← Reasons for why environmental law looks like it does: Nature of the problem being addressed

o Environmental law must address the problem it is addressing Nature of the nation’s law-making systems

o Our laws reflect our country’s law-making systems Widely different views concerning how much we want to protect the environment

← Look at environmental law in theory & practice because there are differences (think Argentina)← Difference between Natural Resource Law & Environmental Law

Natural Resource Lawo Resource conservation & preservationo More of a property based lawo Dept of the Interioro NEPA & mining are botho Historical purpose: settle the nation via private ownership of natural resourceso Natural Resource Management Laws (early 20th century)

Antiquities Act of 1906 National Park Service Organic Act of 1926 Migratory Bird Treaty Act of 1918 Federal Power Act of 1920 Mineral Leasing Act of 1920 Taylor Grazing Act of 1934 Submerged Lands Act of 1953 Today 30% of nation’s land is owned by the government

Environmental Lawo Pollution & controlo More of a tort based lawo EPAo NEPA & mining are both

← Background/History (Since about 1970)

Pre-1970o There was natural resources lawo Property law regulated environmental disputeso Public property doctrine, ownership, & rights determined how to use

environmental resources, conservation, etc. Assign private property rights & let the market take care of things

o Environmental issues sat at the edge of tort law (nuisance law) Do what you want with your property. Nuisance was a footnote.

Environmental issues were largely incidental. That footnote is now the text of environmental law. Now nuisance fills the gaps

o Federal lawo Dr. Alice Hamilton: first Harvard woman tenured professor. Did work on the

dangers of phosphorus 1970s

o The Nixon Administration January 1st, 1970: Nixon signed NEPA (the Magna Carta of

Environmental Law) February 2nd, 1970: Nixon gives probably the most thoughtful,

forward-looking speech on the environment that any President has ever given

November 1970: Nixon got no reward/credit for the environmental laws in the mid-term elections

December 5th, 1970: Nixon creates EPA, not a cabinet agency Creates NOAH & puts it in the Dept of Commerce

December 31st, 1970: Nixon signed the Clean Air Act The 1970s environmental laws set ridiculously high standards, don’t

consider costs, & set crazy fast deadlines. “Man on the Moon” mentality

o Energy crisis in mid-1970so States rebelled against the laws & so did individuals. But laws don’t change

1980so Reagan Administration—1981-1989

“Bring EPA to its knees” Environmental laws as an example of big government trying to control

what people do

Public outpour regarding what is happening with EPA The first EPA administrator comes back

Pass a bunch of new laws that are even tougher than the 1970s laws Superfund law passes in December 1980 (during a lame duck—dead

duck—congress. The new senate coming in was a Republican) Also passed the Alaska National Interest Lands Conservation

Act These laws took more discretion away from EPA by saying “If EPA

doesn’t set regulations by X deadline, here are the default regulations that will be set in place”

By the end of 1980s, everyone is an environmentalist George Bush runs as an environmental republican and has Bill

O’Reilly head EPA 1990s

o Bush administration Clean Air Act of 1990: Even stricter, even less left to EPA. Ambitious. Bush gets no political return for environmental laws Bush turns during the second half of his term As much as congress isn’t changing the laws, one area that did shift in

the 1980s are the courts. There are now more people on the courts who are more skeptical of the environmental laws & how they interfere with other values, such as property rights, federalism, judicial activism, etc

They push backo The Pope was also an environmentalisto Time: Planet of the Yearo Clinton Administration

Al Gore is a super environmentalist Published “Earth in the Balance: Ecology & the Human Spirit”

before Clinton was even elected Clinton wasn’t an environmentalist 1994 Contract with America

Targeted environmental law & EPA for interference with states, businesses, and private property rights

Congress hasn’t passed much environmental laws since this time

2000so Bush Administration 2001-2009

Cuts back on environmental laws Both chambers of congress were also Republican

Means significant overhaul of the law Make the laws more “reasonable”

But there is political backlash & no legislation passes. They are forced to do what they want to do by regulation & interpretation of statute

o Obama Administration Campaigned on climate change Puts all the pieces together

EPA: Lisa Jackson (big issue was climate change) CEQ: Nancy Sutley (big issue was climate change) Plus others In congress: Nancy Pelosi, Harry Reed (primary agenda was

climate change), Barbara Boxer 2009 & 2010 Obama really promoted the issue of climate change

Complete change in 2011 & 2012: “Carbon pollution” instead of “global warming”. No legislation as of 2012

Why is it so hard? So dependent on politicso Environmental laws impose immediate costs on peopleo Politicians speak in terms of 2-4 years. They are very responsive to short-term

costso Environmental laws impose short-term costso People have to change their lifestyles. Liberty issueso Create costs for some (focused spatially & temporally) & benefits for others

(spread out, dissipated over time & space). When you spread costs & effect across time & space, it becomes harder to believe. It’s harder to know what will actually happen. Nature of the problem is uncertainty. Makes it super hard.

An Introduction to Environmental Lawmaking & Environmental Law: Background Principles of Environmental Common Law & Approaches to RegulationCB 61-72, 76-88; 88-99, 129-134, 139-150← Workings of Ecosystems that Environmental Law Must Reflect

Our ecosystem is full of chemical cycles. Ex: Sulfur cycle, carbon cycle, water cycle. These cycles move things to different locations and to different physical states. These cycles often express themselves in the climate. Seasonally, annually, by decade.

The implications of this for environmental law are dramatic Plus there’s scientific uncertainty

o Makes it very hard to figure out what to regulate because you have a moving target. It’s hard to know where to regulate too because you have varying processes. Have to take a step back to make a rational decision. Have to take it all into account (and change) all in order to not make a drastic mistake.

Environmental law can’t ignore these ambiguities: Seasonal, geographic, etc. Different susceptibilities within & between species.

Technology & the ecosystems change over time. This means the laws must change over time.

Take into account cost & technology with extreme uncertainty Its very hard to know the different effects of different pollutants & different levels of

pollutants on human healtho Best way to do this is through a controlled experiment, but there are obviously

ethical limits here The effects are not necessarily linear Bioaccumulation: The persistence of some pollutants over time resulting in a build-up

of contamination over time← Human Nature that Environmental Law Must Reflect

Environmentalists don’t like to compromise like politicians Often marked as zealous Environmentalists believe in absolute limits and bounds. Doesn’t work well in

politics Hardin’s The Tragedy of the Commons: People are short sighted (Mr. Magoo) &

short lived (especially when considering the lives of ecosystems The unavailability heuristic: we don’t see things that are hard to access over time &

space People have very different value hierarchies

o Human-centrico Bio-centric (human & nonhuman)o Eco-centric (ecosystem more broadly & the planet)o Moral and spiritual question

o Economic question (cost & benefit) The challenge of environmental law is to make the allocated efficient decision

o Life is about trade-offs If you cause society to be less wealthy, it will be less healthy There are priceless values (Ackerman & Heinzerling): Ex: human lives Strike a difference between economic (cost-benefit) analysis, but also stress

distributional fairness← Law-making Systems that Environmental Law Must Reflect

Environmental Law is essentially regulating the here & now for the there & then Separation of powers Environmental law presses for delegation because of the uncertainty of this type of

law. This pushes law-making away from the body that’s most responsive to the elective (legislatureexecutive)

Very hard for the judiciary to get involvedo They struggle to understand environmental law cases

Hard for separation of powers to work with environmental law Fragmentation of authority in each branch of government

o Legislature: super hard to pass a lawo Environmental law affects many parts of the economy, so many committees

want a piece of it Environmental law isn’t just EPA The government is simultaneously regulator & regulated Environmental law is usually pushing for centralized power Bill of rights is all about the limitations on governmental authority

o Environmental law runs into these limitations all the time The political process

o Campaign donations & people tend to vote based on here & nowo The there & then has an incredible disadvantage in the voting process. Only

vote by proxy← Donora, PA October 1948

Thermal inversion. 25-50 people died, thousands became ill← London 1950

Lots died because of stagnant air pollution← Los Angeles 1955

“Smog”← Rachel Carson, “Silent Spring”, 1960s

Tapped into people’s fears The atomic bomb changed people’s beliefs

o We have the capacity to change the environment/geography/ ecosystem permanently & very quickly

o Doomsday clocko The Population Bombo The Toxic Time Bomb

Science also increased people’s fears by informing them of levels of contamination that they were unaware of before

The moon landing & pictures of earth from the moono There was hope, but the earth looks pretty fragile. This worry helped fuel a

political movement. 1969

o Things that you could now see on tv: Cuyahoga, Ohio (1969) Santa Barbara Oil Spill (1969) Assassination: MLK & Kennedy Riots/protests, etc.

o Environmental law provided hope during this time← Common Law

Backgroundo Incredibly important to understanding environmental lawo Asks the same questions that modern environmental law askso The common law is still there & provided the framework for the

environmental statutes of the 1970s. But it isn’t just a launching pad for environmental law, it is the background of environmental law. It fills in the gaps in the statutes.

o The statutes are regulatory statutes. This is a different question than whether you are liable. The liability questions still remain in the background.

o Tort law is the pre-cursor to modern environmental law. But it is more than that. It is still there and today you can see global climate change questions being based in the common law (usually nuisance law—public & private nuisance law)

o The traditional approach to nuisance law was pretty unforgivableo The original focus of nuisance cases was the plaintiff

Had to decide if it was unreasonable depending on how substantial the plaintiff’s injury was

o The early shift was from trespass to nuisance where the question was unreasonable, substantial harm

The problem here was that you’re not looking at the cost and/or benefit to the defendant. And also not looking at the cost to society.

o How you determine reasonableness shifts over timeo There’s a way the courts split the different: damages vs. injunction

The remedy question is different than the lawfulness questiono Tarlock

Argues that environmental law could be viewed as representing “a radical break with Western legal tradition,” including both the common law & constitutionalism, because much of it seeks to protect natural systems & future generations that traditionally aren’t recognized as having legal personalities.”

Private Nuisanceo Non-trespassory invasions of another’s interest in the private use & enjoyment

of lando Requires a showing of significant harmo Interference must be intentional & unreasonable or actionable under rules

imposing strict liability on those engaging in abnormally dangerous activities (ex: Rylans)

o Aldred’s Case: Pig sty was held to be a private nuisance because of the stench it generated interfered with Aldred’s enjoyment of his property.

o Performed a kind of zoning functiono Madison v. Ducktown Sulpur, Copper & Iron Co. (1904)

Facts: Claiming that their timber & crop interests had been badly injured by the smoke & noxious vapors from D’s copper reduction plants, P & other landowners in the vicinity sought to enjoin D’s operation.

Holding: No. Damages awarded. Injunction denied. ***Majority Opinion Reasoning: (Neil)

Rule: The granting of an injunction is not a matter of absolute right but rests in the sound discretion of the court, after a full & careful consideration of every element pertaining to the injury.

Notes:

Environmentally polluting facilities tend to be on state borders so that the pollutants go to another state. They do it with water and air.

A very discrete, immediate, disastrous, destructive affect on the downwind ecosystem

Court gives damages, but not an injunction. An injunction would cause economic disaster.

Essentially the court is forcing these people to sell their property (kind of like Kelo)

o Intrusion on liberty to do what you want with your property & not have the government take it

One of the challenges of common law litigation is that the plaintiff has the burden of proof

Public Nuisanceo More promise for environmental protectiono An unreasonable interference with a right common to the general public

R2 Torts §821B: Consider whether the conduct 1) Involves a significant interference with public health, safety,

comfort, or convenience 2) Is illegal 3) (or) Is of a continuing nature or has produced a long-lasting

effect on the public right that the actor has reason to know will be significant

o Missouri v. Illinois (1906) Facts: When Illinois (D) began to discharge Chicago’s raw sewage

into a canal emptying into the Mississippi River, P brought suit to restrain such discharge, alleging that the water would be made unfit for use by its cities.

Holding: Yes. The presence of causes of infection from P’s own actions indicate that P hasn’t proved cause in fact.

***Majority Opinion Reasoning: (Holmes) Rule: Where a sovereign power deliberately permits

discharges similar to those of which it complains, it must prove that its own conduct didn’t produce the complained-of result.

Notes:

Court says Missouri hasn’t met the standard of proof. Made them meet the strictest standard of proof because

o 1) St. Louis was doing the same thing as Chicago

If Chicago is liable, downstream cities are going to start suing St. Louis too.

o 2) This is a big question. Whether our nation’s rivers are used in this fashion is a big public policy question & its very hard for the court to answer this.

o Georgia v. Tennessee Copper Co. (1907) Facts: Because Georgia’s (P) air was being polluted & its forests,

crops, & orchards were being destroyed by noxious gas emanating from D, P sought to enjoin D from discharging the noxious gas over its territory.

Holding: Yes. Injunction to issue. ***Majority Opinion Reasoning: (Holmes)

Rule: Its fair & reasonable for a sovereign to demand that the air over its territory, its forests, & its crops & orchards not be polluted or destroyed by sulfurous acid gas coming from a neighboring state.

Notes: State plaintiff makes a difference Original action (the case goes straight to SCOTUS). Requires

SCOTUS to become a fact finder Smokestacks: Smoke goes further. Immediate area isn’t

affected as much. Different combustion process: Not using wood anymore, so

less destruction of the surrounding forest. Dramatically decreased the amount of sulfur being released (still a lot, but less)

Court gives an injunction. Damages aren’t good enough because the plaintiff is a state.

Air is easier to show (as compared to water) over time & space

There was the question of whether GA was doing more harm than good to its own citizens by pursuing this case. Because similar cases could come up against them. “Extreme rights.”

The US is still struggling with this issue (interstate air pollution issues)

SCOTUS ultimately sets emission levelso Putting the common law in context

Market forces Common law liability

Almost always don’t preempt the common law Sometimes the statutes embrace common law & include it in

the statutes Government regulation Insurance

Statutes require people to have insurance Regulation established by the insurance company Very important, powerful tool for achieving the right level of

riskEnvironmental Statutes: A Historical Perspective (pg. 88-99)

Six Stageso 1) The common law & conservation era: pre-1945o 2) Federal assistance for state problems: 1945-1962o 3) The rise of the modern environmental movement: 1962-1970o 4) Erecting the federal regulatory infrastructure: 1970-1980o 5) Extending and refining regulatory strategies: 1980-1990o 6) Regulatory recoil & reinvention: 1991-2000

Approaches to Regulation: Assessing the Options Regulation & its Alternatives

o Collective action can assume a wide variety of forms, not all of which involve centralized action by government.

o Natural resources can be protected from environmental damage by privatizing them

More successful with resources like land as compared to air or watero Informal, community-based controls are most likely to protect common

resources where such resources are concentrated in a small area & there’s strong community support for limiting exploitation.

o Viscusi: 4 institutional mechanisms that may be used to control environmental risk: market forces, government regulation, liability, & social insurance

Market forces can respond more quickly & flexibly than government regulation to discourage consumption of products that cause environmental damage, but consumers must be well-informed regarding the link between a product & environmental damage. Ex: Dolphin Safe Tuna

139-150: The Regulatory Options Once it has been determined that a problem deserves some form of collective

response, 3 important issues must be confronted:o 1) What conduct or activity should be targeted for collective action?o 2) On what basis should judgments be made about how that conduct should be

altered?o 3) What form of collective action should be employed in an effort to alter that

conduct? See pg. 140 & 141 for great charts Is it human health or public health? These aren’t necessarily the same thing Look to find what triggers the law’s application (the problem)

o Risks to healtho Damage to the environment

Then look at the regulatory target (see pg. 140-143 for more detail)o We almost never target individualso Target people who will target individualso NEPA only targets government agencieso We don’t like to target products (directly)o Like to target industrieso Don’t like to (expressly) target land use (leave this to states)

What is the basis for establishing controls? (see pg. 143-145 for more detail)o Technology-basedo Risk-benefit balancing

Almost never try to do this Hopelessly complicated, so it paralyzes you

o Health-based regulationso Sometimes environmentalists prefer technology-based controls because it can

sometimes be hard to specify the costs/levels of health-based regulations Choose a type of regulation (see pg. 145-150 for more detail)

o Design standardso Performance standardso Information disclosureo Ambient standardo Liability ruleso Taxes

← The National Environmental Policy Act (NEPA): Basic Structure & the Threshold Question of When an EIS is Necessary← CB 857-864, 867-872, 872-877 (notes 1-2 only), 892-902, SM 1-7, 8-12

Environmental Impact Assessment (EIA)o Originating with NEPA in 1969, EIA reqs have become the most widely

emulated form of environmental regulations in the world todayo NEPA: An Overview

Set forth broad principles & goals for the nation’s environmental policy

“Use all practical means & measures…to create & maintain conditions under which man & nature can exist in productive harmony, & fulfill the social, economic & other reqs of present & future generations of Americans. §101(a), 43 U.S.C. §4331(a)

Requires all federal agencies to consider the likely environmental effects of their activities. §102

Environmental impact statement (EIS): An EIS must be prepared for “proposals for legislation & other major Federal actions significantly affecting the quality of the human environment”

Each federal agency is made responsible for implementing NEPA, but Congress also created a central agency, the Council on Environmental Quality (CEQ), to coordinate agencies’ compliance with NEPA

Promulgated regulations on NEPA implementation that are binding on all federal agencies.

The principal arbiters of NEPA’s reqs have been the federal courts. NEPA started to create a common law Every word in §102(2)(C) becomes a source of its own sub-body of

law

Calvert Cliffs Coordinating Committee v. U.S. Atomic Energy Commission (DC Cir. 1971)

Facts: In an attempt to comply with NEPA, D required that a detailed statement on the environmental impact of a proposed power plant accompany any application but need not be considered by the hearing board which decides the application.

Holding: Yes. Congressional intent wasn’t to have agencies make pro forma examinations but to actively consider alternatives to its actions that would reduce environmental damage.

***Majority Opinion Reasoning: (Wright) Rule: NEPA requires an agency to take environmental

factors into consideration at every important stage of its decision-making process

Notes: Strict compliance with the environmental impact

statement (EIS) provisions is mandatory, unless a relevant statute is in direct conflict.

This case shows a collision of cultureso On the one hand you had proponents of nuclear

power (thought it was good for the environment) vs. environmentalists

o Environmentalists didn’t like nuclear power. They saw it as linked to the atomic bomb & the destruction of the Earth & also had a distrust of government

The Atomic Energy Commission didn’t like NEPA. The agency wasn’t to prepare the EIS. The person who was applying was to make the EIS. Then they were going to pass it to the staff to put in a file. There was no requirement that the EIS was read or considered.

This case makes NEPA important. Before no one even thought it was judicially enforceable.

Wright saw the connection between the environment & civil rights & brings this to this case

o Judicial activism: “Judicial assistance in protecting our natural environment”

o Draws a sharp distinction between substance & procedure

On substance, NEPA is very flexible, but on procedure, it is not

o “To the fullest extent possible”: doesn’t provide an escape hatch for foot-dragging agencies

o Under What Circumstances Must an Environmentalo Impact Statement be Prepared?

To define the boundaries of the inquiry, courts have focused on the first clause: There must be a “proposal” either for “legislation” or for “major Federal action”

Then must ask whether the action’s effects on the “human environment” will be “significant”

Proposals for Legislation The legislative EIS req has rarely been enforced Stating that CEQ’s regulations are due “substantial deference,”

SCOTUS held in Andrus v. Sierra Club that agencies’ requests to Congress for appropriations aren’t “proposals for legislation” within the meaning of NEPA’s EIS requirement.

NAFTA & GATT both provided challenges because there was no EIS. SCOTUS ruled that this was ok because the President had final constitutional or statutory responsibility for the final step necessary for agency action directly to affect the parties.

Clinton passed EO 13,141 requiring that “environmental reviews” be conducted for future trade agreements in 3 categories: comprehensive multilateral trade rounds, bilateral or plurilateral free trade agreements, & major new trade agreements in natural resource sectors.

Major Federal Action “Major Federal Action” includes “actions with effects that may

be major & which are potentially subject to Federal control & responsibility”.

So it includes private projects that require federal approval as well as federal programs, policies, & rules.

Includes (according to CEQ) projects & programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies & new or revised agency rules, regulations, plans, policies, or procedures.

CEQ regulations note that federal actions generally fall within one of 4 categories (see CB 870).

Difficult questions about the extent of NEPA’s application to a private project arise when only a small but integral part of the project requires federal approval. (see CB 871-2)

Lange v. Brinegar, Swain v. Brinegar Winnebago Tribe of Nebraska v. Ray Ross v. Federal Highway Administration US v. Southern Florida Water Management District Minnesota Pesticide Information & Education, Inc. v.

Espy NJ Dept of Environmental Protection v. Long Island

Power Authority Citizens Awareness Network Inc. v. Nuclear Regulatory

Commission (NRC) Sancho v. Dept of Energy

Problems of Timing & Scope Kleppe v. Sierra Club (1976)

Facts: P maintained that federal officials couldn’t allow further development of coal mining in the Northern Great Plains Region without preparing a comprehensive, EIS on the entire region.

Holding: No. Reversed. ***Majority Opinion Reasoning: (Powell)

o Rule: a court can’t require the preparation of an EIS to begin before there has been a formal recommendation or report on a proposal for federal action

Concurrence & Dissent: (Marshall)

o Preventing courts from addressing violations of NEPA prior to the end of the decision-making process fails to make use of an effective remedy. Requiring an agency to comply with the mandate of NEPA prior to its final decision avoids the inadequate remedy of setting aside finished plans or rationalizing decisions based on after-the-fact environmental impact studies.

Notes: o There’s no action for regional scopeo No proposal for a project of regional scope

(only local or national). Mere “contemplation” of certain action isn’t sufficient to require an EIS.

o There’s a chicken & egg problem here because you want the EIS to influence the proposal, but the statute is only triggered once there is a proposal. The courts can’t step in just before. The court can’t say you haven’t done it, until you have a proposal.

o This case was a “very soft & friendly landing” It announces a test for seeing if there are cumulative activities that require an EIS. They say it doesn’t apply in this case, but the rule & test that they are announcing is a win for the environmentalists.

o Procedure for Determining Whether or Not to Prepare an EIS Environmental Assessment (EA): Agencies must affirmatively

develop a reviewable environmental record to support the determinations that their actions wouldn’t significantly affect the quality of the human environment

Process by which agencies determine whether an EIA is required. CEQ regulations §1501.4: whether the proposal is one that (1) normally requires an EIS, or (2) normally doesn’t require either an EIS or an EA (categorical exclusion—CE)

If an agency determines on the basis of the environmental assessment not to prepare an EIS, the agency must make the finding of no significant impact (FONSI) available to the affected public. CEQ reg §1506.6

If it usually would require an EIS or there is no precedent, the FONSI must be available for public review for 30 days before the agency makes its final determination regarding preparing an EIS

An EA is basically a mini-EIS. 40 C.F.R. §1508.9 EA serves 2 purposes

1) Provides the basis for the agency’s determination whether to prepare an EIS

2) When an EIS isn’t required, the EA is the vehicle for the agency’s compliance with NEPA’s other reqs.

Under §102(2)(E), an agency must study alternatives to the proposed action, whether or not it is required to prepare an EIS.

3 levels to NEPA review 1) CE 2) EA 3) EIS

Even when a project is subject to CE, a party can petition the agency to prepare an EA or EIS

American Bird Conservancy, Inc. v. FCCo Determining the “Significance” of Action

“Significantly” as used in NEPA requires consideration of both context & intensity (see CB 895 for details)

Anderson v. Evans: Factors 4, 5, & 6 of the intensity regulations National Parks & Conservation Association v. Babbitt: Factors 3, 4, &

5 of the intensity regulations Usually the standard of review in whether to prepare an EIS is

“arbitrary & capricious” (Marsh v. Oregon Natural Resources Council)

But when disputes over whether to prepare a supplemental EIS involve predominately legal questions rather than factual or technical matters, the reasonableness standard is used (Alaska Wilderness Recreation & Tourism Ass’n v. Morrison)

o What “Effects” Must be Considered NEPA demands consideration of effects “on the human environment” The CEQ Regulation defining “effects” is 40 C.F.R. §1508.8 Metropolitan Edison Co. v. People Against Nuclear Energy (PANE):

Regardless of the gravity of the harm alleged, NEPA doesn’t apply unless the harm has a sufficiently close connection to the physical environment.

Dept. of Transportation v. Public Citizen (2004) Facts:

The Federal Motor Carrier Safety Administration (FMCSA), a federal agency within the DOT (D), contended that because it had limited statutory authority regarding motor vehicle carrier registration, the entry of Mexican motor carriers into the US wasn’t an “effect” of its regulations that permitted cross-border operations of he Mexican vehicles, &, therefore, the FMCSA didn’t need to consider in an environmental assessment (EA), pursuant to NEPA & CAA mandates, any environmental impacts that might be caused by the increased presence of Mexican trucks in the US.

Holding: No. Reversed. Where an agency has no ability to prevent a certain

effect due to its limited statutory authority over the relevant actions, the agency can’t be considered a legally relevant “cause” of the effect.

***Majority Opinion Reasoning: (Thomas) Rule: a federal agency, which lacks discretion to

prevent cross-border motor vehicle operations & which issues regulations that permit such crossings subject to the satisfaction of regulatory mandates, violate NEPA & CAA by issuing those regulations after concluding that it isn’t required to evaluate the environmental effects of such cross-border operations

Notes: It’s in the context of their new regulations that they are

subject to NEPA.

o They did an EA. There was a CE for certificate regulations. But for the safety regulations, there was an EA & they found a FONSI.

o For the EA, they looked at the environmental effect of trucks lined up for safety inspections. They thought this was a FONSI & decided not to do an EIS.

The environmentalists said that they had to look at the impacts of the increased number of trucks, etc. The court agrees.

A “but for” theory of causation. o It is insufficient & wouldn’t satisfy NEPA’s rule

of reason. The government wants a broad reading of this case

whereas environmentalists want a narrow reading.o They are going to try to read in narrowly

because this was a Presidential action. This was an agency & the President. The Prez isn’t covered by NEPA.

This is a NO case. No discretion. No ability. Suppose you have a mad millionaire who has applied

for a licence from the FCC. So the FCC would have to do an EIS in this situation? No.

o How could he distinguish between this case & the mad millionaire?

But for causation isn’t enough. The standard analysis they use is

proximate causation. This brings in the notion of

reasonable foreseeability. These are really easy proximate

cause cases. There’s nothing here for proximate cause.

But this case is different because it doesn’t involve a third party.

There was a legislative decision to connect the two (agency & Prez). It isn’t enough to get you off, but it can help distinguish.

← SM 1-7, 8-12 Friends of Back Bay; Back Nay Restoration Foundation, Ltd. V. US Army

Corps of Engineers (2012)o Facts: D proposed a project that would expand to 76 from 12 the number of

existing slips in the Back Bay site, the additional 64 being dedicated for watercraft use primarily by residents of nearby condominiums.

§404 Clean Water Act permit applicationo Holding: The FONSI is invalid as it is arbitrary & capricious. Vacate the

district court’s judgment & remand.o ***Majority Opinion Reasoning: (King)

Rule: When it is a close call whether there will be a significant environmental impact from a proposed action, an EIS should be prepared.

o Notes: Three questions in NEPA:

1) Whether you have to do an EIS 2) Whether the EIS is adequate 3) What to do with the EIS when it’s there

We are still on the first question This case is about things that agencies do so that they don’t have to do

an EIS Environmentalists’ concern regarding mitigated FONSIs:

That the mitigation won’t fully replace that which has been destroyed

That they mitigation won’t work or that it won’t happen at all (might not be feasible or enforceable of fundable or there could be a political regime change, etc)

If you are doing a mitigated FONSI, you aren’t doing the full analysis & thus don’t know what all the effects could be. Thus you don’t fully know if the mitigation would even work.

Here we are concerned about the indirect effects. Namely, increased boating activity.

Had to do some new wetland replacements & vegetation transfer. The key thing in this case was the no wake zone

There’s lots of pointed criticism from important agencies. EPA says the permit should be denied.

EPA has some oversight authority under the Clean Water Act §404

The CEQ is now on top of this issue. Recently issued some new guidelines regarding when you can do mitigated FONSIs.

If you do mitigated FONSIs you must have internal policies to make sure there is some assurance of authority & funding.

It is still aspirational. A lot of these things can’t be written into permits.

The second question is: once you do an EIS, is the EIS adequate? NEPA §102(2)(C)

The most important is (iii) alternatives to the proposed action.

o This puts it into the agency’s administrative record their analysis of the impacts of alternatives.

o You now have the ability to second guess the agency

o Now you can ask, are these impacts necessary? How much do you have to give up to have fewer impacts?

o Also, now environmental plaintiffs (who have no money) don’t have to do this. It’s done with the government’s money. Once it’s in the record, the government can’t deny it.

NEPA § 102(2)(E): Study, develop, & describe appropriate alternatives…

A sleeper provision. Came into effect in 1980 after the Mariel influx from

Cuba.

o They moved the refugees from Florida to Puerto Rico for political reasons for the upcoming election.

But they didn’t do an EIS regarding the transfer.

Memo for Heads of Federal Departments & Agencieso Mitigating an impact under NEPA can be done by avoiding, minimizing,

rectifying, reducing or eliminatingo When preparing an EA, many agencies develop & consider committing to

mitigation measures to avoid, minimize, rectify, reduce, or compensate for potentially significant adverse environmental impacts that would otherwise require full review in an EIS.

o An agency shouldn’t commit to mitigation measures necessary for a mitigated FONSI if there are insufficient legal authorities, or it isn’t reasonable to foresee the availability of sufficient resources, to perform or ensure the performance of the mitigation.

o This guidance approves of the use of the “mitigated FONSI” when the NEPA process results in enforceable mitigation measures.

