assess the “impact of

the action when added to other past, present, and reasonably foreseeable

future actions regardless o what agency (Federal or non-Federal)

undertakes such other actions.” Center for Bio Diversity v. Nat Highway

Traffic Safety Admin

• Though there might be an “individually minor” effect on the

environment, rules are “collectively significant actions taking place

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over a period of time” and must provide contextual information

about cumulative and incremental env impacts. Id.

Agency must explain why its rule will not have a significant impact.

Making “vague and conclusory statements” unaccompanied by

“supporting data” does not constitute a ‘hard look’ at the env

consequences of the action as NEPA requires. Id. Baseline problem – check others notes

When in the planning process should the EIS be prepared?

• When theres a proposal for major federal action

• Statuteo 40 CR 1508.23

Defines a proposal as existing “at that stage in the development of an

action when an agency subject to the Act has a goal and is actively

preparing to make a decision on one or more alternative means of

accomplishing that goal and the effects can be meaningfully evaluated.”• Says a proposal exists as soon as an agency has a goal even if the

agency does not definitely declare that a proposal exists

o Says that a proposal might exist in fact even without a

formal report or recommendation

• Preparation of an EIS should be completed in time for inclusion in

any recommendation or report on the proposal.

o There needs to be an EIS when the agency is making the

decision, not after the decision has already been made

Balance – agency has to have something in mind tolimit scope of the EIS but cannot already have made

a decision

• The trigger point of when the EIS needs to

be prepared must be located

• Cases

o When is there a proposal for federal action

Rule

• Mere contemplation or study of a project are not enough. Kleppe v.

Sierra Club

o Reasoning: Statute says “proposal” so there has to be a

proposal. Id.

• The court basically held that an idea becomes a proposal whenagency says so. Id.

o A great deal of discretion is given to the agency in deciding

when there has been a proposal and when NEPA is

triggered. Id.

• The forest service was required to prepare an EIS at the earliest

possible time (before the first step was taken) otherwise the EIS

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would come too late to consider cumulative effects. Thomas v.

Peterson

• What if the agency has to act out of emergency?

o Statute

40 CFR 1506.11

• Where emergency circumstances make it necessary to take an actionwith significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action

should consult with the Council about alternative arrangements.

Agencies and the Council will limit such arrangements to actionsnecessary to control the immediate impacts of the emergency. Other

actions remain subject to NEPA review.

o Must consult with the CEQ on alternative arrangements

o Urgency is a way to avoid NEPA review

Must balance the equities of the alleged irreparable injury with the public

interest and other factors. Winters v. NRPC

• Courts often defer to military matters.

• How broad or narrow should the EIS be? (issue of scope)

• Statuteo 40 CFR 2508.25(a)(1) - CEQ regulations require “connected actions” to be

considered together in a single EIS

Connected actions:

• 1) automatically trigger other actions which may require EISs

• 2) cannot or will not proceed unless other actions are taken

previously or simultaneously

• 3) are interdependent parts of a larger action and depend on the

larger action for their justificationo 40 CFR 2508.25(a)(2) – CEQ regulations require “cumulative actions” to be

considered together in a single EIS.

Cumulative actions are actions “which when viewed with other proposed

actions have cumulatively significant impacts”o Case

Because 1) timber sales could not proceed without the road and the road

could not proceed without timber sales 2) cost-benefit analysis considered

that the timber itself most justified building the road 3) timber sales werelargely behind road construction, they were connected actions. Thomas v.

Peterson

Because road construction and timber sales would result in sedimentdeposits that would detriment several species located around a nearbyriver they were cumulative actions. Id.

• What if fed gvmt takes some action but reserves some action for later?o Rule

NEPA requires agency review at the point of commitment; proper time of EIS is at the point when the agency has obtained a maximum range of

options prior to the decision. Sierra Club v. Peterson

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• Agency was required to perform EIS before leases were issued.

Because at that point it has made an irreversible and irretrievablecommitment of resources and thus irrevocably authorized activities

that might have significant impacts. Id.

