Environmental Law
Professor Robert Glicksman
Fall 2011
Outline
Introduction to Environmental Law
Roots & Rationale for Environmental Law
1. Environmental ills are very pervasive & market actions are unlikely to deter or correct
such harms  environmental law.
2. Two Main Branches of Environmental Law
a. Pollution Control
i. Protects public from health risks associated with toxic exposure.
ii. Applies most strongly to private entities, but also to government.
b. Natural Resource Management
i. Protects biodiversity and ecological integrity.
ii. Promotes sustainable development.
iii. Applies to government and private actors.
1. Government – National parks, wildlife refugees, developmental
agencies (e.g., those building dams and highways, which much be
constructed so as to protect the environment).
2. Private – E.g., ESA § 9 prohibits taking of endangered species. If
government reduces amount of timber that may be harvested from
national forests, this will affect private actors.
c. Commonalities Between Branches
i. Government agencies play important roles as regulators or resource
owners.
ii. NGOs play important roles. Assure that federal agencies assign
responsibility properly and carry out duties.
iii. Courts – Oversee administration of and compliance with environmental
laws. Handle citizen suits.
iv. Procedure – Some environmental laws are wholly procedural, e.g., NEPA,
which requires agencies to consider environmental impact of action before
undertaking action. But NEPA imposes no substantive constraints. If an
agency prepares an environmental impact statement per NEPA, it may do
whatever it wants.
3. Goals of Environmental Law
a. Cost Internalization – EL is designed to internalize the costs of different resource
choices. Any adverse consequences should be borne by the actors, not third
parties.
i. Understand the consequences, and impose the costs appropriately.
b. Sustainable Development – Promote sustainable resource development. Do not
want to deplete the resource pool. Meet present needs without comprising ability
of future generations to meet their needs.
4.
5.
6.
7.
8.
9.
i. Moral/Ethical Considerations – Present generation has a moral duty to turn
over to future generations an environmental stock just as rich as that which
it received from its predecessors.
ii. Three Spheres of Sustainability – Environmental, economic, and social.
See Glicksman’s Power Point slides.
iii. Dichotomy between sustainability and economic growth is a false
dichotomy.
20th Century Focus on Environmental Law – Explicable partially in terms of changing
social attitudes toward environment (i.e., more conservation-mindedness; skepticism of
rapid industrialization; etc.)
a. Environmental law is about making choices regarding how finite resources are
used.
Principle Questions – Should limited pollution or environmental harms be allowed?
How do we best assess and limit those harms?
a. Tension between human/economic development/energy security and
environmental protection.
Environmentalism – Unrestrained modification of natural systems through resource
exploitation and development and the unchecked application of technology has
substantial, accelerating, and potentially adverse consequences for humankind.
a. Three Objectives – See p. 3.
i. Glicksman – Seeks to change people’s ways of viewing environment.
b. Should value ecosystems for utilitarian or ethical reasons.
c. Frustrations
i. Sustained industry and development opposition to all forms of government
regulation.
ii. Growing disconnect between environmentalism and traditional concepts
of rationality and our modern technology-based civilization.
Environmental Justice – The fair treatment and meaningful involvement of all people
regardless of race, color, sex, national origin, or income with respect to the development,
implementation and enforcement of environmental laws, regulations, and policies.
Attitudes Toward Environment
a. Old – Source of untapped resources.
b. New – Intrinsically valuable.
History of Environmental Law
a. History of Environmental Law Generally – See pp. 62–76.
b. Preservation Movement
i. Concerned with preserving large areas of public land that remained
wilderness areas as national parks and curbing use of public lands.
ii. Ultimately lost out to the Conservation Movement.
c. Conservation Movement
i. Wanted to make science compatible with democratic values and this
counter social Darwinism.
ii. Concerned with moderating the rate of present resource use to ensure
plentiful future supplies.
iii. Two Principles
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1. Resource management is a legitimate public function and should
be based on science to promote efficient allocation of resources.
2. State may legitimately restrain use of private property when
private initiative wastes and degrades natural resources.
d. Environmental Decade (1970s)
i. Most major federal environmental statutes passed.
1. Most environmental law is positive law.
ii. Catalysts
1. Post-WWII affluence and suburban development.
2. Growth of synthetic organic chemical industry.
3. Transfer of political energy from bitter and divisive Civil Rights
Era and Vietnam War to a movement enjoying more widespread
support.
4. Heightened civic-mindedness.
5. Incrementally changing state and local laws.
6. Softening industry opposition.
7. “Silent Spring” by Rachael Carson – Detrimental effects of
chemical pesticides on birds.
8. Increasing scientific information.
9. High-profile environmental events. E.g., Santa Barbara oil spill;
Cuyahoga River fire.
iii. 1969 – NEPA; first major federal environmental statute.
e. Scenic Hudson Pres. Conference v. FPC (1965)
i. First environmental law case.
ii. Established pattern of environmental litigation.
1. Initiated by ad hoc citizens’ group, which had exhausted other
remedies.
2. Standing was a major barrier, but overcome.
3. No legal theory under which to argue a violation of a right.
4. Plaintiffs crafted a procedural, rather than substantive,
administrative law argument hoping for reverse and remand.
5. Illustrated potential of more intrusive judicial review.
f. Clean Air Amendments Act of 1990 – Last major federal environmental
legislation.
g. Second Era of Environmental Law – Highly politicized.
i. Recent Roadblocks and Logjams in Environmental Law – See pp. 72–76.
h. Dramatic events often trigger rapid responses in the form of new environmental
regulation.
i. E.g., BP oil spill, tsunami in Japan, Exxon Valdez oil spill, Chernobyl, etc.
ii. BP oil spill and tsunami in Japan did not spur any new legislation, unlike
previous environmental incidents.
10. Controversy Surrounding Environmental Law
a. Equity – Imposes constraints on current activity for benefit of future generations.
b. Ingrained Mindsets – “A swamp is a swamp, not a valuable wetland, and I won’t
hear otherwise.”
c. Redistributes wealth.
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d. Cause – Difficult to trace a clear causal connection between a potentially harmful
activity and an environmental harm. Difficult to take action without that
connection.
e. Benefit – Regulations may benefit a small species of fly, but why should people
care about that? Difficult to demonstrate benefits to humans. Some claim that it
puts the welfare of plants, animals, and mountains over that of people, but that is
false.
f. Costs – Do costs of environmental protection exceed its benefits?
g. Law may impose costs in a controversial way, e.g., restricting private property
owners from building in particular ways. Frustrates commercial and industrial
development.
i. Property rights movement is a strong opponent of environmental law.
Economic Analysis & Environmental Law
1. Economic Rationale for Pollution – Lack of clearly assigned property rights in common
resources. Scarcity and resulting discipline and market change may not be perceived if
environmental amenities and their destruction are off the books.
2. Three contexts in which economic analysis is relevant to environmental law:
a. Explains why environmental harms occur.
b. Justifies government intervention and determines appropriate level of intervention
when free market fails.
c. Identifies optimal methods for preventing environmental harm.
3. Premises
a. All resources are scare and should be allocated efficiently.
b. Efficient Allocation – Maximizes value of resources.
i. Adam Smith – Individual actors acting in self-interest will benefit the
public interest through the machinations of the “invisible hand.” Should
allow private deals.
1. Counterargument – Analysis is valid only if free market works
perfectly, and free markets are not perfect. Economists have
identified flaws, which justify government intervention to achieve
efficient allocation of resources.
ii. [See Flaws of Free Market below.]
4. Flaws of Free Market
a. Incomplete Information – Concerns availability of accurate information.
Without complete information, people may buy goods that they would not buy
with complete information.
b. Transaction Costs – Costs imposed on uninvolved third parties following a deal
between two other parties.
i. E.g., negotiations, figuring our appropriate solutions, finding people that
will cooperate, etc.
ii. Hurdle to market solutions.
iii. [See Collective Action Problems below.]
c. Externalities
i. E.g., Air Pollution – Factor is emitting greenhouse gases.
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1. Air – A commons.
2. Pollution – An externality.
a. Defining Characteristic – Polluter is not forced to bear any
adverse consequences (or even the bulk of the adverse
consequences). Cost of the pollution (1) is external to its
decision-making process and (2) is imposed on people
external to the transaction between producer and consumer
of polluting product.
ii. Negative Externality – A human-made, un-bargained for, adverse
consequence.
1. When Negative Externalities Occur – Companies fail to factor
costs of pollution, adverse health consequences, etc. into prices of
its goods. Because its goods are cheaper to produce, its goods will
be overrepresented in the market.
a. Where there are systematic externalities, price does not
accurately reflect public preference for goods.
2. Internalize cost of pollution  no longer a negative externality.
a. Methods of Internalizing Negative Externality
i. Consensual Bargaining
ii. Regulations
iii. Common Law Causes of Action
iii. Positive Externality – Party may create a good enjoyed by many but for
which the creator is unpaid.
iv. Externalities are pervasive, and government regulation is needed to
minimize them.
5. Problems with Pollution/Groups – Collective Action Problems
a. Example – Factory’s pollution is harming many neighboring properties.
i. $1500 = Factory owner’s cost of control
ii. $10 = Harm to each neighboring property
b. Because of the low level of individual harm and the transaction costs, the property
owners are unlikely to work together.
c. Free Riders – Each neighbor thinks that another neighbor will do something that
will help him or her, and so, he or she does nothing.
d. Opposite Effects for Polluters
i. Lower transaction costs.
ii. Fewer actors  easier to cooperate.
iii. Higher potential cost of collective inaction.
6. Tragedy of the Commons (Hardin) – See pp. 5–10.
a. Without legal constraints, those with the ability to pollute will do so.
b. Because of the benefits of doing so, all rational actors attempt to impose costs on
the environment, but any one actors bears only a fraction of the environmental
costs. They want to pollute for free.
i. Refutation of Adam Smith – Individual actors acting in self-interest will
not benefit the public interest.
c. Logical Result – Environmental catastrophe.
d. Solution – Use legal system to remove externalities.
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i. Coercive laws (tort liability, e.g., nuisance).
ii. High taxes, e.g., carbon taxes.
iii. But see liberal tradition seeking the least invasion of private property and
individual liberty possible. See p. 9.
1. U.S. environmental regulation has focused on prohibitions on
major pollution and landscape degradation. Has not concentrated
on prohibitions on small, cumulative consumer choices. See p. 10.
e. Morality – TOTC shows that morality is “an act that is a function of the state of
the system at the time it is performed.”
f. Regulatory Commons Problem – See p. 9.
i. No one regulator can effectively regulate environmental harms.
ii. Every regulator thinks that every other regulator is doing the job.
7. Coase
a. Reciprocal Nature of Harm – Harmful effects arise when two parties whose
resource uses are incompatible compete for right to use same resource.
b. Primary Goal – “Avoiding the more serious harm.” On which party is it more
efficient to impose costs?
i. “The real question that has to be decided is: should A be allowed to harm
B or should B be allowed to harm A?”
ii. Parties will bargain for an efficient result regardless of the initial
distribution of rights.
c. Transaction Costs
i. Always exist.
ii. Often the key determinant in whether consensual bargaining will result in
socially efficient outcomes.
d. Fundamental Insight – Presence of externalities does not automatically justify
government regulation.
i. Detracts from “polluter pays” principle.
8. Values – See pp. 15–16.
a. All costs, including opportunity costs, can be monetized.
i. Can be measured by individual preferences (proxy for market
preferences).
ii. No dichotomy between monetized and non-monetized costs.
b. Total Economic Value = Use value + Non-Use Value.
i. Resource Economists
9. CBA – Role of Economic Analysis in Determining Optimal Level of Regulation
a. Key Costs – Are the costs of environmental regulation worth its benefits?
i. Cost-benefits analysis (CBA) often is used.
ii. Typically, regulation should stop at the point at which the costs it imposes
are greater than the benefits that it yields.
b. Cost-Benefit Analysis – Formal method of comparing costs and benefits of public
action to determine if public actions or funds result in a net efficiency gain or
represent an unjustified subsidy or dead-weight loss.
i. Proponents – CBA is neutral. Does not prefer or disadvantage regulators.
ii. Virtually no environmental statutes dictate that EPA use CBA in making
regulatory decisions. (Most prohibit CBA. None mandate it.) In some
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circumstances, Congress has forbidden the EPA from using CBA to make
regulatory decisions.
1. But under statutes like CAA, Congress requires actors to achieve
the highest technologically feasible levels of protection. This
shows that Congress is concerned with cost and has not
disregarded it.
2. But some executive orders mandate use of CBA, but they may do
so only to the extent that the statutes allow. STATUTES TRUMP
EXECUTIVE ORDERS.
c. Why has Congress not embraced CBA more fully? – CONTROVERSIAL
i. Its accuracy with regard to regulatory costs and benefits is questionable.
Accurate valuation of costs and benefits is difficult—if not impossible.
1. Agencies’ figures frequently come from regulated companies
themselves. Of course, these companies will skew the quotes.
2. How much is it worth saving the life of people or plants or
animals? Some sources have said that one human life is worth $7
million. Is a young person’s life worth more than an elderly
person’s life?
a. Suggests that it is ludicrous to place a monetary value on
benefits of environmental regulation.
b. Monetizing value of human life is morally objectionable. It
commodifies people.
3. Environmental regulation seeks to prevent future environmental
harm, and so, some benefits often are speculative. Present benefits
and future benefits often are not of equivalent, one-to-one value.
a. Discounting of benefits is biased against environmental
protection. Comparing present costs and future benefits
overemphasizes the size of the costs.
i. E.g., at a discount rate of 6%, value of 100 lives in
2111 is approximately 0.002 lives in 2011. Thus,
value of any environmental regulation is negligible.
ii. CBA ignores distributional concerns, creating environmental justice
problems. Some regulatory options may distribute a disproportionate
share of costs to one group and a disproportionate share of benefits to
another. CBA does not take account of these inequities.
1. Standard Measure of Value – Willingness to pay for environmental
improvement. Thus, environmental benefits protecting the rich are
valued higher than those protecting the poor because the rich are
willing to pay more.
iii. Lack of transparency.
1. Why is transparency beneficial?
a. Promotes legitimacy and accountability.
b. Maximizes opportunities for public participation and input.
2. Why does CBA not promote transparency?
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a. CBA is understandable to a tiny percentage of electorate.
Opponents of CBA prefer decision-making policies that
allow participation by members of the general public.
d. CBA can help society make better regulatory decisions and choose the most
efficient regulatory options.
10. Emission Trading – Emission trading schemes are more effective at achieving
environmental regulation than traditional, uniform regulations.
a. [Random note from Glicksman.]
Environmental Law, Ecology & Ethics
1. Ecology – Concerns structure and function of nature, considered in a grand perspective.
a. Initially thought of great utility to environmental policymakers.
i. Initially promoted idea that ecosystems had natural equilibrium states. 
Normative basis for environmental law. Environmental regulations were
geared toward maintaining these equilibriums.
ii. Current View
1. Natural equilibrium states are no longer accepted.
2. Nature is in flux.
a. Fencing off nature from human contact is insufficient.
3. Question – Are changes in nature caused by nature itself or human
activities? (E.g., climate change caused by greenhouse gases.)
4. Not clear whether environmental change is beneficial or harmful.
How will climate change impact the earth?
b. Not useful during 1970s.
i. Non-prestigious branch of science.
ii. Application of smaller units of analysis detracted from its holistic view of
nature.
2. “Silent Spring” (Rachel Carson)
a. Paradigm-shifting book. Milestone for environmental law.
b. Called for caution in economic development.
c. Must account for ecological life forces.
3. Science Generally
a. Uses
i. Provide solutions to environmental problems.
ii. Identify thresholds above which there exist risks to human health.
b. Advocates of environmental regulation always cite scientific evidence; critics of
environmental regulation argue that regulations are not based on sound science.