← NEPA §101: Congressional declaration of national environmental policy← NEPA §102: Cooperation of agencies; reports; availability of information; recommendations; international & national coordination of efforts

42 U.S.C. §4321: Congressional declaration of purpose 42 U.S.C. §4322

← CEQ Regs 40 C.F.R. § 1508.7: Cumulative impact § 1508.8: Effects §1508.18: Major federal action §1508.25: Scope §1508.27: Significantly

Class Notes NEPA Overview

o Ed Muskie (ME) & Jackson (CA) Jackson prevailed with NEPA At the beginning there was no EIS req No one discussed whether NEPA would be judicially enforceable

Russell Train was the head of the Conservation Foundation at this time & went on to be the first head of CEQ

o The Magna Carta of environmental lawo “Each person should enjoy a healthy environment” & has the responsibility to

protect ito We will focus on §102(2)(C): EIS

The subheadings of this section are basically the chapters of an EISo NEPA has never been amendedo The statute starts to get used in the Calvert Cliffs case

CEQ Regs: These are authoritative regulations that you must give deference to. Like Chevron.

o Laid out a basic approach for deciding whether or not you have to do the detailed statement: EIS Procedure (1501.4)

1) Is the activity subject to a Categorical Exclusion (CE)? (40 C.F.R. 1508.4)

Usually there is a petition process too Problems:

o Requires constant public monitoring (no notice requirement under CE)

o Could be petitioning to a hostile audience Example of a CE gone wrong: BP Oil Spill

2) If it isn’t a CE, you have to do a Environmental Assessment (EA) 3) If you conclude using the EA that you don’t have to do an EIS, you

issue a FONSI 4) If you conclude using the EA that you have to do an EIS, you do an

EIS Every word in §102(2)(C) becomes a source of its own sub-body of law

o “Federal”: the target—the federal government/federal action Doesn’t apply to private parties. However, some states have their own

NEPAs that do apply to private parties as well as the government. Applies every time the federal government/agency regulates the

environment. Permits are federal actions. Spending power. Every time the federal government is funding an

activity, that is a federal action. Federal government owns about 1/3 of the land in US

The CEQ regulations are always trying to be a little more generous than NEPA

o “Actions” CEQ Reg § 1508.25 Scope

Connected actions Automatically trigger other actions Can’t or will not proceed unless other actions are taken

previously or simultaneously Are interdependent parts of a larger action

Cumulative actions Similar actions “Action” includes no action under CEQ Reg §1508.18

o “Major” has no independent meaning. “Major” and “significant” reinforce each

other.o “Proposals”

Deals with timing When you have to do the EIS/detailed statement Have a goal & is actively preparing to make a decision on one or more

alternative means of accomplishing the goal. CEQ Reg §1508.23. Creates a tension for NEPA

If you wait too long to enforce the statute, then it plays a role in the decision-making process

But, if you trigger NEPA too early, you’ll be doing a lot of stuff for projects that are never going to happen.

This is the issue in the Kleppe caseo “Significantly”: CEQ Reg §1508.27

An absolute & a relative concept. A particular impact might be significant is some contexts & not

in others. Context Intensity

o “Affecting” Direct effects: Time & place Indirect effects

Removed via time & place

But are still reasonably foreseeable←← NEPA: The Legal Adequacy & Practical Significance← CB 864-866, 911-926, 930-934, SM 13-18

NEPA: An Overviewo Strycker’s Bay Neighborhood Council, Inc. v. Karlen (1980)

Facts: D appealed from a decision reversing a judgment entered in its favor in P’s action under NEPA to enjoin construction of low-income housing, contending that the US Dept of Housing & Urban Development (HUD) had sufficiently considered the environmental consequences of its acts in compliance with NEPA.

Holding: Yes. Reversed. ***Majority Opinion Reasoning: (Per curiam)

Rule: Once an agency, in selecting a course of action, renders a decision in compliance with NEPA’s procedural reqs, the court’s function on review is to ensure that the agency has adequately considered the environmental consequences of the course of action

Dissenting: (Marshall) The present decision misstates the issue, which was whether

HUD (D) was free under NEPA to reject an alternative solely on the grounds of an unacceptable delay. The arbitrary & capricious standard of review contemplates a searching & careful inquiry designed to ensure that the agency’s decision wasn’t an unreasonable exercise of discretion & merits a plenary hearing.

Notes: This decision takes some of the teeth out of the court’s ability

to enforce NEPA’s broad mandate The court can’t substitute its own judgment for that of the

agency, & if the appropriate factors are considered, the agency’s decision will stand.

This is a NEPA §102(2)(E) case. Not only does NEPA require you to consider the environmental

impacts, you also have to give them determinative weight. The court disagreed with this.

NEPA is essentially procedural Can’t give more weight to environmental concerns than

other concerns The question after this case is “What does NEPA mean?”

Read the EIS & then stick it in the file NEPA still means something

o Even if NEPA doesn’t have a substantive effect on its own, it still has a substantive effect because it gives you info to use to argue under a substantive act (ex: Clean Water Act or Clean Air Act). Plus, if agencies see what the bad environmental impacts will be, they usually change things.

Just the process of making people do this changes cultures inside agencies. You have to hire people differently than you had to before.

o Is the EIS Adequate? Each EIS must include:

A summary (to facilitate public review) An explanation of the purpose of & need for the proposed

action A description & comparative assessment of alternatives A description of the environment that will be affected by the

action An analysis of the environmental consequences of the proposal

& alternatives Alternatives

NEPA requires that agencies assess & consider alternatives to proposed actions. §102(2)(C)(iii), §102(2)(E)

Vermont Yankee Nuclear Power Corp. v. NRDC (1978) Facts: NRDC (P) claimed that D’s EIS didn’t meet

statutory reqs since it failed to take energy conservation into account.

Holding: No. Reversed.

o The req of a “detailed statement” doesn’t require a meaningless listing of all alternatives conceivable but rather a careful examination of the relevant alternatives available at the time the EIS was created.

***Majority Opinion Reasoning: (Rehnquist)o Rule: an agency’s EIS need not take into

account every alternative available in order to meet the reqs of NEPA.

It must be reasonably available. Notes:

o D’s failure to examine an alternative (energy conservation) which was irrelevant at the time the document was prepared isn’t fatal to the grant of the license.

o While the courts must ensure that agencies are actually giving precedence to environmental concerns, that duty doesn’t extend to allowing courts to second-guess rationally based decisions.

o According to CEQ, an agency should consider at least 3 alternatives when determining the scope of an EIS:

(1) the effect of no action, (2) reasonable alternatives to the

proposed action, (3) and measures that would decrease

any damage cause that was not included in the proposal.

o We now have a legal test: feasibility Don’t have to analyze “remote &

speculative possibilities”o Taking this case & reading it narrowly, we

would say that this is true in general, but its not true anymore (due to historical context)

o With a broad reading, there would be the problem of unjustified obstructionism

You can’t sandbag (sit back, not mention something & then later come back & say “wait, you didn’t consider X”)

o The take-away is: if you want to make sure that the agency considers something, you have to mention it with some specificity.

The more you say the agency should’ve figured it out on their own, the question becomes, well then why didn’t you (the environmentalist) figure it out on your own?

o The opinion reminds us that NEPA is essentially procedural. 42 U.S.C. §4332.

This has had a huge life of its own. CEQ put out a request for people not to

cite this. CA v. Block: In some cases the number of possible alternatives

is virtually infinite. In such situations, the courts have required that agencies consider an array of alternatives that represents the range of possibilities.

Resources Limited, Inc. v. Robertson: Alternatives that are unlikely to be implemented need not be considered.

Analysis Quality of the Analysis in an EIS

Sierra Club v. US Army Corps of Engineers (2nd Cir. 1983)

o Facts: P contended that D hadn’t made a serious attempt to discover, or to make a permitting decision based on, reliable fisheries info in connection with the Westway highway project.

o Holding: Yes. Affirmed.o ***Majority Opinion Reasoning: (Kearse)

Rule: a court may rule an EIS unacceptable if the agency has made an inadequate compilation of relevant info, hasn’t analyzed it reasonably, & has ignored pertinent data

o Notes: Courts may not express an opinion on

the substantive merits of permits. This case demonstrates how the failure

to listen can be fatal to a project; Westway was never built.

Despite NEPA’s largely procedural thrust, this decision illustrates the substantial impact a successful NEPA challenge can have.

There were other agencies that challenged their proposed project. These agencies were specialized & mission-oriented.

NEPA requires that the EIS is circulated to agencies that have expertise in the specified area.

The district court issues & injunction here & the COA agreed.

A major question with NEPA is whether there should always be an injunction if there is a violation.

Injunction relief is equitable relief.

It is one thing to say something is illegal. It is another thing to say an injunction should be issued.

The injunction test is separate.

Must decide if there will be irreparable harm, the public interest & the balance of the equities.

Donald C. Winter, Secretary of the Nave, Et Al., Petitioners. V. NRDC, et al.: Case where an injunction wasn’t issued

In re Louisiana Energy Services, L.P. (920-1) Sierra Club v. Marita (921) Daubert v. Merrell Dow Pharmaceuticals, Inc: forcing

an agency to make such a showing as a general rule is intrusive, undeferential, & not required.

The Lands Council v. McNair: An EIS need not address all uncertainties concerning the environmental impact of a forest management project. Don’t have to present every uncertainty

Marsh v. Oregon Natural Resources Council (1989)o Facts: The US Army Corps of Engineers (D,

along with Marsh) refused to prepare a second supplemental EIS regarding a dam project despite new info regarding the project’s adverse environmental impacts.

o Holding: Yes. Reversed.o ***Majority Opinion Reasoning: (Stevens)o Rule: an agency must prepare a SEIS if new

info shows that the remaining major federal action will affect the quality of the human environment in a significant manner

o Notes: A more traditional case. The government

wins unanimously. The SEIS is a creature of the courts &

then codified by CEQ Reg § 1502.9.

Here the arbitrary & capricious standard is used. Because whether an EIS is adequate or whether an SEIS is necessary requires a high level of expertise.

Alaska Wilderness Recreation & Tourism Association v. Morrison (pg. 924)

Timing & Scope Revisited The proper scope of an EIS varies with the nature of the

proposed action & that its timing depends on how close the agency is to reaching a critical stage of the decision-making process.

CEQ Reg §1508.28 Tieringo The coverage of general matter in broader EISs

with subsequent narrower statements or environmental analyses incorporating by reference the general discussions & concentrating solely on the issues specific to the statement subsequently prepared.

o Kelley v. Selin (pg. 926) How Well Does NEPA Work?

When concerned outsiders with access to the courts get involved, some of the worst projects are eliminated.

Robert Dreher, NEPA Under Siege (2005) Has improved the quality of federal agency decision-

making in terms of its sensitivity to environmental concerns

Deters federal agencies from bringing forward proposed projects that can’t withstand public examination & debate.

Has pervasive effects on the conduct & thinking of federal administrative agencies

Broadens agency awareness of environmental values Expands public engagement in government decision-

making, improving the quality of agency decisions & fulfilling principles of democratic governance

Framework for collaboration between federal agencies & those who will bear the environmental, social, & economic impacts of their decisions

Critics of NEPA (Pg. 933-934)← SM 13-18

NEPA’s Insatiable Optimismo NEPA is a wonderful instrument of investigative honesty in the hands of a

James Hoeveler or a Robert Charles Chambers← CEQ Regs 40 C.F.R. §§:

1502.14: Human environment 1502.16: Lead agency 1502.20: Mitigation

← Class Notes: The CEQ is putting more and more meat on the EIS Agencies can work around the requirements to consider alternatives by clearly

defining the objective of their action. This might make other alternatives unfeasible.o The fight you have now is how far can agencies go with this?

The case for this is Citizens Against Burlington, Inc., et al., v. Busey 938 F.2d 190 (1991)

They considered the proposed action & no action because they wanted to launch a new cargo hub in Toledo, OH. The FAA had defined their objective this specifically.

This eliminates as alternatives considering putting the new cargo hub in another city.

This is an extreme example, but they won. CEQ Reg §1502.16 Environmental consequences

o Names many things that must be included in EIS. The far easier time to win is when the agency says no EIS or doesn’t

consider the alternatives. It’s very hard to get a court to say that an agency’s assessment isn’t

sufficient in an EIS.o This statement is a very powerful document.

← Sierra Club v. US Army Corps of Engineers (2d Cir. 1983) is a counterexample.← ← Introduction to the Clean Air Act: Basic Structure & Operation: What is an Air Pollutant?

← CB 499-516 (notes 1-3 only) The Air Pollution Problem

o Much of air pollution is traceable to the combustion of fossil fuels for energy in electrical generating units, in cars, & in industry

o Certain conventional air pollutants have become nearly ubiquitous CO

Forms when fossil fuels don’t combust completely Major source: cars Heavy, collects on streets Major harm: bonds with hemoglobin in the blood.

Affects fetal & mental development SO2

Major source: coal & oil burning High sulfur & low sulfur coal (West Coast) Major source: electric utilities Aggravates respiratory diseases Harms at risk populations (kids & elderly) Control: Scrubbers & catalytic conversion

Oxides of nitrogen (NOX) Forms when air is heated Cars & power plants Aggravates cardio vascular & respiratory diseases Harms plant growth Control: Scrubbers & catalytic conversion

Volatile organic compounds Particulates

Difficult & persistent PM 2.5 is the more widespread problem

But the smaller ones are more deadly Solid & liquid Urban waste incinerators, power plants Size matters

Lead Impairs growth, nervous system Success story

The Clean Air Act establishes a regulatory regime in which EPA sets NAAQS for each of them, after first establishing criteria that relate exposure to these air pollutants to adverse effects on human health & welfare

o Ozone is a big air pollution problem Secondary pollutant Formed from reaction of NOx & VOCs Varies by time of day Same controls as many of the others

o Acute exposures are still a serious problem in a growing number of developing countries. Think Donora, PA, 1948

o GHGs are another big issue (CO2, methane, GHGs)—climate change Different global warming potentials (GWP) CO2 has the lowest GWP, but there’s a whole lot of it & it builds over

time (doesn’t come down quickly at all)o Other pollutants

Classic carcinogens, heavy, toxic, different regulatory scheme Mercury Benzene

o Sources Wind blows in different directions Populations are dispersed Sources are in all different places

The Clean Air Act: Basic Principleso Establishes comprehensive sets of measures to control outdoor air pollution

throughout the nationo GA v. TE Copper Co: Shows how virtually uncontrolled emissions from

industrial facilities caused such substantial environmental damage that equitable remedies were imposed.

o First state air regulation agency was Oregon in 1952, then CA in 1959o On the federal side, EPA establishes NAAQSs (§§108, 109)

State governments then decide how the numerous existing sources within their jurisdictions whose emissions contribute to the ambient levels of these pollutants ought to be controlled in order to meet those NAAQSs for their jurisdictions

Each state’s set of regulations to meet the NAAQS is called its state implementation plan (SIP)(§110)

Must be submitted to EPA If a SIP doesn’t meet the CAA reqs, EPA must prepare

a federal implementation plan (FIP) Federal law now classifies parts of the country that continue to exceed

the NAAQSs as non-attainment areas (NAs) Those with air quality better than the NAAQSs as attainment

areas Regulated by a prevention of significant deterioration

(PSD) program Visibility protections (§169A) too

Establishes new source performance standards for stationary sources of air pollution (§111)

Takes the lead in regulating mobile sources too All state authority to regulate mobile source emissions is

preempted by the federal statute (§209), except CA’s States retain substantial authority to affect the use of cars

within their jurisdiction through transportation control plans (TCPs)

o EPA establishes national emissions standards for existing sources of hazardous air pollutants (thought to pose acute danger to public health) (§112)

o EPA administers a national program for the reduction of acid rain (Title IV)o EPA administers a national program for the elimination of pollutants that

destroy the ozone layer, like CFCs (Title VI)o See pg. 505 for good charto See pg. 507-508 for list of Major Provisions of the Clean Air Act

What is an air pollutant?o “Any physical, chemical, biological, radioactive…substance or material which

is emitted into or otherwise enters the ambient air”, as well as any precursors to the formation of any air pollutant. 42 U.S.C. §7602(g)

o Massachusetts v. EPA (2007) Facts: D refused to regulate greenhouse gases, including CO2, from

new automobiles. Holding: Yes. Reversed. ***Majority Opinion Reasoning: (Stevens)

Rule: Because greenhouse gases fit well within the Clean Air Act’s broad definition of an air pollutant, the EPA has the statutory authority to regulate emissions of such gases from new motor vehicles

Notes: The decision is significant because it essentially ordered the

federal government to begin examining climate change & the possible reasons for climate change.

Focuses on §202(a)(1): Imposes national controls on motor vehicles

Definition of “air pollutant” is in § 302(g) In 1990s, General Council John Cannon stated GHGs

are air pollutants In 1999, new General Council Gary Guzy states that the

US had no intention of ratifying the Kyoto Protocolo COS is an air pollutant under EPA’s scope of

authority to regulate, but the Administrator hasn’t yet determined that CO2 meets the criteria to regulate (endanger public health or welfare)

2003: to time to exercise authority, even if EPA has authority

o may make sense to regulate other sources (not motor vehicle) first

o President now trying comprehensive approach of voluntary approaches & incentives to create longer term program

o Considerable scientific uncertainty exists in modeling predictions

o Unilateral US action weaken negotiating position with other countries

The lower court didn’t issue an opinion & gave a fact-based holdingThe only way they could have gotten relief is under a new administration

o A lot to lose & not a lot to gain

3 issues Article III standing Authority Discretion (declining to decide)

o Hard argumento Doesn’t mention a timeline at all (no deadline)

“We’re not deciding yet” Strong principled administrative law

o Argues that EPA gave an illegitimate reason (didn’t like the statute)

Stevens turns this into a climate change case The petitioners were downplaying the climate change

issue Huge impact—bigger than the petitioners thought Gave them enormous political momentum. As if

SCOTUS approved of the science. Environmentalists took this as ordering EPA to

regulate. Had a lot of very positive effects. Basically the Brown v. Board of Education of

environmental law Authority issue

Chevron 1 caseo Said the statute was unambiguouso Everyone agreed on this issue (9-0)

Deciding not to decide discretion issue This was the big issue It has to relate to the statute

o The agency can say that it just doesn’t have time right now, but it must relate to the statute in a substantive way

o Agencies have a lot of discretion in terms of timing, etc

Once EPA has responded to a petition for rulemaking, they can’t rely on outside factors

o EPA’s mistake was responding & giving reasons

o They should have just sat on the petitiono Another mistake was saying “considerations”o They didn’t conform because they talked about

reasons, such as policy, that laid outside of the statute

← CAA §§ 108, 109, 110, 111, 112, 160-169A, 171-178, 201(a)(1), 202(a)(1), Titles III, IV, and V← Class Notes

If you don’t understand the atmospheric structure & composition as well as the types of primary (one that is directly emitted to the air) & secondary (made once they are in the air—from primary sources—must regulate the pollutants that make the secondary pollutants) pollutants in the air, you can’t make the CAA

A lot of the pollutants are aggravators. The aggravate an existing condition. I.e., special groups are effected more than the general population.

Cause & effect is very hard to establish.o Often have to rely on proxies. Ex: animal studies

Smoke Abatement Legislationso 1880-1890: Chicago & Cincinnati were firsto By 1912 every major city had a smoke abatement legislation

1948-1955: LA started having major pollution problems 1952: London “Killer Smog”

o 4,000 people died. Aggravation of vulnerable people 11/1963: NYC Smog

o 200 die. 400 die in 1966 during another major smog The expanding CAA

o The Clean Air Act of 1963o Motor Vehicle Act (1965)o The CAA Amendments of 1966o The Air Quality Act of 1967o Clean Air Act of 1970

Mandates federal NAAQSs First time there are federal standards Mandates

Strict health based controls for all toxic pollutants Strict regulations for motor vehicles Fast compliance dates

3 reasons 1) the public is demanding this 2) Nixon-Muskie 1972 presidential election 3) California

started enacting motor vehicle emission controls in 1960s

The threat of states passing these laws on their own meant that the auto industry wanted federal standards passed

o But they wanted a preemption provision: CA can have its own

Divides world into 3 types of pollutants Criteria

Numerous, diverse sources Endanger public health or welfare Or ones EPA identified as pollutants in the CAA of

1963 Hazardous

Threat of adverse human health effects Or adverse environmental effects Not numerous, diverse sources

Other regulated Endanger public health or welfare Not numerous, diverse sources Not hazardous pollutant

Criteria List criteria pollutants Develop criteria

Studies that link concentration to adverse effects Promulgate NAAQs To Meet NAAQS

State implementation plans (SIP) Stationary sources NSPS Motor vehicles emissions standards

Congressional Refinement Transportation control plans

Prevention of significant deterioration Non-Attainment Acid deposition

Hazardous air pollutants Originally health-based only controls As amended (1990)

MACT Health kickers Area wide

Other regulated pollutants: NSPS + See slide §§ 108 & 109 promulgate NAAQS

§ 108: Create the criteria §109: Promulgate

§ 110 § 111 has a technology based performance standard § 112 has federal standards

maximum achievable (MAC) technology § 123: stack heights (added later)

don’t get credit for super high stacks § 126: interstate pollution abatement

reason why we have a federal air act one of the least successful provisions

PSD program (Title 1, Part C) To protect areas already cleaner than the national standard

Title 1, Part D: Nonattainment areas Title II: emission standards for moving sources

§ 209: State standards the preemption provision the auto industry wanted

Title III-General § 302: Definitions for the entire statute

Title IV-Acid deposition control Title V-Permits

National Air Quality Standards← CB 551-557 (notes 1-3), 558 (start n.6)-571 (including n.5), 572 (n.7), SM 19-31← Establishing NAAQS

The federal government determines NAAQSs & then the states will decide how to control local pollution sources so as to meet those standards

Setting NAAQS is controversialo Have to establish the “acceptable risk”. This uses science & policy.

The EPA has interpreted the req as protecting the public from adverse health effects. But the very idea of a health effect is also not fixed.

The basis for short-term & longer-term exposure limits applicable to the entire nation EPA has strong incentives to avoid making frequent changes to NAAQS, much less

to promulgate new ones. Primary standards

o To protect the public health allowing an adequate margin of safety Secondary standards

o To protect the public welfare from any known or anticipated adverse effects of air pollution

NAAQS must be set based on public health considerations alone, without balancing those considerations against the costs of meeting them

Lead Industries Association v. EPA (DC Cir 1980)o Facts: P challenged the validity of the NAAQS for lead adopted by D in its

interpretation of §§ 108 & 109 of the Clean Air Act.o Holding: Noo ***Majority Opinion Reasoning: (Wright)

Rule: economic issues are not considered in the promulgation of

ambient air quality standards under the CAA. There must be a margin of safety, this is to be a preventative

statute. Don’t need to know certain effects.o Notes:

First big case about NAAQS “Endanger” & “anticipate” in §108 show this is a preventative statute Gives a lot of deference to EPA in its expertise. EPA can be risk

averse. This is a lead NAAQS Lead was particularly problematic for developing a NAAQS. EPA was

actually sued to make a lead NAAQS To come up with the lead NAAQS first EPA has to determine what

population to focus on.

Chooses children & the elderly (very susceptible group) Then have to figure out at what level the lead is dangerous in this

group’s blood. (their action level) Then determine what’s the acceptable level of this population that can

have this in their blood? 99.5% must be below (Gauss frequency distribution)

Then determine how much of this level in the blood will come from non-air sources? Have to figure out how much we will let air contribute.

Answer: 12 This is different across the country Thus, they can get 3 from air

Every 5 years EPA has to reconsider a NAAQS They had to write this in because with all these considerations,

EPA wouldn’t do it otherwise Plus the science is changing fairly quickly Must have independent scientific review There is a natural desire not to change a NAAQS

Because of the practical, economic, & political implications

Problem Exercise: A NAAQS for CO2? Should a NAAQS be established for CO2 in light of evidence that it is the most

significant greenhouse gas that contributes to global warming? The problem is that it comes from TONS of sources. It’s everywhere. Plus, even if we reduce it, the rest of the world will be doing it. The amount in the

atmosphere extends way beyond our jurisdiction. As a practical matter it would be a disaster and as a political matter it would be even

worse than thato It would make there be statutory amendments very fast

Will also lose other stuff However, there’s no question CO2 is a criteria pollutant. But EPA doesn’t want to

address it. CO2 is of a “different kettle of fish” than the other criteria pollutants. Thus, it should

be excluded because Congress didn’t consider it.← Revising NAAQSs

EPA is required to review & revise air quality criteria & NAAQSs at 5 year intervals.

o CAA §109(d) “as may be appropriate” Environmental Defense Fund v. Thomas: Although it couldn’t dictate to EPA whether

or how the NAAQSs should be revised, the administrator must make some decision regarding the revision of the NAAQS that itself would be subject to judicial review.

EPA has been reluctant to revise its NAAQSs in part because of the administrative burden such revisions would generate.

o If changed, each state must prepare a revised SIP that must then undergo a cumbersome process of EPA review & approval.

Lead Insustries Ass’n: air quality standards must also protect individuals who are particularly sensitive to the effects of pollution.

Whitman v. American Trucking Ass’ns (2001)o Facts: Challenges were made regarding whether costs are to be considered

when the EPA (D—Whitman) promulgates NAAQS under the CAA, & whether the nondelegation doctrine was violated by the power given to D under the act.

o Holding: 1) No. Affirmed. 2) No. Reversed & remanded.

o ***Majority Opinion Reasoning: (Scalia) Rule:

1) the Administrator (D) may not consider the costs of implementation in setting NAAQS under the Act

2) the Act does not delegate legislative power to the Administrator

o Notes: Issue in cert petition: Effects an unconstitutional delegation of

legislative power Cross-petition for cert: brings up issue of cost

However, the non-delegation brief (of the industry) only focuses on cost

They argue that the word “public health” takes into account costs as well as benefits

They also argue adequate margins They also ask, is it requisite itself? This embodies notions of

cost as well.

Waxman (arguing for EPA): “For a discrete set of pollutants & based on published air quality criteria that reflect the latest scientific knowledge, EPA must establish uniform national standards at a level that is requisite to protect public health from the adverse effects of the pollutant in the ambient air”

Argument said unless Congress expressly said you can’t consider costs, you should be able to consider costs & cost-benefit analysis

If you tell them to consider many things, you are actually giving EPA less guidance

By not considering costs, they are given more guidance Scalia argues that costs must be expressly put in to be considered

Says they would have expressly mentioned it in §108 or §109 if they wanted costs to be considered

Non-delegation doctrine The standard in CAA is very similar to the “necessary to avoid

an imminent hazard to the public safety” standard seen in OSHA

On remand EPA has to do the rule again because the government didn’t appeal on everything struck down in the DC Circuit. EPA at this point is a new administration. EPA keeps the same standard, they don’t change it. The DC Circuit upholds it.

Since this case, EPA has struggled with the ozone rule because new evidence has come in to show that the ozone rule isn’t strict enough.

← CAA § 108: Air quality criteria & control techniques Identify the criteria pollutants A(1): May reasonably be anticipated to endanger public health or welfare

o Numerous or diverse mobile or stationary sources A(2): Criteria just means study the adverse effects of these pollutants in the air Lays out time period to name the criteria pollutants & the criteria for researching then

← CAA § 109: National primary & secondary ambient air quality standards Promulgation

o 30 days Very difficult since EPA had just begun (very short deadline) Shows how ambitious & demanding this statute was

o Promulgate the criteria & the new standards at the same time (for new criteria pollutants)

B(1): Primary: public healtho Adequate margin of safety

B(2): Secondary: Public welfareo Known or anticipated adverse effectso Climate is included as an effect on public welfare

CO, Lead, NO2, O3, Particle Pollution, SO2← Class Notes

Criteriao List criteria pollutantso Develop criteriao Promulgate NAAQS

Uniform National Adequate margin of safety

SO2 NAAQSo Concern: Short-term exposure (5 minute bursts) and the consequences for

asthmatics o EPA had to ask, do we have to come up with a 5 minute standard?

EPA was reluctant to do a short-term standard & is eventually sued to do it (Environmental Defense Fund v. Thomas (2d Cir. 1989)

They make a short-term standard in 2010 It takes forever because they know that it will be expensive &

they couldn’t take costs into effect The new standard is a 1 minute standard (75 ppb)

From 24 hour .14 ppm & annual .03 ppm A much stricter new standard

o But there is some wiggle room in terms of how often it is filed

Particulate matter NAAQSo Started regulating smaller particulateso Very strong epidemiological evidence showing correlation between PM &

health effects But very little scientific evidence of how PM were causing problems

in the body EPA Issued a Regulatory impact Analyses for the PM & Ozone

NAAQS & Proposed Regional Haze Rule

But according to the statute, she can’t look at this in making the decision (because it discusses costs)

Yet, she’s required to make the document under an executive order

You can’t take cost into account in promulgating NAAQS, but you can take cost into account in implementing NAAQS

This was included in a presidential document about how these new NAAQS would be implemented

Ozone NAAQSo Ozone revision process is particularly problematico In 1997, they lower the Ozone NAAQS. But, it looks like more of a dramatic

reduction than it actually is. However, it is still a significant reduction.o Environmentalists thought the standard should be .07ppm, the government

wanted .09ppm. EPA chose .08ppm There is no threshold anywhere As you make a regulation stricter, costs tend to go up.