• What if the agency reserves the right to block any and all environmental

activities after the commitment has been made (i.e. the lease has beenissued)?

• The agency could delay EIS if retained authority to block all

activities later. Sierra Club v. Peterson

When is there a duty to consider alternatives, and what range has to be considered?

• Agencies are not required to consider every alternative, only those that are feasible.Vermont Yankee Nuclear Power Corp. v. NRDC

o Considers the information an agency should have before it makes its decision

(can’t bring in obscure German article ex.). Id.

o Proponents of an alternative are required to shoulder the burden of presenting

substantial evidence on its merits. Id. How specific does the comment have to be?

• Comment must be specific enough to require reasonable minds to

inquire further

o Simply making a comment saying to consider energy

conservation is not sufficient. Vermont Yankeeo Rule

The more specific and feasible the alternative, the more likely it is the

agency has to consider

• What triggers a duty can change over time (where energy

conservation might not have triggered a duty in 72, might today)

• What if possible feasible alternatives is virtually infinite?

o Requires an agency to consider a representative range of alternatives

CA v. Block – can be rejected if agency hasn’t ... an important alterative ...

• A truly representative example is fine

• Must consider representative range

• What about unrealistic alternatives?o ?Resource v. Wompenson? – might be in tension w/ CA v. Block but really don’t

conflict

• Have to consider a range, but not those unlikely to be implemented

Quality of analysis

• Sierra Club v. USACOE

o Rule: Inadequate when it practically is fraud

• Marsh v. Oregon Natural Resources Council

o ...

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Standing

To have standing to sue, a plaintiff must allege:

• Action will cause IIF (Injury in fact)

• Causation (injury is traceable to challenged action)

• Redressibility (court can provide a remedy)

• Interest is within zone of interests (protected in statute)

o“zone of interests” 4

th

prong of standing doctrine:

Courts have used this to reject efforts by industry groups to use env. statutes to their

benefit. (e.g. Nevada LAA v US Forest Service - Court held: a group of ranchers

pursuing procedural violations of NEPA and NFMA in order to block reductions in

grazing levels did NOT have standing b/c the purpose of NEPA is to protect the env, not

the economic interests of those adversely affected by agency decisions.)

o SC in Automobile Workers v Brock: recognized that org’s have standing to assert the interests of

their members, if: 1) At least ONE member would have standing to sue individually, and

2) if interests the organization seeks to protect are "germane to the organization's purposes"

Thus = if the subject of a lawsuit is ENVIRONMENTAL - then an env group who has amember sufficiently affected by a decision to qualify for standing can sue in its org capacity.

Sierra Club v. Morton: Mineral King ski resort case. NO standing for Sierra Club here - unless

its members can show a more particularized and concrete injury, w/in zone of interests in statute

• But, Supreme Ct. recognizes that harm to aesthetics/ecology is cognizable as IIF

• Organization can sue if:

o Members have standing

o Interest is germane to organizational mission

(Justice Scalia has tried to restrict standing - to preserve separation of powers)

Q: How specific do allegations of injury need to be?o Lujan v NWF - members use unspecified track of land was not specific enough,

didn’t live close/use exact public land so no standing

Scalia: area is too unspecified for an action

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o Lujan v Def of W - someday intentions to visit animals - not specific/imminent

enough injury that law requires.o End result? Blackmun - P's just needed to buy plane tickets?

Purposes - that P's were good representatives for lawsuit

Brock: An org. may sue on behalf of its members b/c interests of members speak to those of org

Lujan v. Defenders of Wildlife (1992): Q = specificity of imminence to injury

- No standing to apply ESA to foreign actions without a plane ticket to see the animals that are

threatened by actions. Scalia = formalistic req’s – need tickets as proof of travel plans (note:

Scalia’s footnote in Lujan II: redressability – where concrete interests on a professional level)

• Injury in fact? No

o Only hypothetical that you might travel somewhere and might not see certain

animals b/c of federal action. Someday intentions not good enough

o Animal/vocational nexus: too diffuse of an interest >> use political process

o Kennedy/Souter Concurrence: implies that plane tickets back to areas would be

enough; must send someone to the place where the impacts of the overall reg.