4. Philosophy
a. Antiquated View – Nature exists for humans to dominate and exploit.
i. Aldo Leopold contested and emphasized that humans are members of a
biotic community. Holistic view.
b. Eastern religions have not safeguarded the environment. E.g., Chinese air quality
is terrible.
c. Ethical Argument – Humans have a responsibility to preserve, rather than destroy,
the environment. Leopold’s land-ethic. Stewardship.
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i. Legal Consequence – Supporting assertions of police power to protect
environment.
ii. Private Property – Stumbling block to environmental stewardship.
1. But Green Property Theory – Incorporates stewardship into
individualistic, property theory.
d. Present generation has a responsibility/duty to future generations.
i. Do future generations have rights? Major philosophical controversy. See
p. 27.
ii. [See Public Trust Doctrine below.]
e. Ecosystem Rights – Begins from premise that humans are members of a biotic
community. See p. 26.
5. Public Trust Doctrine – Certain resources are preserved for public use, and government is
required to maintain them for the public's reasonable use.
a. Basis for limiting resources, sales, and consumption to protect future generations.
Risk Assessment & Risk Management
1. What is risk?
a. Definition – Probability that a particular activity will cause harm to health or the
environment multiplied by the severity of the harm if it occurs.
b. R = P * S
c. Experts measure risk differently than laypeople do. Experts take a utilitarian,
numerical view. E.g., how many people will die? (Annual mortality.)
Laypersons take account of a broader array of values. E.g., did an actor assume
the risk voluntarily?
i. People find risks more outrageous if an individual is helpless to control it
or has not voluntarily assumed it. Familiar risks are less distressing than
exotic ones. Diffuse risks are viewed as less serious than concentrated
ones.
d. Different environmental risks can influence policy outcomes.
2. Characteristics of Environmental Risk Problems
a. Ignorance of mechanism.
b. Potential for catastrophic costs.
c. Relatively modest benefit associated with environmental risk gamble.
d. Low subjective probability of catastrophic outcome.
e. Internal transfer of benefits associated with risks.
f. External transfer of costs.
g. Collective risk, related to environmental transfer of effect.
h. Latency, the extended delay between initiation of hazard or exposure to it and
manifestation of its effect.
i. Irreversibility.
3. Risk Assessment – Process of deciding how dangerous a substance is.
a. Ascertain nature of adverse effects of exposure and determine probability that an
individual will experience those effects as result of a specified exposure.
b. Questions
i. Is a risk serious enough to warrant public or private action?
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ii. What criteria should agency use in answering this question?
c. Four-Step Risk Assessment Process – Hazard Identification  Exposure
Assessment  Dose-Response Assessment  Rick Characterization
i. Dose-Response Assessment – Create a graph with “dose” along the X axis
and “response” along the Y axis.
d. Functions
i. First Function – Screening function. Must determine which risks are
worthy of consideration, considering our limited pool of resources.
ii. Second Function – Prioritization. Risk ranking. Sometimes referred to as
comparative risk assessment.
1. [See Comparative Risk Assessment below.]
e. Involves scientific evaluations.
f. Risk perception comes into play.
i. Experts and laypersons perceive risks differently.
ii. Role of Public Perception of Risk in Regulatory Decision-Making
1. Experts should set the agenda. The public does not have the
necessary expertise to make such determinations, and if we overrely on public perception of risk, we will misallocate resources.
Stephen Breyer recommends a centralized panel of experts.
2. If public perception of risk is heeded, the public may be more
willing to support its actions. Public buy-in.
3. We should promote public participation in the democratic process
because elected officials are the ones that appoint experts.
4. Policy choices are value choices, and value choices should reflect
the will of the people.
g. Limited Resources  Must identify and prioritize risks.
4. Risk Management – Process of deciding what to do about an assessed risk/group of
risks.
a. Questions
i. If a risk is serious enough to warrant public or private action, how should
it be managed?
ii. What standards should determine manner and extent of regulation?
b. Governed mainly by policy considerations, as opposed to risk assessment, which
is governed mainly by science.
i. Considers law, economics, politics, sociology, etc.
c. Conducting Risk Assessment – Like Pascal’s Wager
i. False Positive – You think that you have identified a very serious problem,
but more research reveals that it is not a serious issue.
1. Regulatory Result – Unnecessary regulation. Better safe than
sorry.
2. Regret – Lost dollars.
3. Most environmental regulatory agencies adopt this policy, rather
than preferring false negatives.
ii. False Negative – Current research does not seem to indicate a problem,
but more research shows that you were facing a very serious issue.
1. Regulatory Result – Failure to regulate in the face of serious risk.
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2. Regret – Lost lives.
iii. Which is the best side on which to err: neutrality, false positive, false
negative? A: False Positive.
1. Lost dollars are less of a concern than lost lives.
2. If an environmental harm wreaks havoc during a False Negative
period, we may not be able to fix it when we realize that we have
made a mistake.
3. It may take a long time to identify harms during a False Negative
period, e.g., cancer, genetic mutations, etc.
4. Imbalance in Information – Regulated industries have more
relevant information that the EPA. We can assume that there is a
bias against regulations because industry has an interest in not
revealing dangers. Better to err on the side of False Positives.
iv. Why might it be better to err on the side of False Negatives?
1. New regulation might create greater risks than those that we are
attempting to eliminate.
2. Regulation can be counterproductive in other ways. E.g., in order
to accommodate increased costs of operation, companies may
terminate employees. It is possible that, because of their
terminations, these people will experience a lower quality of life.
5. Criticisms of Risk Regulation – Breyer. See p. 738.
a. By seeking to eliminate 10% of risk, regulators impose enormous costs without
achieving significant incremental risk reduction.
b. EPA lacks rational agenda selection mechanism.
c. Different agencies use different risk assessment methodologies and ignore effects
of regulation of one environmental medium upon another.
6. Comparative Risk Assessment – Process by which scientists determine which
environmental risks are most serious.
a. Assign priorities to environmental problems.  Limited resources to most serious
risks first.
b. Higher rate of return on regulatory investment.
c. Societal Risk Reduction – Considering all health and safety risks, not just
environmental.
i. Ideal form of CRA.
ii. Criticisms – See p. 751
d. Criticisms – See pp. 749–53.
i. Uncertainties involved in measuring and quantifying health and
environmental risks constitute a real problem. Information often is
unreliable. This causes misallocation of resources.
1. Efforts to minimize uncertainties are not effective.
2. Generating sufficient data would cripple EPA. Not enough
resources to assess all risks.
ii. Environmental Justice – Measuring the quantified magnitude of an
environmental risk does not reflect how that risk affects groups of people.
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iii. Costs of compliance are overstated because estimates do not take into
account economies of scale, cost savings attributable to technological
innovation, etc.
iv. Public perception of risk is not irrational.
v. Disregards equitable considerations.
vi. Assumes that only existing solutions are available; disregards possibility
of new, innovative solutions.
7. Risk-Risk Analysis
a. Agencies should compare risks attributable to and avoided by regulation to ensure
that former does not exceed latter and that regulation is not counterproductive.
b. Both doing nothing and regulating carry risks, and we must compare those risks to
determine the best course of action.
c. Criticisms – See p. 751.
i. Undeveloped theory.
ii. Confuses correlation with causation with regard to health and wealth.
iii. Incorrect assumption that regulation creates no jobs.
Common Law Baseline of Environmental Law
1. Background
a. Environmental law builds on existing common law framework and often
explicitly preserves state law.
b. Statutory and regulatory laws have overtaken common law as main environmental
protections. Statutory law:
i. Is more complex than common law.
ii. Presents more cutting-edge environmental protection issues than common
law.
iii. Sometimes has displaced common law strategically or legally.
c. Most environmental statutes preserve space for environmental common law
remedies.
i. Few environmental statutes create a right to damages.
ii. Some federal statutes create limited rights to pollute, and although a
polluter may be acting within the confines of a statute, it still may be liable
on common law bases.
iii. Government agencies are not always diligent in enforcing statutes.
iv. Statutes may become outdated, but the common law has ability to evolve.
v. Common law may impose higher standards on actors.
vi. Statutes reflect approaches first developed in common law litigation.
2. Tort Law
a. Designed to shift losses from culpable defendants to meritorious plaintiffs.
b. Several Common Features of All (Relevant) Tort Claims
i. Liability
ii. Causation
1. Sometimes, difficult to determine because of scientific uncertainty.
2. Long exposure periods, and an injury does not manifest until long
after an individual first encountered the risk (i.e., 20 or 30 years).
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Individual would have been exposed to many risks during the
intervening years. Witnesses may have passed away. Evidence
may have degraded.
iii. Injury/Damage
c. Factors Relevant Only to Some (Relevant) Tort Claims
i. Duty of Care
ii. Damage must be foreseeable.
iii. Strict Liability
d. Relevant Torts
i. Negligence
ii. Public Nuisance
iii. Private Nuisance
iv. Trespass
v. Strict Liability
vi. Public Trust Doctrine
3. Negligence
a. Many companies are in full compliance with existing federal statutes and
regulations. Plaintiffs have a difficult time showing that defendants acted
unreasonably.
b. Benefits
i. May offer longer statutes of limitations.
ii. May provide damages.
c. Elements
i. Injury
ii. Duty of Care
iii. Breach
iv. Actual Cause
v. Proximate Cause
vi. Damages
d. Relevant Contexts
i. Personal injuries due to environmental pollution.
ii. Harm arises out of obvious accident, e.g., oil spill.
iii. Remedies sought are available only under negligence doctrine.
iv. Defendants’ insurance may be the only possible source of damages.
Insurance providers sometimes will cover damages resulting from
negligent conduct, but not damages resulting from intentional conduct.
Therefore, plaintiffs must sue to show negligence.
4. Nuisance Generally
a. Most frequently invoked common law claim for environmental harms.
b. Intent – Harm-producing activity must have been undertaken intentionally.
c. Foreseeability – Harms could have been reasonably foreseen by polluter.
d. Goal – Internalize costs to polluter.
5. Public Nuisance
a. Definition – Unreasonable interference with rights of the public.
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b. Often filed by (state) governments on behalf of citizens. See Georgia v.
Tennessee Copper Co. Private individuals also may be able to bring claims,
provided that they have standing.
i. Individual Standing/Special Damages – Harm that is different in kind
(qualitative) and not simply greater in magnitude (quantitative). Often
exhibited through property damage.
ii. Some courts allow injunctive relief without a showing of special injury but
will allow recovery of damages only with special harm.
c. Objective – Protecting public health, welfare, safety, morals, parks, common
resources, etc. (interests common to general public).
d. Elements
i. “A public nuisance is an unreasonable interference with a right common to
the general public.” Rest. 2d Torts § 821B(1).
1. See E&E 23.
ii. Unreasonable – Balancing of interests. Almost the same as with private
nuisance.
1. Conduct prohibited by statute is unreasonable.
2. “Circumstances that may sustain a holding that an interference
with a public right is unreasonable include the following:
a. “Whether the conduct involves a significant interference
with the public health, the public safety, the public peace,
the public comfort or the public convenience, or
b. “Whether the conduct is proscribed by a statute, ordinance
or administrative regulation, or
c. “Whether the conduct is of a continuing nature or has
produced a permanent or long-lasting effect, and, as the
actor knows or has reason to know, has a significant effect
upon the public right.” Rest. 2d Torts § 821B(2).
e. Climate Change – State and private actors have had some success in public
nuisance actions against GHG emitters.
i. See p. 33.
6. Private Nuisance
a. Most common environmental law tort.
b. Definition – “Nontrespassory invasion of another's interest in the private use and
enjoyment of land.” Rest. 2d Torts § 821D.
c. Interest Protected – Use and enjoyment of private property. Protects against nontrespassory interferences with use and enjoyment of land.
i. Different than public nuisance.
d. Intentional or unintentional tort  intentional nuisance and negligent nuisance.
e. Elements
i. Defendant’s conduct is unreasonable and causes substantial interference
with use and enjoyment of land or causes bodily injury.
ii. “One is subject to liability for a private nuisance if, but only if, his conduct
is a legal cause of an invasion of another's interest in the private use and
enjoyment of land, and the invasion is either
1. “Intentional and unreasonable, or
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2. “Unintentional and otherwise actionable under the rules controlling
liability for negligent or reckless conduct, or for abnormally
dangerous conditions or activities.” Rest. 2d Torts § 822.
iii. Unreasonableness
1. Focus – Reasonableness of activity’s effects in a particular place,
not general reasonableness of conduct.
a. Compare effects to surrounding land uses.
2. “An intentional invasion of another's interest in the use and
enjoyment of land is unreasonable if
a. “The gravity of the harm outweighs the utility of the actor's
conduct, or
b. “The harm caused by the conduct is serious and the
financial burden of compensating for this and similar harm
to others would not make the continuation of the conduct
not feasible.” Rest. 2d Torts § 826.
3. “An intentional invasion of another's interest in the use and
enjoyment of land is unreasonable if the harm resulting from the
invasion is severe and greater than the other should be required to
bear without compensation.” Rest. 2d Torts § 829A; see also
Petsey v. Cushman (“In the common-law private nuisance context,
the determination of whether a defendant's interference with a
plaintiff's use and enjoyment of the plaintiff's property is
unreasonable should be made in light of the fact that some level of
interference is inherent in modern society. There are few, if any,
places remaining where an individual may rest assured that he will
be able to use and enjoy his property free from all interference.
Accordingly, the interference must be substantial to be
unreasonable. Ultimately, the question of reasonableness is
whether the interference is beyond that which the plaintiff should
bear, under all of the circumstances of the particular case, without
being compensated.”).
4. Balancing of hardships, using the Comparative Hardship Doctrine
along with a public-interest test at the remedy stage.
a. Would the public interest suffer substantially if an
injunction were issued?
b. If so, plaintiffs receive damages, and defendant may
continue its nuisance-creating activity.
5. Unreasonableness of Unintentional Negligence – Demonstrate
negligence or recklessness on part of defendant; negligent conduct,
by definition, is unreasonable. See Rest. 2d Torts § 822 (above).
6. Intentional Negligence – Intention and unreasonableness are
distinct elements.
a. Intention – Harm-causing activity must be intentional.
Harm need not be intentional.
b. Unreasonableness – Should you focus on the conduct or
the interference? Walsh (Court didn’t know which to use.);
15
Petsey v. Cushman (“While an unreasonable use and an
unreasonable interference often coexist, the two concepts
are not equivalent, and it is possible to prove that a
defendant's use of his property, while reasonable,
nonetheless constitutes a common-law private nuisance
because it unreasonably interferes with the use of property
by another person.”).
i. Interference – Lawful conduct should not be able to
impose an unreasonable interference on another’s
land.
1. Walsh (“A municipality which creates a
nuisance causing damage to the land of
another is not excused from liability on the
ground that the act is lawful in itself if,
under all the circumstances, it is
unreasonable.”).
ii. Location-specific standard. Walsh (“A fair test of
whether a proposed use constitutes a nuisance is the
reasonableness of the use of the property in the
particular locality under the circumstances of the
case. The test of unreasonableness is essentially a
weighing process, involving a comparative
evaluation of conflicting interests in various
situations according to objective legal standards.”).
iii. Balancing of Interests Between Parties – May make
it difficult for a plaintiff to succeed. Interests of a
socially beneficial activity may always outbalance
the relatively minor harm to one plaintiff. Walsh.
1. Boomer v. Atlantic Cement Co. – Shows
that a plaintiff whose harm is minor
compared to the social benefit of the activity
in question can be satisfied in the remedy
stage. Cement plant, which was important,
paid permanent damages to plaintiffs and
was allowed to continue its operations.
iv. Petsey v. Cushman – Adopts the balancing test of
the Rest. 2d Torts § 829A and emphasizes that the
focus is on the unreasonableness of the interference.
f. Threshold Approach to Determine Liability – Focusing on reasonableness of
interference. Defendant is liable if harm crosses some level of significance.
i. Seems to be reflected by last sentence of Petsey v. Cushman (“Ultimately,
the question of reasonableness is whether the interference is beyond that
which the plaintiff should bear, under all of the circumstances of the
particular case, without being compensated.”)
ii. Differs from Rest. 2d Torts – Court is free to issue an injunction or
damages, unlike Rest. 2d Torts, where injunctive relief is off the table.