But EPA can’t consider costs Where you pick your spot (i.e., .08ppm) is quite hard

American Trucking Association v. EPA (DC Cir. 1999)o This is Whitman v. American Trucking Association (2001) before it is granted

certo The major argument in this case was “arbitrary & capricious”o Non-delegation document

Nothing violates the non-delegation document Things were only struck down under the non-delegation document in

1964o No guidance here

Selecting “big guys” but not specifying height & weight cut-off points Therefore it’s a violation of the non-delegation document. Not

arbitrary & capricious.SM 19-31

The cost curve of the 2008 decision to change the ozone NAAQS from .08ppm to .075ppm is significant

CASAC Ozone Review Panel says they don’t endorse the new primary ozone standard as being sufficiently protective of public health. The suggested between .06 and .07ppm

o New proposed rule is consistent & they say .065ppm in 2010o It was pushed back several times, until the president asked them to wait until

2013 (after the election) The administrator of EPA makes Obama write a letter denying the new

NAAQS Positives (for industry) & negatives (for environmentalists)

OIRA letter gives reasons why they should waito Needless uncertaintyo New standards will be developed in the relatively newar futureo Work has already begun on a new & forthcoming scientific reviewo First joint rule reducing air pollution (including ozone) from heavy-duty…

NRDC Staff Blog: “Friday Smog Massacre”Keystone XL Pipeline became their next big issue (the ozone loss united environmentalists around this issue)

← Attaining and Maintaining the NAAQS← Review

Problem Exercise: A NAAQS for CO2?o Not going to make one because it reveals the weakness of the statuteo States can’t achieve NAAQS on their own on a state-wide basiso The point is not that EPA isn’t regulating Greenhouse Gases. They just aren’t

doing so as criteria pollutants They regulate them in stationary sources & motor vehicles

← CB 573-591; SM 32-43← Implementation & Compliance—the basic structure

Union Electric Co. v. EPA (1976)o Facts: After D approved a SIP that was more stringent than the standards

required by federal law, P claimed that meeting the state standards was technologically & economically infeasible.

o Holding: Yes. The “as may be necessary” language of § 110(a)(2)(B) demands only that the SIP meet the “minimum conditions” of the amendments.

o ***Majority Opinion Reasoning: (Marshall) Rule: states may implement pollution control plans more stringent

than federal law demandso Notes:

It’s the state’s prerogative. EPA is only asked: will the state achieve the NAAQS? The states can be tougher than the federal law requires.

Virginia v. EPA (DC Cir. 1997)o Facts: Virginia (D) contends that EPA’s SIP call effectively ordered the

adoption of the CA standards, because the measures required of a state choosing not to adopt it were so unreasonable & impracticable as to amount to no real alternative.

o Holding: No. Rule vacated in its entirety.o ***Majority Opinion Reasoning: (Randolph)

Rule: EPA may not condition approval of a SIP on the state’s adoption of a particular control measure.

o Notes: CAA §100(5)(5) SIP Call EPA told VA what to do with their SIP. Court said EPA can’t tell them exactly what to do. They can only tell

VA to do a SIP & meet the NAAQS. EPA was also relying on the CAA § 184—Control of Interstate Ozone

Pollution A single transport region in the Northeast where ozone goes

back and forth Alaska Dept of Environmental Conservation v. EPA (2004)

o Facts: P contended that D’s oversight role as described in CAA § 113(a)(5) & 167 didn’t extend to ensuring that a state permitting authority’s Best Available Control Technology (BACT) determination is reasonable in light of the statutory guidelines so as to authorize D to stop construction of a major pollutant emitting facility if D finds an authority’s BACT determination is unreasonable.

o Holding: Yes. Affirmed.o ***Majority Opinion Reasoning: (Ginsburg)

Rule: the CAA authorizes EPA to stop construction of a major pollutant emitting facility permitted by a state authority when the EPA finds that an authority’s BACT determination is unreasonable in light of statutorily prescribed guidelines

o Dissent (Kennedy)

D based on nothing more than its substantive disagreement with P’s discretionary judgment, exceeded its powers insetting aside P’s BACT determination, especially since P had followed procedures that complied with the CAA & accompanying regulations promulgated by D. Thus, D’s orders were tantamount to administrative fiat.

o Notes: Shows an application of the PSD program Best available control technology is the one that the permitting

authority, on a case-by-case basis, taking into account energy, environmental, & economic impacts & other costs, determines is achievable for such facility.

According to the statute, BAC is what they say it is (this is what the petitioners are arguing)

§113(a)(5): EPA can issue an order if it thinks someone isn’t in compliance with a req

Alaska wants EPA to challenge them in state court (where the standard is EPA has to prove they were arbitrary & capricious) instead of issuing an order where AK has to challenge their order & prove EPA was arbitrary & capricious.

This isn’t fair to convert this standard. The court agreed. Allowed them to argue in federal court but

kept what would have been the original standard Alaska is the permitting authority in this case & determined what it

thought BAC was. Said this is dispositive. EPA looks at §113(a)(5) & says they can conclude that the

state is not in compliance with BAC determination & can review it. Court agrees.

Case had to be heard in federal court. Court says the state’s decisions didn’t provide reasonable

analysis Can’t take economic concerns into account. Saying

something is economically infeasible doesn’t mean it isn’t available.

Kennedy’s dissent in this case was important in Mass v. EPA← The Evolution of the Programs to Achieve & Maintain the NAAQS

Nonattainment & Prevention of Significant Deterioration

o States must require reasonably available control technology (RACT) on existing stationary sources, while major new stationary sources in NA areas must install emissions control technology that will meet a lowest achievable emissions reduction (LAER) standard for that source.

o Major sources must also meet offset reqs Vary according to the severity of the air quality problem at their

locationo PSD program

An area whose air quality was better than the NAAQS is able to increase air pollution so long as the full increment isn’t consumed.

← SM 32-43 National Federation of Independent Business v. Kathleen Sebelius, Sec. of

Health & Human Services (2012)o Facts: ObamaCare decision. Not sure what is relevant from this case.o Dissenting: (Roberts)

Notes: Look at CAA § 179 in relation to this case The affordable care act case This threatened CAA § 179(b)(1)—Sanctions—Highway

Sanctions The states struck down the Medicaid expansion by saying it

exceeded Congress’ authority under the Spending Clause. This is potentially relevant to CAA §179 were that it

was coercive to taking away money that had already been allocated to states (future allocations of money the states had come to rely upon)—namely federal highway funding

The court says the state has to have a real legitimate choice to choose

o Here this isn’t the case because it was a past program that the states really relied on

o Also, it was a big part of their budget (20% of the state budget went to Medicaid)

o Also, the conditions take the form of threats to terminate other significant independent grants

It was basically a brand new Medicaid program under the same name—it’s not just a modification

The argument applied to CAA §179 to prove this is unconstitutional is that it is a gun to the head of the states (8% of the budget goes to highway funds. This isn’t trivial). Plus, you can be in non-attainment for stationary sources and you risk your highway funds. These are two different programs.

Response: § 179 doesn’t deny you federal funds for the whole state, only for non-attainment areas. There is a relation, since motor vehicle emissions do contribute to air pollution. SCOTUS has already upheld the threat of federal highway funds in South Dakota v. Dole (1987) with regards to the legal drinking age.

EPA has never denied a state its federal highway funding. It only threatens to take it away.

← CAA §110(a)-(c), (k), (m), 160-163(a)-(b), 165(a)(1)-(3), 169, 171, 172(a)-(b), (c)(1)-(5), 173(a) & (c), 179 (a)-(b), 181(a), skim 182← Class Notes

Motor vehicles sections regulate criteria pollutants but also other pollutants Today we will focus on criteria pollutants

o Because they come from many sources, we try to regulate them through the SIP process

o There are all kinds of ways this is complicatedo The federal government basically tells states what they have to do (these are

minimums): Five federal overlayers (CAA §102, 111, Pt D

Auto emissions standards & fuel controls A minimum and a maximum (unless you’re CA)

New major statuionary sources Nonattainment PSD Interstate: Acid deposition & Regional commissions

CAA §110o Often considered the hub of the CAAo A lot of different requirements flow out of this section.

o Requires every state to adopt a SIP within 3 years of the promulgation of a NAAQS

o We’re only concerned with primary pollutants in this classo A state can zone for air pollution controlo Tells you all the things that must be in the SIP

Emission limitations Monitor Enforcement Prohibit interstate transfer

Train, Administrator, EPA v. NRDC (1975)o How much liberty do states have to meet the NAAQS?o EPA approved the SIP. The only question they were asked was whether the

state could achieve the NAAQS. CAA § 123 Stack Heights

o Can you achieve the NAAQS by tall stacks? Can this be in the SIP? No. No credit beyond good engineering practice.

o Could also contribute to interstate air pollution.o No dispersion of intermittent controls either

AKA wait until the wind is blowing to emit more These were very popular

CAA § 110(a)(5)(i)o States have to include an indirect source review program in their SIP

Ex: Malls, parking garages (they attract a lot of cars in one place)o This was shot down because it sounded too much like land use. And you can’t

do that Longer term challenges

o 1) what to do if NAAQS not being met over time?o 2) what to do about areas cleaner than NAAQS: let get dirter to NAAQS?o 3) what to do about how problems caused by interstate?o EPA can look at the SIPs. They can give full & partial approval &

disapproval. They can also give conditional approval. They can also promulgate a FIP within 2 years (the backup plan). The FIP can’t improve a parking surcharge.

EPA doesn’t like to do this. It’s the threat of the statute.

o There’s a problem with SoCal. It’s really hard to achieve the NAAQS. Lots of cars & mountains. Like Mexico City. Really hard, if not possible, to reach the ozone NAAQS. Doing a FIP to meet the NAAQS basically would mean shutting down LA & preventing satisfaction of the basic necessities of life—including food, shelter, & medical services.

o The statute is edited in 1977 & 1990, to direct non-attainment areas to achieve attainment as expeditiously as possible.

CAA § 110(k)(5) SIP Callo EPA can recall a SIP if it is inadequate. o This is what happened in Virginia v. EPA (DC Cir. 1997)

CAA § 107—Air Quality Control Regionso A state can divide its state into different air quality control regionso These areas must be designated as attainment, nonattainment, or unclassifiable

(not enough information) Part D—Plan Reqs for nonattainment areas

o §§ 171-185Bo A whole subpart dealing strictly for ozoneo § 172(c) Nonattainment plan provisions

Must include all reasonably available control measures This means at a minimum, of reasonably available control

technology Must include reasonable further progress (RFP) Permits for new and modified major stationary sources

There were no permit reqs before thiso § 173—Permit reqs

Have to have offsetting emissions Must be in compliance with the lowest achievable emission rate

A technology-based emission limitation req A really tough statute

The owner or operator of the proposed new or modified source has demonstrated that all major stationary sources owned or operated by such person…are in compliance

This section creates a market for emissions trading There’s a ratio that gets tougher & tougher depending on how

close we are to nonattainment The general ratio band is 1.0:1.1

This is RFP The advantage is now you have a new source or you

can modify your existing source It’s allowing for growth while still allowing attainment

to be done There are offsets as well

o § 171—Definitions RFP Nonattainment area Lowest achievable emissions rate

o § 302—Definitions as well to be a major source you have to have the potential to emit 100

tons/year of any pollutant. Then you require a permit.o § 179—sanctions & consequences of failure to attain

Highway sanctions For a state this is a big deal

o Particular provisions dealing with ozone § 182—plan submissions & reqs

different standard for different areas: marginal, moderate, serious, extreme major source threshold goes down emissions offsets go up

Part C—prevention of significant deterioration (PSD) of air qualityo Areas that are cleaner than NAAQS, you can’t get much dirtiero The PSD area is huge. It takes over the statute.o Every part of the country is a PSD for at least one criteria pollutant

The language of the statute applies to every part of the country because the statute doesn’t mention that it only applies to a particular pollutant in question

o § 107(d): what areas are in attainment?o § 162: classify areas as class 1 (national parks), class 2 (everything else), or

class 3 (nothing)o § 163—increments & ceilings: for each classo § 165—preconstruction reqs

major emitting facilities in a PSD area need a permit

must show that you won’t cause/contribute to air pollution in excess of any mazimum allowable increase (in increment)

must use best available control (BAC) technologyo you’ll probably have to pay someone else to

decrease their emissionso creates another market

o § 169—Definitions Major emitting facility: if you emit 100 tons/year of any air pollutant

from a list of stationary sources This is the other regulated pollutant standard The PSD regulates the other regulated pollutants

This now regulates GHG (including CO2) This req of 100 tons/year is nothing for CO2

o There are hundreds of sourceso A humongous provision

← (Existing and) New Stationary Source Review & Cap-and-Trade← CB 591-603. 603-613← CAA §111 (esp §111(a)(2)& (a)(4), 111(d), 169(2)(C), 171(4), 401, 402, 403(a), (b) & (f), 404(a) & (e), 405(a), 411(a)← New Source Review

New sources that fall into categories that EPA has found generate air pollution which may reasonably be antipcated to endanger public health or welfare are required to install federally established new source performance standards.

o NSPS: Best demonstrated technology (BDT) NSPA & BDT have largely been superseded by PSD & NA

o PSD & NA both require any major new source that will or has the potential to emit significant amounts of any of the criteria pollutants to install state-of-the-art pollution control technology

New source review (NSR) is the process for ensuring that these various new source reqs are met

One way to avoid NSR: EPA’s treatment of an entire facility, which may contain a number of different sources of pollution, as a single source

o Facility owner could reduce emissions elsewhere in the facility in an amount larger than the additional pollution from the modification, so that the change that occurs under the bubble won’t be one that increases the amount of any air pollutant emitted by such source

o Netting out is one way to avoid NSR: Net emissions of the facility—new pollution minus contemporaneous reductions in existing emissions—won’t trigger review

Environmental Defense v. Duke Energy Corp (2007)o Rule (Souter): where EPA regs for the NSR program state that a change to a

plant constituting a major modification requires a new permit, the EPA is free to interpret the word “modification” in a manner that isn’t limited by the regulation’s reference to the definition of the word “modification” in another regulation, the NSPS.

o Notes: Arguing that there was a physical change, but that NSR didn’t change

because the emissions rate hourly level didn’t raise (even if the total yearly emissions amount went up)

But they had to look at 40 C.F.R. §51.166 (1987) which says that a change of hours of operation can change emissions increase.

Plus the statute’s definition of “significant” is measured per year, not per hour

In light of § 111(a)(4), the regulation was read in terms of year, not hours

EPA & Environmental Defense lost in the 4th circuit Environmental Defense petitioned for cert US opposed further review (because of the new administration) The new administration changed the regulation to make it hourly, not

annually. But SCOTUS took the case anyways Conservative justices emphasized at oral argument at one point, that at

one point, the head of the EPA had interpreted the regulation to mean an hourly rate, not an annual rate.

But the decision comes down unanimously saying that incorporation by reference isn’t enough to deny that same words can have different meanings.

NSPS is different than NA and PSD, so EPA doesn’t have to construe it the same way.

Nothing suggests that Congress was thinking about regulatory implementation at all

And when the rate is mentioned, it is in annual, not hourly terms. The physical change can’t be the increase in hours of operation alone,

but it wasn’t here—it was the changing of tubs.← Cap & Trade & Other economic incentive programs (EIPs)

Establish caps on aggregate emissions & then let regulated parties trade emissions allowances among themselves to find the most cost-effective way to meet the cap limitations

SCAQMD & RECLAIM (pg. 604) largely uses cap and trade← Acid Deposition

Cap & trade programs are the most prominent EIP mechanisms CAA Title IV (added in 1990) Issue of acid rain is regional (in northeast from the Midwest) Acid rain program begins with a nationwide cap on emissions Phase I

o Applied to the largest coal-fired electric generation sources from 1995 to 1999 for SO2 and from 1996 to 1999 for NOx (the big dirty)

Phase II: Began 2000 The potential for trading is created by allocating pollution allowances to sources

based on their past emissions & fuel consumption Allowances may be reallocated within a company to cover multiple units, transferred

to another owner, or transferred to a later year← Review

Now the SIP has to comply wit Part D for non-attainment plans. The plan requires the implementation of all reasonably available control measures, and “reasonable further progress”

CAA, permits don’t get added until later (§ 173)o Most important permit reqs:

Offsetting emissions Lowest achievable emission rate

this is supposed to be the toughest of allo § 179 Sanctions

If you fail to attain, states lose their highway funding Subpart 2: Additional Provisions for Ozone Nonattainment Areas

o Marginal, moderate, serious, severe, extreme

o Congress has answered many tough questions/made many of the tough political decisions for themselves

§ 110(a)(2) for PSD (In part C)o The original motivation for PSD was an ambitious standard brought by the

Sierra Club and the question of congressional intento You don’t want to make clean air areas dirty

Significant deterioration isn’t allowedo Environmentalists and non-attainment states (didn’t want the attainment states

to have a competitive advantage in attracting industry) were very in favor of the PSD reqs

Part Co § 163 increments and ceilings

the increment is basically the definition of significant deteriorationo § 165 preconstruction reqs

the second permit req put into place can’t go above the maximum allowable increase facility is subject to the best available control technology for

each pollutant subject to regulation applies to everywhere in the US, not just certain areas

o § 169 Definitions Decide if something is a major source by looking to their emission

levels of any specific pollutant The PSD trigger applies to any major source anywhere in the

country It is how much it admits with controls The BAC applies to any pollutant subject to regulation, not just

the pollutant that is over the acceptable level This is a big deal in terms of CO2

← Class Notes New Source Review (NSR)

o Refers to the regulation of new sources under CAA Part D and Part C (Non-attainment and PSD)

o Not referring to the NSPS § 111 Still, this section remains quite relevant. Especially to greenhouse

gases Part D & Part C define themselves in relation to § 111

o § 111 provides EPA with the authority to publish proposed regulations, establishing Federal standards of performance for new sources within such category

a BADT standard. Done on a categorical basis (not case by case)o NSR Requires

For Nonattainment Applies to: Major sources Requires: LAER & Offset

PSD Applies to: Major sources

Requires: Increment & BACT Contrasting definitions of major

NA: 100 TPY Of NA pollutant & can go down for ozone NA

PSD 100 TPY for some listed sources 250 TPY for other sources Measured by any one pollutant

There is a competitive advantage to existing sources They exist. This in and of itself is an advantage.

§ 172: Nonattainment plan provisions in general If you do a modification, you are considered new. No major emitting facility on which construction is

commenced after the state of the enactment of this part, may be constructed in any area to which this part applies unless…

The term “construction” when used in connection with any source or facility, includes the modification

This didn’t really work out as planned. Ex: power plants “don’t like to build anything new”,

thus avoiding modification and becoming “new”o This has a lot of costs. Ex: new technologyo Plus, they are always arguing that things weren’t

modifications The modification test under § 111(a)(4) is pretty easy. Any

physical change that increases the amount of any air pollutant This was made more strict in 40 C.F.R. § 51.166 (1987)

o But still didn’t include routine maintenance Until the Clinton administration One of the cases involving this is

Environmental Defense v. Duke Energy Corp.

o VP Cheney formed a task force that was trying to find a way to review the EPA’s enforcement actions based on NSR.

Many saw it was an attempt to gut the statute, but the counter-narrative is that the new vs. existing distinction makes no sense.

National Energy Policy Wanted a cap and trade program instead of a permit by permit

program Wanted to basically get NSR out of the picture

Equipment Replacement Rule: To be a physical change, there has to be a 20% change at any one moment. Plus hourly emissions levels, not annually

o Struck down by the courto Statute says any “significant” change, not

necessarily a “huge” changeo Hence, the NSR program today is what it was

beforeo There has always been an idea that this could be done better

The NSR program has led to a lot of inefficiency by targeting new and not existing and encouraging existing to stay unchanged forever.

People want to find a way to get new and existing together and regulate them together and allow for a sort of marketable trading emissions program

Some states (like Southern California) have changed this They have created marketable trading programs Ex: South Coast Air Quality Management District’s REgional

CLean Air Incentives Market (RECLAIM)Tradable emissions programs only work where it doesn’t matter where the emissions come out. Possible environmental justice issue.Monitoring becomes critical here

EJ committees in CA are very opposed to cap and trade proposals

o CAA Title IV—Acid Deposition Control (Acid rain) Has a cap and trade program which has been a huge success Added in 1990 Aimed not at achieving NAAQS These are additional controls The SIPs, NAAQS, etc weren’t dealing with transport issues (namely

pollution in the Midwest affecting the East Coast) Namely, huge smokestacks were shooting emissions way up

into the atmosphere & over to the Northeast Phase I & Phase II SO2 reqs Wanted to reduce SO2 by 10 million tons Phase I: Focused on the 110 dirtiest facilities and assigned allowances

to each one Phase II: More expansive & Limited total emissions of SO2

The statute describes particular utilities & gives them allowances

This was pork necessary to get the bill passed, since the politicians were looking out for particular interests in their districts & states.

Over 100 members of the House sat on the conference committee

The penalty is $2,000—that effectively set the cap on the price of an allowance

It was a huge successo However, it is largely dysfunctional now.o Treated the Midwest as “one big smokestack”

←← Multi-State Air Quality Problems← CB 618-635; SM 44-60← CAA §§110(a)(2)(D)&(E), 110(k)(5), 176A, 184← Multi-State Air Quality Problems

Michigan v. EPA (DC Cir. 2000)

o Facts: Several states 7 industry groups (P) challenged various aspects of D’s 1998 rule mandating that certainstates & DC revise their SIPs under the CAA to mitigate the interstate transport of ozone by univormly requiring that each state reduce NOx by the amount accomplishable by what D dubbed “highly cost-effective controls,” namely, those controls D found capable of removing NOx at a cost of $2,000 or less per ton.

o Holding: No. With some minor exceptions, the petitions for review are denied.

o ***Majority Opinion Reasoning: (Per curiam) Rule: An EPA SIP call isn’t impermissible where it requires revision

of SIPs to mitigate the interstate transport of ozone by uniformly requiring that each state reduce NOx by the amount accomplishable by what the EPA determines are “highly cost-effective controls”.

o Notes: Phase I of the EPA NOx budget program went into effect in 2003. All

states that were covered by the final rule decided to participate in the cap-and-trade program

EPA’s ruling (granting NY, CT, MA, & PA §126 permits) provides that the finding of a §126 violation was to be withdrawn upon approval of a SIP that complied with the NOx SIP Call that was sustained in Michigan v. EPA

In effect, EPA determined that compliance with the SIP Call would result in emissions reductions that satisfied §126.

The DC Cir upheld the vast bulk of EPA’s §126 rule (Appalachian Power Co. v. EPA (DC Cir 2001)

The §126 obligations affect pollution sources in only 12 states plus DC, while the NOx SIP call affects 22 states

Class Notes: Looks at Indiana sources that are emitting NOx and creates a

budget by state There can be inter-state trading

Can buy, sell, trade After the initial allowances have been approved Doing it under the guise of a SIP call The SIP will be approved as long as the state isn’t

going above its budget.

They’re in a sense using the SIP to create a federally management system. But they really want all states involved so they can use the market.

EPA id going to use cost effective method.o The question is: whether this technique is

specific for the statute.o Court says that they can look at cost &

“significant” is a big enough factor /unambiguous enough to not consider cost.

o Significance depends on several factorso EPA says, there is an easy pathway you can

follow to meet the budget, but we will not tell you what you have to do/how you have to set up your program.

Dissent:o Can’t contribute costso EPA has exceeded its statutoty o Clean Air Interstate Rule—part of the Bush

administration. Bush administration said they wont go over source review. This drove the EPA crazy. Said EPA’s way didn’t make sense.

Tried to pass the “Clean Skies Act”o Couldn’t get past Congresso Then went back to regulation (Clean Air

Interstate Rul—CAIP—e—ozone, particulate matter—Nox & SO2)

Covered 39 nonattainment areas The hole purpose of the trigger was to

address Have to look at air quality threshold Then they set a regional basis. Used

different multipliers for each state in the region.

For SO2, they went straight to Title IV

Cap & trade mechanism: allowance allocation & markets

o EPA Role: (see slide) North Carolina v. EPA (DC Cir. 2008)

o Facts: In 2005, D promulgated CAIR to regulate emissions from upwind states that were polluting the air of downwind states.

o Holding: Yes. CAIR is vacated. o ***Majority Opinion Reasoning: (Per curiam)

Rule: To eliminate emissions that flow to downwind states, CAIR must measure each state’s significant contribution to downwind nonattainment, rather than measuring emissions levels on a region-wide basis.

o Notes: The CAIR had been widely acknowledged to be the Bush

administration’s most meritorious & potentially successful program for reducing ozone & particulate matter air quality problems in the northeast

North Carolina ex rel. Cooper v. Tennessee Valley Authority (4th Cir. 2008)

Following this case, a NC district court ruled on summary judgment motions: it dismissed with prejudice several TVA’s defenses, & denied other motions brought by each side

NC’s §126 petition has alleged that power plants in 12 states upwind on NC were violating the good neighbor provision

Class Notes: They don’t focus on what every state does, they look at it on a

regional budget & figuring out how they can set a budget, etc Problem: never figured out how much each state was

contributing to the downwind states Problem with this opinion: Doesn’t seem consistent with

Michigan. This case is a 3 judge panel Under DC Cir. Rules, you can’t overrule. He’s challenging the fundgibility notion. They are not all the

same.

He’s going after the whole idea of trading This would allow one state to buy out all of the budget

Sentell isn’t overruling Michigan (because he can’t). But he says it isn’t right.

EME Homer City Generation, L.P. v. EPA (DC Cir. 2012)o ***Majority Opinion Reasoning: (Kavanaugh)

Rule: EPA’s transport rule exceeds the agency’s statutory authority in 2 independent respects and thus violates federal law. The Rule must be vacated.

1) The statutory text grants EPA authority to require upwind States to reduce only their own significant contributions to a downwind State’s nonattainment.

2) The CAA affords states the initial opportunity to implement reductions required by EPA under the good neighbor provision. But here, when EPA quantified States’ good neighbor obligations, it didn’t allow the states the initial opportunity to implement the required reductions with respect to sources within their borders.

Class Notes: 1st mistake: There’s no guarantee that the state might not have

to reduce their emissions by more than the “significant contribution”.

This isn’t ok. Michigan: EPA may rely on cost-effectiveness factors

in order to allow… (See slide) There could also be unnecessary overcontrol in

downwind states North Carolina mistake: that a state would be able to reduce

their emissions less by trading 2nd mistake: preemptive FIP. Can’t do that.

Once EPA announced the budget, they had to give the states a change to let the states make SIPs.

Outcome of the case: CAIR Dissent (Judge Rogers)

Says the objections that EPA may require states to reduce their emissions beyond their significant contribution weren’t raised during the comment process.

North Carolina says don’t do too little, while this case says don’t do too much.

It took a really good lawyer to bring EPA down in this case EPA is seeking rehearing on bond right now

There are 8 judges in the DC Cir. They need 5 to get a hearing on both. They already have Rogers and probably Tatel. They have someone else & need 2 more. They really need Sentell to get on bond. The 5th vote will probably be Henderson, but Henderson will only agree if Sentell agrees.

← Class Notes: The opportunity for inter-state control is that it allows you to go after new, modified,

& existing sources The CAA gives an incentive to just keep existing. It has taken a long time for the

modification stuff to catch up Other opportunity for inter-state control is that it creates a creative market

o Figure out how much of X you want in the atmosphere & then figure out the controls. The market place can figure this out. The government doesn’t have to have so much control. Can set allowances & have people buy them. Government just has to monitor the market place.

o You will get the right amount of pollution at the lowest possible rate (by letting the market players fight it out)

o For the market to work, you need fungibility. Can’t matter which source puts it out & where they put it out. The market must be defined largely & include many participants.

o But science is now questioning fungibility. It may make a difference where it comes out. This isn’t an issue with GHG. Climate change has complete fungibility.

o It’s really complicated to figure out where everything goes. It depends on the wind blowing, season, time of day, etc. All these things change.

o Everyone is waiting for everyone else. It is completely inter-dependent. What each state does depends on what the other states are doing.

The statute tries to deal with the interstate issue through:

o §110(a)(2)(D)(i): no state in its SIP can contribute significantly to nonattainment or maintenance in another state.

o §126: Petition provision. A state can petition the administrator to find that a particular set of stationary sources is in violation of §110(a)(2)(D)(ii)—should be (i)

o §176A: an administrator can establish a transport region where they think that the interstate transport of air pollutants from one or more states contributes significantly to a violation of a national ambient air quality standard in one or more other states.

Administrator can make recommendations concluding that certain states’ SIPs are inadequate. Can order them to improve the SIPS, or order a FIP.

o §184: Creates an ozone transport areao §110(k)(5): Call for plan revisions—SIP callo Title IV: the first part of the statute that really tried to deal with the inter-state

problem Purpose: to bring down SO2 emissions by 10 million tons & NOx by 2

million tons The aim of this wasn’t human health, it was public welfare (property

& tree damage) §403: SO2 allowance program for existing & new units.

Allowances were allocated out, but free. They gave out 50% for free & the rest people had to pay for.