change are manifested

o Blackmun/O’Connor Dissent: requiring description of concrete plans to return to

areas is ridiculous and unhelpful formalism

Counter to L v DoW : Espy case: regular visits are sufficient for standing

• Procedural right/injury theory: anyone has standing to sue under this act if the

government doesn’t follow proper procedures

o Public interest in administration of laws: Undifferentiated procedural injury: too

general

Mass v EPA: EPA argued any harm causes by climate change was too remote to give P (MA) standing to

sue. But – Court held that the fact that Mass is a state - states are not normal litigants - they are entitled toa "special solicitude in a standing analysis". Court granted Mass standing on common law action on basis

of HARM suffered from CO2 emissions (note: CAA case – state as a sovereign) against EPA.

• But court did not rely on any special doctrines with regard to a state as a P for standing -

Mass has satisfied the most demanding standards of standing - it can have special

solicitude, but Mass does not need any here.• Held: P had standing to challenge EPA's denial of their rulemaking petition.

o Dissent - Chief Justice Roberts, Scalia, Thomas and Alito - argued plaintiffs

lacked standing as any harm caused by climate change was too speculative andtoo remote. CJ Thomas = argued that responding to any problems caused by

climate change was function of Congress, not federal courts.

After Lujan, some courts went off the deep end by requiring a showing of harm to ecosystem for

standing:

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• Earth v. Gaston Copper Recycling Corp. (1999):

o Held = NO standing because water samples proving that pollutants resulting from permit

violations reached P’s canoe in the middle of the lake weren’t taken

• Friends of the Earth v. Laidlaw Env. Services (2000):

o Roebuck, SC polluters and rare ex. of taking an appeal on behalf of env. group over govt.

objectionso Maj. made it easier for citizen groups by reversing above cases and requiring a showing

of injury to P, not to the env.

o Redressability prong – as long as violations continued after suit was filed, deterrent

impact from civil penalties (abating conduct that injured P and continues to threaten

injury) is redress

o Reverses Steel Co. which held all remedies insufficient, including civil penalties since

they go to treasury and not P

• Mootness issue – suit not barred unless it is absolutely clear that the wrongful behavior could not

be reasonably expected to occur in the future

• Qui tarn – private parties have standing to seek recovery on behalf of the fed. govt. under False

Claims Act from Ds alleged to have defrauded the govt.

• Party stands in shoes of govt. since injury in fact was to US, not them

INTER-STATE ISSUES:

• Is there a flow of pollutants from one state to another affecting the state?o RCRA, NEPA unimplicated

o CERCLA unimplicated except for the Dormant Commerce Clause, covered supra

(CERCLA 10)o See CAA

Cap & Trade System with Ozone.

One state’s SIP can’t contribute significantly to nonattainment inanother state

• Michigan v. EPA: (state challenge to SIP plan under

Section 110(a)(2)(D)(i)) EPA can consider costs in reducing what

is “significant”

States can petition EPA to address individual source that causes

violation

•

Section 126 petitions; largely found meritorious by EPA(creates a mandatory duty for EPA to respond). Appalachian

Power Co. v. EPA

o See CWA

Arkansas v. Oklahoma

• Sewage plant – state is liable if it creates any real and measurable

difference in water pollutant levels – here, plant did not, so A was

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not liable—the only multistate issue is whether EPA can account

for downstream states in setting levels, which they can.o Dormant Commerce Clause (See, again, CERCLA 10)

Discriminatory/economic protectionism

Burdens outweigh benefits to locals

Fees to compensate for in-state outlay? Flow controls? Government provision of monopoly service?

• Is it covered by a statute and/or by common law (nuisance/trespass)?