16
iii. Most courts probably follow Threshold Approach, which gives them more
leeway at remedy stage.
g. Anticipatory Nuisance
i. For Threatened Harms – If it’s clear that there will be a nuisance, there is
no need to, e.g., allow defendant build factory that will only be shut down
very quickly.
ii. Rarely brought because of high burden of proof.
iii. Difficult to assign damages because there is a great deal of speculation as
to the magnitude of any expected harm, which is necessary to determining
appropriate remedies.
iv. Easier for defendants to spend money to avoid harm rather than spend
money to remedy harms.
h. Coming to the Nuisance Defense – Discussed in Branch v. Western Petroleum
Inc. (see below).
i. Punitive Damages – See pp. 46–47.
7. Trespass
a. See p. 41; E&E 28.
b. Intentional Tort
i. Very similar to private nuisance.
c. Elements – Plaintiff must show that defendant intended to act in a manner that
produced an unlawful invasion.
i. Tangible invasion requirement has been rejected as unscientific. Martin v.
Reynolds Metals Co.
ii. Some courts require “actual and substantial damages.” Bradley.
d. Air Pollution – Nuisance, not trespass, because there was no physical invasion.
8. Strict Liability
a. Rylands v. Fletcher – Origin of strict liability.
i. Reasonable Care – Not a defense for ultra-hazardous activities.
ii. Used if someone changes land to use it for an unnatural use.
b. Now, applied to abnormally dangerous activities. Sometimes, employed with
ultra-hazardous activities.
c. Possible foreseeability requirement. Rest. 2d Torts § 520.
d. Branch v. Western Petroleum, Inc. – Strict liability was appropriate because the
defendants had created an abnormally dangerous and inappropriate use of the
land, which was unduly dangerous to the plaintiffs.
i. Coming to the Nuisance Defense – Plaintiffs assume the risk if they come
to an area where a nuisance-causing activity is preexisting.
1. Even though the activity predated Branches’ purchase, the
Branches could not foresee some of the nuisances that it
exacerbated.
2. Branches predecessors had been using the property for the same
uses as them, i.e., groundwater for drinking. Should the Branches
be allowed to step into the shoes of their predecessors?
ii. Neither property would have had a problem if the other weren’t there.
Therefore, was it proper for the court to determine that Western had
17
caused the harm? Or should the situation have been analyzed in terms of
Coasian reciprocal harms?
iii. Coase – Party that can reasonably foresee the consequences should be
required to incur the costs.
iv. Not all courts have defined the realm of abnormally dangerous activities
as narrowly as the Branch court.
e. Rest. 2d Torts § 519 – “(1) One who carries on an abnormally dangerous activity
is subject to liability for harm to the person, land or chattels of another resulting
from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which
makes the activity abnormally dangerous.”
9. Public Trust Doctrine
a. See 47–51; E&E 31–32; Salzman 266–29.
b. Core – Courts have treated some resources as public commons that belong to all
and are irreducible to private ownership.
i. Applied most explicitly to tidelands and other navigable waterways.
Illinois Central R. Co. v. Illinois.
1. Protects public uses such as navigation and fishing.
ii. Narrow – Cannot be applied to private parties acting without public
assistance.
iii. Applied to different extents by different states.
c. Origin – Roman and English common law. Oceans and shores, as well as running
water and air, were by the law of nature incapable of exclusive private ownership.
i. Incorporated into early American law.
ii. Gained prominence in scholarship and case law in 1960s.
iii. Not much litigation following Light v. United States (1911).
d. Illinois Central R. Co. v. Illinois.
i. Most famous public trust case.
ii. “The State can no more abdicate its trust over property in which the whole
people are interested, like navigable waters and soils under them, so as to
leave them entirely under the use and control of private parties, except in
the instance of parcels mentioned for the improvement of the navigation
and use of the waters, or when parcels can be disposed of without
impairment of the public interest in what remains, than it can abdicate its
police powers in the administration of government and the preservation of
the peace.”
iii. State must preserve property for future public use.
iv. Court did not specify origin of the doctrine but said only that the sovereign
cannot act so as to infringe the integrity of these public resources.
v. Two Environmental Interpretations
1. Trust is a procedural doctrine that allows courts (a) to decide if
political decisions to reallocate resources were made after a
reasonable consideration of all alternatives and (b) to remand to the
legislature if the political process failed to do so for reasons such
as undue special interest influence. Sax.
a. Purely procedural interpretation.
18
e.
f.
g.
h.
2. Eschews indirect procedural-process route and posits that trust
contains a hierarchy of values with ecosystem stability at the top.
a. Substantive Interpretation
i. Trust resources should be allocated to trust uses.
ii. States should prioritize environmental interests over
other interests, e.g., commercial or developmental
interests.
Environmentalist Arguments
i. Trust imposes domestic and international law stewardship duties to
manage all resources, especially public ones.
ii. Slim precedent for extending trust to national parks, forests, wetlands,
wildlife, etc. See Light v. United States (“All the public lands of the
nation are held in trust for the people of the whole country.”)
Congressional Role – “And it is not for the courts to say how that trust shall be
administered. That is for Congress to determine.” Light v. United States.
i. Limited role for courts in enforcement.
National Audubon Society v. Superior Court of Alpine County
i. Public Trust Doctrine restricts amount of water that can be withdrawn
from navigable waterways.
1. Applies as much to waters in a navigable waterway as to the lands
underlying the waterway.
ii. “The public trust is more than an affirmation of state power to use public
property for public purposes. It is an affirmation of the duty of the state to
protect the people's common heritage of streams, lakes, marshlands, and
tidelands surrendering that right of protection only in rare cases when the
abandonment of that right is consistent with the purposes of the trust.”
iii. Reflects procedural PTD because CA legislature must take public trust
resources into account.
1. Soft Procedural Account – Court stated that CA legislature must
protect public trust resources whenever feasible.
2. Court did understand decision to have some substantive component
because on remand trial court required water level to remain at or
above a certain level.
iv. Baseline – Just ordering government to consider alternative courses of
action does not require the court to decide on a baseline.
1. Possible Baselines
a. State of nature pre-government-intervention.
b. State of nature pre-human-intervention.
Atmospheric Trust Doctrine
i. Public Trust Doctrine applied to climate change and carbon emissions.
ii. Atmospheric resources are resources held in trust, and governments have a
fiduciary duty to protect those resources for future generations.
iii. Some argue that this is the only way to protect atmospheric resources.
Borne out of failure of legislatures to tackle climate change in any
meaningful way.
1. Chances of theories prevailing are slim.
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10. Constitutionally Rooted Environmental Claims
a. Plaintiffs have been 100% unsuccessful at convincing courts to recognize
constitutionally based environmental rights.
i. Argument – Even if there is no explicit provision, courts should recognize
one through the 5th Amendment, 14th Amendment, or the 9th
Amendment. No courts have accepted these arguments. United States v.
247.37 Acres.
ii. No affirmative constitutionally based right to clean environment.
iii. Constitution is comprised mostly of negative rights, rather than affirmative
government duties and public entitlements.
iv. Supreme Court is unlikely to change its mind.
v. Separation of powers considerations have acted as an obstacle. Tanner v.
Armco Steel.
vi. Three increasingly important constitutional dimensions to environmental
law serving as resistance to environmental protection:
1. Supreme Court’s active redrawing of federalism doctrine in recent
years.
2. Environmental protection can clash with long-recognized property
entitlements and lead to regulatory takings claims.
3. State efforts to protect state amenities—and especially regulate and
encourage safe handling of waste—can run afoul of Dormant
Commerce Clause doctrine.
b. State Constitutions – May provide citizens with right to a clean environment, and
some state constitutions do so explicitly. E.g., Pennsylvania.
c. Foreign Constitutions – Sometimes include right to a clean environment.
d. Only Hope – Constitutional amendment, which itself is unlikely.
e. Impact of Constitution on Environmental Law
i. Constitution authorizes federal government to protect environment.
1. Are there limits on that authority?
2. If so, where do they come from?
ii. Constitution limits steps that state and local governments can take to
protect the environment. Federalism questions.
1. Dormant Commerce Clause
2. Supremacy Clause
iii. Defines jurisdiction of federal courts to hear environmental law disputes.
1. Supreme Court has been vigorous in narrowing standing
requirements for environmental claims.
iv. Constitution recognizes individual rights upon which environmental law
may not infringe.
1. Violates due process rights.
2. Amounts to taking of private property without payment of just
compensation.
f. Creating Environmental Protections in Constitution
i. Equal Protection Clause/Environmental Justice or Equity or Racism –
Government may impose different levels of environmental protection on
20
different segments of the population, but if these are based on, e.g., race,
there may be equal protection claims.
1. Executive Order 12,898 – Every government agency must make
environmental justice part of its mission. However, as with most
executive orders, it is not enforceable in court.
a. Issued by Clinton.
ii. Takings Clause – For those whose property rights have been infringed
upon due to government authorization of environmentally damaging
activity.
1. Easement was created for a private use, not a public use.
2. Even if community has benefited, my property has been taken, and
I have not been compensated.
3. Iowa Supreme Court has accepted this view.
11. Environmental Justice Theories
a. Environmental Justice – The fair treatment and meaningful involvement of all
people regardless of race, color, sex, national origin, or income with respect to the
development, implementation and enforcement of environmental laws,
regulations, and policies.
i. Concerns for minorities, poor, at-risk groups, etc.
ii. People living in areas with insufficiently stringent environmental
protections or near “hotspots.”
b. Legal Bases
i. Title VI – Actionable claims for recipients of federal funds.
ii. EPC, Affirmative Constitutional Claims – Not met with success.
c. Executive Order 12,898 – Every government agency must make environmental
justice part of its mission. However, as with most executive orders, it is not
enforceable in court.
i. Issued by Clinton.
ii. Disproportionate Impact – Only substantive standard for measuring
existing regulatory programs.
iii. All federal agencies must develop agency-wide strategies to identify and
address “disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on minority
populations and low-income populations.”
12. Common Law, etc. During Statutory Environmental Era
a. Reasons Common Law Claims Remain
i. Most major federal environmental statutes contain explicit “savings”
clauses that preserve common law remedies.
ii. Although a polluter may be acting within the confines of a statute, it still
may be liable on common law bases.
iii. Economic incentives for less harmful polluting conduct are created when
previously externalized harms are internalized. Western Petroleum.
b. International Paper Co. v. Ouellette
i. Facts – The property owners filed suit under Vermont state law against the
paper mill operator for creating a continuing nuisance caused by pollutants
discharged into the lake. CWA established a federal permit program to
21
regulate the discharge of pollutants. Under the CWA, a regulatory
partnership was created between the federal government and the state that
was the source of the pollutant.
ii. Decision – Clean Water Act held to pre-empt private suit under Vermont
common law, but not suit in Vermont Federal District Court under New
York law, where New York water pollution allegedly caused Vermont
injury.
1. Affected state common law remedies are preempted by Clean
Water Act, but source state common law remedies are not.
c. Common Law Environmental Claims
i. Still exist but are rare.
ii. Why environmental tort claims are rarely brought and often unsuccessful:
1. High transaction costs.
2. Difficulty in proving that environmental harm caused injury.
3. See pp. 61–62.
Regulatory Design of Environmental Law
1. Background
a. Laws reflect goals of different policy actors, different states of knowledge about
efficacy of particular regulatory designs, and different responses to events
prompting statutory enactment or amendment.
i. Pragmatic, incremental adjustments.
ii. True of environmental laws.
1. Protect dispersed citizens and environmental interests, often to
detriment of industry.
2. Environmental Law Goals, Triggers & Strategies
a. Common Statutory Elements
i. Environmental protection goals.
ii. Rejection of exclusive reliance on common law remedies.
1. Common law system has shown itself to be inadequate.
iii. Avert environmental risk rather than just react to harm, as common law
remedies do.
1. Common law is inadequate to prevent harm in the first place.
iv. Rely on administrative agencies for statutory implementation—agencies
that have responsibilities to develop, administer, and enforce regulations.
b. Different statutes are geared toward different environmental goals.
i. Public health, e.g., CAA, CWA.
ii. Protect natural ecosystems or components thereof, e.g., ESA.
iii. Compensate adversely affected persons, e.g., CERCLA.
1. Not the focus of most environmental laws.
iv. Force policymakers’ consideration of adverse environmental effects
before policy action is taken, e.g., NEPA.
1. NEPA – Stop-and-think law.
c. Goals
i. Clean Environment – CWA, CAA, ESA, CERCLA.
22
ii. Public Health – CAA, CERCLA, Safe Drinking Water Act, pesticide and
food laws and chemical regulations.
iii. Fairness or Remedying of Damages – Most laws focus on reducing certain
risks and preserve right to bring common law actions, but do not include
their own separate right to damages.
d. Triggers
i. Triggers (Risk Assessment) v. Standards (Risk Management)
1. Trigger – Factual finding or evidence that is necessary to trigger an
agency’s authority to act or a regulated entity’s compliance
responsibilities.
2. Standard/Strategy – Mechanism that an agency with authority to
act will use to move toward the statutory goal. Standard in turn
determines nature of the obligations imposed on regulated entities.
ii. No Threshold – Impose action even in the absence of assessed risk.
Congress already has made a determination that risk exists and forces
entity to act.
1. E.g., prohibition of food additives known to be carcinogenic in
humans or animals.
iii. Risk-Based Thresholds – Allow government action only upon
determination that risk exceeds statutory threshold—usually a risk to
health or environment.
1. E.g., CAA, CWA.
2. More common than no threshold.
3. Degree of risk varies from statute to statute.
4. Thresholds
a. Any Risk Threshold
b. Significant Risk Threshold – NEPA with its significant
environmental harm threshold.
c. Unreasonable Risk Threshold – Trend to reflect balancing
of factors, including economic costs and environmental
benefits.
e. Regulatory Designs & Strategies (or Standards)
i. Economic Incentives & Market-Based
1. Awards of damages to cause polluters to internalize costs; taxing
harmful activity; subsidizing desirable conduct.
2. E.g., cap-and-trade program of CAA.
ii. Health-Based (or risk-based or ambient-quality-based)
1. Agency must identify a level of cleanliness that it wants to achieve,
e.g., air clean enough to breathe without getting sick.
2. Agency adopts controls or authorizes another agency to adopt
controls to achieve its goal.
3. E.g., CAA and its ambient-air-quality standards; CWA.
iii. Technology-Based
1. Agencies demand that regulated agencies achieve a level of
performance equal to the best technologically feasible at a point in
23
time. “Do the best you can” approach. Industry-wide, not
individual.
2. Does not require reverse-engineering of ambient-quality-based
approaches. It just entails picking the best option and mandating
that across the board.
3. Criticism – May not go far enough toward achieving your goal.
4. E.g., CWA.
iv. Technology-Forcing
1. Legislature may require certain pollution reduction standards
without knowing about the technology to achieve them.
2. E.g., CAA
v. Technology Mandates
1. Mandating use of a particular technology.
2. Usually, a fallback mechanism.
vi. Open-Ended Balancing
1. Striking a balance that an agency deems to be appropriate.
2. Give administrative agencies a lot of discretion in prioritization.
3. E.g., CWA.
vii. Cost-Benefit Balancing
1. Goal – Economically efficient environmental protection.
2. Very few environmental statutes adopt this standard.
viii. Generate and Disclose Information
1. E.g., NEPA, which mandates that entities must prepare EISs and
disclose them before taking action; Emergency Planning and
Community Right to Know Act, which requires companies to
disclose chemical components of toxic substances to a government
agency, which then posts it on a website to inform the local
residents.