Allowances were not a private property This is an additional set of requirements. It isn’t a substitute.

§404: Phase I SO2 reqs Lots of exceptions, bonuses, & little permutations

§405: Phase II Reqs An enormous success with lots of benefits.

About $1200 billion success Cap & Trade

o As a practical law, Ch. 4 is a new formality now.o Ozone allowance is pretty higho But, you can modify the NAAQSo Non SIP call basically took a lot of states & say, you are creating

Cross-State Air Pollution Rule (Obama Administration)

o New ruleo Job here is to figure out a way to write a rule that takes advantage that is in

line with Michigan and can include or be distinguished by North Carolina. Also, want to get a DC Circuit board that doesn’t include Sentell. Having Rogers on the board would probably help.

o Goes after regulating S02 & NOxo Goes state by state & says what each state has to do to be a contributor.

What is each state’s contribution? Are they significant contributors?o Next step, cost-effective cost based standard. What is cost-effective

technology here? Applied this to the sources in every state & then came up with the states’ budget based on that. Had different levels of technology depending on the state.

Put into the budget a req that there had to be a certain amount of reductions. Couldn’t simply trade away everything.

o Next step, announce a simultaneous FIP. This isn’t what they did in the original NOx SIP call. Here, the FIP does the budget & the trading allowances. In the future (by 2014), the states could develop their own SIPs & if the SIP was good, they could get out of this.

They wanted the market now. This stuff had been delayed so long.←← GHG Regulation Under the CAA in the aftermath of Mass v. EPA← CB 516-517 (notes 4-6); SM 61-121← What is an Air Pollutant?

Under §202 an endangerment finding triggers an obligation to regulate. That is not always the case in the CAA.

o However, once the Adminstrator makes an endangerment finding, he is under an obligation to act in response.

o Once EPA has made an endangerment finding under one provision of the Act, it is likely that this endangerment decision will be applicable to other provisions as well.

Many people believe that the CAA is ill-suited for regulation of GHG emissionso While not requiring companies to reduce their emissions, this rule will

provide crucial information for implementing any future controls

On 5/21/09 the House Energy & Commerce Committee approved the American Clean Energy & Security Act of 2009, a bill to establish a complex cap-and-trade program to reduce total US emissions of GHGs. The bill is designed to reduce GHG emissions by 15% below 2005 levels by 2020

← SM EPA Regulation of GHG Emissions (SM 61) EPA Standards of Performance for GHG Emissions for New Stationary Sources:

Electric Utility Generating Units (SM 64) Coalition for Responsible Regulation, Inc. v. EPA (DC Cir. 2012)

o Following SCOTUS’ decision in Mass v. EPA—which clarified that GHGs are an “air pollutant” subject to regulation under the CAA—the EPA promulgated a series of GHG-related rules

1) Issued an Endangerment finding, in which it determined that GHGs may “reasonably be anticipated to endanger public heath or welfare”

2) Issued the Tailpipe Rule, which set emission standards for cars and light trucks

3) Determined that the CAA requires major stationary sources of GHGs to obtain construction & operating permits

o Holding: Dismiss all petitions for review of the Timing & Tailoring Rules, & deny the remainder of the petitions

1) the Endangerment finding & tailpipe rule are neither arbitrary nor capricious

2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and

3) no petitioner has standing to challenge the timing and tailoring rules.

← Class Notes: Mass v. EPA

o GHGs are air pollutantso Harder question in the case was whether EPA properly decided not to decide

if there was endangerment Reasons for action or inaction must be in line with the statute Could have avoided taking further action only if it determines that

GHGs don’t contribute to climate change or if it provides some reasonable explanation as to why it can’t or won’t exercise its discretion to determine whether they do.

This is once the announce it Once EPA gave reasons, they had to conform with the statute They gave a long list of reasons not to regulate

They were all policy judgmentso This was EPA’s mistakeo They didn’t say there are other things we have

to do right now & we have limited resources.o Because there were multiple policy judgments

there was an issue Considerationssss

o Had to send it for OMB review. OMB sat on it. One year later a petition for writ of mandamus was filed with DC cir. To order EPA to release it.

Mandamus is an extraordinary writ. DC. Cir. Denies it because it is really hard to make an agency do anything under a specific period of time.

June 2008: Tatel thinks mandamus is inappropriate here as they have often allowed delays of longer than a year.

July 2008: EPA issues a proposed rule regarding regulating GHGs Preface from Administrator of EPA

I believe the ANPR demonstrates the CAA, an outdated law originally enacted to control regional pollutants that cause direct health effects, is ill-suited for the task of regulating global GHGs.

o Basically says, this is why I’m not doing anything.

No rule issued. No endangerment finding. Very odd document that they put out under some sort of

compromise. It makes it clear that nothing is going to happen until

there’s an election. January 2009: Obama is elected and issues “Remarks on Energy”

One of the issues addressed is reducing GHGs. April 24, 2009: EPA—Proposed endangerment & cause or contribute

findings for GHGs… May 19, 2009: Obama, auto industry & environmentalists made a deal

regarding tough emissions standards.

President remarks on fuel efficiency standards Got the national government and California ended up with

similar standards. Auto industry wanted some limitations on how far CA would

go Issues with the fact that they all agreed:

APA issue—notice & comment rule-makingo They hadn’t done a proposed rule yet, there had

been no notice & comment stuff yet. It is just a political deal here

September 28, 2009: EPA proposed rulemaking to establish light-duty vehicle GHG emissions standards & corporate avg fuel economy standards. Proposed rule

October 27, 2009: EPA proposed rule—prevention of significant deterioration & Title V GHG tailoring rule.

December 15, 2009: EPA final rule--endangerment Define GHG as a mix of 6 different pollutants: CO2, CH4, N2O,

HFCs… only 4 of these don’t come out of new motor vehicles

Can EPA regulate the ones that don’t come from the source being regulated?

By naming the other 2 pollutants it makes it so these pollutants now must be regulated elsewhere (not just in motor vehicles)

First there is a challenge to the endangerment standard EPA’s endangerment standard took into account all motor

vehicles, not just new ones. EPA says that it should be able to regulate existing/old as well as new.

Public health & the economy should be taken into account when determining endangerment.

“reasonably anticipated to endanger” A whole series of attack brought against the EPA

endangerment standard.o Whether must be:

Significant risk of harm Threshold level of risk of harm

o Whether harm must be certaino Whether can consider vulnerable subpopulationso Whether consider benefits

Of emissions Of activities that emit GHGs

o Whether EPA must consider adaptation & mitigation options for reducing emissions & harm in deciding whether new motor vehicle emissions endanger

o Whether EPA can consider Impacts outside US Effects in distant future

o Whether cumulative or incremental riskso Whether “public” allows for consideration of

adverse effects of regulating emissionso Whether endangers public health by harming

public welfare Idea that wealth = health Justice Breyer believes that you can’t

rationally consider averse health effects without considering averse economic effects

Part C reviewo § 165: announces scope of PSD program

the PSD restriction is basically the same as new / modified sources o § 169: Major emitting facility definitiono PSD Kicker

1) All parts of nation are PSD area for at least one criteria pollutant. So PSD reqs apply everywhere

2) PSD major new stationary source permit req triggered by source emitting any pollutant > 100/250 tpy. So not just criteria pollutants

3) Once triggered, emission controls apply to “any regulated pollutant” emitted by source

So not just for pollutant over 100/250 tpy 4) CO2 emitted by hundreds of thousands of sources in those amounts

Not true for other regulated pollutants

4 takes on real, practical concerns. EPA has long done #1-3 Title V—Permits

o Added in 1990. Overarching permit req for CAAo One permit for the facility that expresses everything: PSD, hazardous air

pollutants, and Nonattainmento States can administer permits, & the federal government can provide funds for

permitting agencies. States get funding if they do thiso Title V is broader

§302 If you are a major stationary source( >100 tpy) you have to have a permit

permit must include a monitoring req, procedural req & reporting req

o With CO2 this permit program becomes HUGE CO2 triggers this once it is a regulated air pollutant

Final decision comes out June 3, 2010: EPA—prevention of significant deterioration & title V GHG tailoring rule

o EPA doesn’t want to do it because there are too many sources (iv) Beginning 1/2/2011, the pollutant GHGs is subject to regulation if

o (a) The stationary source is a new major stationary source for a regulated NSR pollutant that isn’t GHGs, & also will emit or will have the potential to emit 75,000 tpy CO2e or more; or

o (b) the stationary source is an existing major stationary source for a regulated NSR pollutant that isn’t GHGs, & also will have an emissions increase of a regulated NSR pollutant, & an emissions increase of 75,000 tpy Co2e or more

EPA: for PSD, “subject to regulation” means “subject to any provision of CAA,” but it means something different for GHGs

o GHGs are subject to regulation if a new major stationary source for NSR pollutants that aren’t GHGs, and it emits over 75,000 tpy CO2, then the GHGs are subject to regulation

o For major existing source, GHGs can be regulated if there is an emissions increase for NSR pollutants and a 75,00 tpy increase of CO2

Beginning 7/2011, new sources that emit over 100,000 tpy CO2 can be regulatedo The 75,000 tpy req covers 65% of GHG emissions. If yo do what the statute

says & cover 100/250 tpy, the coverage of GHG emissions only increases to 78%. And the total cost to run the program goes from $78 million to $22.5 billion.

o This is why people didn’t want to regulate GHGs from motor vehicle emissions. Obama administration decides to do it anyways. Highlights the need for new legislation.

Coalition for Responsible Regulation, Inc. Et. al v. EPAo Government’s legal arguments

Absurd results Administrative necessity

Environmentalists hate this argument One step at a time: “we will get to it” They aren’t making a plain meaning argument or a Chevron 2

argumento Petitioner’s arguments

EPA must fix its own mistake By not regulating GHGs Reinterpret the PSD req

It never made any sense to say that it was triggered by any pollutant. Should be more like NA.

Unless the statute compels you to do it, the absurd results here compel you not to do it.

They challenge endangerment too, but their main argument challenges The tailoring rule is inconsistent with basic principles of statutory

interpretation. Presence of absurd results indicates that EPA has erred by adopting an unreasonable interpretation of the statute of Chevron

The presence of absurd results under the CAA’s complex regime typically signals that EPA, not Congress, has erred—either by adopting an interpretation foreclosed under Chevron step one or, when more than one construction is theoretically possible, by adopting an interpretation that deviates from congressional intent.

This case becomes a hail mary to try to get the court to say EPA shouldn’t regulate GHGs

o As long as we are talking about Chevron 2 you now have to adopt a construction that doesn’t lead to absurd results.

o On endangerment, the court says the endangerment finding for GHGs was correct. The statutory language & Mass v. EPA doesn’t allow EPA to consider benefits of activities, adaptation & mitigation, etc.

Did Mass v. EPA really decide this issue? The case didn’t say what the meaning of endangerment is.

o EPA isn’t allowed to consider the consequences of its endangerment finding, even if they would be absurd.

o Challengers said the EPA impermissibly delegated this decision to scientific agencies, & court said this is nonsense.

o The case is really about whether the EPA’s long-standing interpretation of PSD valid or not?

EPA says that they made that interpretation decades ago, so can’t challenge it now

Government thought they would win on this, but the court disagreed.

On the merits the court said that the word “any” isn’t ambiguous. It’s all Chevron 1.

The PSD kicker provisions are compelled by Chevron 1. Having concluded that the CAA requires PSD & Title V permits for

major emitters of GHGs, we turn to Petitioners’ challenges to the Tailoring & Timing Rules themselves

Tatel gives a speech in 9/2009 basically saying: You can’t reinterpret the plain meaning. You have to go back to Congress.

This was at the same time as they were looking at the tailoring & timing rules.

o As for the challenge to the tailoring rule, court says there’s no standing. If the court says it can’t regulate just sources over 100,000 tons per year, then it regulates everyone. All the tailoring does is reduce the burden. The burden is created by the statute. If you eliminate the regulation, there is still a regulation because the statute requires the permits.

The tailoring & timing rule just reduces the burden. Challenging it would only hurt you.

Why did they (the industry) challenge something that would help them? They hope that if the rule is officiated & these incredibly awful things happen, Congress will have to do something. Redressability.

If congress has to step in, it will have to act, & they should be able to get something good out of it. They will have all the leverage.

o Texas says they have standing because they are worried about global warming/climate change

Can’t announce a new standing argument in a re-brief(?) Don’t believe TX has any credibility to do anything. Don’t think they

really care.o They are going for rehearing on bond right now (at SCOTUS)

Might want to argue the tailoring rule because it is so extreme Might also want to argue standing Go after Chevron 1 & 2 on the PSD provision

Argue this wasn’t a compelled reading of Part C Standards of performance for GHG emissions…

o EPA is proposing standards of performance that require that all new fossil fuel-fired EGUs meet an electricity-output-based emission rate of 1,000 lb CO2/MWh of electricity generated on a gross basis

Based upon natural gas This is a no coal provision New coal, coal refuse, oil & petroleum coke-fired boilers & IGCC

units should also be able to meet this standard by employing CCS (Carbon capture & sequestration) technology.

30 year averaging compliance option have 30 years to average 1,000 lb CO2/MWh This is included as an option because they think it can

be complied with in 30 yearso But, the IPM model doesn’t project construction

of any new coal-fired EGUs during that period This is very dependent on a natural gas future

Won’t act on modified sources regarding GHGs←← Hazardous Air Pollutants← CB 288-303 (notes 1-5); SM 122-132; skim SM 133-37← CAA §112; 111(d)(1)← Acceptable Risk & §112 of the CAA

The Delaney Clauses administered by the FDA are rare instances of a “zero-risk” regulatory scheme under current environmental laws.

Until CAA 1990 amendments, §112 was interpreted as another example of a zero-risk statute because it required EPA to provide an “ample margin of safety to protect the public health”

Vinyl Chloride (DE Cir 1987) (NRDC v. EPA)o Held: to determine what constitutes an “ample margin of safety” the EPA

“Administrator [must] make an initial determination of what is ‘safe’ The Administrator’s decision doesn’t require a finding that ‘safe’

means ‘risk-free’ Found only that the Administrator’s decision must be based upon an

expert judgment with regard to the level of emission that will result in an ‘acceptable’ risk to health & that this determination must be based solely upon the risk to health

What constitutes an ample margin of safety = 2 step process 1) EPA must determine what is a safe level of emissions

without considering costs or technological feasibility 2) EPA may then consider costs & feasibility in determining

how far to go beyond mere “safety” in providing an “ample margin” of same.

EPA, National Emission Standards for Hazardouse Air Pollutants; Benzene Emissions from Maleic Anhydride Plants, Ethylbenzene/Styrene Plants, Benzene Storage Vessels, Benzene Equipment Leaks, & Coke By-Product Recovery Plants (1989)

o CB 290-293o More recently, when EPA interpreted the food additives Delaney Clause of

§409 of the FDCA to contain a de minimis exception, see pg. 283, the Agency states that it would consider 3 factors in deciding what constitutes a “trivial risk”: “the weight of the evidence regarding carcinogenicity, the size of the population exposed to the risk, and the level of the risk”

o Sierra Club v. EPA (DC Cir. 2007) A challenge to EPA’s emission standards for brick and ceramic kilns Ruled that “EPA has a ‘clear statutory obligation to set emission

standards for each listed HAP,’ which doesn’t allow it to ‘avoid setting standards for HAPs not controlled with technology”

EPA hasn’t abandoned efforts to use subcategories to create flexibility in the MACT systems.

Other standards, such as those for hazardous waste combustors, still haven’t been finalized because of controversy over subcategories.

EPA has also tried to exempt some subcategories from MACT technology standards if they can be shown to be causing minimal risk.

NRDC v. EPA (DC Cir. 2007)o Facts: D created a new low risk subcategory of cources that would allow

plywood & other wood products to be processed at a lower regulatory compliance level than other pollutant sources.

o Holding: No. D’s interpretation fails part one of the Chevron test, because the statute is unambigious.

o ***Majority Opinion Reasoning: (Rogers) Rule: The EPA has no authority to create a new low risk subcategory

providing for the release of harmful emissions that is contrary to Congress’s statutory scheme.

NRDC v. EPA (DC Cir 2008)o Facts: D determined that under the technology-based standard for the

industry, no individual would face a cancer risk greater than 100 in 1 million.o Holding: No. The statute doesn’t specify what the standards shall be for that

second round, only that D shall promulgate standards.o ***Majority Opinion Reasoning: (Silberman)

Rule: CAA §112(f)(2)(A) mandates that the EPA “promulgate standards,” but it doesn’t specify the contents of such standards.

o Notes: People have been found to accept voluntary risks more readily than

involuntarily imposed risks, dispersed risks more readily than concentrated risks, & risks that have received little media coverage more than risks that have been heavily covered in the news.

← Federal Register—EPA (SM 122)← What makes it so hard to regulate hazardous air pollutants?

What are they? §112 lists them. Normally Congress doesn’t actually list them, leaves it up to the agency.

Sources: Many different types Way toxics distribute themselves

o Dry deposition

o Wet depositiono Evaporation of deposited pollutantso They ultimately travel fall, even if initially they don’t travel far in the air.

Travel through cycles: up, down, up, down Why are they hard to regulate?

o Scientifically Becomes more acute when we are talking about toxic pollutants It is hard to establish thresholds

And there might not be thresholds Limits on experiments

Affects can occur over long periods of time Ethical concerns involving people & experiments Temporal mismatch—things accumulate overtime

Exposure matters a lot (including how long you were exposed) Big question of what are you trying to protect?

Look at the most vulnerable populations first (most vulnerable including most exposed)

What are the effects on that person?o There is a tremendous range of effects of toxics

depending on the people If you are trying to protect a population, you might have very

different concerns than if you are trying to protect individualso Economic

Cost curve rises dramatically as we get more risk averse/protect more people

The scope of regulation will be much broader than it was before Toxic pollutants are put out by many more types/numbers of sources

than criteria pollutants We will sweep in many more economic actors

And not just the big guys. Also smaller industries & factories.

The output/trigger of who we have to regulate will have to be low Our definition of who is a stationary source will have to be low

Since these are hazardous air pollutants, they can be harmful in much smaller doses because they accumulate

o Politically A lot of entities will feel implicated in this Because this goes after a lot of smaller facilities & localized economic

impact that don’t have the chance to spread impact (like power plants can—economically as well)

So lots of states/districts will be concerned with the economic impacts

← 1970 law: §112 (b)(1)(A): Within 90 days list the hazardous air pollutants Then 180 days after that to

describe an emissions standard.o Emissions criteria are for criteria pollutantso Emissions standards are for hazardous air pollutants

A health based standard Like the NAAQ because it says Ample margin of safety

The NAAQ doesn’t directly regulate anything Technology based regulations directly regulate things

(and take into account cost) NAAQ establishes the goal (without considering cost) When establishing how to reach the goal, we talk about

costs, etc. Have to regulate emissions from each source, not all sources. This is

very environmentally protective. The most protective standards are not necessarily health based

standards. Here, the standard is health based & is incredibly promising,

but because it is so promising, no one can do it. Thus, nothing will happen.

(c)(1): discusses existing sources too (in addition to new sources)← The State of NY v. Ann Gorsuch (SDNY 1983)

Notes:o Nothing has been done since 1970o In enacting §§112 & 122 of the Act, Congress gave the Administrator (EPA)

an unconditional mandateo Defendant (EPA) is ordered to publish, within 180 days of the date of this

Opinion & Order, proposed regulations establishing emissions standards in inorganic…

o New administrator of EPA came right after this decision One of his first issues is the arsenic rule This is particularly interested to him because it has to do with a

smelting plant in Tacoma, WA (where he’s from) Issued National Emission Standards for Hazardous Air Pollutants—

Proposed Arsenic Standard We don’t have the right type of evidence Variability of carcinogenesis

Impossible to define a threshold Carcinogens pose some cancer risk at any exposure level When this happens, how do you come up with an emissions

standard? The only thing to protect public health is to say no

emissions of arsenico But this would lead to a widespread shutdown

of arsenic emitting industries, & the other industries emitting nonthreshold pollutants

o Doesn’t think Congress intended this in §112← Other major proposed rulemaking early on was Vinyl Chloride

There were two choices:o Zero standard or technology based standardo They did a technology based standard & this got shut downo Sat on it until 1985 that promulgated a new standard that went back to the

1976 technology based standard NRDC v. Thomas (DC Cir. 1986)

o Notes: We believe the agency’s choice of economic & technological

feasibility was reasonable, we affirm the agency’s action. Dissenting (Wright):

112 says you have to have a health-based provision, not a technology-based provision

Cites Chevron & unambiguousness They won unanimously on rehearing en banc

The administrator argues that in the face of this uncertainty he is authorized to set standards that require emission reduction to the lowest level attainable by best available control technology whenever that level is below that at which harm to humans has been demonstrated. We find no support for either position in the language or legislative history of the CA. We therefore grant the petition for review & remand.

You can’t have just a technology based standard (in deciding in the first instance)

But it can be done when determining the ample margin of safety (second step)

← EPA, National Emission Standards for Hazardous Air Pollutants; Benzene Emissions from Maleic Anhydride Plants…

o Have to figure out a standard for benzeneo 4 approaches

One case of cancer per year in the exposed population Threshold 1 in 10,000 Threshold 1 in 1,000,000

o One threshold question is do we want to base our standard on population or individuals?

If you go by population, obviously the size of population matters It can be more protective in some ways & less protective in

other ways Step 1: Start with the individual—EPA says it is presumptively going

to protect every individual from a 1 in 10,000 chance, but that it can make it tougher or more lenient later on.

o They focus on cancer because that is where their best data is. The statute isn’t written in terms of just cancer, but that’s where the

research & the data is, so that’s how they make the standards.o Step 2: Ample margin of safety—Changes to a 1,000,000 chance, but that it

can make it tougher or more lenient later on.← 1990 CAA Amendments, §112

20 years later, almost nothing has been done. Congress takes away EPA’s discretion. Congress lists the hazardous air pollutants There’s a lot of distrust between EPA & Congress in the 1980s Congress also changes the system

o (b)(1) The list can now be based on averse human health effects & averse environmental effects

Major sources & area sourceso Major sources are regulatedo Area sources—smaller sources are regulated if the administrator makes a

separate determination that they affect averse health & environmental welfareo We are back to emissions standards, just like before

(d) Emissions Standardso Should require the maximum degree of reduction in emissions of the

hazardous air pollutants subject to this sectiono Taking into consideration the cost of achieving such emission reduction, and

any non-air quality health & environmental impacts & energy reqs, determines is achievable.

o Technology based first, then risk based secondo (3) New & existing sources

For new sources in a category/subcategory shall not be less stringent than the emission control that is achieved (technology based) in practice by the best controlled similar source

Everyone must do what the best has done For existing

(A) The average emission limitation achieved by the best performing 12% of the existing sources (technology forcing)

This is a sort of moving standardo Plus, how can you ask everybody to be in the

top 12%?!o Becomes less technology forcing as time goes

on Unless, they are in a really small category/subcategory (fewer

than 30 sources) (B) Still increase, but not as much

(f)(2) Standard to protect health & environment—emissions standardso (A) emissions standards promulgated under this subsection shall provide an

ample margin of safety to protect public healtho If the technology based standard doesn’t reduce risk to 1 in 1,000,000, you

have to do the residual risk kicker Promulgate additional standards

(H) Work practice standards & other reqso An outo (1) If it isn’t feasible to prescribe or enforce an emission standard, the

Administrator may, in lieu thereof, promulgate a design, equipment, work practice, or operational standard.

o Some kinds of pollutants you can’t control through an emissions standard (j) Equivalent emission limitation by permit

o (2) Failure to promulgate a standard a hammer provision If EPA fails to promulgate a standard for major sources by the date

established, the owner or operator of any major source in such category/subcategory shall submit a permit application

← NRDC v. EPA (DC Cir 2007) Notes:

o Issue: Whether you can define a subcategory that isn’t subject to the same regulations as the broader category. The statutory language says you can define subcategories—can these subcategories be exempt from regulation?

o Category/subcategory question The idea that you can subcategorize your way out of a technology-

based req is wrong. Where do they see indicia of contradictory congressional intent?

o Deletions can only be made on a categorical (not subcategorical) basis← NRDC v. EPA (DC Cir 2008)

Judge Silberman Notes:

o The issue here is about the residual risk kickero The trigger for when you actually have to regulate more is when the

individual is facing a risk greater than 1 in 1 milliono If this is when the residual risk kicker comes into play at this level, you must

lower the risk past this threshold. This is what Congress cared about.o But Court says no, you don’t have to go below the 1 in 1 million threshold

Not a bright line rule Says you have to pass standards, but doesn’t say what the

standards have to be EPA could go either way

Uses the Benzene analysis/interpretation to determine how to control risk. Say this is still the controlling case

← Mercury Rule (from Supplement) §112(n)(1) electric utility steam generating units

o wanted EPA to perform a study of these units & if we should regulate them based on the study of the results

Separate provision said do this for mercury (Hg) Is it necessary & appropriate. EPA said yes, it is

On 12/20/2000 the administrator made a finding that regulation of HAP emissions from these units were necessary. Standards were to be issued within 180 days, but in January, there was a change in administration.

In 2005 EPA says that they can be regulated under §111. §112 regulation isn’t necessary & appropriate

o Wanted to do this as to not trigger §112 facility by facility technology based control

More focused, more cost, more inefficiency They wanted to do cap & trade under §111

On its face §111 looks like a technology based controlo “best system” becomes cap & trade, not technology basedo Can’t use this provision if it is a hazardous air pollutant or criteria pollutant.

Hg is a HAP. This is a problem.o Environmentalists didn’t think that Hg was good for a cap and trade program.

Not fungible. Comes up & goes down.o DC Cir. Struck it down.

The removal of these EGUs from §112 list violates CAA because §112(c)(9) requires EPA to make specific findings before removing a source listed under §112; EPA concedes it never made such findings. Because coal-fired…

Lead to Federal Register Hg Rulemaking (2/16/2012) This is the latest rulemaking 900,000 comments were issued This is a HUGE new regulation Issues in the rulemaking:

o Were the costs considered? Should they have been?

o Trigger for this regulation is necessary & appropriate

o Appropriate is construed to allow cost considerations, but EPA doesn’t think so. Thinks it’s just about public health.

o Necessary (according to EPA) deals with whether it has to be under this particular section or if it can be under a different section (thus making it unnecessary)

o This regulation is the saving grace as far as the environmentalists are concerned.

o These regulations will achieve almost everything that was lost in the cross state transport stuff.

NAAQS, PMs, etc will also be controlled

This has been their backstop In terms of public health

safeguarding The question is will this stand up?

← Intro to Clean Water Act: Basic Structure & Operation← CB 637-652← CWA §§101(a), 301(a), 402(a)(1), 402(b), 404(a), 502(6)-(7), 502(12)-(14), 502(19)← Water Pollution Control

Water Pollution Problemso It’s still not possible to make a comprehensive assessment of the quality of the

nation’s waterso Andreen, Water Quality Today—Has the CWA Been a Success? (2004)

The technology-based approach has produced remarkable reductions in both municipal & industrial pollution. All without causing harm to the economy or to international competitiveness.

The rate at which permits & pre-treatment reqs are violated is too high & government enforcement efforts are too anemic

The most significant remaining water pollution problem is non-point sources

Affect nearly every major watershed

Serious problems Non-point source pollution has evolved into the largest single

obstacle to improving water quality Agricultural runoff & hydrological modifications cause

problems Biochemical oxygen demand (BOD) measures the oxygen-depleting

capacity of substances such as organic wastes and chemicals that consume oxygen as they decompose

Many cities still use combined sewer overflow (CSO) systems that channel storm water through sewers

Statutory Authorities for Protecting Water Qualityo Water Pollution Control: A Historical Perspective

Started with Rivers & Harbors Act of 1899 Water Quality Act of 1948 Federal Water Pollution Control Act of 1956 Federal Water Pollution Control Act of 1972 in theory authorized the

federal government to act against interstate pollution through a cumbersome procedure of abatement conferences

Refuse Act For more information see pg. 643-645

o Statutory Authorities Federal Water Pollution Control Act Amendments (FWPCA)

Broke new ground in 3 important areas 1) Mandated the imposition of technology-based

discharge limits that facilitate enforcement by making it unnecessary to work backward from an overpolluted body of water to determine which point sources are responsible and which must be abated

2) As a result of experience with the Refuse Act, Congress imposed a nationwide permit system on point source dischargers while retaining the previously required water quality standards

3) Congress substantially expanded the federal role in financing construction of municipal treatment facilities

Goal: To restore & maintain the chemical, physical, and biological integrity of the Nation’s waters

The Ocean Dumping Act Prohibits all dumping of wastes in the ocean except where

permits are issued by EPA (for nondredged materials) or by the Corps (for dredged materials)

Permits are conditioned on a showing that the dumping won’t “unreasonably degrade” the environment

The Coastal Zone Management Act Provides financial assistance to encourage states to adopt

federally approved coastal management plans Oil Pollution Act Safe Drinking Water Act RCRA CERCLA

o The Structure of the CWA (See pg. 647-651)← Class Notes

You can’t understand the CWA unless you understand water Because water is mobile in a liquid state, it is more important

o Specific Gravity provides a buoyancyo Specific heat provides a great cooling capacityo Reflective capability (refractive index)o Most of the freshwater is in Greenland

Only 1% of freshwater is available Only .1% of all water is fresh water

o A lot of the rivers/streams in the US don’t have water all yearo Many of the uses of water we have don’t have to change the characteristics of

water at all to get economic value Most uses take advantage of specific gravity, specific heat, &

refractive index This includes economic, recreation, etc

o Necessary for photosynthesiso Irrigation is the biggest fresh water usage in the US

Then thermoelectric generation (40%!!!) Cooling capacity This is the source of tremendous potential conflict & economic

benefito Water has the most economic potential & the most ecological significance

o There are water laws dealing with: Quantity/property rights (state law) Flow/navigability (federal law) Quality (historically were state tort law/state police power action, then

federal) Lots of friction between state & federal law

o US Army Corps of Engineers: Deals a lot with navigable watero Bureau of Reclamation Projects

Bring water from one area of the country to another for agricultureo TN Valley Authority (TVA)

Power development Manipulating moving water

o Bonneville Power Administration (BPA) Same as TVA, but in the Pacific NW

Water Pollutiono A major proponent of strong clean water laws are the beverage industries &

breweries. Tourism industries tooo Cause & effect is incredibly complicated

Very hard to show what the effect of certain contaminants is in a body of water

o 1902 Reclamation Acto 1920 Federal Power Acto 1948 first federal water pollution control lawo 1965

Start to see Congress play more of a role Public Law 89-234

o 1899 Rivers & Harbors Act Sleeper law Air didn’t have anything like this Provided certain kinds of restrictions on obstructions in navigable

waterways in US These were the highways of commerce

Can’t have different kinds of private parties or states create obstructions in navigable waterways of US

The dormant commerce clause §13 Refuse Act (33 U.S.C. §407 (2003))

private parties as well as the federal government could bring a claim this is a no discharge standard

US v. Republic Steel Corp (1960)o Brought under the Refuse Act of 1899 Rivers & Harbors Act

Establish the precedent that this language has a sweeping meaningo Representative Henry Reuss spots the precedent, sees lots of discharges in WI.