COMMON LAW DOCTRINES:

• Trespass: A physical invasion of another’s exclusive possession of property

1. Strict liability

• Nuisance:

1. Private: Intentional and Unreasonable (gravity v. benefit)

2. Public: Interferes w/ public right (health, property, good)

1. Law of source state applies

Constitutional Challenges:

• Anti-commandeering: States must have a meaningful choice (conditioning funding ok)o New York v. U.S.

• Commerce Clause:

o Channels

Water?

o Instrumentalities

Resource itself

o Activities that substantially impact Damaging activity

Overall goals of statute (CERCLA: U.S. v. Olin)

o SWANCC: Court didn’t reach commerce clause issue, but suggested that

Congress may need to be more specific at the outer reaches of its power

• Non-delegation:

o American Trucking: requisite is intelligible principle

o Mich v. EPA: ok to set Ozone NOx budget, states have choice in how to get there

EXTRA NOTES:

STANDING: (from Harvard Law Env Outline – Spring 2006)

a. Private Access to the Courts under Federal Regulatory Statutes: Standing

and Citizen Suits

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i. General and Important Points:

1. Different standing requirements at different stages of litigation.

2. Differentiate between Constitutional standing requirements andadditional statutory standing requirements.

3. Know what specific statutory provision is at issue when

considering the Zone of Interest test (See Bennet v. Spear)ii. Article III: Case or Controversy Requirement:

1. Article III of the Constitution extends judicial power of review

only to an actual “case or controversy.”2. Three Constitutional standing requirements:

a. Actual Injury : Injury in fact.

b. Causation : Injury suffered must be fairly traceable to the

defendant’s alleged conduct.c. Redressability : Injury suffered must be redressable by

judicial order or judgment.

3. Note: Congress is not permitted to relax or remove any of these

three constitutional requirements for standing.4. Note: Satisfying Article III

a. The amount of evidence required to satisfy the Article IIIrequirements is different depending on the stage of the trial.

b. E.g., at the pleadings stage mere allegations will suffice; at

the summary judgment stage (which is where Lujan takes

place) there must be enough evidence for a reasonable juryto find standing; at the trial stage standing begins to merge

with the merits.

iii. Sierra Club v. Morton , 405 US 727 (1972) [CB: 974]1. Facts :

a. Set in Mineral King Valley (Sierra Nevada); area

designated in 1926 as a special game refuge and used primarily as a recreation area; pristine wilderness.

b. In 40s and 50s US Forest Service considers development

for skiing; in 1965 it allows development bids. Winning bidis from Disney, plans a huge complex (Sierra Club had

originally supported a smaller proposal).

2. Issue : Does Sierra Club have standing under §702 of the APA?

3. Administrative Procedure Act (APA ) (5 USC §§551 to 559, 701 to706) [Supp: 21]

a. §10(a) [5 USC §702] of the APA: “A person suffering legal

wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof.”

b. Note: There were no more specific statutes under which theSierra Club could assert standing, so they sued under the

APA.

4. Hold : No. APA requires an injury in fact that is within the “zone of

interests” of the organization.

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a. Aesthetic and ecological injuries are cognizable interests

for standing purposes;

b. A plaintiff must show injury in fact (actual injury to the person or to a member of the organization) for standing

purposes.

5. Reasoning : (Stewart)a. Injury in Fact: Note: The injury in fact prong requires that a

party suffer a direct injury to a cognizable interest.

i. Cognizable Interests :1. Sierra Club receives no economic harm and

no physical injury.

2. Aesthetic and Ecological Injury :

a. traditionally, at common law, thiswas not a cognizable injury.

b. SC acknowledges aesthetic and

ecological injury as a cognizable

interest for purposes of standing[CB: 976], although not in this case.

ii. Direct Injury :1. rationale: don’t want people with abstract,

ideological objections suing in court. Even

though the Sierra Club is clearly interested

in preserving the Sierra Nevada, how wouldyou draw the line between that and any other

organization that claimed a similar mission

(slippery slope; CB: 977).2. response: Shouldn’t every individual and

group have standing when the government

does something unlawful?a. (me) What is the horrible at the

bottom of the slippery slope? That

anybody can sue when thegovernment does something

unlawful? Is that so bad?

b. counter : We don’t want to have that

many attorneys general in everysituation.