2. No direct regulation.
ix. Liability-Based
1. E.g., CERCLA, which imposes huge cleanup costs.
x. Phase-Outs
1. Require phasing out of risky products or activities.
3. Implementation & Enforcement Design Choice
a. Whom does the statute regulate or affect? Who is the target?
i. E.g., ESA targets more than one group.
b. What are the consequences of noncompliance?
i. Payment of damages to those adversely affected? Almost no
environmental statutes work this way.
ii. Payment of civil penalties or criminal fines? Almost all environmental
statutes work this way. Are we trying to compensate anyone, or are we
trying to force polluters to internalize costs?
iii. Jail?
c. Does the statute dictate or induce?
i. If it dictates, how? Prohibitions? Emissions trading?
24
d.
e.
f.
g.
ii. Does it allow the use of incentive-based techniques such as emissions
trading?
What are the roles of the federal government and the states?
i. Is state action preempted?
ii. May state action supplement federal action?
iii. Does the allocation of authority raise any constitutional, federalism
concerns?
Are provisions self-implementing or delegated to agencies, and how are
requirements imposed on polluters?
i. Most laws delegate implementation to governmental institutions.
ii. Some laws delegate presumptive implementation authority to states.
iii. Government-issued permits.
Enforcement authority?
i. Enforcement occurs by all levels of government (federal authorities and
states) and by citizens.
How are legal obligations created?
i. Federal agency promotes regulation, and states may be able to assume
implementation or enforcement roles.
ii. Legal obligations are rolled into permits that are themselves subject to
challenge.
iii. Violations of permit obligations are separately subject to challenge.
Constitutional Federalism Issues
Introduction
1. Federal Power to Protect Environment – Usually concerns federal power under
Commerce Clause.
2. Delegated Program Federalism
a. See pp. 125–26.
b. A form of cooperative federalism, which is reflected by the fact that most federal
laws, especially pollution laws, carve out significant roles for states.
c. Some statutes delegate to federal agencies standard-setting responsibilities, but
leave it to states to implement those standards.
d. E.g., CWA (NPDES); CAA (SIPs).
3. Savings Clauses – Preserve existing law—typically state common law and parallel or
completely independent, non-conflicting bodies of state law.
4. Sovereign Immunity Doctrine – May immunize states from monetary liability.
a. State Sovereign Immunity – Rooted largely in 10th and 11th Amendments, as
well as pre-constitutional understandings of state power.
5. Dormant Commerce Clause – Prohibits state action that could impede interstate
commerce, even in the absence of any expressly conflicting federal law.
6. Preemption Doctrine – Limits what kinds of state actions are permitted in areas addressed
by federal law.
Rationales for Federal Environmental Regulation
25
1. Interstate Externalities – Desire to avoid interstate pollution.
a. Most well accepted, least controversial justification for federal environmental
protection.
b. Air and water pollution move interstate.
i. Upstream and upwind states enjoy the benefits of environmental
protection and economic activity but have little incentive to control the
environmental harms that their activities produce.
ii. Downstream and downwind states have strong incentives to regulate
pollution but would have no means to do so without federal environmental
protection statutes.
c. Thus, federal policy is needed to resolve interstate pollution disputes.
d. Matching Principle – Regulator with jurisdiction most commensurate with
pollution’s effects should have regulatory primacy.
e. Other Justifications – Interstate business dynamics; resources exceeding a single
jurisdiction; and inter-jurisdictional competition.
2. Economies of Scale & Resource Pooling
a. Economies of Scale – Gathering necessary information to adopt effective and
efficient environmental regulations.
i. It is silly to have 50 state governments doing research on the same
environmental questions. No need to reinvent the wheel.
ii. Federal government can effectively research environmental questions. It
develops expertise over time, which promotes efficiency.
iii. Free Rider Problem – Many states would sit on their hands and do nothing
and would utilize the research done by other states. This could result in all
states doing nothing, each expecting to rely on the work of other states.
b. Resource Pooling – Relates to implementing environmental protections.
i. It would be more difficult for private businesses to circumvent regulations
if the federal government implemented them.
1. Think: collective bargaining.
3. Race to the Bottom
a. Origin of Problem – Each state wants to have a thriving economy. To have a
thriving economy, a state must attract businesses and not scare them away. One
way to attract businesses is to deregulate and reduce operation costs. Hence, the
race to the bottom.
b. Solution – Federal government establishes a floor to environmental regulation,
thus reducing the length of the race to the bottom.
i. States then may adopt stricter standards if desired.
c. Whether the race to the bottom actually exists, Congress has acted on the belief
that it does.
d. Some scholars argue that an absence of federal regulation does not promote the
race to the bottom.
i. See pp. 86–88.
4. Centralization v. Decentralization
a. Most environmental laws contain both centralized and decentralized elements.
i. Hybrid Schemes – E.g., CAA.
26
5.
6.
7.
8.
b. Numerical Standards – Whether for ambient environmental levels or category of
industry, they usually are federally established.
c. Decentralization Arguments
i. Better reflects geographical variations in preferences for collective goods.
ii. Facilitates experimentation with different policies.
iii. Encourages self-determination, public participation, and collective
education.
iv. Diseconomies of Scale – Regulators are not sensitive to small-scale
variations and differences in priorities.
v. Competition among states will lead to more efficient delivery of
government services.
d. Centralization Arguments
i. Need for federal regulator to internalize costs of environmental harms.
ii. Desire for environmental protection across the country. Rooted in belief
of a right to a clean environment.
iii. Will reduce the number of venues in which policy and legal battles occur.
iv. Administration problems with decentralization – Confusion regarding
responsibility; misdirection of demands for regulatory protection
Political, Economic & Historical Rationales for Federal (or State) Regulation
a. Public Choice Rationale – Uses assumptions about the economic “rational actor”
to predict how political and market actors will behave in political settings to
further their goals.
i. Used to advocate state or federal regulation.
b. First Mover Advantage – Actors perceive federal legislators as the first place to
turn to for environmental protection.
c. Greater attention to issues, press coverage, and surveying of citizen preferences at
federal level.
d. Arguments for State Regulation – See p. 91.
Achieving Uniform Regulation & Minimizing Transaction & Compliance Costs
a. Uniform standards reduce transaction costs, especially for actors in interstate
commerce. This is why Congress adopted uniform standards for vehicle
emissions in the 1960s. Different state standards would produce chaos.
i. Industry may prefer federal regulation for these reasons: certainty,
predictability, and uniformity.
ii. Usually, industry will accept federal regulation only if more stringent state
standards are preempted. See CAA.
Avoiding Not in My Backyard Policies
a. States impose stringent, exclusionary regulations so that, e.g., nuclear waste sites
will not be located within their borders.  Result: no nuclear waste sites are built
anywhere.
i. Illustrates need for federal regulation to address this matter.
ii. Federal government will force states to accept, e.g., nuclear waste sites but
will support those states with money and technology.
Process-Based Justifications
a. Federal law will better balance environmental protection and economic growth
than state law.
27
b. Organizations like the Sierra Club are able to direct their arguments to one
governmental agency rather than 50 different ones, thus achieving a better
balance.
c. [See “Political, Economic & Historical Rationales for Federal (or State)
Regulation” above. See also pp. 90–91.]
Rationales for State Environmental Legislation
1. Rationales
a. Individuals have greater access to state and local policymakers than federal
policymakers. Thus, individual action may be more effective on the state level.
b. State and local governments are more familiar with local needs.
c. States can adapt regulations more easily to local conditions.
d. Some states, e.g., CA, have taken the lead in adopting environmental regulations
when the federal government has been reluctant to do so. E.g., climate change.
i. This shows that states are capable of enacting meaningful environmental
regulations.
ii. Also undercuts Race to the Bottom argument in favor of federal
regulation.
2. Reasons for States to Act as Environmental Leaders
a. CA is a big market, and if it implements progressive environmental regulation,
this will affect how manufacturers, e.g., build cars. The effects of CA’s
regulations will be widespread. Car manufacturers will not want to avoid the CA
market.
b. Encourage “green” business.
c. Politicians may want to market themselves as environmentalists.
d. State may be more susceptible to a certain kind of environmental harm. E.g., MA
and rising ocean levels. Mass. v. EPA.
e. Encourage tourism. E.g., CA, FL. Purely economic reason.
f. Qualify for Federal Resources – Federal government sometimes distributes
unrestricted funds if states take certain environmental protection actions, and
states want these.
g. Restore useless property to productive use. E.g., brownfields.
h. Minimize intrusive federal regulation. States think that, if they don’t act, federal
government will eventually. Two reasons:
i. Federal regulation may be more onerous than state regulation.
ii. States want to maximize their own discretion.
Practical Limits on Federal Environmental Regulation
1. Money – Federal government has a limited amount of money to spend on environmental
protection. Hence, federal government attempts to enlist states in environmental
protection.
a. States resist for a number of reasons: different proprieties; state interests are not
served by environmental protection; etc.
28
2. 10th Amendment is a big obstacle to the federal government strong-arming the states into
implementing environmental protection programs.
a. [See below; New York v. United States.]
Constitution & Environmental Policy
1. Commerce Clause, art. I, § 8, cl. 3 – “[The Congress shall have Power] To regulate
Commerce with foreign Nations, and among the several States, and with the Indian
tribes.”
a. Source of federal power to regulate environmental policy.
b. Most important constitutional provision in adopting federal environmental
regulatory statutes.
c. Most modern federal environmental laws were passed pursuant to Commerce
Clause power.
d. Imposes implicit limits on state regulatory power, i.e., Dormant Commerce
Clause.
2. Property Clause, art. IV, § 3, cl. 2 – “The Congress shall have power to dispose of and
make all needful Rules and Regulations respecting the Territory or other Property
belonging to the United States; and nothing in this Constitution shall be so construed as
to Prejudice any Claims of the United States, or of any particular State.”
a. Authorizes Congress to implement rules and regulations relating to property
owned by federal government, e.g., national parks.
3. Treaty Clause, art. II, § 2, cl. 2 – “[The President] shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators
present concur.”
a. E.g., Migratory Bird Treaty and then Congress passed Migratory Bird Treaty Act;
portions of 1990 Amendments to CAA and its prohibition on use of chemicals
that deplete ozone layer.
b. Treaty Clause would be important if U.S. ever adopted a treaty geared toward
climate change.
4. 14th Amendment, § 5 – Gives Congress power to adopt legislation guaranteeing equal
protection of laws.
5. Supremacy Clause, art. VI, cl. 2 – Explicitly subordinates state law when it conflicts with
federal law.
6. Limits on Scope of Federal Government to Protect Environment
a. Background Concepts Curtailing Federal Power – E.g., federal government is one
of limited powers and may act only when such action is affirmatively prescribed.
b. Takings Clause, 5th Amendment – “[N]or shall private property be taken for
public use, without just compensation.”
i. Some regulations might amount to takings of private property.
c. 10th Amendment – “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.”
i. A truism.
ii. Powers not delegated to the federal government are reserved to the people.
29
Two Interpretations of 10th Amendment
1. Federal government is a government of limited powers. Cannot act without a specific
grant of authority in the Constitution. A statute would be constitutional if its exercise
were supported by a specific constitutional provision.
a. Question – Is the contested statute supported by an enumerated power, e.g., the
Commerce power? If so, then the 10th Amendment has nothing more to say.
Beyond that, questions become political.
i. If people are unhappy with a statute, then they should attempt to change it
through the democratic process.
b. No role for the courts in protecting state sovereignty.
2. 10th Amendment imposes independent limits on the scope of federal power. That a
statute is supported by an enumerated power does not end the matter. It still may violate
the 10th Amendment if it encroaches on core state sovereignty.
a. First Question – Is the contested statute supported by an enumerated power, e.g.,
the Commerce power? If not, it is unconstitutional.
b. Second Question – Does the statute infringe on a traditional area of state
sovereignty? If so, it is unconstitutional.
c. Significant Role for Courts – Courts must answer both questions, especially the
second one.
d. Criticism – Some have argued that this model is nonsensical on a textual level. If
federal government acts pursuant to a delegated power, 10th Amendment does not
apply. Look closely at the language.
i. Response – Even enumerated powers are governed by Necessary and
Proper Clause. A necessary act may not be proper if it infringes on a
traditional area of state sovereignty.
3. Both interpretations have been advanced in recent times. New York v. United States
exemplifies the inherent confusion.
4. A few federal environmental statutes have been invalidated on 10th Amendment grounds.
a. Acorn v. Edwards, 81 F.3d 1387 (5th Cir. 1996) – Invalidating law forcing states
to remove lead from schools or face civil liability. Impermissible forcing the
states to implement a regulation of private conduct, rather than regulating the
private conduct directly.
b. Otherwise, the 10th Amendment has played a minor role in federal environmental
regulation.
5. New York and Printz extended the scope of the 10th Amendment in invalidating federal
legislation, but Reno soon limited their reach.
a. See pp. 119–20.
Cases
1. Gibbs v. Babbitt (4th Cir. 2000)
a. Facts – Concerned taking of red wolves, protected under the ESA, on private
lands and whether Congress can regulate that activity.
b. Lopez and Morrison reestablish that commerce power contains “judicially
enforceable outer limits.”
30
c.
d.
e.
f.
g.
h.
i.
j.
i. Opponents of federal environmental legislation now see a whole new day.
In the wake of these cases, they may be more successful in arguing that
federal environmental statutes exceed Congress’ authority under the
Commerce Clause.
Deference to legislature—unless it has plainly exceeded its constitutional bounds.
Morrison.
Three Categories of Activities That Congress May Regulate Under Commerce
Power – Lopez
i. Channels of interstate commerce.
ii. Instrumentalities of interstate commerce, or persons or things in interstate
commerce, even though the threat may come only from intrastate
activities.
iii. Activities having a substantial relation to interstate commerce, i.e., those
activities that substantially affect interstate commerce.
1. Look to aggregate effects of interstate activities. Wickard v.
Filburn.
Court rejected first two Lopez prongs. Applied third prong, however: killing of
red wolves on private land has substantial effects on interstate commerce when
the intrastate effects are aggregated. Two reasons:
i. Implicates a wide variety of commercial activities. E.g., interstate tourism
related to red wolf viewing; “howling” events; scientific and research
community; interstate trading of wolf pelts; etc.
1. Protecting red wolves on private land will allow for research and
development that will be beneficial to interstate actors.
ii. Part of a broader federal program to conserve valuable sources of wildlife
important to the welfare of the nation as a whole. Congress may enact a
regulatory program whose efficacy is undercut by purely intrastate
activities. This is why Congress may regulate such intrastate activities.
iii. Note – Court first determined that taking of red wolves was an economic
activity and second aggregated its effects.
Regulation on killing red wolves on private land is necessary because so many
wolves wander onto private land.
Regulation also survived because it was “an essential part of a larger regulation of
economic activity, in which the regulatory scheme could be undercut unless the
intrastate activity were regulated.”
i. “A complex regulatory program can survive a Commerce Clause
challenge without a showing that every single facet of the program is
independently and directly related to a valid congressional goal. It is
enough that the challenged provisions are an integral part of the regulatory
program and that the regulatory scheme when considered as a whole
satisfies this test.”
Area of Traditional State Concern – Congress did not infringe because it can
regulate even private land use for environmental and wildlife conservation.
i. See pp. 97–99.
Cited Race to the Bottom as a justification for federal regulation.
San Luis v. Salazar, 638 F.3d 1162 (9th Cir. 2011).
31
2.
3.
4.
5.
6.
i. ESA is not likely to be struck down as beyond the scope of Congress’
authority under the Commerce Clause.
Gonzales v. Raich (2006)
a. Facts – Concerned growing of medical marijuana for private use in CA.
b. Concerned regulation of activities having a substantial effect on interstate
commerce.
c. Endorses aggregation of Wickard v. Filburn.
d. Congress cannot excise individual instances of the regulated activity once it has
determined that it is within its power to regulate.
Legislative Findings
a. Courts sometimes require and sometimes do not require legislative findings for
Congress to regulate under its commerce power.
b. See pp. 103–05.