For the Army Corps of Engineers, this is the equivalent of EPA trying to regulate thousands of sources emitting GHGs.

Brings lots of private lawsuits against discharges in WI because they don’t have permits. He wins them.

Industries start trying to get permits Army Corps of Engineers establishes a general permit program

Gets sued in Kalur v. Resor (DC Cir. 1971)o Grounds of the argument is NEPAo They rely on Calvert Cliffs’ Coord. Com. V. US Atomic Energy Commissiono Strike down the Army Corp of Engineers permit program because they didn’t

do any EIS. Procedural teeth in NEPAo Political effect of striking down the program: Congress needed to pass

something fairly quickly Industry needs a statute passed & environmentalists want a statute

passed CWA of 1972

o Muskie is the champion in the Senate again Wanted a SIP approach like in the CAA Wanted water quality standards to be set by states (no NAAQS)

o Baker(TN) & Tunney(?)(CA) wanted a different standard Favored a technology based approach as compared to a water quality

approacho Billings & Jordan(?) the staffers who wrote the CWA. Forged the Senate bill.

Basically said there were certain water quality goals that focused on the chemical integrity of the nation’s waters.

Tech-based approach with minimal role for CBA White house is vehemently opposed to it The House has a very different version than the Senate bill

Technology based, but using a good deal of CBA Use as much as we need to prove cause & effect

But hard to show cause & effect in water Basically a water quality standard

o The final bill/law was water quality & technology based First, technology. Second, water quality.

o Nixon vetoed the CWA. Overwritten on October 1972. Right before the landslide election for Nixon.

Differences between CAA & CWAo CWA regulates all pollutants. Every single one. CAA regulates only some

pollutants.o CAA is for all outdoor air. CWA is only for some water.o CWA no distinction between new & existing sources. Existing sources get the

full brunt of the statute from the state.o CWA has a permit req to regulate all discharges in water in the US. CAA

doesn’t have a permit req to begin with.o CWA has no NAAQS, but it has sweeping technology based standards from

the start. CAA doesn’t (only a few…like for motor vehicles.o CWA distinguishes between

Navigable vs. Non-navigable Point vs. Nonpoint sources Technology based vs. Water quality based effluent limitations Left side regulated much more heavily

o CWA Programs for New vs. Existing Municipal vs. Non-municipal

o CWA type of regulations depend on Toxic Conventional Nonconventional, nontoxic Dredge & fill material

o Sewage treatment plants are separately regulatedo Nonpoint sources are largely unregulated. Powerful industry & government

actors who are involved. Regulating nonpoint sources usually implicates land-use control.

o Thermoelectric power plants are regulated by CWA Regulates the withdrawal of water for cooling processes Also regulates the discharge back in as regards heat

Statute defines heat as a pollutant CWA Sections

o 101(a)(1): elimination of discharge of all pollutants by 1985o Title II—Construction grants program

201(b): waste treatment management plans & practices shall provide for the application of the best practicable waste treatment technology before any discharge into receiving waters.

Title II gave billions of dollars to state & local governments to update their sewage treatment plants

208: Original SIP idea. Plays a minor role in the statute. One of the only §§ in the statute that regulates nonpoint

sourceso Title III—Standards & Enforcements

301: Everything in CWA ties to this. This is the hub. A: Anyone who discharges any pollutant into the waters is

committing a crime. Unless you have a permit. Here because of the 1899 Rivers & Harbors Act

303: Source of the water quality kicker Similar to CAA §112 residual risk kicker States have to look & see when the effluent limitations required

by §301(b)(1)(A) & ¶ 301(b)(1)(B) aren’t stringent enough to implement any water quality standard applicable to such waters.

If not enough, take out more. Find the total maximum daily load.

This was the House approach As a practical matter, this has done very little (even today)

304: EPA develops the technology based effluent limitations. The limitations that depend upon what type of pollutant you’re

putting out. These effluent limitations then play into §301

306: Separately regulates new sources 307: Toxic provision

Amended in 1977

Made the extent to which you control toxic pollutants health based, not technology based (originally)

Problem: too strict. Would lead to zero discharge. BAT standard Effluent limitation is technology based Effluent standards are health based

(B)(1): Pretreatment standards. If you are doing this, in some ways you can do less & in some ways you have to do more.

309: Penalizes negligent violations Very enforcement friendly

316—thermal discharges (b) Cooling water regulations

319: nonpoint source management programs (added in 1983)o 402: National pollutant discharge elimination system (NPDES)o 404: Permits for dredged…o 502: Definitionso 505: Citizen suitso 509: Administrative procedure & judicial reviewo

← Constitutional & Geographic Scope of CWA← CB 652-670; SM 138-160← CWA §§ 301(a), 502(7) & (12)← The Scope of Federal Authority to Regulate Water Pollution

One issue concerns whether discharges to groundwater or deep well injection of wastes could be regulated under the CWA

US v. GAF Corp (SD Tex. 1975)o Held that the CWA didn’t give EPA authority over deep well injection where

the wells aren’t connected to surface waters Courts remain split

o Quivira Mining Co. v. US (10th Cir. 1985) Held that EPA has the power to require NPDES permits for discharges

into a remote arroyo because they could reach surface waters through underground aquifers

o Umatilla Water Quality Protective Ass’n v. Smith Frozen Foods (D. Or. 1997) Declined to apply the CWA to discharges to groundwater

hydrologically connected to surface waters

US v. Riverside Bayview Homes, Inc. (1985)o Facts: The US Army Corps of Engineers (P) sought to enjoin D, a developer,

from dumping landfill on wetlands adjacent to a navigable lake.o Holding: Yes. Revesed.o ***Majority Opinion Reasoning: (White)

Rule: Wetlands are “waters” under the CWA, even if they aren’t regularly flooded by adjacent waterways.

o Notes: Hoffman Homes Inc. v. Administrator (7th Cir. 1993)

The wetland wasn’t adjacent to another body of water, but was separated from a small creek

Held: Agreed with EPA that federal jurisdiction could be premised on a potential effect on interstate commerce, but it found that the agency had failed to provide sufficient evidence to support the conclusion that the wetland was a suitable habitat for migratory birds

US v. Lopez (1995) Requires that regulated activities substantially affect interstate

commerce Thus, some activities previously deemed regulable

because they had some potential effect on interstate commerce could escape federal jurisdiction if their impact isn’t considered substantial enough

Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers (2001)

o Facts: The Corps (D) enacted regulations that gave it jurisdiction over Solid Waste Agency of Northern Cook County’s (P) land. P challenged the conclusion that the CWA gave D such authority to regulate.

o Holding: No. Reversed.o ***Majority Opinion Reasoning: (Rehnquist)

Rule: The US Army Corps of Engineers has jurisdiction only over navigable waters or waters that abut navigable waters.

o Notes:

Corps argued in its brief that the term “isolated wetlands” is misleading because waters that are remote from & lack a direct connection to navigable waters may have other hydrologic connections to, & affect the quality of, traditional navigable waters, e.g., through groundwater connections & flood & erosion control

In the 1990s, there was a shortage of places to put solid waste. In Northern Cook County, they found a place barely within Northern Cook County without a local government & in a poor neighborhood.

They bought a few hundred acres for a major solid waste facility in a natural quarry.

But there was some water there. Corps of Engineers says these aren’t navigable waters, but then they found some birds visiting the water & Rep. Hasert put some pressure on them. Corps denies the permits.

In 2000, cert is granted. Many people thought the CWA was going down. The case didn’t seem to have good facts. There was a huge effort to settle/kill the case.

It was the significant nexus between the wetlands & navigable waters that informed our reading of the CWA in Riverside Bayview Homes

Rehnquist next addressed the argument that Congress had ratified the Corps’ regulation of the migratory bird rule and says that Congress never specifically addressed Phase 3 or the migratory bird rule

Under Chevron step 1, the Court says that §404(a) is clear because of Chevron deference, but even if it wasn’t, the agency’s interpretation wouldn’t get Chevron deference

Rapanos v. US (2006)o Facts: Rapanos (D) contended that the term “waters of the US” in the CWA

had to be limited to a traditional definition that requires that the “waters” be navigable in fact, or susceptible of being rendered navigable, so that the CWA doesn’t extend to wetlands that don’t contain & aren’t adjacent to waters that are navigable in fact.

o Holding: Yes. Vacated & remanded.o ***Majority Opinion Reasoning: (Scalia)

Rule:

The term “waters of the US” in the CWA encompasses only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams,” “oceans,” “rivers,” & “lakes,” & doesn’t include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall, so that wetlands that don’t contain & aren’t adjacent to waters that are navigable in fact, or don’t have a continuous surface connection to such waters, aren’t covered by the CWA.

o Concurrence (Kennedy): The COA correctly recognized that a water or wetland constitutes

“navigable waters” under the CWA if it possesses a “significant nexus” to waters that are navigable in fact or that could reasonably be so made, but did not consider all the factors necessary to determine that the lands in question had, or didn’t have, the requisite nexus.

o Dissenting: (Stevens) The plurality fails to adequately defer to the Corps & its more than 30

years of practice in this area, which has implicitly been approved by Congress.

o Notes: After this case EPA & Corps issued revised guidance concerning the

impact of Rapanos on federal CWA jurisdiction Provides that federal jurisdiction will be asserted over all

traditional navigable waters, wetlands adjacent to traditional navigable waters, non-navigable tributaries of traditional navigable waters, navigable waters that are relatively permanent (waters with tributaries that typically flow year-round or that that at least have continuous seasonal flows), and wetlands that directly abut such tributaries

After SWANCC people weren’t quite sure what it meant Narrowly: the migratory bird rule is out. Phase 2 was

significantly limited & you can’t base it on migratory birds. This reading the government adopted.

Broadly: Riverside Bayview is it. Other than that we are talking about Phase 1 waters. SWANCC says you need navigability. Actually narrower than the Rivers & Harbors Act. Regulated industry wanted this reading.

The hydrological connection (the nexus) in this case would come after the work. He would be destroying the impermeable berm, thus creating a nexus.

In the 6th Cir. Both lost In SCOTUS SG Paul Clement represents the government. He

wants to make Rapanos look like Riverside Bayview (hydrologic connection). The only difference is that here you have a non-navigable tributary instead of an adjacent wetland.

Clement notes that you can’t draw a meaningful distinction between ma-made & natural tributaries. Even most natural tributaries have been manipulated at some point.

§404 & §402 are joined at the hip according to Clement← SM← Update CWA—Navigable Waters

Post-Rapanos Caseso Courts have used 3 general approaches to address Rapanos jurisdiction

questions 1) Finds that CWA jurisdiction exists if either the plurality’s or

Kennedy’s test is met (US v. Bailey (8th Cir. 2009)) 2) Finds CWA jurisdiction only if Kennedy’s test is met (US v.

Robison (11th Cir. 2007)) 3) Recognized Kennedy’s test as the narrower & most applicable test;

however, this approach doesn’t close off the possibility that application of the plurality’s test might be warranted (US v. Gerke Excavating, Inc. (7th Cir. 2006)) (Northern CA River Watch v. City of Healdsburg (9th Cir. 2007))

o Northern CA River Watch v. City of Healdsburg (9th Cir. 2007) Held that satisfying either Kennedy’s test of the Rapanos plurality’s

continuous surface connection test would suffice to make a wetland part of the “waters of the US” subject to federal jurisdiction.

o Precon Development Corp, Inc. v. US Army Corps of Engineers (4th Cir. 2011)

Found it unnecessary to address whether the plurality’s continuous surface connection test provided an alternative ground on which federal jurisdiction could be established.

Applying the significant nexus test, the 4th Cir. Found that the Corps had failed to prove a significant nexus between the wetland area & a navigable river that was approximately 7 miles away

o US v. Agosto-Vega (1st Cir. 2010) Held that the US has jurisdiction over a body of water if it meets either

Kennedy’s significant nexus test or the plurality’s continuous surface connection test

US EPA CWA Guidance—April 2011 (SM 141)o Summary of Key Points (SM 145)

← Class Notes The big problem with CWA is omission It’s very hard to know what the water quality impact has been of the CWA

o No basis for how bad the water was beforeo Don’t know how clean it is now

Today we dive into the geographical scope of the CWAo Navigable waters

§402 National pollutant discharge elimination system pollutants at large regulated by EPA

§404 Permits for dredged or fill materials regulated by Army Corps of Engineers

§502(12): Defines discharge of a pollutant §502(7): Defines navigable waters The house version of the “navigable waters” definition is broader/more

expansive than that of the senate Say they want the term “navigable waters” to go as broad as

the 1899 Rivers & Harbors Act—highways of commerce Can think of navigable waters as the channels of commerce (physical)

or those affecting interstate commerce (economic) Navigable waters

Phase 1: Traditional navigable waters Navigable in fact Expanded

o Susceptible to navigation (with improvements)o Navigable in the pasto Intrastate lakes when combined with other

forms of transportation, such as railroads, highways

Phase 2: Waters with physical nexus/proximity to traditional navigable waters

Nonnavigable tributaries of navigable waters Adjacent navigable waters Adjacent nonnavigable tributaries of navigable waters Hydrologic connection of navigable waters

Phase 3: Waters the use or destruction of which affects interstate commerce

Based on recreational use, industrial use, commercial use

Includes “isolated lakes & wetlands, intermittent streams, prairie potholes, & other waters that aren’t part of a tributary system to interstate waters or to navigable waters of the US, the degradation of which could affect interstate commerce”

Tried to make the definition as expansive as “waters of the US” Yet defining where land meets water is very

controversialo Economic purposes

Marina Del Rey (LA) Lake Shore Drive (Chicago) Back Bay (Boston) DC

o Ecological significance NRDC v. Callaway, Secretary of the Army (D. DC 1975)

o About the definition of “navigable waters”o The court declared to the Army Corps of Engineers acted unlawfully & in

derogation of their responsibilities under § 404 of CWA by the adoption of the definition of navigability described at 33 C.F.R. § 209.210(d)(1)

o The Army Corps of Engineers has no independent litigation power. Thus there was no petition here

o Office of Legal Council stated that this is EPA’s statuteo When the Army Corps of Engineers issues permits, it does so following the

guidelines of the Administrator (EPA) 1977 CWA Amendments

o Started to be a big focus in Congress on the implication of the expansive notion of the CWA’s definition of navigable waters

House version—Daniel Ball standard Senate version—thought it would cripple efforts to achieve the act’s

objectives Didn’t redefine navigable waters Gave states the permitting responsibilities of Phase 2 & Phase

3 waters under §404 The Conference Report basically followed the Senate’s version, not

the House’s version EPA will be approving the states regulations of Phase 2 &

Phase 3 waterso §404(g)(1) The Governor of any State desiring to administer its own

individual and general permit program for the discharge of dredged or fill material into the navigable waters

EPA interpreted this to include wetlands The amendment included this in the statute’s parenthetical

o First big challenge was US v. Riverside Bayview US v. Riverside Bayview (6th Cir. 1984)

o The wetlands in this case seemed to be completely separate from any navigable waters

However there are storm drains & fire hydrants nearbyo Army Corps of Engineers is saying it is a navigable water of the USo US lost this case in the 6th Cir.

Neither is it clear that Congress intended to subject to the permit req inland property which is rarely if ever flooded.

Nor is it clear that the statute was intended to cover a piece of property a mile inland from Lake St. Clair which has been farmed in the past & is now platted & laid out for subdivision development with the fire hydrants & storm sewers already installed.

o There ended up being a significant ground water hydrological connection between this area and Lake St. Clair

o US v. Riverside Bayview (1985) Unanimous win for US in 1985 There’s a regulation in the case & SCOTUS rejects the 6th Cir.’s

interpretation of EPA’s regulation Saturation by either surface or ground water is sufficient to

bring an area within the category of wetlands, provided that the saturation is sufficient to & does support wetland vegetation

They cite Chevron, yet they skip step 1 (ambiguity test) In light of the language, policies, & legislative history

of the Acto A different interpretation of Chevron step 2 than

what becomes to be accepted There is a land-water continuum. No clear distinguishing line.

Where on this continuum to find the limit of “waters” is far from obvious

Faced with such a problem of defining the bounds of its regulatory authority, an agency may appropriately look to the legislative history

The term “navigable” as used in CWA is of limited import Court’s footnote

We aren’t called upon to address the question of the authority of the Corps to regulate discharges of fill material into wetlands that aren’t adjacent to bodies of open water. We don’t express any opinion on that question.

Rehnquist wanted to add this The government originally tried to win the case by proving that

migratory birds are interstate commerce After this case, Army Corps of Engineers makes the

“Migratory Bird Rule” 51 Fed. Reg. 41217 (1986) Part 328—Definition of Waters of US

o Within definition of waters of US are waters which are or would be:

Used as habitat by birds protected by Migratory Bird Treaties; or

Use as habitat by other migratory birds which cross state lines

US v. Lopez (1995)o Rehnquist in the 1980s was giving speech after speech about Congress

federalizing everything (i.e., crimes)o This case said you can’t keep doing these things under the Commerce Clauseo A brand new way of thinking about Commerce Clause jurisdictiono The effect test now had some bite to ito Lopez/Morrison Commerce Clause Framework

1) Instrumentalities of Interstate Commerce 2) Channels of Interstate Commerce 3) Effect on Interstate Commerce

Economic Activity Substantially Affecting Interstate CommerceNot Substantial

Effect Alone De Minimis & Aggregation Caveat Necessary & Proper Clause Enhancer

o Lopez put the CWA & the Endangered Species Act in dangero Commerce Clause hurdles for federal environmental laws

1) Objectives of law not necessarily characterized in terms of economic objectives or economic activities

2) existing statutes focus on adverse environmental impact of regulated activities & not on their economic character

3) Almost all regulated activities in fact traceable to commercial motivation, but not all

4) Regulated activities include those lacking substantial affect on interstate commerce absent broad aggregation

←← “Point Source” “Discharge”← CB 670-690, 696-697 (notes 6 & 7 only); SM 161-169← CWA §§301(a), 401(a), 502(6), 502(12), 502(14), 502(16)Point Source Discharges“Addition of Any Pollutant”

- Statute makes discharge of any pollutant unlawful.- Discharge is defined as the addition any pollutant to navigable waters.- Pollutant is further defined.- Point source is a discernible, discrete conveyance that discharges pollutants.- Non-point sources are simply anything that’s not a point source.

o The only way to control non-point sources is by land-regulation. Political.o Also practical. A lot more non-point sources than point sources.

NRDC v. Costle- EPA

o Wants to categorically exempt some types of point sources due to feasibility. Agency claims it has discretion to do so.

o Didn’t want to claim no authority as non-point sources b/c they wanted to regulate them at some point.

- Legislative History - Court says EPA does not have the authority to make categorical exemptions

- Infeasability. Court says EPA has lots of ways to handle the large number of permits. Area-wise

- permits, alternative permit conditions under § 402(a)National Mining Association v Army Corps of Engineers –

- Tulloch rule – Result from a case that they lost. “Fallback” from dredging constitutes a pollutant and can be regulated under § 402.

o Dredge material becomes a pollutant during the dredging process.o EPA doesn’t want to use the Rivers and Harbors Act because they have less

jurisdiction under the Refuse Act compared with the CWA. The only way to regulate dredging over many of these wetland areas is by claiming that the fallback constitutes a pollutant.

- Courto Some deposits would qualify as a pollutant, but you can’t say that any deposit

qualifies as one.- Concurrence - “the word addition carries a temporal and geographic ambiguity.” If

there’s a special or temporal distinction between the extraction and deposit, you may have a pollutant.

Miccosukee- FL is all water- Issue: Does a pump, which pumps water to drain one area and floods another, without

adding anything to it, constitute a point source? The water being pumped has runoff in it, “phosphorous,” which is clearly a pollutant, and it’s being discharged into a pristine lake.

o District’s argument is that they’re not creating the pollution.o Definition of point source makes no distinction based on whether anything is

added to the water.

- U.S. files amicus brief—district’s argument is invalid, but they don’t need a § 402 permit unitary waters theory. Once pollutants are in one body of water, you can move them from one body of water to another body of water without a permit because the pollutants are already in the “waters” of the United States. Enormous potential impact on U.S. gov’t and Army Corps of Engineers.

Petitioners make the same argument after they realize they’re going to lose.Regulation of Discharges from Point Sources

Permits to discharge pollutants are governed by section 402’s national pollution discharge elimination system (NPDES) program & must incorporate effluent limitations—restrictions on the quantities of pollutants that may be discharged—mandated by §301.

§404 establishes a separate permit program that allows discharges of dredged or fill material into wetlands at sites designated in the permit

CWA prohibits all discharges of water pollutants unless the discharger has a permit that incorporates effluent limitations & it requires separate permits for discharges of dredged or fill material in regulated wetlands

§502(12) defines “discharge of a pollutant’ to include “any addition of any pollutant to navigable waters from any point source other than a vessel or other floating craft”

Defining the “Addition of Any Pollutant”o In 1993, the Corps adopted a final rule (known as the “Tulloch Rule” after the

lawsuit that inspired it) to clarify that excavation activites producing any incidental redeposit of dredged materials, “however temporary or small,” require §404 permits when they would degrade or destroy wetlands.

o National Mining Association v. Army Corps of Engineers (DC Cir. 1998) Facts: D contends that excavation activities producing any incidental

redeposition of dredge materials, however small, requires permits under the CWA if such activities would degrade or destroy wetlands.

Holding: Yes. Affirmed. ***Majority Opinion Reasoning: (Williams)

Rule: Incidental fallback, which returns dredged material virtually to the spot from which it came, doesn’t constitute an addition of material, &, therefore, doesn’t require a permit under the CWA.

Notes: Challenges the Tulloch Rule which was designed to prevent

developers from simply draining wetlands as an end run around the §404 permit process.

o “Discharge of a Pollutant”: Water Transfers & the Miccosukee Case Borden Ranch Partnership v. US Army Corps of Engineers (9th Cir.

2001)

Affirmed that a real estate developer had violated a §404 permit by using deep ripping equipment to punch holes in a dense layer of soil (a clay pan) beneath a wetland to allow surface waters to penetrate & drain the wetlands

Activities that destroy the ecology of a wetland aren’t immune from the CWA merely because they don’t involve the introduction of material brought in from somewhere else (US v. Deaton)

South Florida Water Management District v. Miccosukee Tribe of Indians (2004)

Facts: Miccosukee Tribe of Indians (P) contended that under the Act, a South Florida Water management District (D) pumping facility (S-9) that transferred water from a canal (C-11) into a reservoir (WCA-2) was required to obtain a discharge permit under the National Pollutant Discharge Elimination System (NPDES).

Holding: Yes. Vacated & remanded. ***Majority Opinion Reasoning: (O’Connor)

Rule: For purposes of a VWA req that a NPDES permit be obtained for the discharge of pollutants into the nation’s waters, such a discharge includes a point source that doesn’t itself generate the pollutants.

Defining “Point Sources” Subject to Permit Requirementso Point sources are easier to control, both politically & administratively,

particularly when pollution control technology emphasized end-of-the-pipe solutions

o Even limited to point source dischargers, implementation of a national permit program posed major administrative challenges for EPA

EPA announced that it would focus first on processing permit applications from major dischargers in areas where water pollution was the worst

o NRDC v. Costle (DC Cir. 1977) Facts: After the EPA (D) exempted several classes of point source

polluters from the permit reqs of CWA §402, P challenged the exemptions as unlawful.

Holding: No.

***Majority Opinion Reasoning: (Leventhal) Rule: The EPA doesn’t have the authority to exempt categories

of point source polluters from the permit reqs of the CWA.o Improperly managed animal feeding operations (AFOs) now are widely

recognized as an important source of water pollution. Regulations require these entities to apply for NDPES permits, submit

an annual report, & develop & follow a plan for handling manure & wastewater

All CAFOs are reqired to apply for NPDES permits & to develop & implement nutrient management plans

o Do the following activities involve discharges from point sources that require an NPDES permit?

National Wildlife Fed. V. Gorsuch (DC Cir. 1982) EPA properly determined that Congress didn’t intend to require

dams to obtain NPDES permits National Wildlife Fed. V. Consumers Power Co. (6th Cir. 1988)

No permit required following holding in Gorsuch US v. Earth Sciences, Inc (10th Cir. 1979)

Permit required because Congress defined “point source” to embrace “the broadest possible definition of any identifiable conveyance from which pollutants might enter the waters of the US

Sierra Club v. Abston Constr. Co. (5th Cir. 1980) Surface runoff from strip mine is a point source when spoil

piles are designed so that it is reasonably likely pollutants will be discharged through ditches or other discrete conveyances

Committee to Save Mokelumne River v. East Bay mun. Util. Dist. (9th Cir. 1993)

Impoundments held to be a point source, although a concurring judge noted that because the facility was like a dam & had been constructed to help reduce pollution, he would have been willing to defer to EPA if it had determined that the facility wasn’t a point source

← SM Friends of the Everglades v. South Florida Water management District (11th Cir.

2009)

o Issue: Whether the transfer of a pollutant from one navigable body of water to another is a “discharge of a pollutant” within the meaning of the CWA

o Holding: Like the marbles rule, the CWA’s language about “any addition of any pollutant to navigable waters from any point source,” 33 USC §1362(12), is ambiguous. The EPA’s regulation adopting the unitary waters theory is a reasonable, & therefore permissible, construction of the language. Unless & until the EPA rescinds or Congress overrides the regulation, we must give effect to it. Reversed in part, Dismissed in part.

Get notes! DC←← Technology-Based Effluent Limitations← CB 698-709 (notes 1 & 2 only); SM 170-207← CWA §§301(b), (c), (g)(1) & (2)(1), (n)(1)(A), 304(b), 306(a)-(b), 316(b), 402(a)← Application to Industrial Discharges

The development of effluent limitations Effluent standards for toxic water pollutants Variances

o Chemical Manufacturers Association v. NRDC (1985) Facts: An EPA (P) regulation granted variances to toxic dischargers

who could show that their plants differed fundamentally from the industry norm.

Holding: No. Reversed. ***Majority Opinion Reasoning: (White)

Rule: The CWA’s prohibition against modifying any reqs applicable to toxic pollutants doesn’t prohibit “fundamentally different factors” (FDF) variances.

Dissenting: (Marshall) There is clear congressional intent to prohibit all modifications

by the EPA (P), as evidenced by the legislative history. Effluent Limitations: The State of the Art

← SM Entergy Corporation v. Riverkeeper (2009)

o Facts: Three consolidated cases center around whether or not the EPA surpassed its federal authority by weighing the pros and cons of systems to be used at water intake cooling structures rather than simply employing the most advanced technology available on the market. The claims, brought by environmental groups and corporations, allege that the EPA's cost/benefit analysis violated the Clean Water Act (CWA) by leading to the use of structures that were insufficient to protect aquatic organisms from being harmed or killed as required by the CWA.

o Issue: Does Section 316(b) of the Clean Water Act, 33 U.S.C. 1326(b), authorize the Environmental Protection Agency (EPA) to compare costs with benefits in determining the "best technology available for minimizing adverse environmental impact" at cooling water intake structures?

o Holding: Yes held that the EPA was permitted to use a cost-benefit analysis in

setting national performance standards for cooling water intake structures

the Court reasoned that under 33 U.S.C. 1326(b), the EPA has discretion to determine the extent of adverse environmental impact that should be reduced in setting national performance standards for cooling water intake structures. With this discretion, comes the authority to use a cost-benefit analysis in setting national performance standards.

o Concurring in part & dissenting in part (Breyer) He agreed with the majority that the EPA was authorized to use a cost-

benefit analysis in making its determinations. However, he noted that the drafting and legislative history of 33 U.S.C. Section 1326(b) indicate it was intended to restrict the use of cost-benefit analysis and consequently he found the EPA's reasoning deficient in employing its cost-benefit analysis.

o Dissenting (Stevens) He argued that the plain language of the relevant statute indicates that

the EPA was required to set a standard that cooling water intake systems use the "best technology available" and therefore impermissibly used a cost-benefit analysis in setting the new standard.