3. Worries : Efficiency problems,

administrative problems, collusive or badfaith suits, ineffective suits brought by

parties without adequate resources, etc.

4. Sierra Club : the slippery slope may be aconcern, but why not set the bar very high

for standing. If any group should have

standing, clearly it should be the Sierra

Club.

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b. Organizational Standing :

i. At least one member must have been able to bring

suit individually.ii. The interests protected by the lawsuit must be

germane to the organization (“zone of interest”

requirement)iii. Neither the claim brought nor the relief requested

may depend on the presence of the individual in the

suit.6. Dissent (Douglas):

a. Environmental issues should be litigated in the name of the

inanimate objects affected. They should have standing

themselves (c.f., the fiction of a ship, or of a corporation). b. Note: First and only time this argument has been raised by

the SC.

7. Further Developments

a. Mineral King:i. Sierra Club initially ignored amicus briefs that

alleged specific injuries suffered by identifiableSierra Club members.

1. Rationale: Sierra Club was attempting to

achieve standing as an organization.

2. Go for the broadest holding and precedent possible, knowing they could always fall

back on individual members if they lost.

ii. Following this case the Sierra Club refilled the suit,alleging injury in fact to individual members.

b. Standing Generally (SCRAP)

i. SCRAP (group challenging increased railroad ratesthat made recycling more expensive) case

represents the high water mark for APA standing.

ii. Court found standing to be attenuated but goodenough in SCRAP; today there is no chance it

would satisfy standing requirements.

iv. Lujan v. National Wildlife Federation , 497 US 871 (1990) [CB: 983, note

case]1. Issue : How specific do allegations of harm or injury by

organization members need to be?

2. Hold : (Scalia) Fairly specific. “[Scalia] concluded that ‘avermentswhich state only that one of respondent’s members uses

unspecified portions of an immense tract of territory, on some

portions of which mining activity has occurred,’ wereinsufficiently specific.”(CB: 983)

v. Lujan v. Defenders of Wildlife, 504 US 555 (1992) [CB: 984]

1. Generally : the most important standing case in environmental

law, this was actually an ESA case.

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2. Facts : Defenders brought sought under the citizen suit provision of

the ESA to challenge US AID projects that would jeopardize the

(non-domestic) habitat of several endangered species.3. Standing Analysis:

a. Identified individual members will be harmed

i. Standing Theory : Members who have traveled toIndia and Sri Lanka and intend to go back at some

point will be harmed by the extinction of the

species. They can’t return to visit.ii. Court’s Analysis (Scalia):

1. Actual or Imminent Injury not satisfied

a. Lack of specific intention to return

(e.g., a plane ticket) means thatstanding is not satisfied.

b. Scalia: “Such ‘some day’ intentions

– without any description of concrete

plans, or indeed even anyspecification of when the some day

will be – do not support a finding of the ‘actual or imminent’ injury that

our cases require”(CB: 985)

c. Critique

i. (me): creates perverseincentives. A race to

complete the harms before

somebody can buy a planeticket.

ii. (Blackmun, dissent): This is

empty formalism, a mere pleading requirement.

iii. But it does set a minimum

standing requirement, whichmight help narrow the

available parties with

standing.

2. Redressability not satisfiediii. Dissent (Stevens)

1. The majority applies the notion of

imminence to the wrong action.2. The injury in question is the destruction of

the species, not the moment at which an

individual would have seen the species butdoesn’t. Once the species is gone the

opportunity to see it vanishes – regardless of

when that would have been exercised.

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3. Critique (majority): If destruction of the

species is the standard for imminence then,

in reality, there is no standing requirement.This would allow everyone to have standing.

4. Counter-critique: But there can be a

determination of whether the plaintiff wouldhave been injured at some future time (e.g.,

demonstrable intent to return to Sri Lanka

vs. someone who had never been and couldnot demonstrate intent to go).

iv. Hypos : What counts for standing under this theory?