SWANCC v. U.S. Army Corps of Engineers (2001)
a. Facts – Concerned whether CWA governed pools in sand and gravel pit that
migratory birds had used.
b. Court invoked Clear Statement Rule to hold that the Migratory Bird Rule did not
allow the federal government to assert authority under the CWA over the ponds at
issue.
i. Rule of statutory construction.
ii. Authority that pushes to the limits of federal power will not be interpreted
by the Supreme Court as such unless Congress has clearly indicated that it
intends to push the boundary of congressional power.
iii. This is a way for courts to exercise self-restraint. Court is reluctant to
invalidate statutes enacted by Congress. It does not want to resort to antidemocratic judicial review unless absolutely necessary.
1. Thus, the Court wants to avoid addressing constitutional questions.
It interprets statutes so as not to reach constitutional questions.
Rapanos v. United States (2006)
a. Facts – Concerned interpretation of “waters of the U.S.” in CWA.
b. “Regulation of land use, as through the issuance of the development permits, is a
quintessential state and local power.”
c. Invoked Clear Statement Rule, requiring a “clear and manifest” statement from
Congress to authorize an unprecedented intrusion into an area of traditional state
authority.
i. Court found no such clear statement.
d. Kennedy, Concurring – Reached the same conclusion as the plurality, but for
entirely different reasons.
i. His test was more expansive than Scalia’s, which he characterized as
under- and over-inclusive.
New York v. United States (1992)
a. Facts – Concerned low-level radioactive waste. Only three states had adequate
disposal sites, and Congress was unhappy with this. Congress thus passed a
statute to generate additional disposal facilities in the other 47 states. Other 47
states had to either construct disposal sites or join in interstate compacts to
construct disposal sites.
32
b. Constitutional Questions About Three Incentives
i. Monetary
1. Upheld as supported by commerce power, taxing power, and
spending power.
2. Endorsed first model of 10th Amendment. [See above.]
ii. Access
1. Upheld by Congress’ ability to waive the prohibition on
discrimination in interstate commerce.
2. Endorsed first model of 10th Amendment. [See above.]
iii. Take Title Provision
c. 10th Amendment Test – States must have a legitimate choice of going along with
the federal mandate. Congress cannot coerce states into the federal mandate.
Congress cannot commandeer the mechanisms of state government to execute a
federal program.
i. What is wrong with federal commandeering or coercion? Court offers a
political process rationale. State public may become angry at program and
will direct its ire at state legislators when it should direct its ire at
Congress. Court is concerned with avoiding this blurred accountability.
d. Take Title Provision – Invalidated.
i. Coercion – States had no legitimate choice not to participate in the federal
regulatory program. Take title provision crosses the line between
permissible encouragement and coercion or commandeering.
ii. Congress lacked authority to adopt either alternative in the take title
provision. The choice therefore is a false choice.
1. Congress cannot force states to take title to low-level radioactive
waste.
2. Congress cannot force states to expend money regulating low-level
waste as directed by Congress.
iii. Key Difference from Access Incentives – Adverse incentives of access
incentives are borne by waste generators. Adverse incentives of take title
provisions are borne by states themselves.
iv. More closely endorses second model of 10th Amendment. [See above.]
1. However, O’Connor hedges on this point. See last sentence of
section III.C (p. 118).
Sovereign Immunity
1. See pp. 120–23; Thomas’ notes from 9/28/11.
2. Main obstacle to holding states accountable for environmental law violations.
3. This primarily comes from 11th amendment – on its face quite limited
a. Only bars suits against a state by citizens of another state
i. Yet, SCT has held that states are immune even to suits brought by own
citizens
b. Second, whatever prohibtions and immunity are provided by this extended only to
judicial power of US – seems like only fed courts
i. Yet, SCT held it extends to state courts as well.
33
c. SCT held that Cong lacks the power to abrogate sovereign immunity via
commerce clause
d. also held that Cong can’t abrogate state sovereignty under ANY of its Art. I
powers
Savings Clauses
1. Congress often enlists the assistance of the states to implement federal environmental
laws.
a. Additionally Congress often preserve right of states to adopt more stringent
environmental laws.
b. Typically in the nature of “Savings Clause” – can apply either to statutory
enactments by states, common law remedies, or both
c. Think about Int’l paper co. case – 1365e savings clause of CWA
Preemption
1. Sometimes though Congress tries to limit authority of states
a. Usually does this to avoid multiple and conflicting standards/obligations, need for
uniform set of obligations nationwide
b. Congress does this via pre-emption, authority comes from Supremacy Clause.
2. Two Kinds of Preemption
a. Express Preemption
i. Clear language in statute.
ii. Issues that arise:
1. How broad is preemption?
2. Is challenged action w/in the scope of state laws that Cong
intended to preempt with federal statute?
iii. Engine Manufacturers Association v. South Coast Air Quality
Management District (2004).
1. See Thomas’ notes.
b. Implied Preemption: 2 kinds
i. Note – Most environmental law preemption cases involve implied
preemption, and most involve conflict preemption.
ii. Field Preemption – Occurs when fed leg in a particular area is so
pervasive that congress could not have intended to permit any
supplemental state or local regulation, whether the regulation is more or
less stringent than the fed legislation
1. Key Issues – how the court defines the scope of the field and
whether the statute or reg being attacked falls w/in the parameters
2. Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev.
Comm'n (1983).
a. See E&E 168; Thomas’ notes.
iii. Conflict Preemption
1. 1) A state or local reg conflicts w/ fed law if it is impossible to
comply with both federal and state law
34
2. 2) A state or local regulation also conflicts with fed law if its
implementation is inconsistent with the objectives of federal
legislation.
Dormant Commerce Clause
1. Arise most often from state or municipal efforts to control and handle waste. Usually, the
law will preclude interstate commerce in some way.
2. State and local laws may be struck down because of their adverse impact on interstate
commerce.
3. United Haulers v. Oneida-Herkimer S.W.M.A. (2007)
a. Facts – Concerned NY flow control ordinance requiring all solid waste created
within the jurisdiction to be processed at a publicly owned facility before being
disposed of.
b. Test for DCC Violation – “To determine whether a law violates the so-called
"dormant" aspect of the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, a court
first asks whether it discriminates on its face against interstate commerce. In this
context, "discrimination" simply means differential treatment of in-state and outof-state economic interests that benefits the former and burdens the latter.
Discriminatory laws motivated by simple economic protectionism are subject to a
virtually per se rule of invalidity, which can only be overcome by a showing that
the state has no other means to advance a legitimate local purpose.”
c. Carbone – Here, it was a public rather than a private operator, as was the case in
Carbone.
d. Court upheld the flow-control ordinance. Laws that benefit instate private
business reflect economic protectionism. E.g., a law might require that all waste
be processed at an instate facility before being deposited.
i. Why is public ownership of an exclusive disposal facility less
objectionable?
1. Perhaps it is a traditional state function.
2. No private business could get involved—whether it was instate or
out-of-state. All private businesses were precluded. No
discrimination against out-of-staters.
3. Laws that favor local governments appear to be directed toward
legitimate goals unrelated to protectionism.
ii. Adverse consequences if we treat public and private business the same
with respect to the Dormant Commerce Clause
1. DCC is not supposed to function as a means for the federal
government to determine which functions are the province of
traditional state sovereignty.
2. Court held that waste disposal is a traditional government function.
a. Alito, Dissenting – Determining which areas are traditional
government functions is a hopeless endeavor.
e. Court applied the Pike v. Bruce Church Balancing Test
i. Pike v. Bruce Church Balancing Test – Is law directed at legitimate local
concerns, and does it have only incidental effects on interstate commerce?
35
Law is valid only if the putative local benefits are not outweighed by the
burden on interstate commerce. Burden on interstate commerce must be
clearly excessive.
ii. Balancing test favored the constitutionality of the ordinance.
f. Scalia, Dissenting
i. Does not believe in DCC jurisprudence but would not overturn it.
g. Thomas, Dissenting
i. Would scrap all DCC jurisprudence.
h. Alito, Dissenting
i. Market Participant Doctrine – Only when the government is acting as a
participant and not a regulator in the market do DCC rules apply. Alito
believed that in this case it was acting as both a participant and a regulator.
ii. No reason to distinguish between public and private ownership of a flow
control facility.
iii. It does not matter whether the flow-control ordinances were designed to
serve legitimate purposes. Even if the goals of a policy are not
discriminatory, if the means used to achieve it are, then it may fall afoul of
the DCC. E.g., counties could have achieved their goals by adopting
uniform air-quality standards that were applicable to all actors.
Administrative Law Issues
1. Introduction
a. Administrative law sets the ground rules for how administrative agencies interact
with the three branches of government and the public.
b. Environmental/Administrative Law – Much of environmental law is
administrative law. Field of administrative law is vast, and environmental law is
a small portion of it. However, most environmental law is administrative law.
c. Two Questions of Administrative Law – See p. 143.
i. What is the proper role of each of the three branches of government in the
administrative law process?
ii. What procedures must agencies follow when they adopt, implement, and
enforce administrative law?
iii. Third Overarching Question – How are unelected officials held
accountable to the public?
1. Constitution says nothing—or almost nothing—about
administrative agencies.
d. Standing for Environmental Plaintiffs
i. 1970s – Not an issue.
ii. 1990s – Perhaps an obstacle once again. See Lujan I (1990).
e. Even if standing is satisfied, courts must be willing to review agency actions
seriously.
2. Roles of Three Branches of Government
a. Congressional Tools to Oversee Agencies – See p. 144.
i. Create agencies to implement statutory programs that Congress lacks the
time/expertise to implement itself.
36
ii. Non-Delegation Doctrine – Delegates all powers to agencies via statute.
Agencies have no inherent authority.
1. See E&E 42–43.
iii. Ultra Vires Doctrine – Agencies that act outside of their statutory
authority are acting ultra vires. SWANCC.
1. See E&E 43.
iv. Limits on Agencies
1. Narrow delegation of authority.
2. Threatening to cut agency’s appropriations.
3. Amend statute to reduce scope of agency’s discretion.
b. Executive Oversight – See p. 144.
i. Most agencies exist within the executive branch.
1. Some are independent, but others are executive-branch agencies.
Difference turns on the degree of presidential control, e.g., how
easy it is for the president to fire agency members. It is more
difficult for the president to fire the head of the SEC (independent
agency) than the EPA (executive-branch agency).
ii. Limits on Agencies
1. Appointment Power
2. Removal Power
3. Executive Orders – Documents that control the internal functioning
of the executive branch, including administrative agencies.
4. Clearance by White House
c. Federal Courts
i. Have responsibility to oversee functioning of administrative agencies.
Could determine that agency action substantively violated Constitution;
that agency acted outside its authority; that agency acted without
providing adequate explanation thereof; or that agency failed to follow
proper procedures.
1. Procedures may come from organic statutes or constitutionally
required procedures.
ii. Courts usually defer to agency expertise. A federal judge cannot be as
well versed in the scientific concepts with which agency officials deal.
iii. Courts are more or less deferential depending on the context. Depends on
particular judge and his or her own perceptions. Depends on time and
place and political context.
3. Rulemaking & Adjudication
a. Agencies act through two procedures: rulemaking and adjudication.
i. Four Main Types – Formal and informal rulemaking and adjudication.
ii. Formal procedures are more onerous.
b. Rulemaking
i. General in effect.
ii. More analogous to legislation.
iii. May be formal or informal.
c. Adjudication
i. Particular in effect.
37
ii. Analogous to trial-type decision-making. Entails power to enforce
regulations.
iii. May be formal or informal.
d. Informal Rulemaking [Most Relevant for Us]
i. Sometimes called “notice and consent” rulemaking.
ii. Procedure for Informal Rule-Making
1. See E&E 46–47; Salzman 60–65.
2. Must publish notice in Federal Register. This opens up the rules
for public comment (Public Comment Period).
3. Agency must consider and respond to comments.
4. Agency must publish regulations in Federal Register with an
explanation as to why it reached its decision and responses to
prominent issues.
4. Standing
a. See E&E 50–57; Salzman 79–84.
b. Exam Tips
i. On a standing question, address both constitutional and statutory standing.
c. Background
i. Litigants must have access to federal courts.
d. Three Bodies of Standing Law
i. Constitution – Article III, Case or Controversy Clause; Article II, Take
Care Clause somewhat
ii. Statutory – Imposed by Congress
iii. Prudential – Judge-created
e. Duel Standing Concerns – See Massachusetts v. EPA.
i. Functional – Adversarial system.
ii. Separation of Powers – Not infringing on political branch determinations.
f. Issues with Public Interest Groups
i. Public interest groups frequently sue agencies for failing to live up to their
statutory mandates.
ii. Standing issues arise most often when plaintiffs are public interest groups.
iii. Contract or property rights provide clear bases for standing for most
groups, but the case of public interest groups is more complicated.
iv. Citizen-Suits – Allow public interest groups to bring suits.
v. Importance of Citizen Access to Federal Courts
1. Helps force agencies to do what Congress intended, i.e., account
for potential environmental consequences or comply with their
statutory responsibilities.
vi. Administrative Procedure Act (APA) amounts to a waiver of federal
government’s sovereign immunity.
vii. Associational Standing – An association may sue on behalf of its
members.
1. See p. 165.
g. Standing increasingly is an obstacle for environmental plaintiffs.
i. Major Obstacles to Standing – Satisfying:
1. Injury to common law or statutory legal interest.
38
a. Courts used to require harm to a legally protected interest,
i.e., harm to a constitutional, statutory, or common law
right.
i. Regulated entities have little trouble showing this.
ii. Environmental groups have trouble showing this.
iii. Thus, standing precedent favored regulated entities
before Sierra Club v. Morton (1972).
2. Case or Controversy requirement of Art. III.
ii. Environmental cases almost always involve some kind of threshold access
issue.
h. Sierra Club v. Morton (1972)
i. Sued under § 10 of the APA, 5 U.S.C. § 702: “A person suffering legal
wrong because of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute, is entitled to
judicial review thereof.”
ii. Case turned on “adversely affected or aggrieved” language. Sierra Club
had failed to show that it would be adversely affected or aggrieved.
iii. Two-Part Standing Test Under § 702 – See p. 146.
1. Injury in Fact
a. Even though categories of injuries have widened [see
below], actual injury is still required.
2. Interest arguably within the zone of interest protected by the statute
that the agency was violating.
iv. Sufficient Injuries
1. Economic injuries.
2. Non-economic, e.g., aesthetic, injuries.
3. Widely shared injuries. Fact that environmental injuries are shared
by the many, rather than the few, does not make them less
deserving of legal protection through the judicial process.
v. Asserting Public Interest
1. “The fact of economic injury is what gives a person standing to
seek judicial review under the statute, but once review is properly
invoked, that person may argue the public interest in support of his
claim that the agency has failed to comply with its statutory
mandate.”
a. Requires actual injury first.
2. “An organization whose members are injured may represent those
members in a proceeding for judicial review. But a mere interest
in a problem, no matter how longstanding the interest and no
matter how qualified the organization is in evaluating the problem,
is not sufficient by itself to render the organization adversely
affected or aggrieved within the meaning of the Administrative
Procedure Act, 5 U.S.C.S. § 701, et seq.”
a. Mere interest in a problem is not enough; organization must
be able to show actual and individualized injury.
i. SCRAP I (1973)
39
i. Facts - If ICC charges a higher rate for recycled materials, private entities
will use virgin materials more than they will use recycled materials. This
will disincentivize the use and recycling of recyclable materials. Student
group argued that they go hiking in a park every year and that, next year,
because of this rate hike, they expected to see more trash. This anticipated
injury was the alleged harm.
ii. Holding
1. Found standing.
2. Line of causation was not too attenuated.
3. Mere allegation of remote and attenuated injury (that would occur
is tax hike continued) was sufficient to establish standing.