← Class Notes

South Florida Water Management District v. Miccosukee Tribe of Indians (2004)

o Question presented for cert Whether the pumping of water by a state water management agency

that adds nothing to the water being pumped constitutes an “addition” of a pollutant “from” a point source triggering the need for a National Pollutant Discharge Elimination…

Not much merit on its faceo Had 2 arguments

1) All navigable waters in the US are 1 big water body 2) Even if you don’t believe argument #1, these 2 water bodies are one

body of water separated by a man-made wallo US Strategy

Persuade threshold statutory ambiguity (to get to Chevron 2) Promote federalism theme (will make the western states very upset) Invoke canons of statutory construction Suggest absurd & extreme results

(see slide beginning with “mere but for cause”) Try to get Chevron deference

o Moving water is a non-point source, not a point sourceo Respondents’ Strategy

Leave justices no wiggle-room with plain meaning Statutory language

Point source: A conveyance—a classic pipe “To” (a navigable water. The only question)

regulatory focus receiving waterso Additiono From

Structure & purpose Individual water body water quality standards Water pollution prevention 101(g) not bar 304(f) not exclusive

Explain why federalism Florida Everglades Arguments legally irrelevant

Federalism rule of lenity irrelevant

Plain meaning canon trumps all Federalism not implicated

o No widespread disruption state water…o (see slide)

Discredit US Position by emphasizing prior amicus…o Hard part of the brief was to argue “No Horribles”

Most water allocation expressly out Withdrawals aren’t covered

The difference between “conveyance” and “connection” Not impossible to regulate water movement

Other states are doing ito During oral argument, the justices had no interest in the unitary waters theory

Fall back was these 2 waters are one water, simply altered by a man-made structure.

o O’Connor’s opinion for the court The “unitary waters” argument focuses on the Act’s definition of a

pollutant discharge as “any addition of any pollutant to navigable waters from any point source” §1362(12)

§304: The Administrator shall issue (1) guidelines for identifying & evaluating the nature & extent of nonpoint sources of pollutants and (2) processes, procedures, and methods to control pollution resulting from…

A fit to find enough ambiguity to get to Chevron 2 Court doesn’t find this persuasive

Court notes that §1314(1)(2)(F) doesn’t explicitly exempt a nonpoint pollution sources from the NPDES program if they also fall within the “point source” definition

SCOTUS declined to address the unitary waters theory Court remanded the case regarding whether there were 2 distinct water

bodies here But SCOTUS basically said they were 2 distinct water bodies Based on: The Tribe doesn’t dispute that if C-11 and WCA A-3

are simply 2 parts of the same water body, pumping water from one into the other can’t constitute an “addition” of pollutants

If one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one hasn’t added soup or anything else to the pot.

Tribe does petition for rehearing, never granted EPA then promulgated the water transfer rule

Friends of the Everglades v. South Florida Water Management District (11th Cir. 2009)

o Question: Whether all the navigable waters of the US are unitaryo Court said the word “waters” doesn’t give an answero The canon of statutory construction shows that this notion is very powerful in

changing the meaning of statutes Ex: the dead zone in the Gulf of Mexico despite the CWA

Not allowed by CWA, but the CWA doesn’t cover everything The statute reflects compromises & has gaps (like

nonpoint sources) Just because the statute doesn’t cover everything/has gaps

doesn’t make the possibility of a horrible result unreasonableo Technology-Based Effluent Limitations

CWA Hell Title III—Standards and Enforcement

§301: Except as in compliance with this section…the discharge of any pollutant by any person shall be unlawful

There is a series of technology-based effluent limitations based on type, etc.

Starts out by looking at §301(b) (1)(A) All point sources, except POTWs have to attain

best practicable control technology currently available (BPT)

o For POTWs, their effluent limitations will be based on secondary treatment

o POTWs were the grease that got the statute passed

o BPT was the first stage/phase 1 (2)(A) For pollutants identified in sub¶s (c)(D)&(F) of

this ¶, will require application of the best available technology economically achievable (BAT)

(E) Pollutants identified pursuant to §304(a)(4) of this Act shall require application of the best conventional pollutant control technology (BCT)

§306: National Standards of Performance Best available demonstrated control technology (BDT)

o For new sources only §307: Toxic & Pretreatment Effluent Standards

Toxic pollutants have to meet BAT (technology-based standard)

The Administrator at his discretion may propose an effluent standard (health/environment risk-based standard)

§304: Lays out how to decide BPT Cost is the core concern in technology-based standards Consider cost-benefit analysis (b)(2)(A) does the same thing for BAT, but adds the

word “achievable”o Take the cost into account here, not necessarily

the benefits (b)(4)(A) does the same thing for BCT

o Consider the reasonableness of the relationship between costs & benefits

Cost-benefit analysiso Also a cost comparison analysis

How does this compare to the cost of POTWs

Conventional pollutants are those that are done by POTWs. Basically what is found in waste water.

They aren’t the real nasty oneso Three kinds of pollutants

Conventional Toxic Other

Toxic & other pollutants both have BPT until 1977 & the BAT after that

BPT, Secondary treatment, BAT & BCT all refer to §304 Idea of the statute was a whole series of technology based

effluent limitations & you figure out how they work in §304 The time required to do §304 are very lengthy & the permit

requirements are due much sooner than the amount of time necessary for doing §301 & §304

EPA said in order to get this done, we have to be able to do it on a categorical basis, not on a facility by facility basis

Categorical basis is good because forces everyone in the category to meet the same standards. Technology forcing

DuPonto Could EPA do §301 & §304 simultaneously?

Can they also go categorical? Yes. They can do it on a categorical

basis 1972 Framework (see slide) Post 1977 Framework (see slide)

What’s the difference between these standards? CWA Technology Based Standards (see slide) BPT (most stringent) >BCT>BAT>BDT (least

stringent)o Or

BPT=BCT=BAT=BDT (as a practical matter) Role of Costs

BPT: Compare total cost to effluent reduction benefits BCT

Compare control costs to POTW control costs Compare cost with anticipated benefits

BAT Cost consideration (affordable by most industry) Doesn’t mean affordable for you

BDT

Cost consideration (reasoned consideration) No affordability requirement because we don’t need

new sources As a practical matter, these technology based standards don’t change

as much as they should Bureaucratic ossification

§408: Canned & preserved seafood processing point source category These are included in §402 permits

None of this has to do with 404 dredge and fill permits Variance/FDF (see slide)

No variances for new sources (we don’t have to have them) We find the variances in §301(c)

Allows you to receive a variance from BAT if you show the maximum use of technology within the economic capability of the owner or operator and 92) will result in reasonable further progress toward the elimination of the discharge of pollutants

o A time limited variance §301(l): no modifications for toxic pollutants §301(m); modifications allowed for some conventional

pollutants Allowed for Biochemical oxygen demand (BOD) & pH

when going into deep waters of the territorial seas §301(n): Fundamentally different factors (FDF)

Allows a facility to say, there’s something fundamentally different about this facility that makes it not fair to use the technology based standards set out.

This facility should have a different standardo Take §304 standards and make them relevant to

you in a more discrete, concrete settingo Thus, if affordability isn’t relevant under the

statute, it’s not relevant here Example of when this works: Engineering things, etc.

o They based their notion of availability assuming that X was possible/existed

Chemical Manufactures Association (CMA) v. NRDC (1985)

Question: Does §301(l) forbid FDF variances for toxic pollutants?

All FDF is is applying the standards specifically/individually, not modifying the standards

The things that you can get a waiver from, you can’t necessarily get an FDF for

←← Water Quality Based Controls← CB 714-726, 728-748 (notes 1-3 only)← CWA §§303(a)-(d), 304(a), (b)(1), 401(a), (d)← Water Quality-Based Controls: The Regulatory “Safety Net”?

§301(b)(1)(C) requires that NPDES permits include any more stringent limits that are necessary to ensure compliance with water quality standards the states & qualifying tribes must adopt pursuant to §303

EPA has not used this provision (§302) because it also authorized modifications of effluent limits if a discharger demonstrates that there is no reasonable relationship between their costs & benefits. §302(b)(2)(A)

Water Quality Standardso 2 components:

1) Identification of the designated uses of a water body & 2) water quality criteria designed to protect the designated use

o “Designated uses” represent the purposes for which each water segment is to be protected

o “Water quality criteria” reflect judgments concerning the degree of protection from individual pollutants that is necessary to attain designated use

o “Water quality standards,” limits on ambient concentrations of pollutants in particular classes of water

o EPA can modify state or tribal standards that fail to meet the reqs of the Act. §303(c)(4).

o Designated Uses & Antidegradation §303(c)(2)(A) directs them in vague terms to “protect the public health

or welfare, enhance the quality of water & serve the purposes” of the Act.

This ambiguous language has been interpreted by EPA to require at a minimum that water quality standards meet the “fishable/swimmable” goal of §101(a)(2) unless that would result in “substantial & widespread economic & social impact”

o Water Quality Criteria States & tribes must adopt water quality criteria that specify maximum

ambient levels of pollutants that will ensure that waters can be used for their designated purposes. EPA is directed by §304(a) to develop water quality criteria, which can be used as a point of reference for states promulgating their own criteria

The 1987 Amendments added a req that states adopt criteria for toxic pollutants “the discharge or presence of which in the affected waters could reasonably be expected to interfere with those designated uses adopted by the State

EPA has issued regulations requiring permit writers to translate state water quality standards that contain narrative criteria into chemical-specific effluent limits for permitees

1) Use a calculated numeric water quality criterion derived from proposed state numeric criteria or other state policy interpreting the narrative criteria

2) Use EPA’s recommended numeric criteria, or 3) Rely on limits on the discharge of other pollutants found in

the source’s effluent Water Quality Criteria: Sources of Scientific Uncertainty

Our knowledge of chronic effects of many commonly used chemicals is quite limited even though they may be more serious than acute effects

Water quality criteria are based on concern for protecting human health or aquatic life from concentrations of pollutants in the water

Compliance with water quality criteria in the water column may not be sufficient to protect the health of aquatic organisms, particularly those for whom the microlayer is unusually important

The Impact of Water Quality Standards on Permit Limits

o For water quality standards to be effective in preventing pollution, they must be translated into effective discharge limits.

o §301(b)(1)(c) provides that NPDES permits must include limits that will ensure that water quality standards aren’t violated

o Water quality standards can affect permit limits through 1) Application of water quality standards to discharges that contribute

to interstate water pollution 2) individual control strategies for toxics under §304(1) 3) §401(a) certifications the Establishment of TMDLs of pollutants under §303(d)

o Application of water quality standards to interstate pollution When water pollutants cross the boundaries of states or Indian

reservations they may affect the ability of downstream states or tribes to meet their own water quality standards

Arkansas v. Oklahoma (1992) Facts: OK (P) challenged a permit granted by the EPA’s

allowing a plant in AK (D) to discharge into a stream emptying into the Illinois River in P.

Holding: Yes. Reversed. ***Majority Opinion Reasoning: (Stevens)

Rule: It’s within the EPA’s authority to require an upsteam discharger to comply with the water pollution regulations of the downstream state.

Notes: Arkansas is the upstream state EPA grants the permit in this case. Arkansas did not. Oklahoma says EPA can’t issue the permit because it

would violate their water qualityo There’s a nondegredation policy for that body of

water Any discharge into OK by Arkansas will

violate this nondegredation policy which EPA approved.

“In this case, it is neither necessary nor prudent for us to resolve the first of these questions”

Moreover, much of the analysis and argument in the briefs of the parties relies on statutory provisions that govern not only federal permits issued pursuant to §401(a) and §402(a), but also state permits issued under §402(b). It seems unwise to evaluate…

There’s nothing in the statute saying that states have to give veto authority to downstream states

o However, when the Court read this, they hadn’t looked at §401!

§401 is only triggered if you have a federally licensed permit/activity.

Any permit from EPA The Court assumed that

downstream states were subservient

Court uses Chevron 2 here because they can’t figure out §401 & §402

The COA construed the CWA to prohibit any discharge of effluent than would reach waters already in violation of existing water quality standards. We find nothing in the Act to support this reading.

o They eliminate the zero discharge standard that the 10th Cir. Imposed.

o SCOTUS said that it is “actual detectable” change is the standard

Problem: The “actual detectable” change doesn’t matter because you have to listen to OK’s standard.

Court has to find a way around this because they don’t want to simply give downstream states a veto

Says that once approved, state water quality standards have a federal character. Thus, the court listens to EPA’s interpretation of OK’s water quality standards, not OK’s interpretation of their water quality standards.

State water quality certification under §401o §401 bas been considered a “sleeping giant” of the CWA because of the

potentially broad scope of the conditions it enables states to impose.o PUD No. 1 of Jefferson County v. Washington Dept of Ecology (1994)

Facts: P, a city & local utility district, challenged WA state’s (D) minimum stream flow reqs when seeking a federal license for a hydroelectric dam from the Federal Energy Regulatory Commission (FERC)

Holding: Yes. Affirmed. ***Majority Opinion Reasoning: (O’Connor)

Rule: A state may condition the grant of a federal license for projects discharging into navigable waters upon any limitations necessary to ensure compliance with state water quality standards.

Dissenting: (Thomas) The majority makes 2 fundamental errors

1) Its interpretation of §401 fails to harmonize the 2 sections in question, as it leaves §401(a) moot

2) It places no meaningful limitation on a state’s authority to impose conditions on certification.

Notes: The majority maintained that PUD No. 1 didn’t define a

discharge & in no way indicated that an alteration of a discharge was sufficient to invoke the certification reqs of §401(a)(1)

Oregon Natural Desert Ass’n v. Dombeck (9th Cir. 1998) (pg. 738)

SD Warren v. Maine Board of Environmental Protection (2006)

Held that the meaning of “discharge” in section 401 is somewhat broader than the meaning of discharge in §301 (the section that triggers §402 & §404 permitting reqs).

o Unlike §301, §401 doesn’t refer to a discharge of pollutants & tha ¶502(16) provides that the “term ‘discharge’ when used without qualification includes a discharge of a pollutant, & a discharge of pollutants, indicating that it may cover more than just activities that add pollutants to navigable waters

Oregon National Desert Ass’n v. US Forest Service (9th Cir. 2008)

Held that “discharge in §401 applies only to point sources of pollution & that grazing permits could be issued without a §401 certification because cows are not point sources

Back to PUD No.1: State wants to consider a §401 certification Environmentalists don’t want the water to be slowed down, yet

the industry wants to slow the water down P struck the balance, but WA says you can’t balance away our

state water quality reqs CA v. Federal Energy Regulatory Commission (FERC) (Cert to

9th Cir. 1990) Held: CA reqs for minimum stream flows can’t be

given effect & allowed to supplement the federal flow reqs

o Never referred to the CA water quality standards & the reqs under CWA §401

o SCOTUS said they couldn’t do this. §27 (of what?) doesn’t allow states to

make this exemption (the federal flow reqs)

§27 was a comprehensive federal scheme to allow federal agencies to figure out the right balance. It wouldn’t make sense to allow states to disrupt this balance.

O’Connor wrote this unaminous decision.

The same issue is here. Difference: WA says we aren’t talking about §27. We have the affirmative right under CWA §401 to do the same thing as a practical matter.

Why does the state argue that it can impose a minimum stream flow req on the FERC-licensed facility?

They say there was a discharge—the water coming out through the dam.

They say that they can do this under §401(d) Counterargument: What’s adversely affecting the water

quality isn’t the discharge, it’s water being slowed down / being taken out / being dissipated. The withdrawal is affecting water quality. This provision is supposed to regulate discharge.

Industry argument: We meet the numerical criteria. Industry argument: They object to the state saying how they

can use and operate their dam. They say this is a veto. FERC was given the power to balance power & energy.

§401(d) can’t be read to silently override the whole discharge scheme.

SCOTUS rules in favor of WA There’s no dispute that petitioners were required to

obtain a certification from the State pursuant to §401. Petitioners concede that, at a minimum, the project will result in 2 possible discharges.

o What about Miccosukee?

Why is there a discharge here? They are just moving water. This was before the water transfer rule.

§401 Any applicant for a federal license or permit which may result in any discharge into navigable water.

§402 is triggered by the discharge of a pollutant

§401 only refers to discharge, not discharge of a pollutant

§502: “Discharge” includes a discharge of a pollutant

for §401 purposes, a discharge can be just water

The discharge isn’t the source of the problem, it’s the water withdrawal. You can only regulate the discharge.

O’Connor: Once you have a discharge, the applicant as a whole has to meet the water quality standards. The discharge is what triggers §401. But the discharge isn’t the scope of the water quality standards.

o Everything the applicant is doing (not just the discharge) has to comply with the water quality standards & §401

Numerical criteria O’Connor: doesn’t have to be numerical. The statute

refers to both criteria and designated uses. Each one is a water quality standard. It’s not as though one is numerical & one is descriptive, the criteria themselves are often descriptive/narrative. Often it’s hard to figure out what the numeric quality should be. There’s not that much different than designated uses.

o This is pretty powerful A minimum instream flow req isn’t a limitation because the

statute is concerned with water quality, not quantity.

O’Connor: No distinction. Water quality and water quantity are closely tied.

o Linking these is a big point. FERC has no independent litigating authority in SCOTUS.

However, they do have independent litigating authority in the lower courts. The SG can allow them to file briefs in SCOTUS.

Total maximum daily loadings (TMDLs)o CWA §303(d)(1)(A) requires states to identify those waters for which effluent

limitations for nontoxic pollutants aren’t stringent enough to achieve water quality standards

o §303(d)(1)(C) requires states to establish TMDLs of these pollutants “at a level necessary to implement the applicable water quality standards” subject to EPA review & approval

o TMDLs are supposed to permit a comprehensive assessment of what reductions are necessary to achieve water quality standards

o Scott v. City of Hammond (7th Cir. 1984) (pg. 739)o Alaska Center for the Environment v. Reilley (WD Wash. 1991)

While EPA & the state subsequently agreed to assess 8 water segments, the court ultimately ordered EPA to develop a long-term “schedule for the establishment of TMDLs for all waters designated as water quality limited

o TMDLs have become the true “sleeping giant” of the CWA Forcing a showdown on the last water quality frontier, non-point

source pollutiono The most contentious issue involving TMDLs is the question whether

§303(d)’s TMDL reqs apply to nonpoint sourceso Pronsolino v. Nastri (9th Cir. 2002)

Facts: EPA (D) required CA (P) to set TMDLs for a river D deemed to have insufficient pollution controls. P challenged D’s authority to so regulate.

Holding: No. Affirmed. ***Majority Opinion Reasoning: (Berzon)

Rule: Waters that are impaired only by nonpoint sources of pollution are subject to the CWA listing & TMDL reqs.

Notes: §303—Water quality standards & implementation plans

Under §303(a)(1)(A), states have to identify the waters for which the effluent limitations aren’t stringent enough

EPA didn’t include in their list of waters to be regulated waters contaminated only by non-point sources.

What’s the legal issue? Argument that there are no effluent limitations to non-

point sources, so those waters don’t have to be regulated. SCOTUS rejects the argument & says EPA’s construction is reasonable under Chevron

§303(d) It goes to all water bodies, not just to water bodies that

are point sources Absent some irreconcilable contradiction between the

reqs contained in §208 & §319, on the one hand, & the listing & TMDL reqs…

But, there’s no federal enforcement of §303(d)o §303(d): “Identification of Areas with Insufficient Controls; Maximum Daily

Load”o Analysis: Plain Meaning & Structural Issues

The Competing Interpretations The Language & Structure of 303(d) The Statutory Scheme as a Whole

← Class Notes Entergy Corp. v. Riverkeeper, Inc.

o CWA §316(b)—Thermal Amendment Any standard established pursuant to §301 or §306 of this Act &

applicable to a point source shall require that the location, design, construction, & capacity of cooling water intake structures reflect the best technology available (BTA) for minimizing adverse environmental impact.

About withdrawals The heating & cooling of water give tremendous energy for

power plants 90% of our salt water withdrawals & 50% of our freshwater

withdrawals are for cooling water for power plants

Environmental impact: Thermal discharge Closed cycle cooling involves a lot less water There is a wholly disproportionate test here

They have to spend more money, unless it is wholly disproportionate

For new power plants, they use closed cycle cooling as the standard For the existing power plants, they don’t require closed cycle cooling

(Phase II) They might have done a CBA here Environmentalists challenge the Phase II standards

Say rejecting closed cycle cooling can’t be made based on cost-benefit analysis

SCOTUS granted cert here o Court isolated out the cost-benefit question

This is the first time §316(b) has been challenged & it is the first time a court has interpreted it

The Agency said don’t bother granting cert So, this means that the respondents will probably lose SCOTUS takes this case because Justice Breyer is

really into water & the CWA & cost-benefit analysis Ask yourself, how are we going to win this case? And if

we can’t win, how do we lose it and have a soft landing?

This case is an enormous opportunity for industry—going past §316(b)

Don’t have BTA here because BTA is basically BAT And since BAT doesn’t allow cost-benefit analysis,

BTA shouldn’t eithero But if you make this argument & lose on this,

you lose everything, not just §316(b) On this case if you are at Chevron 2, you should lose Only way to get 5 votes in this case is to show that Congress

intended this under Chevron 1. Want to only look at the language of §316(b) and show

that it says this unambiguously and is in the plain meaning

Congress has basically told EPA to what extent costs are relevant (the word “available”) & to what extent benefits are relevant (“minimize adverse environmental effects”) in §316(b)

o “Available” means physically & economically available for the industry as a whole

o Congress didn’t say you were allowed to compare costs & benefits

You can’t make it look like you’re saying costs & benefits aren’t relevant

Try to say that through plain meaning, both are relevant, but you just can’t compare the two

The question is, is this plain reasoning

Worried about “best”o Argument was “best” for minimizingo If the court relies on the word “best”, “best”

comes up all over the statute If the court says that “best” on its face

includes cost-benefit analysis, there’s a bleeding effect and then cost-benefit analysis would go into “best control measures”, etc. (see §304(b)(2)(A)

This provision ends with “and such other factors as the Administrator deems appropriate”

Might have been problematic Strategy was to go with Justice Scalia & plain meaning Strategy also included showing the legislative history to

get to Justice Breyer In the opinion,

The “best technology—that which is “most advantageous”—may well be the one that produces the most of some good here a reduction in adverse environmental impact

Definitely giving this to EPA Says “best” could mean the one that can be reasonably

borne by the industry o This is plausible, but so is the first definition

Breyer (concurring in part, dissenting in part) I agree with the Court that the relevant statutory language

authorized the EPA to compare costs & benefits It is clear that those who sponsored the legislation intended the

law’s text to be read as restricting though not forbidding the use of cost-benefit comparisons

Stevens, Souter, Ginsburg (dissenting) Water Quality Kickers

o Second part of the statuteo Statute started out with technology-based standardso House wanted a health-based approach & water-quality based approach

But, this ended up being the second step (if technology-based standards weren’t enough)

o Water quality kickers are in §303 & §304 of the statuteo §304

EPA has to promulgate guidelines that include criteria for water quality, accurately reflecting the latest scientific knowledge. Like NAAQS (CAA §107 & §108)

“Presence in a body of water” Like NAAQS—“presence in ambient air”

There are no NAAQS for water. Because it isn’t air & it lends itself to having different qualities in different areas.

You can zone water in ways that you can’t zone air. The criteria determined in §304 is given to the states & the states make

state water quality standards These state water quality standards can be specific for the

different bodies of water States have to submit these standards to EPA EPA reviews the standards & approves or denies them

If they disapprove them, EPA can promulgate water quality standards on their own

EPA imposes a nondegredation policy

EPA won’t approve standards it thinks are unenforceable

o §303 Whenever the State revises or adopts a new standard, such revised or

new standard shall be submitted to the Administrator. (d)(1)(A): Each State shall identify those waters within its boundaries

for which the effluent limitations required by §301(b)(1)(A) & §301(b)(1)(B) aren’t stringent enough to implement any water quality standard applicable to such waters

(C) Each State shall… Total daily pollution load—total maximum daily load (TMDL)

o §319—Nonpoint Source Management Programs (a)(1)(A) Identifies those navigable waters within the State which,

without… (b)—State Management Programs

(1) Governor of each state shall submit to the Administrator for approval…

o §301: Has the kicker (b) In order to carry out the objective of this Act there shall be

achieved (C) not later than July 1, 1977, any more stringent

limitation, including those necessary to meet water quality standards (the kicker)

o §402: Such discharge will meet all applicable reqs under §301o The states are really reluctant to do this. No one really wants to take this

second step.o §401: Triggers water quality standards as well

This is a sleeper provision (a)(1): federally permitted & licensed activities (a)(2): Whenever such a discharge may affect, as determined by the

Administrator, the quality of the waters of any other State…shall so notify such other State…such other State determines that such discharge will affect the quality of its waters so as to violate any water quality requirement in such State

Seems to say that this is a veto. Not just considering their views

The more powerful it is, the more reluctant people will be to apply it

←← Wetlands Protection← CB 749-751, 757-759, SM 208-232 ← CWA §404(a)-(g) & (I)← Wetlands Protection & the §404 Permit Program

The Structure of the §404 Programo The most visible and controversial wetlands protection programo When it was adopted the FWPCA in 1972, Congress established a separate

permit program, in addition to the NPDES, to govern discharges of dredge and fill material

o The Corps administers the §404 permit program in cooperation with EPAo The definition of dredge & fill material determines whether a permit must be

obtained from the Corps under §404 or from EPA under §402 of the CWA, which covers all discharges of pollutants from point sources

o Avoyelles Sportsmen’s League v. March (5th Cir. 1983) Held that mechanized landclearing activities require a §404 permit

when they redeposit soil in wetland areaso Save Our Community v. EPA (5th Cir. 1992)

Held that drainage of a wetland doesn’t require a §404 permit unless there is a discharge of some kind

o 1977: Congress added CWA 404(e) Authorizes the Corps to “issue general permits on a state, regional or

nationwide basis for categories of activities that are substantially similar in nature & cause only minimal adverse effects on the environment”

o Controversial It extends the reach of federal regulation more broadly & in a manner

that potentially affects more individuals than virtually any other environmental law

o United States v. Bruce (3d Cir. 1994) Discharges from the draining or filling of a wetland in order to convert

it into additional farmland have been held not to be exempt from §404’s permit requirement even if undertaken by a farming operation

The Section 404 Permit Process

o The permit process has produced bitter confrontations between developers & environmental groups, each of whom has been highly critical of the process

o Under EPA guidelines for issuing §404 permits, permit applicants must demonstrate that

1) there is no “practicable alternative to the proposed discharge” which would be less damaging to the aquatic environment

2) the proposed activity won’t “cause or contribute to significant degradation of the waters of the US”

3) appropriate & practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem” and

4) the proposed discharge won’t violate state water quality standards, toxic effluent standards, the Endangered Species Act or regulations to protect marine sanctuaries under the Marine Mammal Protection Act.

o Decisions concerning permit applications under §404 turn largely on an analysis of alternatives to a proposed project

o §404(b)(1) guidelines provide that “no discharge of dredged or fill material shall be permitted if there is a practicable alternative…which would have less adverse impact on the aquatic ecosystem”

Alternative is defined as “practicable” if it is “available” & “capable of being done after taking into consideration cost, existing technology, & logistics in light of overall project purposes”

The guidelines are designed to place a heavy burden on developers who seek approval to locate in wetland areas projects that don’t require access or proximity to water

For such projects, the guidelines presume that a less damaging alternative is available unless clearly demonstrated otherwise

o National Wildlife Federation v. Whistler (8th Cir. 1994) How the purposes of a project are defined has a major effect on

analysis of the availability of alternatives under §404.o Bersani v. Robichaud (2d Cir. 1988)

Upheld EPA’s veto & the “market entry” theory on which it was premised.

Noted that the purpose of the practicable alternatives analysis required by §404(b)(1) guidelines is “to create an incentive for developers to avoid choosing wetlands when they could choose an alternative upland site”

o Yazoo Backwater Area Pumps Project (008) EPA vetoed the issuance of a permit under §404(c)

This is very rare← SM 208-232

Chantell Sackett v. EPA (2012)o Issue: Whether Michael & Chantell Sackett may bring a civil action under the

APA to challenge the issuance by the EPA of an administrative compliance order under CWA §309

First consider whether the compliance was a final judicial action. It was.

o There’s no suggestion that Congress has sought to exclude compliance-order recipients from the Act’s review scheme; quite to the contrary, the Government’s case is premised on the notion that the Act’s primary review mechanisms are open to the Sacketts.

o Rule: There is no reason to think that the CWA was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.

o Holding (Scalia): Reverse & remando Notes:

§309: EPA can issue an order to apply with requirements. Civil penalties are allowed

Sacketts argued that this was a due process issue SCOTUS said it was also an APA issue

1) APA issue 2) Due process issue

The Sacketts are an excavating and contracting company in Idaho SCOTUS held that there was no due process issue because there’s

APA review because it is a final agency action It has legal effect Every circuit has said this wasn’t subject to judicial review

Congress didn’t want this tied up in litigation

But, there’s an overriding presumption in the APA to give judicial review

The order was also subject to a citizen suit (the Sacketts didn’t make this argument, but they could have)

Upshot of the case: The Sacketts will ultimately not be able to build without a §404

permit The government will give judicial review for administrative

compliance orders They can take out the words “administrative compliance

orders” and just send a letter stating the same thing if they find out there is a violation. Giving them a right to bring a law suit against them.