(notes: 16-17)

1. What if I enjoy watching PBSdocumentaries of an animal that is

threatened with extinction?

2. What if “adopt” an animal by sending

money and receiving a photo in return?3. Issue : Is emotional attachment, even strong

emotional attachment, enough to confer standing?

a. Humane Society v. Battit suggests

that it is not.

b. Rationale: Giving money to anorganization that protects animals

generally does not confer standing,

so neither does giving money for the protection of one animal.

b. Ecosystem Nexus Theory

i. Standing Theory : damaging one part of theenvironment affects everyone else, even those at a

distance (“Circle of Life” theory)

ii. Court’s Analysis (Scalia):1. Inconsistent with Lujan v. National Wildlife

Federation “which held that a plaintiff

claiming injury from environmental damage

must use the area affected by the challengedactivity and not an area roughly ‘in the

vicinity’ of it”(CB: 985)

2. critique: (Blackmun, dissent) Different typesof harms are at issue

a. In this case the extinction of a

species spreads throughout theecosystem, and actually affects

distant people.

b. In NWF: “the Court required specific

geographical proximity because of

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the particular type of harm alleged in

that case: harm to the plaintiff’svisual enjoyment of nature frommining activities”(CB: 990-991,

Blackmun dissent) (my emphasis)

iii. Dissent : “It cannot seriously be contended that alitigant’s failure to use the precise or exact site

where animals are slaughtered or where toxic waste

is dumped into a river means he or she cannot showinjury”(CB: 991, Blackmun dissent)

iv. Counter-response : Chain of causation is far too

attenuated to supply standing. Must show some

actual harm to get past summary judgment.c. Animal Nexus, Vocational Nexus Theories: similar to

ecosystem nexus theory

d. Procedural Injury Theory

i. Standing Theory : Alleged procedural interest because the government didn’t engage in an ESA

required consultation with Commerce Dept. (notes:18-19)

ii. Court’s Analysis (Scalia):

1. Procedural injuries, in other contexts, do

confer standing.2. but this is only when the procedural injury is

attached to an underlying injury to a legally

protected interest (e.g., personal health, property, etc.). That means you have a direct

personal stake in the appropriate procedures

being followed.3. Where, as here, there is a free-floating

procedural injury there is no standing.

iii. Separation of Powers (Scalia vs. Blackmun)1. Scalia: Allowing standing here would enable

Congress to usurp Executive’s prerogative

to enforce the laws; enabling everyone to

enforce any law undermines Executive’srole as the law enforcement branch.

2. Blackmun: Scalia’s view allows the

judiciary to encroach on Congress’ ability tocreate new (and broad) rights of action.

vi. Bennett v. Spear , 520 US 154 (1997) [Handout I: 1]

1. Facts :a. ESA case; FWS issued biological opinion stating that dam

would jeopardize two threatened species of fish and their

habitat

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b. Bureau of Reclamation (overseeing dam and irrigation

project) indicates that it will adopt FWS recommendations

c. Farmers sue (under ESA and APA §706) alleging that the biological opinion violated provisions of ESA; upset about

loss of water for irrigation.

2. Standing Issues : (Scalia, majority)a. Constitutional Standing

i. No Injury in Fact: no actual lose of irrigation water yet , so no injury in fact.

1. the water might be distributed evenly so that

there is enough for the farmers.

2. the Bureau might choose to ignore the

recommendations; the biological opinion isnot a final document

ii. Hold : Minimum Article III requirements have been

met.

1. Rationale: Early stages of litigation so it isenough that farmers allege they will lose

irrigation water.2. Rationale: Everyone knows that biological

opinions have coercive effect. Not a final

action but Bureau has indicated that it will

follow recommendations from FWS, so itmight as well be final.

b. ESA Standing

i. “Zone of Interest” (ZOI) Requirement under ESA?1. Congress has expanded the ZOI under the

ESA to the limits of what would be

permitted under Article III2. Analysis: Broad language in citizen suit

provision suggests that Congress wanted to

create an expansive right of action.ii. Hold : Any individual who satisfies Article III

(Constitutional) standing requirements can bring

suit under ESA.