4. If government had a problem with the chain of inference, it should
have brought this up at the summary judgment stage.
j. Lujan v. National Wildlife Federation (Lujan I) (1990)
i. Found no standing.
ii. Sued under § 10 of the APA, 5 U.S.C. § 702.
iii. Court reversed for two reasons:
1. Geographical Proximity Test
2. 5 U.S.C. § 704
iv. Geographical Proximity Test
1. In an environmental case, there must be a geographical nexus or
geographical proximity between the particular resources allegedly
injured by the agency’s decision and the areas of land used by the
plaintiff or its members; and
2. The injury is arguably within the zone of interest to be protected or
regulated by the statute that was allegedly violated by the
defendant.
v. 5 U.S.C. § 704
1. “Agency action made reviewable by statute and final agency action
for which there is no other adequate remedy in a court are subject
to judicial review.”
2. Final agency action is subject to judicial review.
3. The action at issue does not qualify as either agency action or final
agency action. BLM never announced anything that it called a
“land withdrawal review program.”
vi. Court cast doubt on continued viability of SCRAP I.
1. Court subsequently had not followed expansive standing doctrine.
vii. If people are dissatisfied, they need to seek remedies through the political
process, not through the courts.
viii. NWF still can bring individual actions. Here, that means that NWF must
bring over 12,000 separate lawsuits, and of course, no NGO has the
resources to bring that many lawsuits.
ix. Sunk Costs – Generally, courts are reluctant to enjoin ongoing activities,
especially if significant costs have been sunk into those activities.
k. Lujan v. Defenders of Wildlife (Lujan II) (1992)
i. This is a constitutional standing case, unlike Morton or Lujan I.
40
ii. Article III Case or Controversy Requirement
1. Constitutional Standing Requirement – Standing is a necessary
component for a case or controversy.
2. If plaintiff lacks standing, federal court must dismiss case for lack
of jurisdiction.
3. See American Bottom Conservancy v. U.S. Army Corps of
Engineers, 650 F.3d 652 (7th Cir. 2011) – Supreme Court made up
standing jurisprudence, and there is no constitutional basis for it.
There are other constitutional standing limitations though.
iii. Three Constitutional Standing Requirements
1. That the plaintiff have suffered an “injury in fact”—an invasion of
a judicially cognizable interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical;
2. That there be a causal connection between the injury and the
conduct complained of—the injury must be fairly traceable to the
challenged action of the defendant, and not the result of the
independent action of some third party not before the court;
3. That it be likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.
iv. When a plaintiff’s injury arises from government regulation of a third
party, much more is needed to show standing. It is a more onerous
showing.
1. See p. 164.
2. Helps regulated entities. Makes it harder for regulatory
beneficiaries.
3. Some viewed this case as an effort by Scalia to reinvigorate the
“legally protected interest” test for standing.
v. Plaintiffs failed to show “injury in fact.”
1. Geographical nexus was not the problem.
2. Actual or Imminent Requirement – No temporal nexus.
a. Plaintiff must establish a temporal nexus or temporal
proximity between the alleged adverse consequences of the
agency’s actions and the members’ imminent use of the
resources adversely affected.
b. Scalia said, “Show me a plane ticket.” Without that,
plaintiffs could show no imminent injury.
vi. Procedural Injury
1. Argument – Plaintiffs claimed that they had suffered procedural
injury as well. Agencies are supposed to seek public input
regarding their decisions, and this was not done.
2. Test for Procedural Injury – Plaintiff may rely on a procedural
requirement only if its violation is alleged to impair a separate
concrete interest.
a. See footnote 7 on p. 156.
41
vii.
viii.
ix.
x.
xi.
xii.
b. Plaintiffs did not satisfy this test. Only an abstract, selfcontained, and non-instrumental right had been impaired.
Being upset about the noncompliance of the executive
branch is insufficient without a showing that a concrete
interest has been impaired.
c. Plaintiffs were raising a generally available grievance about
government. Political branches, not the judiciary, are the
proper branches of government to which to bring such
grievances.
Creation of New Justiciable Injuries – Scalia is hostile to
congressionally created causes of action.
1. But see Akins (1998) – Holding that plaintiffs had standing
pursuant to congressionally created cause of action.
a. See pp. 160–61.
Redressability
1. Not satisfied.
2. Limited Precedential Value – Only four justices supported.
3. Court would not be able to stop foreign agencies from continuing
with the offending projects. Therefore, plaintiffs have not shown
that the Court is able to redress their injuries. Even if the Court
were to reverse the current regulation and reinstate the previous
regulation, there is no guarantee that the agencies would comply.
4. Procedural Rights
a. Causation and redressability requirements do not apply in
the same way. Procedures don’t dictate substantive results.
b. Subsequently, courts have addresses these two
requirements much less rigorously.
Lujan and Lujan II curtailed standing doctrine.
1. Justification for Injury in Fact – Adversarial system depends on
strong arguments, and those that are adversely affected are likely
to make the strongest arguments.
2. Lujan and Lujan II are not about this, however; they are about
separation of powers and preventing the aggrandizement of power
by Congress and the president.
Skepticism of Citizen Standing – Scalia said that granting standing might
violate Art. II. It is the president’s job to enforce the laws, not the people.
Liberal standing in citizen-suits would allow people to usurp the
president’s authority in this regard.
Kennedy, Concurring
1. Cognizant of Art. II problems.
2. Organizations had failed to demonstrate that they had sustained an
injury that would support standing.
3. However, in different circumstances, a nexus theory similar to the
theories proffered by the organizations in the case at hand might
support a claim to standing.
Blackmun, Dissenting
42
1. Separation of Powers – Courts not enforcing citizen-suits would
allow the courts to infringe the power of Congress. This is the real
separation of powers issue.
2. Organizations raised genuine issues of fact, both as to injury and as
to redressability, that were sufficient to survive a motion for
summary judgment on standing.
3. Environmental plaintiffs who allege "ecosystem nexus" or
vocational or professional injury should not be required to show
physical proximity to the alleged wrong.
4. Some classes of procedural duties are so enmeshed with the
prevention of substantive, concrete harm that an individual
plaintiff may be able to demonstrate a sufficient likelihood of
injury solely through the breach of that procedural duty.
l. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2000)
i. “The relevant showing for purposes of Article III standing is not injury to
the environment but injury to the plaintiff.”
1. Absence of proof of injury to the environment does not mean that
the plaintiffs have not been harmed. E.g., plaintiffs feared
swimming in the river.
2. Why fact that district court found that mercury discharges were not
harming the environment did not vitiate standing.
3. Risks of future harm/probabilistic harms usually are sufficient for
standing, but case law is mixed.
a. See pp. 173–75.
b. Particularly relevant for climate change cases.
ii. Injury in Fact
1. Geographical and temporal nexuses were satisfied.
2. Subsequently, courts have been mixed on whether fear is enough
to satisfy injury in fact.
a. Here, however, fear sufficed.
3. Recreational/aesthetic interests are cognizable for environmental
claims and can establish standing.
iii. Redressability/Civil Penalties
1. Civil penalties paid to government, not plaintiff, satisfy
redressability requirement because of deterrent effect.
2. “To the extent that [civil penalties paid to government] encourage
defendants to discontinue current violations and deter them from
committing future ones, they afford redress to citizen plaintiffs
who are injured or threatened with injury as a consequence of
ongoing unlawful conduct.”
iv. Distinguishing Steel Co.
1. Standing is determined when lawsuit is filed.
2. In Steel Co., all harm had ceased by filing. Here, harm was
ongoing.
v. Mootness
43
1. Definition – “A case might become moot if subsequent events
made it absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur. The ‘heavy burden of
persuading’ the court that the challenged conduct cannot
reasonably be expected to start up again lies with the party
asserting mootness.”
a. Mootness = Standing in a time frame.
2. Voluntary Cessation of Injurious Conduct
a. Test – “Defendant claiming that its voluntary compliance
moots a case bears the formidable burden of showing that it
is absolutely clear the allegedly wrongful behavior could
not reasonably be expected to recur.”
b. Moots a case in federal court only if it is absolutely clear
that the harm will not recur. Laidlaw failed to prove that in
this case. Laidlaw might reopen the facility and engage in
the same activity. Future violations are possible.
vi. Scalia, Dissenting
1. Plaintiffs failed to show individual harm in the absence of
environmental harm.
2. Concern about the environment is not sufficient to demonstrate
injury in fact.
3. Ruling has grave implications for democratic governance. Going
beyond traditional constitutional bounds. He is harking back to the
legally-protected-interest test.
4. Calls citizens “self-appointed EPAs.” But Congress authorized
citizens to bring suit. They are Congress-appointed.
m. Statutory & Prudential Standing Requirements – See pp. 176–79.
i. Three General Requirements
1. Harm asserted by plaintiff must not represent a “generalized
grievance” shared in substantially equal measure by all or a large
class of citizens.
2. Plaintiff must assert his or her own legal rights and interests rather
than those of third parties.
3. Plaintiff’s alleged injury must be within the zone of interest
protected or regulated by the constitutional or statutory provision
in question.
ii. No bar to animal standing under Art. III.
n. Statutory Standing Requirements
i. Zone of Interests Requirement – Injury must be within the zone of
interests that Congress contemplated protecting when it enacted the
statute.
1. APA, 5 U.S.C. § 702 – “within the meaning of a relevant statute.”
2. Other statutes may be sources of zones of interests.
3. Congress has the power to eliminate a zone of interests if it
chooses. This would make constitutional requirements the only
real hurdle.
44
4. NEPA – Conflicting case law on what NEPA’s zone of interest
amounts to.
ii. Bennett v. Spear (1997)
1. Concerned claim under ESA that Department of Interior had failed
to perform nondiscretionary duties.
2. Held that citizen suit provision grants a right to file a citizen suit to
“any person” and found that Congress contemplated that industry
groups might use the provision to avoid “over-enforcement” of the
law.
3. 16 U.S.C. § 1540(g)(1) – No limitation on who may bring lawsuits
under ESA. Ranchers qualify as citizens and may sue.
4. § 702 of the APA – Ranchers claims also were reviewable under
this provision.
5. To determine zone of interest, we must look at violated provision,
viz. “no jeopardy provision.” Purpose of this requirement is to
avoid needless economic costs.
6. Lesson – Standing is skewed, disfavoring beneficiaries of
regulation.
7. Scalia was very much in favor of citizen-suits and citizens acting
in this regard—acting as private attorney generals. Contrast this
with Scalia’s dissent in Laidlaw, where he foresaw grave
implication for democratic governance form citizens acting as
“self-appointed EPAs.”
o. Prudential Limits on Standing
i. Waivable by Congress.
ii. Plaintiff must asserts his or her own rights, not the rights of a third party.
1. However, this may occur under associational standing.
iii. Plaintiff must not assert generalized grievances suffered by everyone or by
a large class of individuals.
1. Causation – Difficult to show a definite causal relationship.
2. Redressability – Difficult to fashion a specific remedy when there
is no specific injury.
3. Separation of Powers – It is the job of the executive to redress
generalized, societal problems.
4. Overlap with Constitutional Requirements – Some issues are best
resolved by courts, and others are best resolved by the political
branches.
a. “Concrete and particularized” requirement is the flipside of
the generalized grievance standard.
5. That harm is of wide public significance, it is not an abstract
question and still may be capable of judicial resolution.
6. Injury to all ≠ injury to none: some courts have held.
7. If injury is concrete, then it should be able to overcome the
generalized grievance test. This is the touchstone of standing.
p. Standing Requirements for Suing in Federal Court
i. Constitutional, statutory, and prudential requirements.
45
1. Injury-in-Fact
a. Concrete and particularized; and
b. Actual or imminent (not conjectural or hypothetical).
i. Plaintiff must establish a temporal nexus or
temporal proximity between the alleged adverse
consequences of the agency’s actions and the
members’ imminent use of the resources adversely
affected.
ii. Plaintiff may rely on a procedural requirement only
if its violation is alleged to impair a separate
concrete interest.
c. Geographical Nexus – Lujan I.
d. Temporal Nexus – Lujan II.
e. Injury to the plaintiff, not to the environment. Laidlaw.
2. Causation
a. Contributing factors are enough. Massachusetts V. EPA.
3. Redressability
a. Incremental improvements are enough. Massachusetts V.
EPA.
q. Standing w/r/t Climate Change
i. See Salzman 84.
ii. Massachusetts v. EPA (2007)
1. MA is in a special position. Every state has a right to protect
natural resources found within its territory. Therefore, MA’s
interest in protecting its coasts demanded special solicitude from
the Court.
a. CAA created a procedural right whereby MA could satisfy
the constitutional standing requirements because the
causation and redressability requirements applied with less
rigor.
b. There must be only some possibility that the defendant will
redress the alleged injury. It need not be certain.
2. EPA argued that MA had only a generalized grievance.
a. Court held that MA’s injury-in-fact was concrete and
particularized because its land was being swallowed by the
ocean.
b. Any plaintiff losing land to rising sea levels will make
strong arguments. Therefore, there is no threat to the
adversarial system.
3. Injury-in-Fact – Rising sea levels due to global warming affect
Massachusetts’ coastal property.
a. Injury-in-fact discussion has no relevance to cases in which
a non-state is the plaintiff. This relates to the special
solicitude afforded to Mass.
4. Causation
46
a. Many actors across the world, besides US autos, emit
greenhouse gases.
b. It is sufficient that the emissions at issue here are
contributing to climate change and harming the plaintiffs’
interests. That they are a significant/major cause is not the
right issue.
5. Redressability
a. Incremental steps are sufficient to satisfy redressability.
6. Roberts did not believe that any constitutional standing
requirements had been met.
a. Characterized case as a return to SCRAP I.
b. Purpose of Standing – To stop federal courts from
infringing on political branches. This decision will impede
that objective.
7. Case reflects disagreement on the Court as to whether Congress
can define injury-in-fact.
a. Majority – Such efforts are legitimate.
b. Dissent – Illegitimate.
r. Other Threshold Barriers – Similar to Standing – See pp. 180–83.
i. Generally
1. Prevent courts from ruling on the merits.
2. All are timing doctrines.
3. All are very similar, and courts often confuse them. Thus, when
they are raised, courts usually throw in the kitchen sink.
ii. Finality
1. Agency action must be final in order to be challenged.
2. Derived from APA, 5 U.S.C. § 704.
a. “Agency action made reviewable by statute and final
agency action for which there is no other adequate remedy
in a court are subject to judicial review.”
iii. Exhaustion of Administrative Remedies
1. Must pursue all available administrative hearings/remedies before
taking recourse to federal courts.
2. If you bring a cause of action based on APA 5 U.S.C. § 702, court
may not dismiss it if statute requires exhaustion of administrative
remedies and states the effectiveness of the agency action pending
appeals, etc.
a. § 702 – “A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to
judicial review thereof.”
iv. Primary Jurisdiction
1. Applies when court and agency have concurrent jurisdiction.
Court should wait until agency has completed its review of issue.
v. Ripeness
47
1. Courts defer on issues brought to them prematurely, i.e., before
there is an actual case or controversy.
2. Two Factors
a. Are the issues fit for judicial resolution? Legal issues
generally are, but factual issues usually are not.
b. Would the plaintiff suffer hardship if the court refused to
hear the case now?
5. Reviewability of Agency Actions
a. APA Provisions Relevant to Judicial Challenges to an Agency’s Failure to Act
i. Section 702 allows a person adversely affected or aggrieved by “agency
action” to seek judicial review.
ii. Section 704 makes final “agency action” reviewable.
iii. Section 551(13) defines “agency action” to include “failure to act.”
iv. Section 706(1) authorizes the federal courts to “compel agency action
unlawfully withheld or unreasonably delayed.”
b. Final Agency Action Reviewable/Section 704 – “Agency action made
reviewable by statute and final agency action for which there is no other adequate
remedy in a court are subject to judicial review.”
i. Two Exceptions – “This chapter applies, according to the provisions
thereof, except to the extent that—
1. (1) statutes preclude judicial review; or
2. (2) agency action is committed to agency discretion by law.”
§ 701(a)(1)–(2).
a. Existence of agency discretion is sufficient to invoke. See
§ 706(2)(A).  To preserve the integrity of abuse of
discretion as a reason for invalidation, we must look to
§ 701(a).
b. Courts usually find relevant “law to apply.” See Overton
Park.
i. Agency’s own output, e.g., regulations or land use
plans, also may constrain agency discretion
sufficiently to furnish necessary “law to apply.”