There would be nothing different for EPA. But if they don’t call it an administrative compliance order, it’s not a final agency action.

Mingo Logan Co. Inc. v. EPA (DC Cir. 2012)o Rule: EPA exceeded its authority under §404(c) of the CWA when it

attempted to invalidate an existing permit by withdrawing the specification of certain areas as disposal sites after a permit had been issued by the Corps under §404(a)

o Holding (Jackson): P’s motion for summary judgment granted & D’s cross-motion denied.

The court can’t find that EPA’s interpretation of §404(c), extending its veto authority indefinitely after a permit has been issued, is reasonable.

o Notes: §404(c)

The Wetlands provision EPA hardly ever vetos a Corps. permit This is a Chevron 2 case

Although SCOTUS thinks they are probably wrong under Chevron 1 too

Crucial language here is “specification” This is different from a veto “specification” is separate from the permit They can withdraw the specification

But once the permit is issued, they can’t do anything They have to deny specification before

Government’s argument Rely on “withdrawal” and “whenever”

Say this is enough to get rid of specification at whatever time

EPA resorts to magical thinking. It posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration.

← Class Notes Water quality standards

o §303 Allows EPA to review state standards for water quality. If the

standards are inadequate, EPA can promulgate its own standards. If the standard is revised, the revised standard shall be submitted to the Administrator and it shall consist of the designated uses of the water & the water quality for those waters based upon such users

o §301—Water quality kickerso §402: Sets out the permit req, but says you have to meet the reqs of §301 to

get a permito §401

Only applies to applicants for a federal license or permit to conduct any activity which may result in any discharge into the navigable water

Triggered by any federal permit Also includes federal NPDES permits (they trigger §401)

If a state issues an NPDES pemit (under §402), this provision isn’t triggered

Specifically gives rights to downstream states This came up in the Arkansas v. Oklahoma case

Wetlandso Wetland regulation starts under Rivers & Harbors Act of 1890o §404

Says the Secretary may issue permits for the discharge of dredged or fill material into navigable waters at specified disposal sites

§404 & §402 are joined at the hip

Doesn’t have the same policy legs as §402 Limited in its ability to protect wetlands

One of the most significant ways you destry wetlands is to drain the waters out of them.

But draining waters isn’t a discharge. If you successfully drain the waters out, that is an effective way

of getting rid of a wetland And it won’t trigger the statute

o §404(c): Provides a way for EPA to veto a permit authorized by the US Army Corps of Engineers

o §404(e)(1) Allows Corps to grant genera permits on a state, regional, or

nationwide basis No req for individual permits But activities must be similar in nature, cause only minimal

adverse environmental effects, & have only minimal cumulative adverse effect on the environment.

Environmentalists are unhappy with this provision Because if someone thinks they are permitted on a generic

basis, there’s no need to tell anyone you are doing something. No notice.

Nation-wide permits are very controversialo §404(f)(1)

Interest group exemptions from §404 permits Including normal farming activities

“Normal” is the key word here Environmentalists rely on (f)(1)(2) where as agriculturalists rely on (f)

(1)(A) (f)(1)(2) says you can’t convert things

o §404(g)o §404(b)(1) guidelines

Guidelines are promulgated by EPA for the Corps. This is more of a narrative because we don’t have technology-based

effluent limitations nor prohibitions Delays development as opposed to prohibiting it You can degrade, but you can’t significantly degrade

Minimize potential adverse affects of discharge Minimize doesn’t mean prevent

Won’t be permitted if there’s a practicable alternative This is the strength & weakness of the provision

Strength: Practical alternative, so you can’t Weakness: No practical alternative, so you can do it

Environmentalists want absolute limits This could be a wetlands development delay provision

o Coeur Alaska, Inc. v. Southeast Alaska Conservation Council et. al. (pg. 752) (WON’T BE ON EXAM)

Facts: Coeur Alaska (D) sought to dispose of slurry from its mines into Lower State Lake.

Holding: Yes. Reversed. ***Majority Opinion Reasoning: (Kennedy)

Rule: CWA §404(a) gives the Corps, not EPA, the power to issue permits for the discharge of dredged or fill material, without qualification.

Concurring: (Breyer) The law allows regulating agencies to classify material either

as dredged or fill material under §404 or as a pollutant under §402. The classification of the material as one or the other must be reasonable.

Concurring: (Scalia) I concur, but despite the Court’s protestation that the internal

memo shouldn’t be accorded Chevron deference Dissenting: (Ginsburg)

§404, regarding dredged or fill material, doesn’t contain an exception for pollutants from new sources that qualify under §306. Here, the slurry at issue is a pollutant from a new source. Therefore, §306 should apply.

Notes: Mining is creating a huge amount of debris. §402 permit is

denied. Since this is a new activity, the technology-based effluent limitation is zero as per the §402 permit.

No pollutants allowed in the discharge

They said this is dredge/fill material, so they wanted a §404 permit, not a §402 permit

Anything covered by §404 isn’t covered by §402 Can they do this? Yes under the statutory language.

§402 gives EPA authority to issue permits for the discharge of any pollutant, with the exception of fill material that all under the Corps’ §404 permitting authority

The Act is best understood to provide that if the Corps has authority to issue a permit for a discharge under §404, then the EPA lacks authority to do so under §402

Concurring (Breyer) It’s reasonable, but there are several safeguards

Concurring (Scalia) Agrees, but would give Chevron deference

←← Municipal Stormwater Regulation Under the CWA & Before SCOTUS

The CWA & Stormwater Runoffo CWA regulates the control of stormwater runoff to the Act’s nonpoint source

provisions, found primarily in §§208 & 319, & potentially further implemented by § 303(d)

o When stormwater runoff flows into discrete conveyances that collect & channel the runoff into point sources that discharge the pollutants into navigable waters, they become subject to the Act’s far stricter provisions directed to such point source discharges

o NRDC v. Costle (DC Cir. 1977) (SM 245)o 1987: §402(p)

Addresses discharges composed entirely of stormwater Imposes a temporary moratorium on §402 NPDES permits for such

discharges, but then creates 5 exceptions from that moratorium & requires EPA to establish regulations setting forth permit-application reqs for each of those categories

Provides that EPA will promulgate these regulations by phases

Congress further provides that EPA could issue such NPDES permits for MS4s on a system or jurisdiction-wide basis rather than require individual permits for each of the literally thousands of distinct pipes, drains, & outfalls that make up a massive interconnected storm sewer system for a major metropolitan area (§402(p)(3)(B)(I))

Storm Runoff Before SCOTUSo 2 cases currently pending before SCOTUS involving the regulation of

stormwater discharges under the CWA Case 1: consolidation of 2 cases

Decker v. Northwest Environmental Defense Center Georgia-Pacific West, Inc. v. Northwest Environmental

Defense Center Concerns whether stormwater runoff from logging roads

constitutes a point source subject to the Act’s §402 permitting requirements

Petitioners challenged on 2 grounds 1) Argue that the court’s ruling amounts to a collateral

challenge to the validity of EPA’s regulation that such runoff amounts to a nonpoint source, & §509 bars such challenges to a regulation’s validity in a citizen suit enforcement action

2) Contend that the 9th Cir. Failed to provide adequate deference to EPA’s authoritative interpretation of the Act & the meaning of “point source”

Case 2: LA County v. NRDC Concerns the degree of proof necessary to establish a

municipality’s responsibility for permit violations caused by MS4 discharges when the relevant permit regulates in a single system & jurisdiction-wide permit, thousands of individual outfalls.

NRDC v. County of LA (Dist Ct Central Dist of CA 2010)o Only talking about the San Gabriel & LA Riverso No one disputed that there was a permit violationo The issue here was one of proximate cause

Was the District the one liable? LA County doesn’t have all of the outfalls

You have to show it’s the stuff that is coming out of the LA County outfalls are the problem

Have to show that what is coming out of the LA County outfalls is what is causing the violation

NRDC v. County of LA (9th Cir. 2011)o Holding:

Dist ct erred with respect to the evidence of discharges by the District into 2 of the Watershed Rivers—LA River & San Gabriel River: Reverse

Plaintiffs failed to meet their evidentiary burden with respect to discharges by the District into the Santa Clara River & Malibu Creek: Affirm

o Issue: Whether any evidence in the record shows Ds discharged stormwater

that caused or contributed to water-quality violations Whether the evidence shows any addition of pollutants by Ds to the

Watershed Riverso The decision is for the environmental plaintiffso There is evidence of discharge into the LA & San Gabriel River

Defendants use the same argument as in the district court: You have to pinpoint this

Plaintiffs say you’ve agreed to the permit, so if the permit is violated, you’re responsible

This is wrong Need proof that some entity discharged the pollutant But they say they have the evidence

o The mass-emissions stations, as the appropriate locations to measure compliance, for these 2 rivers are located in a section of the MS4 owned & operated by the District, when pollutants were detected, they hadn’t yet exited the point source into navigable water.

Court says they don’t have to go back & look at all the individual outfalls

MS4 was their outfall (mass-emissions stations)

LA County Flood Control District v. NRDC & Santa Monica Baykeeper (BRIEF OF PETITIONER)

o Question presented: When water flows from one portion of a river that is navigable water

of the US, through a concrete channel or other engineered improvement in the river constructed for flood & stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a “discharge” from an “outfall” under the CWA, notwithstanding this Court’s holding in South FL Water Mngmt Dist. v. Miccosukee Tribe, that transfer of water within a single body of water can’t constitute a “discharge” for purposes of the Act?

o Holding: The decision & judgment of the 9th Cir. Should be reversed, with

directions that judgment be reinstated for the District on these clamso Key Points:

The flow of water within a navigable water improved for flood control purposes isn’t a discharge under the CWA

Miccosukee Tribe makes clear that mere transfer of water between 2 points of a single body of water can’t constitute the “addition of pollutants” to a navigable water of the US for purposes of a discharge under 33 USC §1362(12)

The court’s conclusion that man-made alterations to a navigable water may change its character for purposes of the CWA is unsupported by the act itself & relevant regulations

Nothing says this, not the CWA, not respondents, etco Notes:

Briefed the first question (man-made vs. natural) even though SCOTUS got rid of that issue

LA Flood Control District v. NRDC (BRIEF FOR US AS AMICUS CURIAE SUPPORTING NEITHER PARTY)

o Key points: The COA erred in deeming the water flows at issue to be discharges of

pollutants

The flow of water within a single water body, without any intervening use or event, doesn’t constitute a “discharge of any pollutant” within the meaning of the CWA

COA’s decision appears to reflect a factual misunderstanding rather than an error of law

They (the COA) think it is measuring one of the District’s outfall (outside of the river)

They couldn’t have thought it was in the actual river This is a fact-bound error that creates no law. So there’s

no cert worthy error The case should be remanded to allow the courts below to determine,

based on their interpretation of the MS4 permit, whether petitioner can properly be held liable for pollutant exceedances in the LA & San Gabriel Rivers

COA didn’t hold that “navigable waters” are limited to “naturally occurring” bodies of water, or that there was a distinction between man-made/-altered & natural waterbodies.

o Notes: The flow of water within a single water body, without any intervening

use or event, doesn’t constitute a “discharge of any pollutant” Then they also raise the factual error issue What’s their argument for grounds for dismissal?

NRDC might be right or wrong depending on that particular permit. SM 295 (point B)

The US doesn’t really take a position on it Says SCOTUS should vacate & demand

LA Flood Control v. District v. NRDC (BRIEF FOR RESPONDENTS)o Key points:

Petitioner doesn’t simply transfer water within a single river SCOTUS should affirm COA’s decision because the results of the

representative compliance monitoring required by the permit establish petitioner’s violations of its discharge limits as a matter of law

This case doesn’t implicate Miccosukee The compliance monitoring required by the district’s permit

establishes its permit violations

All NPDES permits must include monitoring sufficient to determine compliance

Self-reported compliance monitoring results establish permit violations & enable enforcement

The monitoring required under the permit shows undisputed violations of permit limits

The district is barred from making a collateral attack on the terms of its NPDES permit

The district’s argument would severely undermine enforcement. There are too many outfalls

The remedy for permit violations is apportioned according to each permitee’s contribution

Each permittee is responsible for its own discharges Holding the district liable wouldn’t make it responsible for the

contributions of other dischargers The district’s arguments regarding potential future remedies

are both incorrect & premature Notes:

They are saying that there is no joint & several liabilityo They are just liable for their own stuff

There’s a way it won’t overreach. A collateral attack

o A defendant can’t attack the sufficiency of the permit when it is being enforced against you

You have to do this separately early on This is §509(b)(2)

Being argued in Decker the day before

But being argued against the environmental plaintiffs in Decker

It is the first issue in Deckero LA County isn’t saying the permit is unlawful,

insufficient, etc

Just saying CWA doesn’t require enough to show individual responsibility for a system- or jurisdiction-wide permit

Not that there was a violation It goes beyond this

This is the soft-landing Can then go and say SCOTUS

says the monitoring (in many cities) isn’t enough

Saying “this permit wasn’t enough” & using this as a sword to require more stringent monitoring

Can use in future permit permitting processes

o By saying “cooperative federalism scheme” they are hoping to get Justice Kennedy

Where is the state permitting agency? They could have filed a brief in

this case affirming NRDC’s argument

It is probably silent because petitioner is LA

It would have been helpful to have EPA or State of CA say it was enough as well.

EPA goes both ways CA says nothing

Once you show a violation, that triggers a more precise process to figuring out who violated it.

o This is a good argumento The permit does fine tuning

The district raises a series of legal issues that aren’t properly before the court or are irrelevant to its liability

Man-made improvements to a navigable water don’t affect CWA jurisdiction

District’s argument that “point sources” & “navigable waters” are mutually exclusive was never presented below & doesn’t affect its liability

EPA’s water transfer rule doesn’t apply to discharges from an MS4

o Notes: Didn’t argue that man-made or “improved water bodies categorically

fall outside the CWA’s coverage Agree that it was a factual mistake What argument does respondent have on remand?

The only argument there is for NRDC to make has already been denied by COA

There’s no map in the record If NRDC loses, there might still be a win (a soft landing) On the second question respondents raised, they were only asking

SCOTUS to affirm it The District asked for the less burdensome monitoring & they got it

They can’t not say it wasn’t sufficient to determine compliance because they asked for this

There are a lot of amicus briefs regarding MS4s & how they operate & also on stormwater & how bad it is

← Class Notes: Municipal separate storm sewer system (MS4)

o They move the water into point sources—Pipes, drains, etco They don’t want to treat the water

LA County has thousands of miles & thousands of pipes & drains in its MS4. You don’t have to create something to be a point source NRDC v. Costle (DC Cir. 1977)

o This is how EPA first handled it. Treated it as a point source, but exempted it (MS4s) from permit reqs. But EPA lost this case as regards separate storm sewers

1987: CWA §402(p)o Set a background principle that stormwater sewers, etc would be exempted

until 1994.o Then exceptions would come in

Industrial activity

Municipal separate storm sewer system serving a population of 250,000 or more

MS4 serving a population of 100,000 or more Stormwater discharge contributes to a violation of water quality

standard or is a significant source of pollutants (3)(B) Municipal discharges

Permits can be on a system-wide or jurisdiction-wide basis Shall control discharge of pollutants to the maximum extent

practicable A management practice

LA County’s Permito Nature of discharges

Lots of classic, conventional pollutants and toxic pollutants We aren’t talking about incidental issues

o Discharge prohibitions Including you can’t contribute to the violations of water quality

standards (this is the issue in this case)o BMP = best management practiceo Mass Emissions Monitoring Station

Wouldn’t be required at individual outfalls Located in the LA River Found that the water quality standards were being violated

SCOTUS grants cert in this case (at the same time it granted cert for Decker and shortly after ruling on Sackett)

o But they only took question 2 about Miccosukee← CB 393-408, 411-428← CERCLA §§ 101(9), (14), (22)-(25), (35), 104(a)(1), skim 105(a)-(c), read 106(a), read 107(a)-(b)(1)-(4) & 107(f)(1), glace at 111-112 & 120-122← CERCLA Liability: CERCLA’s Basic Principles

Not a regulatory statute, a liability statute Reconsideration of CERCLA was prompted by the Love Canal disaster

o Love Canal highlighted the consequences of decades of poor waste management

o Public response contributed to a political climate that produced CERCLA, the most comprehensive new federal approach to environmental protection since the enactment of NEPA

A direct extension of common law principles of strict liability for abnormally dangerous activities, and was modeled on a prior extension of those principles contained in the 1972 CWA’s oil spill liability program

Core of CERCLA is its liability provisions & its authorization to EPA to spend monies from the Superfund for removal operations—short-term action to address immediate hazards—and for remediation operations—targeted at longer-term solutions, including decontamination

o It can only spend money on remediation for sites that it has placed on the National Priority List §§104, 105

EPA also has authority to order private parties to undertake actions to abate actual or potential releases of hazardous substances in order to prevent imminent & substantial endangerment. §106.

For its response & remediation costs, the federal government draws on the Superfund, which was funded initially through a tax on chemical feedstocks, & later amended to include a small tax on petroleum. §111

§107 identifies 4 classes of potentially responsible parties (PRPs): current owners & operators, owners & operators at the time waste was disposed of at the facility, generators of the waste, & persons who transported waste to the facility.

Main purpose: to make spills or dumping of hazardous substances less likely through liability, enlisting business & commercial instincts for the bottom line in place of traditional regulation

CERCLA’s liability provisions are also designed to serve preventative ends (like the remediation provisions)

2 goals: to prevent environmental contamination & to ensure that it is cleaned up when it occurs.

← History of CERCLA CAA & CWA were medium-specific laws & were fairly ineffectual. They had

provisions dealing with hazardous air pollutants, toxic air pollutants, etc.o Pollutants thus ended up on the land (where they weren’t regulated)o This led to a second wave of legislation in 1976. Two statutes that chanced

pollutants across mediums. “Cradle to grave” Toxic Substances Control Act Resource Conservation Recovery Act (RCRA)

Subtitle C—Hazardous Waste Management (federal) It’s hard to decide what “waste” is because it might be

useful for something

o Can also be called: fuel, dust suppressant, by-product, etc

§3002: “The Administrator shall promulgate regulations establishing such standards, applicable to generators of hazardous waste identified or listed under this subtitle, as may be necessary to protect human health and the environment.”

o Leads to the abandonment of many hazardous waste sites

Imminent Hazard §7003o US brought many lawsuits based on this

provision Brought test cases

Ex: Sue Hooker Corp.o Authorizes the EPA to restrain any person from

contributing to hazardous waste presenting an imminent & substantial endangerment to health or the environment.

o What is the standard here—negligence, strict liability, etc? Who can you sue? What makes someone liable? What is the scope of liability?

None of this is obvious Standard was strict liability They could sue the current owners of the

property (but they don’t have any money)

Said that it allowed them to sue past owners, arrangers/generators, and transporters

Could ask for injunction (including clean-up)

Subtitle D—Solid Waste (state) Love Canal (most closely related to CERCLA)

o Telling about the lack of regulation in this areao Hazardous waste began leaking into people’s homes

o Another example: Valley of the Drums, Kentucky Elizabeth, NJ (fuel tanks)

CERCLA passes in December 1980 in a dead duck Congresso Originally had a victims’ compensation provisiono Title I—Hazardous Substances Releases, Liability, Compensation

Joint & several liability was taken out too Big battle over whether CERCLA should be administered by Army

Corps of Engineers. Instead of choosing, the simply say ‘the President’ Oil Spill Provision is left out (that statute doesn’t pass. Finally passes

after Exxon-Valdez in 1990) §104: Response Authorities

What is the difference between “removal” and “remedial action”?

Removal: temporary Remedial action: permanent

§105 National Contingency Plan Must be some national priority sites in each state

§106: Abatement action When the President determines that there may be an imminent

& substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility. He may require the USAG to secure such relief as may be necessary to abate such danger or threat. The President may also…issuing such orders as may be necessary to protect public health and welfare.

The President isn’t limited to bring a lawsuit. He doesn’t have to go to court. He can just unilaterally order someone to clean it up.

What is a “hazardous substance”? What is a “release”? See §101 No “waste” mention here “release”

o Must be in an ambient environment, not in a work place.

§107: Liability

Owner & operator of a vessel or a facility Any person who at the time of disposal of any hazardous

substance owned or operated any facility Any who arranged for disposal or treatment of hazardous

substances owned/possessed by such person From which there is a release, or a threatened release which

causes the incurrence of response costs, of a hazardous substance

Defines liability & scope of liability (A) All costs of removal or remedial action

o Government has burden to show it’s inconsistent

(B) Any other necessary costs of response incurred by any other person

o This creates a private right of actiono This doesn’t create a compensation damages

provisiono Rather, it says: If I go out as a citizen & clean

something up, I can bring a cost recovery action afterwards

o Private citizen has burden to show it is consistent

(C) Damages for injury to, destruction of, or loss of natural resources

§111: Uses of fund §113: Litigation, jurisdiction & venue

(h) Timing of Review—No federal court shall have jurisdiction under Federal law to review any challenges to removal or remedial action selected under §104, or to review any order issued under §106(a)

Can only sue if they bring you to court for noncompliance and/or if EPA has already paid for the cleanup

EPA has ENORMOUS leverage here People will settle at a premium to get out of this

Congress doesn’t want cleanups to be delayed because of litigation

§121: Cleanup standards How clean is clean? Answers the question: when you do remedial actions, how

clean does it have to be? §122: Settlements We will focus on §106 & §107 the most

When there’s a problem, you can do either the §106 or the §107 route

§107: You have to spend your money first & are constrained by the national contingency plan

§106 is much more sweeping than §107 Kicker: Under §107(3) it says that “if any person who is

liable for a release or threat of release of a hazardous substance fails without sufficient cause to properly provide removal or remedial action….there are punitive damages” (with Presidential orders)

o Punitive damages of 3x the cleanup cost Under §106(b)(1) “Any person who, without sufficient

cause, willfully violates, or fails or refuses to comply with, any order of the President under subsection…$25,000 for each day in which such violation occurs”

← Liability Provisions of CERCLA It authorizes responses to such releases (or to releases of “any pollutant or

contaminant which may present an imminent and substantial danger to the public health or welfare”) in §104, & then specifies in §107 the parties liable for the costs of responding to hazardous substance releases.

“Hazardous substance” is broadly defined by §101(14) to include hazardous wastes subject to regulation under subtitle C of RCRA, toxic water pollutants regulated under CWA §307, hazardous air pollutants listed under CAA §112, imminently hazardous chemicals regulated under TSCA §7, substances other than oil that have been designated as hazardous pursuant to CWA §311(b)(2)(A) (governing oil & hazardous substance spills in navigable waters), & additional substances designated by EPA.

o Petroleum, crude oil, natural gas are exempted

CERCLA §107(i) exempts the application of pesticides registered under FIFRA, & §107(j) exempts “federally permitted releases”

US v. Monsanto Co. (4th Cir. 1988) US v. Lopez (1995): Signaled that the Court was reinterpreting the limits on

Congress’s Commerce Clause authority & consequently, stimulated a renewed interest in testing the constitutionality of various environmental laws, including Superfund, against those limits.

US v. Olin Corp. (11th Cir. 1997)o Facts: D & P entered into a consent decree assigning D financial

responsibility for cleanup from disposal activity that occurred prior to CERCLA’s effective date.

o Holding: Yes. Reversed.o ***Majority Opinion Reasoning: (Kravitch)

Rule: A statute is constitutional under the Commerce Clause if it regulates an activity that arises out of or is connected with a commercial transaction, which, viewed as a whole, substantially affects interstate commerce.

o Notes: US v. Morrison: Suggests that the 11th Cir. Was wrong here & that

the district court was right Gonzales v. Raich (2005): Consistent with Lopez because Congress

had concluded that medicinal marijuana could substantially affect the interstate market for marijauan because, as a fungible commodity, it could easily slip into that market once grown & available.

Second 15 years of Superfund District Court says: This is just leaking waste. It is an environmental

hazard, not commerce. Lopez says you can only regulate commerce. This is not an ongoing economic enterprise, so CERCLA doesn’t apply.

COA says: Lopez didn’t alter the constitutional standard for federal statutes regulating intrastate activities…simply stated, “the proper test requires an analysis of whether the regulated activity ‘substantially affects’ interstate commerce”

Whether the activity is economic or not doesn’t matter But US v. Morrison shows that this isn’t true.

o Market advantage over chemical companies that lack on-site disposal options (really strong argument + commerce related)

This anticipates Gonzales v. Raich (see above note)o Regulation of homegrown whatever the impact

on the market What about Sebelius? Does this change anything?

You can distinguish this← Responsible Parties

§107 Owners

o §107(1): “Owner/operator of a vessel or a facility” What if what you own is either owned (like a place treating hazardous

waste) is land that has hazardous waste that has been dumped/buried/etc on it? This isn’t really a facility. But §101(9) says a “facility” is any place where a hazardous substance is located. It’s counterintuitive, but it applies here.

o New York v. Shore Realty Corp. (2d Cir. 1985) Facts: After LeoGrande (D) incorporated D to acquire, for

development, land which had been used to dump hazardous waste, P brought suit against Shore (D) and LeoGrande (D) for cleanup of the site.

Holding: Yes. Affirmed. ***Majority Opinion Reasoning: (Oakes)

Rule: CERCLA unequivocally imposes strict liability on the current owners of a facility where hazardous wastes have been deposited, whether or not they owned the site at the time of disposal.

Notes:

Superfund Amendments & Reauthorization Act (SARA) created a defense for so-called innocent land purchasers. Did this by amending the 3rd party defense of §107(b)(3) to make it available to innocent purchasers of contaminated property who can establish (1) they didn’t have actual or constructive knowledge of the presence of hazardous substances at the time the land was acquired, (2) they’re government entities acquiring the property through involuntary transfer, or (3) they acquired the land by inheritance or bequest.

A purchaser “must have undertaken at the time of acquisition, all appropriate inquiry into the previous ownership & used of the property consistent with good commercial or customary practice in an effort to minimize liability. §101(35)(B)

§107(r) now exempts bona finde prospective purchasers from owner or operator liability, if the satisfy all the reqs

US v. CDMG Realty (3rd Cir. 1996) (see pg. 408) Argument: No causation here. It can’t be reliable based on

mere status. Can’t assume Congress intended to hold people liable based on status alone.

Court says: strict liability. No causation req. Reading in a causation req would create a big loophole because owners who caused the problem could just sell the property. All types of causation (but for, proximate) are gone.

Argument: Affirmative defense. 3rd party defense in §107(b)(3): Can show that the release/threat of release was caused solely by a 3rd party. Then you’re out.

Court says: It was reasonably foreseeable & this doesn’t protect people who buy property after the fact. They don’t have a 3rd party, they have a contractual relationship (directly or indirectly) here. It is doubtful that the prior owner could ever fit in the definition of “3rd party”. No exemption here.

o Congress responded by making §101(25)(a): the innocent landowner defense. You don’t have a contractual relationship for the purposes of this statute if when you bought it you had no reason to know and didn’t know, or you inherited it.

What does it mean to “have reason to know”? Creates a duty to investigate.

What about in the case of foreclosure (if you’re a bank)? Banks who gave loans don’t like uncertainty.

The government pushed lender liability in several cases because if the banks are held liable, they will be motivated to investigate & make sure things are done right.

Then the Savings & Loan Crisis happened & a different branch of the government took over the banks & their loans. They didn’t like lender liability. The government changed their mind about lender liability—first through regulation, then Congress added a provision §107(?)(E) Exclusion of lenders not participants in management

§107(r) Prospective Purchaser & Windfall Lien (brownfields in urban areas)

To encourage rejuvenation of industrial urban areas Brownfield provision An environmental justice provision

Operatorso Even a party who doesn’t own a facility can be held liable as an “operator”

under CERCLA §107

o What if you owned in the past and there was “leaking.” You didn’t know it. It also happened before you bought it, but you had a contractual relationship with that party? Does this could as owning at the time of disposal? What if you did know? Would that make you a PRP?

Never resolved by SCOTUS. COAs go both ways.o FMC Corp. US Dept of Commerce (3d Cir. 1994)

The government was liable as an operator of the facility The court noted that it previously had adopted a “substantial control”

test to determine when a corporation should be held liable for the environmental violations of another

Court found that the government clearly had exercised substantial control over FMC’s rayon play “as the government determined what product the facility would produce, the level of production, the price of the product, and to whom the product would be sold”

o US v. Brighton (6th Cir. 1998) Held that a township must have exercised “actual control” over the

activities at a privately owned dump as opposed to merely possessing the “ability to control”. “Mere regulation doesn’t suffice, but actual operation does”

o US v. Gurley (8th Cir. 1994) Adopted an actual control test for determining when individuals can be

held liable as operators under §107(a)(2) 2 elements required for such liability

1) that the individual “had the authority to determine whether hazardous wastes would be disposed of & to determine the method of disposal &

2) actually exercised that authority, either by personally performing the tasks necessary to dispose of the hazardous wastes or by directing others to perform those tasks

o US v. Bestfoods (1998) Facts: When CPC International’s (D) former subsidiary corporation

caused substantial industrial contamination, the Government (P) brought suit against D for CERCLA cleanup costs, contending that D, as the subsidiary’s parent corporation, was responsible for its subsidiary’s contamination.