1. Thus, there is no real “zone of interest”requirement for claims brought under the

ESA.

1. Note: This is somewhat striking comingfrom Scalia, but it is consistent with Lujan

(Congress cannot dispose of the minimum

requirements of Article III, but it can goright up to them).

c. APA Standing

i. SC considers ESA standing before APA standing

because:

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1. APA authorizes review only when there is

no other adequate remedy, which is why

ESA standing claim must be consideredfirst. (Handout I: 3)

2. also note: ESA allows recover of litigation

costs; APA does not.ii. “Zone of Interest” (ZOI) Requirement under APA:

1. note: Applies only to APA claims, not to

ESA claims.2. Extra-constitutional standing requirement:

can only sue under APA if you can

demonstrate that the interests that you are

trying to vindicate are protected by therelevant statute.

iii. Satisfaction of ZOI requirement (Analysis):

1. EPA argues that ZOI is not satisfied because

the ESA is designed to protect endangeredspecies, not economic interests. The relevant

ZOI is species preservation.2. Response (Scalia, majority):

a. Congress intended ESA to account

for economic and social interests as

well, to prevent over-enforcement of the ESA. Scalia holds that FWS

violated the mandate to consider the

“best available scientific andcommercial data.” (ESA §7;

Handout I: 7)

b. Consider ZOI with respect to thespecific statutory provision. In this

case, economic interests are within

the relevant ZOI.vii. Friends of the Earth v. Laidlaw Environmental Services , 528 US 167

(2000) [CB: 1010]

1. Facts : Since 1987 Laidlaw was discharging mercury into SC river

in excess of NPDES permit; FOE files a lawsuit in 1992 (seeksinjunction, fines, attorneys fees); Laidlaw comes into compliance

in 1995.

2. Standing Analysis :a. Initial Standing:

i. Injury in Fact?

1. Laidlaw argues that there was nodemonstrated environmental harm from the

over-release of Mercury (finding of fact at

the District Court level).

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2. SC Holds : There is injury in fact. For

standing purposes it is the injury to the

individuals that matters, not the injury to theenvironment. (CB: 1012)

ii. Reasonable Fear ?

1. unreasonable : Plaintiffs are worried for nothing – there is no environmental harm.

This is sanctioning an irrational fear (e.g.,

people half a world away who change their behavior) as an injury for purposes of

standing.

2. reasonable :

a. There may be long-term harm to theenvironment and to individuals;

might be reasonable to alter behavior

notwithstanding the District Court’s

findings. b. And the plaintiffs are actually using

the affected area: “plaintiffsadequately allege injury in fact when

they aver that they use the affected

area and are persons ‘for whom the

aesthetic and recreational values of the area will be lessened’ by the

challenged activity”(CB: 1012)

b. Standing after 1995 (Mootness):i. Issue : does post-suit compliance by Laidlaw render

FOE’s suit moot?

ii. Argument : Laidlaw argues that the suit is moot because the redressability prong of Article III

standing is no longer satisfied.

iii. SC Holds : Not moot.1. rationale: Even civil penalties can have a

deterrent effect – and that satisfies the

redressability requirement. (CB: 1013)

2. Penalties deter future violations.iv. Dissent (Scalia)

1. Deterrence must be actual, not speculative.

2. The fact that Laidlaw came into compliance(in fact, by shutting down) makes him

skeptical that there is any marginal deterrent

effect produced by the civil penalties.3. critique

a. (me): but it serves as a deterrent for

future polluters. Can’t escape

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penalties by shutting down the plant

and then popping back up elsewhere.

b. (Stephenson): Scalia’s proposalwould substantially increase the

downside risk for an environmental

group bringing a suit. They mightgain compliance but it is just

important that they receive attorneys

fees, in order to be able to bring thenext suit.

4. counter : This is a good thing – encourages

immediate compliance to avoid penalties.

(note: I find this unpersuasive)

E Law Outline Jonathan

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