1. See p. 202.
c. Most often invoked to preclude review when a litigant
challenges an agency decision not to enforce a statute or
regulation.
c. Congress rarely has precluded judicial review in environmental statutes.
d. Norton v. Southern Utah Wilderness Alliance (2004)
i. Two-Part Reviewability Standard – “A claim under 5 U.S.C.S. § 706(1)
can proceed only where a plaintiff asserts that an agency failed to take a
discrete agency action that it is required to take.”
1. “The limitation to discrete agency action precludes the kind of
broad programmatic attack we rejected in Lujan I.”
ii. Failure to Act – Reviewable only if failure related to a discrete agency
action that should have been taken.
48
1. Defined as “failure to take one of the agency actions (including
their equivalents) earlier defined in § 551(13).”
2. “A failure to act is not the same thing as a denial. The latter is the
agency's act of saying no to a request; the former is simply the
omission of an action without formally rejecting a request, for
example, the failure to promulgate a rule or take some decision by
a statutory deadline. The important point is that a ‘failure to act’ is
properly understood to be limited, as are the other items in §
551(13), to a discrete action.”
iii. “The limitation to required agency action rules out judicial direction of
even discrete agency action that is not demanded by law (which includes,
of course, agency regulations that have the force of law). Thus, when an
agency is compelled by law to act within a certain time period, but the
manner of its action is left to the agency's discretion, a court can compel
the agency to act, but has no power to specify what the action must be.”
iv. Result
1. See note 3 on p. 209.
2. Norton has incentivized agencies to create plans to general as to be
meaningless.
3. If your boss does not want to be constrained, avoid words like
“shall,” “will,” “required,” “mandate,” etc. Use general language
so as not to commit yourself to a discrete plan.
e. 5 U.S.C. § 706
i. § 706(1) – “To the extent necessary to decision and when presented, the
reviewing court shall decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the meaning or
applicability of the terms of an agency action. The reviewing court shall
compel agency action unlawfully withheld or unreasonably delayed.”
1. Applies to agency action not taken.
2. Discreteness requirement applies here.
a. See 5 U.S.C. § 551(13) (describing five categories of
decisions involving circumscribed, discrete agency
actions).
3. Legal-requirement requirement applies only here.
ii. § 706(2) – “The reviewing court shall hold unlawful and set aside agency
action, findings, and conclusions found to be . . . .”
1. Scope of Review Question – Answer affects how well judicial
review is able to hold agencies accountable, which entails ensuring
that their actions are consistent with the statutes from which they
are derived.
2. Applies to improper agency action.
3. Discreteness requirement applies here too.
a. See 5 U.S.C. § 551(13) (describing five categories of
decisions involving circumscribed, discrete agency
actions).
4. Legal-requirement requirement does not apply only here.
49
5. Degree to which judicial oversight is appropriate depends on:
a. Procedural reach; and
b. Nature of case.
f. Vermont Yankee Nuclear Power Corp. v. NRDC (1978)
i. Courts may not impose on agencies additional procedural duties not
contained in the APA.
1. Agencies may voluntarily go beyond the procedural duties
specified in the APA.
2. Congress may impose additional procedural duties in substantive
legislation.
g. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)
i. Facts – Involved Bubble Concept under the CAA.
1. See notes for more factual details and how the Bubble Concept
works.
ii. Chevron Deference
1. Step Zero (Not in Case) – When does Chevron deference apply, or
should judicial review of agency interpretation entail some other
framework? Mead; see also Barnhart v. Walton (2002).
a. Under Mead, an administrative interpretation of a statute
qualifies for Chevron deference only when:
i. Congress delegated authority to the agency
generally to make rules carrying the force of law;
and
ii. The agency interpretation being reviewed was
promulgated in the exercise of that authority.
b. Showing Requisite Delegation of Authority
i. Clearest are explicit delegations of authority to
resolve legal questions in adjudication or enact
regulations using the notice-and comment process.
ii. Under this test, internal agency guidance documents
do not qualify as rules that carry the force of law
and are therefore not entitled to Chevron deference.
c. If administrative interpretation is not entitled to Chevron
deference, it still is entitled to some deference. Skidmore.
i. Factors – “(1) the degree of the agency's care, (2) its
consistency, formality, and relative expertness, and
(3) the persuasiveness of the agency's position.”
Mead.
ii. Produces widely varying results.
iii. Weaker than Chevron deference.
2. Step One – Has Congress directly spoken to the precise question
at issue? If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.
50
a. Court is required to implement precise intent of Congress,
regardless of agency’s view. Court may ignore agency
interpretation.
b. Sources for Statutory Interpretation – See p. 189.
i. Text of specific provisions of statute.
ii. Other provisions of statute in question.
iii. Provisions of other statutes that may shed light on
meaning of the statute under scrutiny.
iv. Statutory objectives.
v. Legislative history.
vi.  Lower courts have discretion in determining
which sources of law to consult. Supreme Court
has been inconsistent.
3. Step Two – If the court determines that Congress has not directly
addressed the precise question at issue, the court does not simply
impose its own construction on the statute, as would be necessary
in the absence of an administrative interpretation. Rather, if the
statute is silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency's answer is based on a
permissible construction of the statute.
a. If statute is unclear, Court must accept any permissible
interpretation of the statute offered by the agency.
b. Factors Affecting Judicial Deference – See pp. 189–90.
i. The more technical the questions, the more likely
that the court will defer to agency.
ii. Broader Context – If an agency opposed a statute
initially, court may determine that its interpretation
is not entitled to deference.
iii. Constitutional implications of agency’s
interpretation.
iii. Justifications for Chevron Deference
1. If the Court selects among various interpretations, then the level of
judicial interference rises.
2. Congress is not assured of its own competence in specifying the
nitty-gritty details of the enabling act. Congress, however, does
have the authority to determine that the agency will be able to
interpret the statute.
3. Federal judges are not elected, and agency officials are appointed
by elected officials. Agencies thus have indirect accountability to
the public, unlike judges. We prefer to have this accountability for
those offering definitive interpretations of statute.
iv. Glicksman’s Agency Deference Flowchart
1. Whether interpretation is made pursuant to a congressional
delegation of lawmaking authority. Chevron; Mead.
2. Whether agency is applying special expertise. Skidmore.
51
3. Whether interpretation is consistent with larger public norms,
including constitutional norms. Gonzales.
h. Citizens to Preserve Overton Park, Inc. v. Volpe (1971)
i. Test for an Action Committed to Agency Discretion by Law – What
triggers a § 701(a)(2) bar to review?
1. Only if there is no law to apply is a decision committed to
unreviewable agency discretion. This is a narrow test, and it does
not apply in many circumstances.
2. Law came from § 4(f) as well as underlying purposes of statute.
a. Park preservation is the desired goal of the statute.
Secretary’s actions were reviewable to determine whether
he had acted inconsistently with the law.
b. Courts rarely dismiss on § 701(a)(2) grounds because there
is almost always some law to apply.
ii. Standard of Review
1. Six Different Standards
a. See § 706(2)(A)–(F).
b. Court examines three in-depth.
2. If Court applies a stringent standard, it runs the risk of infringing
the authority of Congress and the president. Does not want to
tread on president’s duty to execute the laws or Congress’
authority to delegate authority to an agency.
3. If Court applies a very deferential standard, it may abdicate its
responsibility when Congress has authorized judicial review.
4. De Novo - § 706(2)(F)
a. Agency determination must not have been “unwarranted by
the facts to the extent that the facts are subject to trial de
novo by the reviewing court.” § 706(2)(F).
b. Least deferential standard.
c. Available in a narrow set of circumstances.
i. Agency’s action was adjudicatory in nature, and its
factual findings were inadequate.
ii. It is very difficult for cases to fit within these
circumstances. Section 706(2)(f) review is almost
unheard of.
d. Preferred standard of review for petitioners.
5. Substantial Evidence - § 706(2)(E)
a. Agency determination must not have been “unsupported by
substantial evidence in a case subject to sections 556 and
557 of this title or otherwise reviewed on the record of an
agency hearing provided by statute.” § 706(2)(E).
b. Court requires formal rulemaking or formal adjudication
for substantial evidence standard to apply. This was not the
case here.
c. The only cases in which § 706(2)(e) is invoked are when
§§ 556-57 are triggered. Special language is required.
52
d. Second-best standard of review for petitioners.
6. Arbitrary and Capricious Standard - § 706(2)(A)
a. Agency determination must not have been “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” § 706(2)(A).
b. More deferential than substantial evidence review.
c. Factors to Consider
i. Must consider “whole record” as required by § 706.
ii. Whether agency thought about correct factors under
statute?
iii. Whether agency made a clear error of judgment in
reaching its ultimate determination?
iv. Did agency act rationally? State Farm. Four
factors:
1. Whether agency relied on factors that
Congress intended to be irrelevant.
2. Whether agency failed to consider an
important aspect of the problem.
3. Whether agency ignored a key piece of
evidence.
4. Whether agency reached a drastically
implausible decision such that it could not
indicate a mere difference in viewpoint.
v. Witnesses/Participating Administrative Officials –
Because Court did not know enough about agency’s
decision-making process to determine whether it
had acted irrationally.
vi.  May not consider post hoc rationalizations.
d. Most EPA decisions are governed by this standard.
e. Applied by Court.
iii. Practical Implications
1. No interstate that runs through the middle of the city because the
agency could not show any feasible alternative.
2. Created strong incentives for agencies to compile more thorough
records to support their decisions. Reduces risk of reversal
because of not acting rationally. When adjudicating cases, courts
are deluged with records.
6. Methods for Ensuring Agency Accountability
a. Congress
i. Restricting president’s authority to hire and fire agency officials and
imposing restraints thereon.
ii. Increasing or decreasing or agency appropriations.
iii. Holding agency oversight hearings, which may embarrass agency
officials.
iv. Amending substantive legislation so as to reverse agency results or restrict
agency discretion.
53
v. Applying statutes across many substantive areas and changing the subjects
of agency action or the methods by which those subjects are regulated.
1. E.g., Information Quality Act. Designed to ensure that agencies
rely on objective and reliable information in their decision-making.
This constrains agency action. Some think that the Act gives
regulated entities an avenue for challenging agency action as outof-compliance with objective and reliable information. Courts
have held that Information Quality Act challenges are not
reviewable in court.
b. President
i. Issue executive orders providing ground rules for administration of federal
government.
1. Two Functions
a. Cause agencies to consider certain factors or satisfy certain
substantive requirements before making decisions.
b. Require agencies to clear certain actions with presidential
appointees before enactment.
ii. Mandate for agencies to use cost-benefit analysis. Executive Order 12291
(12866). Agencies must do so unless their enacting statutes prohibit this.
1. Executive Order 12866 – When agencies issue new major
regulations, OMB must clear regulations for publication before
they may be implemented.
2. Agencies often must supply analysis even if it need not change the
agencies’ decisions. This results in slower decision-making
(because the agencies have more work to do).
iii. Do executive orders violate separation of powers? Can president control
exercise of discretion that Congress has delegated to agencies?
1. Many orders bypass this problem by stating that they apply to
agencies only as far as allowed by law, i.e., agencies’ originating
statutes. Statutes trump inconsistent executive orders.
iv. Executive Order 13563 – Obama. Published in 2011 Fed. Reg. at page
3821.
1. Agencies must consider approaches that reduce harm and burdens
to public. Instead of issuing regulations, agencies must consider,
e.g., offering warning to regulated entities or requiring information
disclosure.
2. What may have been a good idea at one time may not be a good
idea today. Agencies must go back periodically and review the
regulations that they have made.
v. Review of agency decisions by OMB creates a bias against regulation.
1. OMB itself is vulnerable to capture by regulated entities, and its
economist staff inherently are skeptical of regulation.
2. Therefore, OMB has failed to promote rationality in agencies’
environmental decision-making.
3. OMB review is a poor means of securing agency accountability.
54
National Environmental Policy Act
1. No substantive mandates. Cross-cutting legislation. Courts review only procedural
compliance.
2. Two Main Purposes
a. We want people to have information about the potential adverse effects of
government action on the environment. To force government decision makers,
i.e., agencies, to think about the potential adverse environmental consequences of
their actions.
i. “Stop and think” statute.
ii. Action-forcing component of NEPA.
b. To disclose what the agencies have thought about to the public.
i. Full-disclosure component of NEPA.
ii. Kind of like a sunshine law. Reveal to the light of day the results of the
action-forcing component.
3. Scope
a. Federal agencies, not private entities.
b. Facially, all federal agencies; but in practice, federal agencies concentrating on
resource development or similar projects.
c. Agencies prone to tunnel vision, i.e., lacking the inclination to factor
environmental concerns into their decisions. Agencies that sweep environmental
concerns under the rug. Agencies that usually judge success by output, which
typically related to development (as opposed to conservation).
i. NEPA counteracts this tendency.
ii. E.g., DOT; Army Corps. Of Engineers; Forest Service.
d. International/Extraterritorial Impact – See pp. 267–69; E&E 135–37.
4. Council on Environmental Quality (CEQ)
a. Only enforcement mechanism.
b. Supervises NEPA compliance of all federal agencies.
c. Issues instructions on how to comply with NEPA.
d. Courts defer to CEQ’s interpretations of NEPA.
5. Key Provision - § 102(2)(C).
a. “The Congress authorizes and directs that, to the fullest extent possible: (1) the
policies, regulations, and public laws of the United States shall be interpreted and
administered in accordance with the policies set forth in this chapter, and (2) all
agencies of the Federal Government shall . . . include in every recommendation or
report on proposals for legislation and other major Federal actions significantly
affecting the quality of the human environment, a detailed statement by the
responsible official on . . . (i) the environmental impact of the proposed action, (ii)
any adverse environmental effects which cannot be avoided should the proposal
be implemented, (iii) alternatives to the proposed action, (iv) the relationship
between local short-term uses of man's environment and the maintenance and
enhancement of long-term productivity, and (v) any irreversible and irretrievable
commitments of resources which would be involved in the proposed action should
it be implemented.” 42 U.S.C. § 4332.
b. Requires “detailed statement,” i.e., environmental impact statement (EIS).
55
i. Required for “proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment.”
ii. Two Main Issues – Whether agency considered:
1. Any adverse environmental effects which cannot be avoided
should the proposal be implemented; and
2. Alternatives to the proposed action.
c. “To the fullest extent possible” – NEPA (1) does not change agency statutory
mandates and (2) ensures across-the-board compliance.
i. § 104 – NEPA does not affects agencies’ statutory obligations.
6. No substantive requirements  No baseline from which environmental impacts of
agency actions are measured.
a. Usually measured from existing conditions.
7. Judicial Review
a. Calvert Cliffs (D.C. Cir. 1971).
i. Reviewable under the APA § 701(a)(2) as final agency action (unless a
substantive statute already provides review).
ii. Courts can order agencies to go back and do it again, i.e., comply with
NEPA by preparing EISs (or simply better EISs).
iii. Did not definitely say whether courts can order agencies to adopt less
environmentally harmful means to achieve their goals. Supreme Court
would take this up later.
8. Threshold Question – Must an EIS be prepared?
a. Does any exemption apply?
b. Exemptions
i. Statutory Exemptions
1. Some EPA requirements under CAA and CWA.
2. Other EPA requirements must be functionally equivalent to NEPA
requirements. (Functional Equivalence Exemption)
3. See E&E 131–32.
ii. Categorical Exclusion (CATX)
1. “Categorical Exclusion means a category of actions which do not
individually or cumulatively have a significant effect on the human
environment.” 40 C.F.R. § 1508.4.
2. Agency must provide explanation of why its proposal falls within a
CATX.