Holding: Yes. Remanded.

***Majority Opinion Reasoning: (Souter) Rule: A parent corporation that actively participated in, &

exercised control over, the operations of a facility itself may be held directly liable as an operator of the facility.

Notes: COA Argument: Lets look at the relationship between the

parent corp. & the sub. There are a lot of the same people in both places. Parent seems to play a major role in controlling the sub. So we shouldn’t be limited to going after only the sub.’s assets. Without any notion of piercing the corporate veil. Could just look at it under federal CERCLA law and say that if they are controlling the sub, the are responsible for the sub’s actions. They had the authority and the capacity to do it (to control the sub).

SCOTUS goes back to the original question: Whether a parent corp that actively participated in, &

exercised control over, the operations of a subsidiary may, without more, be held liable as an operator of a polluting facility owned or operated by the subsidiary.

o No. Unless the corporate veil may be pierced. But, a corporate parent that actively participated in, & exercised control over, the operations of the facility itself may be held directly liable…

The critical question is whether, in degree & detail, actions directed to the facility by an agent of the parent alone are eccentric under accepted norms of parental oversight of a subsidiary’s facility.

Secured Lenders US v. Fleet Factors (11th Cir. 1990): The court adopted

an “ability to control” approach to the question of participating in management, saying that a lender loses the protection of the secured lender exemption “by participating in the financial management of a facility to a degree indicating a capacity to influence the corporation’s treatment of hazardous wastes”

Kelly v. EPA (DC Cir. 1994): Rare ruling. Held that Congress had not given EPA rulemaking authority over the liability provision of CERCLA, instead leaving those to judicial supervision under “evolving principles of the common law”

State & municipal Liability Courts have typically held that issuing regulations

governing land use activities is insufficient to subject cities/countries to owner or operator liability. US v. Dart Industries (4th Cir. 1988)

However, in US v. Stringfellow (CD Cal. 1990), California was found liable as a result of its actions in selecting a site for hazardous waste dumping & controlling all the actions at the site.

The constitutional issues raised by holding states liable were first broached in PA v. Union Gas Co. (1989)

o Held that the 11th Amendment didn’t prohibit states from being held liable to private parties under CERCLA

o Also see/compare to Seminole Tribe v. Florida, Ex parte Young, Alden v. Maine (pg. 417-8)

Transporters §107(a)(4) makes anyone who accept “hazardous

substances for transport to disposal or treatment facilities…or sites selected by such person” liable for their releases.

Tippins, Inc. v. USX Corp (pg. 418) Kaiser Aluminum & Chemical Corp. v. Catellus

Development Corp. (pg. 418) Arrangers

o Most substantial modification of common law liability o Imposition of liability on the nonnegligent generators of hazardous substanceso The generator could be held strictly, jointly, & severally liable for response

costs & natural resource damageso The big ticket itemo Every economic player arranges for disposal of hazardous waste.

o The easy arrangers are the people who produce waste at their site & then transfer it for disposal or treatment at another site

o Arrangers tried to claim they weren’t arrangers, since the hazardous waste is still useful (fuel, ballast, dust suppressant, building materials, etc).

Government begins to say that if you’re doing these uses, we’re going to assume that it’s waste.

o Joint and several liability here They would rather have back-end litigation because then they can still

get it cleaned upo Generator liability is covered in §107(a)(3)

Statutory language isn’t limited to generators of hazardous substanceso US v. Aceto Agricultural Chemical Corp. (8th Cir. 1989)

Court found that spills of hazardous raw materials were an “inherent part” of the formulation process & that the manufacturers were aware that they were occurring.

o US v. Monsato (4th Cir. 1988) Court’s interpretation of §107(a)(3)

The government’s case was satisfied once it had proved that “(1) a generator shipped hazardous substances to the facility; (2) hazardous substances like those present in the generator’s waste were found at the facility; and (3) there had been a release of hazardous substances at the site.”

Compare to Amcast Industrial Corp. v. Detrex Corp. (pg. 420)

South Florida Water management Dist. v. Montalvo (pg. 420)

o Adopted a “totality of the circumstances” approach to arranger liability

o See also Morton International, Inc. v. AE Staley Mfg. Co. (pg. 420)

o A number of courts, including Aceto & Montalvo, have recognized that the seller of a “useful product” isn’t subject to arranger liability, although they will look through “sham” transactions.

o Catellus Development Corp. v. US (pg. 420)o Burlington Northern & Sante Fe Railway Co. v. US (2009)

Facts: Shell (D) sold chemicals for use by an agricultural company. Shell (D) was aware of continuous leaks & spills occurring at the cite where the chemicals were delivered.

Holding: Yes. Shell (D) isn’t an arranger under CERCLA’s statutory definition.

***Majority Opinion Reasoning: (Stevens) Rule: Under CERCLA, in order to qualify as an arranger of the

disposal of hazardous products, an entity must enter into a transaction for the sale of a hazardous product with the intention that at least a portion of the product will be disposed of during the transfer process by one of the methods described in the statute.

Dissenting: (Ginsburg) Under CERCLA, Shell (D) qualifies as an arranger for the

disposal of hazardous products. Modified its delivery method, leading to more spills. D was fully aware of the frequency of the spills.

Notes: The really big SCOTUS CERCLA case Arranger Liability—Shell

Ordinary Meaning of “arranged for” requires intentional disposal of HW

Ordinary meaning of “disposal” limited to waste, & not extension to delivery useful product

Liability limited to HS “owned or possessed”, which requires actual control

Government’s response Knowledge is enough. Intent doesn’t require purpose. For intent in civil

liability, you just need to prove knowledge with substantial certainty.

Superfund Recycling Equity Act exempts from CERCLA liability arrangers and transporters who arrange for “recycling of recyclable materials”

Small Business Liability Relief & Brownfields Revitalization Act (SBLRBRA) added an exemption for “de micromis” generators or transporters, persons who contributed or transported less than 110 gallons of liquid materials or 200 pounds of solid materials to a facility, at least part of which had to occur before 4/1/2001. §107(o)

§107(0)(2) (pg. 426) §107(p) exempts homeowners, certain small businesses,

& certain nonprofits from liability for their generation of municipal solid waste (MSW)

§107(b)(3) provides a defense to a party exercising due care who took precautions against foreseeable acts or omissions of 3rd parties if the D can show that a release was caused solely by “an act or omission of a 3rd party other than an employee or agent of the D. Doesn’t apply if act/omission occurs in connection with a contractual relationship

GE Co. v. AAMCO Transmissions, Inc. (2d Cir. 1992): Rejected argument that arranger liability should tern on whether a company has the ability or authority to control the waste disposal practices of another even if this authority hasn’t been exercised.

US v. Arrowhead Refining Co. (pg. 427)o A Note on Shrinking the Net of CERCLA Liability

Anyone found to be a PRP under §107(a)(1)-(4) will be potentially liable for paying for the entire costs of cleanup because of CERCLA’s use of strict, joint & several liability

In SARA in 1986, Congress enacted the innocent purchaser provisions (pg. 406-7), in ACLLDIPA in 1996 the lending institutions provisions (pg. 417), in SREA in 1999 the recycling provisions (pg. 426), & in SBLRBRA in 2002 the bona fide prospective purchaser provisions (pg. 407), the de micromis provisions §107(o) (pg. 426), the municipal solid waste exemption §107(p) (pg. 427-8), & provisions for owners of properties contiguous to a CERCLA facility (§107(q))

MSW exemption Protects generators of MSW

Although EPA announced, a municipal settlement policy in 1989, stating that EPA would generally not identify generators & transporters of MSW as PRPs, private parties aren’t so constrained

BF Goodrich v. Murtha (D. Conn. 1993): Court refused to permit inclusion of some 1,100 homeowners & small business operators, but the 24 small CT cities named as PRPs could be sued

When it adopted the SBLRBRA in 2002, Congress restricted such actions by adding §107(o) & (p) to CERCLA

Includes protection from private party actions, & entitles exempt entities to recover attorneys’ fees & other costs of defense should the be sued & the P be unable to prove the exemption doesn’t apply. As with the de micromis exemption, the exemption doesn’t apply if the President determines that the waste could contribute significantly to the cost of response actions or if the D impeded performance of a response action

←

← CB 429-436 (notes 1-6), 442-449 (notes 1 & 2 only), SM 233-244← CERCLA §§107(a)(3), 107(a)(4), 107(b)(1)-(4), 113(f)← Strict, Joint, and Several Liability

Courts almost uniformly have found that CERLA imposes strict, joint, & several liability on responsible parties

All the early decisions interpreting §101(32) found that it authorized imposition of strict, joint, & several liability unless a D could demonstrate that the harm caused by its wastes is divisible. US v. Chem-Dyne Corp. (SD Ohio 1983); US v. Bliss (ED Mo. 1987) (pg. 430)

o The first case where the US argued joint & several liability. They did this because Judge Carl Rubin was the chief judge on the case.

o No SCOTUS cases early on regarding Superfund because there were never any COA conflicts.

o Congress did a few things to “take the edge off of Superfund” §112(g) De Minimis Settlements

For a premium you could settle out §127 Recycling transactions

You wouldn’t be considered an arranger if you engaged in certain recycling efforts

§112(o) De Micromis Exemption To avoid being an arranger at all

§112(p) Municipal Solid Waste (MSW) Exemption Municipalities were always contributors to the hazardous waste

facilities. But EPA didn’t go after tem. The industries went after the municipalities to create pressure on Congress to change the statute.

Prospect of being responsible for these “orphan shares” of liability has been one of the spurs to litigation over when the liability is properly apportionable, rather than joint & several

Burlington Northern & Santa Fe Railway Co. v. US (2009)o Facts: 2 railroad companies owned a portion of land leased to an entity that

operated an agricultural chemical distributing business. Three different pesticides seeped into the ground & the groundwater over the course of a number of years.

o Holding: Yes. Reversed & the district court’s decision is reinstated.o ***Majority Opinion Reasoning: (Stevens)

Rule: Apportionment of liability under CERCLA is appropriate when there is a reasonable basis for determining the contribution of each party to a single harm.

o Dissenting: (Ginsburg) The parties in this appeal took extreme positions on the issue of

apportionment that were entirely unhelpful to the court. The government’s (P) position was that the railroad companies were entirely liable for the remediation costs. The railroad companies argued that they had no liability whatsoever. The district court judge was left to analyze the issue of apportionment entirely on his own. Because the parties didn’t brief the possibility of apportionment, the case should be remanded to the district court for further exploration of the issue.

o Notes: The railroad said they were liable for 0&. The district court found a

reasonable basis for apportionment based on percentage of land, time, and chemicals

District court apportioned Shell’s liability based on volume DD spillage during delivery & total volume DD spillage throughout facility

Approves joint & several liability here. But equity is not a reasonable basis for apportionment.

Contributiono If you settle with the government, you can’t be sued for contribution. But you

can sue for contribution.o Once you’ve been sued, you can bring a contribution action against others.

§113. This is the way a PRP gets recovery from another PRP.

o Can they sue other arrangers under §107(B)? Courts said no early on. They didn’t read §107 for PRPs. Said PRPs

had to go under §113. But, what if you have a PRP who has responded to a unilateral administrative order (a §106 order) or a PRP who has cleaned up the sit on their own, but were never sued under §106 or §107? If you say only §113 applies to them and not §107, that doesn’t work.

Look at Cooper Industries v. Aviall: you can’t bring it under §113(f)

Lower courts are saying you can’t do it under §107 because you’re a PRP

Look at US v. Atlantic Research Corp (2007): They can’t bring it under §113, but they can under §107

Allocation of Liabilityo A variety of ways that PRPs with certain characteristics can avoid being held

liable for the entire costs of cleanupo An important one for many small contributors is the de minimis settlement

provision. §122(g) Seeks to encourage prompt settlements between the government &

PRPs that contributed small amounts of substances whose toxic or other hazardous effects are minimal in comparison with the contributions of others.

US v. Cannons Engineering Corporation (1st Cir. 1990) Approved a de minimis settlement reached between EPA &

300 generators who agreed to pay 160% of their projected share of all past & future response costs based on calculations of the amount of waste by volume each had contributed to a site

Following the enactment of §122(g), EPA didn’t move quickly to pursue settlements with de minimis contributors

More recently, EPA has taken steps to settle more quickly with de minimis PRPs

EPA has announced new policies to pick up part of the so-called orphan shares, the liabilities of entities who are insolvent or unidentifiable

o Another mechanism available to PRPs to reduce their liability is the statutory contribution provision. §113(f).

Bars contribution from parties who have settled with the government for matters addressed in the settlement.

Supplements the action that “any person” has always had under §107(B) against PRPs for “costs of response incurred…consistent with the national contingency plan”

The contribution action under §113(f) constitutes the last act of the CERCLA drama, as a PRP who believes it has paid a greater than fair share of the cleanup costs brings suit to shift some of those costs to others.

o The Superfund statute throws a broad joint & several liability net over PRPs, but after cleanup costs have been incurred, §113(f) does provide the PRPs the opportunity to allocate responsibility among themselves.

o With the addition of §113(f), the choice of action--§113(f) or §107—has significant ramifications

1) Liability is to be “equitably allocated” among PRPs under §113(f) in contrast to the joint & several liability of §107

2) The statute of limitations for §107 actions is 3 to 6 years from completion of removal work or initiation of remediation work, compared to 3 years from the date of judgment or settlement under §113(f), (g)(2), & (g)(3)

3) “Contribution protection” exists only for §113(f) actions. §113(f)(2).

o Once significant costs have been incurred by the “volunteer” PRPs, these coalitions then institute a §113(f) action against nonparticipating PRPs to allocate final cost responsibility according to a loose set of equitable principles the courts have been articulating & applying on a case-by-base basis

o Cooper Industries, Inc. v. Aviall Services Inc. (pg. 444-5): 5th Cir. Reversed finding that §113(f)(1) allowed contribution claims even when the PRP had not been sued. SCOTUS reversed holding that PRPs could utilize §113 to seek contribution only after they had been sued for cost recovery. SCOTUS declined to decide whether a person in Aviall’s situation could sue for cost recovery under §107.

Dissent: §107(a)(4)(B) allows any person who has incurred costs for cleaning up a hazardous waste site to recover all or a portion of those costs from any other person liable under CERCLA.

Court declined to reach the §107 issue, but noted that COAs have held that a private party that is itself a PRP may not pursue a §107(a) action against other PRPs for joint & several liability.

o US v. Atlantic Research Corp. (2007)

Facts: After incurring cleanup costs at a site that Atlantic Research Corp. (P) leased from the US (D), P sought to recover some of its costs from the government.

Holding: Yes. Affirmed. ***Majority Opinion Reasoning: (Thomas)

Rule: §107(a) of CERCLA provides potentially responsible parties with a cause of action to recover costs against other potentially responsible parties.

Notes:

← With widespread acknowledgement that CERCLA was too harsh, the courts finally became less acquiescent to the law in certain areas.

1) Definition of owner/operatoro For operator, EPA was seeking to reach parties with money, such as parent

corporations.o They wanted folks with resources & the capacity to clean these things up.

Definition is circular—owner or operator is someone who is owning or operating.

o Said that the traditional liability reqs don’t apply. Federal law shouldn’t refer to state corporate law here.

2) definition of arrangers 3) joint & several liability

← SM 233-244 General Electric Co. v. Jackson (DC Cir. 2010)

o Facts: CERCLA seeks to promote prompt cleanup of hazardous waste sites and to ensure payment by responsible parties. Under CERCLA, the Environmental Protection Agency (EPA) has the authority to issue a unilateral administrative order (UAO) directing a potentially responsible party (PRP) to clean the site. General Electric (GE) (plaintiff) was in receipt of at least 68 UAOs, and is currently participating in response actions at 70 active CERCLA sites where UAOs may issue. GE brought suit in the United States District Court for the District of Columbia to challenge the constitutionality of the UAO provision of CERCLA, arguing that the statute and procedures violated the Due Process Clause. The district court dismissed all of GE’s claims. GE appealed.

o Issue: Does the Due Process Clause protect PRPs’ interest in the market’s assessment of their stock, brand, & credit worthiness?

o Holding: Because a ruling in GE’s favor would invalidate not a single UAO,

§113(h) presents no bar to the company’s pattern & practice claim. Because our judicial task is limited to determining whether

CERCLA’s UAO provisions violate the 5th Amendment either on their face or as administered by EPA, we affirm the decisions of the district court.

o ***Majority Opinion Reasoning: (Tatel)o Rule: o Notes:

District court decisions: 1) Granted EPA’s motion for summary judgment on GE’s

facial due process challenge. Held. That the statute provides constitutionally sufficient process because by refusing to comply with a UAO, a PRP can force EPA to bring a court action in which the PRP can challenge the orther.

2) Rejected GE’s claim that CERCLA’s fines & treble damages are so severe, that as a practical, matter they foreclose judicial review.

← Oral argument from LA County case

The typical structure of an environmental citizen suit:o File a case, move for summary judgment, attach the company’s own discharge

monitoring report, show the violation, you win NRDC wanted to establish the legal principle that Ps don’t have to have 3rd-party

monitoring in order to establish a violation (at the district court)

← 1070-1090 (start at bottom of 1070), 110-115← Decker case

Interpreting to what extent logging roads were covered by the stormwater discharge provisions.

All about the meaning of the EPA regulation. Were logging roads associated with industrial activities? If they are, the runoff from

them is a point source for stormwater discharges.

EPA promulgated a new rule between the time the COA ruled & the time the case was at SCOTUS

o Came out Friday at 4pm (right before SCOTUS case) “I think that the Court should be apprised of the rule’s issuance as

soon as possible” Only parties are supposed to do this.

← Standing in Citizen Enforcement Actions Requirements of standing as consisting of 4 parts. To have standing to sue, a P must

allege:o 1) that the challenged action will cause P some actual or threatened injury-in-

facto 2) that the injury is fairly traceable to the challenged actiono 3) that the injury is redressed by judicial action &o 4) that the injury is to an interest arguably within the zone of interests to be

protected by the statute alleged to have been violated The first 2 reqs are constitutional, based on Art. III, while the 4th is “prudential,” and

thus can be altered by Congress In several cases, courts have used the “zone of interests” prong of standing doctrine to

reject efforts by industry groups to use the environmental statutes to their benefito Portland Audubon Society v. Hodel (9th Cir. 1989): timber industry group

held not to have standing to intervene in an NEPA lawsuit because the group’s economic interests had no direct relation to the interests protected by the statute

o Competitive Enterprise Institute v. National Highway Safety Administration (DC Cir. 1990): Held that the group didn’t fall within the zone of interests protected by NEPA

o Bennett v. Spear (1997): Even though the irrigation districts obviously didn’t care about species preservation, the Court held them entitled to sue because it construed the “obvious purpose” of the “best data” req to be “to avoid needless economic dislocations produced by agency officials zealously but unintelligently pursuing their environmental objectives”

SCOTUS has recognized that organizations have standing to assert the interest of their members if

o 1) at least one member would have standing to sue individually ando 2) the interests the organization seeks to protect are “germane to the

organization’s purposes”

Lujan v. National Wildlife Federation (1990) (Lujan I): First major standing decision addressed the question of how specific the allegations of a user of public lands have to be in order to establish standing

Lujan v. Defenders of Wildlife (1992) (Lujan II)o Facts: After the Sec. of Interior (D) interpreted §7 of the Endangered Species

Act to apply only to domestic actions, 2 members of Defenders of Wildlife (P) who had studied species abroad claimed they would suffer harm due to D’s rule & thus had standing to seek review of the rule.

o Holding: No. Reversed.o ***Majority Opinion Reasoning: (Scalia)

Rule: A person may not challenge an administrative regulation unless she can demonstrate actual or imminent injury and redressability.

o Concurring (Kennedy & Souter) Since concrete injury hasn’t been shown here, the issue of

redressability didn’t need to be discussed You can’t assume the common law interpretation of injury

Endangered Species Act doesn’t meet these minimal reqs Huge shift

o Concurring (Stevens) Although §7 doesn’t apply to foreign activities, a person having a

professional interest in wildlife may suffer injury in fact by its destruction.

o Dissenting: (Blackmun) Sufficient factual issues exist on the issue of injury in fact to survive a

summary judgment motion. Also, Congress can confer standing when none would otherwise exist & stay within the confines of Article III.

o Notes: Sunstein argues that when Congress creates a right of action enabling

people to sue over “destruction of environmental assets, it is really giving people a kind of property right in a certain state of affairs. Invasion of the property right is the relevant injury.

Humane Society v. Babbit (pg. 1082): suggesting in dicta that even a deeply felt emotional attachment to Lota, an endangered Asian elephant, couldn’t suffice to establish injury-in-fact

The threshold question is whether they have Art. 3 standing

But there must be imminent injury. Must be proximate in time and space.

COA found “procedural injury”—they were injured by the lack of information

But the procedural injury must be linked to some other traditional, concrete, imminent injury

Same time that they ruled on Lucas v. South Carolina Coastal Council (Kennedy)

“Coastal property may present such unique concerns for a fragile land system that the State can go further in regulating its development & use than the common law of nuisance might otherwise permit”

Standing in the Aftermath of Defenderso Some courts rejected arguments that the decision (and Lujan v. National

Wildlife Federation) wrought significant changes in standing doctrine by imposing greater burdens on Ps to demonstrate injury-in-fact

Seattle Audubon Society v. Epsy (9th Cir. 1993): held that an Audubon Society chapter had standing to challenge the Forest Service’s failure to prepare a management plan for critical habitat of the spotted owl

Idaho Conservation League v. Mumma (9th Cir. 1992): upheld the standing of a conservation group to challenge a decision not to designate more than 100,000 acres of public land as wilderness

o Other decisions distinguished Defenders because environmental Ps alleged that they actually live near, visit, or study the animals they seek to protect.

Didrickson v. US Dept of Interior (pg. 1083) Idaho Farm Bureau v. Babbitt (pg. 1083) Ohio Forestry Ass’n v. Sierra Club (1998): held that this lawsuit

challenging a land & resource management plan for Ohio’s Wayne National Forest wasn’t ripe for judicial review because Sierra Club hadn’t suffered “practical harm”

o Some COAs interpreted Defenders to make standing much harder for environmental Ps to establish when they alleged a violation of law that hadn’t caused clear environmental damage

Public Interest Research Group of New Jersey v. Magnesium Elektron, Inc. (3rd Cir. 1997): Held that P lacked standing. Held that allegations were insufficient to support standing. The majority wrote that “knowledge that MEI exceeded the effluent limits set by its NPDES permit doesn’t, by itself demonstrate injury or threat of injury”

Friends of the Earth v. Gaston Copper Recycling Corp (4th Cir. 1999):

held this insufficient for standing because P had introduced no evidence that D’s discharges had an “adverse effect” on the lake

o Emergency Planning and Community Right-to-Know Act (EPCRA) Unique in that the only duties it imposes on regulated parties are duties

to report toxic emissions One issue courts have faced in EPCRA litigation is whether citizens

can sue under its citizen suit provision for EPCRA litigation is whether citizens can sue under its citizen suit provision for EPCRA litigation is whether citizens can sue under its citizen suit provision for failures to report that companies cure after they receive the required notice from the citizen plaintiffs of an intent to sue

o Steel Company v. Citizens for a Better Environment (1998): held that Ps lacked standing to sue for reporting violations that D had cured between its receipt of Ps’ notice of intention to sue and the date that Ps filed their case in federal court

Allows citizens to sue for past violations in federal courto Public Interest Research Group v. Magnesium Electron, 123 F.3d 111 (3rd

Cir. 1997)o Federal Election Commission v. Akins (1998)

Decided shortly after Steel Company Upheld the standing of a group of voters to sue a federal agency for

failing to require a lobbying group to register and disclose certain information

o Friends of the Earth v. Laidlaw Environmental Services (2000) Facts: D contends that the case brought by P is moot because D fully

complied with the terms of its permit. Holding: No. Reversed and remanded. ***Majority Opinion Reasoning: (Ginsburg)

Rule: A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior couldn’t reasonably be expected to recur

Concurring (Kennedy) Difficult & fundamental questions are raised when we ask

whether exactions of public fines by private litigants, and the delegation of executive power which might be inferable from the authorization, are permissible under Art. 2

Dissenting (Scalia & Thomas) Often used to achieve settlements requiring D to support

environmental projects of Ps’ choosing Notes:

Picking this case to bring to SCOTUS was a very strategic move

This is a huge win which cuts back on what seems to be happening & is a super majority

“you can’t have the standing hurdle higher than the merits” Civil penalties have a deterrent effect, so you can get them

This is in strike contention with Steel Company This is essential

The case isn’t moot (despite the fact that they said they were shutting down the plant)

They said this wasn’t enough because they could reopen the plant

Cites the doctrine that P must satisfy all the elements of standing throughout the course of litigation

Interprets Steel Company to say that P lacks standing to challenge wholly past violations when the only available remedies fail that opinion’s redressability standard

Massachusetts v. EPA (2007)o Facts: P challenged D’s decision not to regulate GHG emissions from new

motor vehicles.o Holding: Yes. P has standing to bring suito ***Majority Opinion Reasoning: (Stevens)

Rule: A state has standing to sue an agency for action unlawfully withheld when the state can demonstrate actual or imminent harm, that the harm is traceable to the agency’s lack of action, and that there is a substantial likelihood that the judicial relief requested will prompt the agency to reconsider its decision not to take action

o Dissenting: (Roberts) The decision “changes the rules” of standing by creating a special rule

of standing for states This issue was better suited for the legislative and executive branches

of government. (Scalia, Thomas, Alito, Roberts):

P shouldn’t have standing because the harm from climate change is too speculative to be remedied in the judicial forum

o Notes: This case was a huge roll of the dice

4 skeptical votes for redressability. It is all up to Kennedy coming in.

Causation & redressability for climate change is very difficult. Where’s the imminent harm?

Kennedy: Is there something special about a state? GA v. TN Copper: The best case for the expansive state

standing. The Brown v. BOE for the environment The majority & dissent employ the modern, 3-part framework for

addressing issues of standing: injury, causation, and redressability The SCRAP case for a new generation (pg. 114 for details) Early returns seem to say that Mass v. EPA will be treated as a

relatively narrow “sovereign-state” standing decision, rather than making it easier for private Ps to establish standing, particularly to litigate climate change issues

Summers v. Earth Island Institute (2009): Employed a very restrictive approach to standing for environmental Ps in a case involving management of public lands

There has been some cutback since this case← Class Notes

Citizen suits are one of the great innovations of federal environmental law

CWA §505(a): Any citizen who has an interest which is/may be adversely affected. CAA §304(a): Any person These suits are for injunctive relief & for civil penalties that go to the secretary. The

individual suit can only get the market rate attorney fees. Worried that government would be reluctant to go after politically or economically

powerful entities.o Government tends to be conflicted in this area because the government is also

a big polluter Art. 3 Case of Controversy Req

o Pre-1970 standing tests Legal wrong or injury to legal right

Common law right Tort, property, or contract

Interest protected by the Constitution or statute Congressionally authorized rights of action & public standing

First big case was Sierra Club v. Morton (1972)o Sierra Club lost. Soft landing. Should trees have standing?o The complaint alleged that the development “would destroy/otherwise

adversely affect the scenery, natural and historic objects and wildlife” Is this an injury in fact? Yes. These particular environmental interests

are shared by many.o It requires that the party seeking review be himself among the injured

This is why it was a soft landing The Sierra Club failed to allege that it or its members would be

affected Lots of citizen suits under the CWA NRDC had organized itself to do citizen suit enforcement Citizen suits often went to get attorneys fees & “environmentally beneficial projects” Art. 3 Constitutional & prudential standing reqs

o Constitutional Injury in fact Causation

A problem form environmental law cases because things happen a lot time in the future

Redressability

A problem form environmental law cases because things happen a lot time in the future

o Prudential Generalized grievance Zone of interest

Court & AG William French Smith started pushing standing o “3 areas of judicial policy-making are of particular concern. First, the erosion

of restraint in considerations of justiciability (court jurisdiction)o Appointed Judge Scalia to the DC Circuit where he wrote “The Doctrine of

Standing as an Essential Element of the Separation of Powers” Gave almost no scrutiny “The ability to lose or misdirect law should be a key way to direct

judicial change” Lujan I & II

← Exam Open office hours next Wednesday and Thursday 10-12 Focused questions Objective questions Identification of terms & discussion of relationships between terms Open-ended questions (analytical &/or historical) 3 equally weighted parts, 1000 words for each part

o Part 1: 4 questions that give 3 different terms to identify & discuss the relationship

o Part 2: 2 questions, not equally weighted (1st: 2/3rds, 2nd: 1/3rd), 1st Hypo, 2nd question from a SCOTUS open ended—give a good answer)

o Part 3: Statement about environmental law & asks you to comment on its significance. To what extent is it right or wrong (can answer through a wide sweep or precise)

Only graded on the course material Can send no more than 2 emails with questions. Each email can have only 2, 20

second to read questions, before 3pm Thursday LA County won’t be on the exam (you could talk about it in the last question if you

want, but there’s no direct question)