3. Includes actions that do not individually or cumulatively have a
significant effect on the human environment.
a. Usually minor actions only—not major actions.
b. Exception – EIS still required if, due to extraordinary
circumstances, an action otherwise covered by a categorical
exclusion might have a significant impact on the human
environment.
4. Congress has expanded authority of agencies to create categorical
exclusions.
5. Three Issues in Categorical Exclusion Cases
a. Did agency appropriately create the CATX?
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b. Even if so, does the action being challenged fit within the
scope of that categorical exclusion?
c. Even if so, are there extraordinary exclusions that bar the
agency from invoking the categorical exclusion?
iii. Statutory Conflicts
1. § 104 – NEPA is not to affect the “specific statutory obligations”
of federal agencies.
2. Flint Ridge (U.S. 1976)
a. Concerned direct statutory conflict between NEPA and an
organic act, i.e., statute authorizing agency to take the
action that it is attempting to take. Could apply to any
other non-organic statute.
b. No practical way that HUD could create an EIS and still
review developer’s disclosure statement within 30-day
period. Doing both was impossible. Therefore, because of
this conflict, the substantive statute trumped NEPA, and
NEPA had to give way.
c. § 102 – Agencies are required to comply only to the fullest
extent possible. Sometimes, compliance with NEPA
simply is not possible.
3. Functional Equivalence Exemption
a. EPA need not comply with NEPA if its requirements are
functionally equivalent to the relevant NEPA requirements.
b. Catron County (10th Cir. 1996) – Functional Equivalence
Exemption did not apply because (1) there was no identical
overlap and (2) ESA may seek to promote different
objectives than NEPA.
i. Alleged conflict of statutory purpose.
ii. Court looked to clear language of statute.
1. § 102 – Agencies are required to comply
only to the fullest extent possible.
2. “Fullest extent” means compliance with
NEPA even if there is some overlap. Here,
court is focusing on the word “fullest.”
4. Congressional Exemptions – Requests for appropriations. Andrus
(U.S. 1979).
5. Emergencies – Possible exemption during emergencies. 40 C.F.R.
§ 1506.11.
6. National Security – See p. 265.
a. National Security Incidents. Winter v. NRDC.
b. FOIA Exemption. Weinberger v. Catholic Action of
Hawaii (U.S. 1981).
i. NEPA cannot compel disclosure of sensitive
national-security information.
c. See E&E 133–35.
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7. Enforcement Decisions – Courts are unlikely to compel
compliance with NEPA against the wishes of the executive.
Enforcement decisions are the province of the executive.
a. Reluctance to interfere with prosecutorial discretion.
8. Non-Discretionary Agency Decisions – NEPA does not apply. If a
decision is non-discretionary, it is mandatory.
a. DOT v. Public Citizen (U.S. 2004) – Agency had to allow
the trucks in, and nothing that the EIS could have said
would have affected that outcome.
9. If no exemption applies, an agency must comply with NEPA procedures. This does not
mean that an EIS is required.
a. Is an EIS required?
b. If unclear, agency conducts an environmental assessment (EA).
i. If no EIS is required, agency may implement action.
1. Agency must include a finding of no significant environmental
impact (FONSI).
2. No public comment period is required, unlike with EIS.
3. Decision may be challenged as a final agency action.
ii. Mitigated FONSI – Based on mitigation requirements that are accepted as
basis for decision that action will not have a significant environmental
impact.
1. CEQ on Mitigation Measures
a. Must be enforceable as a condition of final decision that an
EIS is not required.
b. Courts have tended to reach the conclusion that nothing in
NEPA requires an agency to implement the mitigation
measures on which it is relying. To hold otherwise would
impute substantive measures into NEPA.
c. Courts have required an adequate description of the
mitigation measures on which an agency is relying.
d. CEQ has issued a guidance document on mitigation
measures, which essentially amounts to non-enforceable
best practices.
i. Guidance documents are not enforceable against
anybody.
ii. Agencies may use commitments to perform or
performance by others for not preparing EISs, but
they should not rely on them if they are not
enforceable.
iii. Mitigation measures should be actually
implemented.
iv. Agencies should specify measureable performance
standards for minimization effects of mitigation
measures.
v. Time frame for mitigation commitment should be
established and specified clearly.
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c. Contents – “Brief discussions of the need for the proposal, of alternatives as
required by section 102(2)(E), of the environmental impacts of the proposed
action and alternatives, and a listing of agencies and persons consulted.” 40
C.F.R. § 1508.9(b).
10. Environmental Impact Statement
a. Required for “proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment.” § 102(2)(C).
b. “Federal”
i. Federal government’s authorization of a private project is sufficient to
make an action federal for purposes of § 102(2)(C).
ii. Federal Projects
iii. Federal projects carried out by private agencies.
iv. State and local projects if there is federal funding, control, or supervision.
40 C.F.R. § 1508.18.
1. Funding for preliminary is not enough  No final action.
2. Block grants sometimes suffice.
v. Divergent case law on whether federal action must constitute a significant
portion of the project.
1. Slater (6th Cir. 2001) – Federal agency must able to influence
outcome of project through sufficient control and responsibility.
c. “Action”
i. Timing
1. EIS required with every proposal.
2. “Proposal” defined at 40 C.F.R. § 1508.23.
3. Kleppe.
ii. Nondiscretionary Actions
1. NEPA does not apply. DOT v. Public Citizen (U.S. 2004).
a. NEPA’s purpose is to require agencies to consider
environmental consequences before taking action and
agency action is mandatory, then nothing in an EIS could
change an agency’s action. Therefore, an EIS is not
required.
iii. Inaction
1. No federal action “where an agency has done nothing more than
fail to prevent the other party's action from occurring.” Defenders
of Wildlife v. Andrus (D.C. Cir. 1980).
2. No federal action when agency’s neglect of statutory duties is other
than a deliberate decision not to act. Norton (U.S. 2004).
a. Federal action when agency refused to take required action.
d. “Major Federal Action”
i. Dual Standard – Hanley I (considering factors of cost of project; amount
of money in implementing action; magnitude of environmental affect;
scope and duration of agency’s planning process).
1. Must be significant as well.
ii. Unitary Standard – “Major” and “significant” mean the same thing.
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1. CEQ uses unitary standard. 40 C.F.R. § 1508.18 (“Major
reinforces but does not have a meaning independent of
significantly.”).
e. “Significantly Affecting”
i. Significance issue turns on two factors:
1. Context – Setting; taking an action in a forest is different than
taking the same action in New York City.
2. Intensity – Severity of action.
a. 40 C.F.R. § 1508.27(b) – Ten Factors relevant for
determining intensity.
i. Many relate equally to context.
ii. 40 C.F.R. § 1508.27 – Defines “significantly.”
iii. Standard of Review - § 706(2)(a): Arbitrary and Capricious Test
1. Applied to agency decisions that EIS is not required.
2. Hard Look Review tends to mean “not very hard look.”
3. A&C Test – Fairly deferential.
4. Courts look to Overton Park and Ocean Advocates factors.
a. Ocean Advocates – Courts defer to agency when there is a
conflict among experts.
5. Purely Legal Issues – Courts are more comfortable engaging in
rigorous review than when engaging in review of factual record.
6. Other Test in Ocean Advocates – How certain must it be that
adverse effects will occur? Test for significance.
a. There must be a substantial possibility that adverse effects
will occur. Ocean Advocates.
7. Other Courts’ Tests
a. Clear Error of Judgment – More deferential than substantial
possibility test.
f. “Human Environment”
i. See 40 C.F.R. § 1508.14.
ii. Encompasses all of the physical world around us.
iii. Does it also encompass social and economic impacts of agency proposals?
1. Qualified yes. Agency must consider them only if they are
associated with an impact on the physical environment.
2. Reflected in the definition of environment in the CFR.
iv. Causation/Psychological Effects
1. Alone do not require an EIS. Metropolitan Edison Company.
2. NEPA is limited to impacts on the physical environment.
3. Must be a reasonably close causal relationship between a change in
the physical environment and the effect at issue (here, fear).
4. Fear did not qualify as an effect on the human environment, and
even if it did, the causal relationship between reopening the
nuclear facility and the neighbors’ fear was too attenuated.
g. Controversial Actions
i. Engendering public opposition. 40 C.F.R. § 1508.27(b)(4).
ii. Must be pretty controversial.
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iii. Does not qualify if agency made a good faith effort to address concerns.
h. Climate Change
i. Differing case law. Depends on how attenuated the causal relationship is.
i. Terrorist Risks
i. Most courts – Only a speculative risk and thus not covered.
j. Other Statutes
i. Usually, agencies must comply with NEPA even if they have complied
with their own organic statutes.
k. If there is uncertainty about whether an EIS is required, CEQ requires EIS.
Babbitt.
l. Lack of information  EIS is required. Ocean Advocates.
11. Scope of EIS
a. Next Question: If an EIS is required, what is its scope?
i. Alternatives to proposed action.
ii. Segmentation of larger projects.
iii. Interrelated Projects – Multiple, smaller EISs; larger, comprehensive EIS.
b. Alternatives
i. CEQ – Heart of NEPA. 40 C.F.R. § 1502.14.
1. 40 C.F.R. § 1508.25(b)(1)–(3) – Alternatives:
a. No action alternative.
b. Other reasonable courses of actions.
c. Mitigation measures (not in the proposed action).
ii. § 102(2)(C)(iii) – EIS must contain “alternatives to the proposed action.”
iii. § 102(2)(E) – “Study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available resources.”
iv. Primary Alternative – An action other than the one an agency has
proposed that would substitute for the proposed action and accomplish the
agency’s goals in a different manner.
1. E.g., switching from nuclear power plant to coal power plant.
2. Morton (D.C. Cir. 1972).
a. Read alternative requirement broadly.
b. Must discuss all relevant primary alternatives in EIS, even
if beyond scope of agency’s statutory authority. E.g.,
legislative action.
c. Subject to “rule of reason.”
3. Vermont Yankee (U.S. 1978).
a. Affirmed “rule of reason.”
b. Alternatives must be feasible; need not consider remote or
speculative alternatives.
c. Content of alternatives is evolving, and what an agency will
consider depends on the available information.
d. Deferential role of courts.
v. Secondary Alternative – An action other than the one an agency has
proposed that retains the agency’s proposal but modifies it to reduce its
adverse environmental effects.
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1. E.g., changing location or materials.
2. Courts are more likely to strike down an EIS for this reason, than
for failing to consider primary alternatives.
vi. “No Action” Alternative – Decision to abandon project. Maintain status
quo.
1. 40 C.F.R. § 1502.14(2).
2. Establishes baseline.
vii. Purpose and Need Requirement
1. 40 C.F.R § 1502.13.
2. If you narrow the statement of purpose, you narrow the range of
alternatives to consider.
3. If an alternative is incompatible with the purpose and need of the
project, an agency need not consider it.
4. Courts are deferential to agency statements of purpose.
viii. 40 C.F.R. § 1502.14(c) – Alternatives outside scope of statutory authority.
1. Are agencies able to consider alternatives outside the scope of their
statutory authority?
a. If an agency cannot pursue a particular option, what is the
point of forcing them to consider such options?
b. If an agency is to reduce potential adverse environmental
impacts, then it should consider all possible alternatives?
2. Case law is not clear on this question. Courts are likely to agree
with CEQ regulation, but there is a point at which unfeasible
alternatives no longer warrant consideration.
ix. Range of Alternatives
1. Limited by feasibility if they appear comprehensive.
2. Courts are deferential.
x. Special provisions for DOT, FAA and aviation projects, and forestry. See
p. 282.
c. Segmentation
i. See E&E 112–14.
ii. Problem
1. Agencies break a single, consolidated project into smaller projects.
Each project in isolation has effects well below the line whereby
an EIS is required, and therefore, a FONSI is appropriate. The
agencies consider each in isolation and say that they are
independent and have nothing to do with each other.
2. Another Path – Segment a large project into smaller chunks and
prepare EISs for each. These EISs, however, will portray the
effects of the smaller projects as minimal.
iii. Highway Segmentation – Usually approved.
iv. Purpose – Helps to show either independent utility (segmentation) or part
of larger project (no segmentation).
v. Interrelated Projects
vi. Staged Projects
vii. Florida Keys Citizens Coalition (S.D. Fla. 2005).
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1. Agency was justified in limiting review of bridge alone.
2. No need to consider cumulative effects - Court said that any
cumulative analysis would be speculative. Therefore, they were
not required to consider projects with unclear parameters. 40
C.F.R. § 1508.25(2).
d. Project Impact Statements (PEIS)
i. A number of related actions in one impact statement.
ii. Site-Specific Impact Statements – Need decided later.
1. See p. 293.
2. § 1502.20.
iii. Broad Federal Action – Require a PEIS.
1. Criteria – 40 C.F.R. 1502.4(c).
iv. Do a bunch of small actions gathered together constitute a proposal?
1. Kleppe (U.S. 1976).
a. § 1508.23 – Defines when a proposal occurs.
i. Kleppe requires an agency announcement that a
proposal exists.
ii. Regulation seems to contemplate proposals before
an agency announcement.
iii. “The effects can be meaningfully evaluated” –
Qualifier on goal-plus means test.
iv. “A proposal may exist in fact as well as by agency
declaration that one exists.” – Court can declare the
existence of a proposal when an agency declares
one. This much, at least, is consistent with Kleppe.
1. See NRDC v. Hodel (Court concluded that a
proposal existed though agency had not
announced one.).
b. No proposal  No EIS/NEPA did not apply.
i. No EIS required at program planning stage.
c. If numerous actions are proposed at the same time, a PEIS
may be required if the proposed actions have a cumulative
environmental impact on the region.
d. Kleppe allows an agency to define when a proposal occurs.
Until the agency announces to the world that there is a
proposal, there is no proposal.
v. Voluntary Programmatic EIS
1. Section 1508.28 – Definition of “tiering.”
a. “Tiering refers to the coverage of general matters in
broader environmental impact statements (such as national
program or policy statements) with subsequent narrower
statements or environmental analyses (such as regional or
basinwide program statements or ultimately site-specific
statements) incorporating by reference the general
discussions and concentrating solely on the issues specific
to the statement subsequently prepared.”
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2. May minimize burdens of NEPA compliance.
a. Avoids piecemeal approach, which consumes more costs.
b. (1) Programmatic EIS will mean that individual EAs will
not rise to level where EISs are required.
c. (2) Also will allow narrower, site-specific EISs.
d. This is called “tiering.”
3. Danger – Programmatic EIS may be broad and not very specific.
Then, when agency refers back to programmatic EIS when
preparing site-specific EISs, it avoids the burden of analyzing
issues with any specificity. Tiering is a danger in this way.
vi. Connected, Cumulative, and Similar Actions
1. Must be considered in same EIS.
2. 40 C.F.R. § 1508.25(a).
3. See pp. 293–94; E&E 111.
4. Connected – Closely related and therefore should be discussed in
the same impact statement.
a. Actions are connected if they:
i. Automatically trigger other actions which may
require environmental impact statements.
ii. Cannot or will not proceed unless other actions are
taken previously or simultaneously.
iii. Are interdependent parts of a larger action and
depend on the larger action for their justification.
b. If actions are connected in one of these ways, agency must
prepare a single EIS.
c. Thomas v. Peterson (Page 294) – Cannot harvest timber
unless you have roads.
5. Cumulative – When viewed with other proposed actions have
cumulatively significant impacts and should therefore be discussed
in the same impact statement.
a. Sequential
b. Same kind of activity
c. May need to be discussed in a single EIS.
6. Similar – When viewed with other reasonably foreseeable or
proposed agency actions, have similarities that provide a basis for
evaluating their environmental consequences together, such as
common timing or geography.
a. An agency may wish to analyze these actions in the same
impact statement. It should do so when the best way to
assess adequately the combined impacts of similar actions
or reasonable alternatives to such actions is to treat them in
a single impact statement.
b. May or may not need to be evaluated in a single EIS.
12. Adequacy of EIS
a. See Salzman 329–32.
b. Next Question: Is the EIS that the agency has prepared adequate?
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i. More difficult to show that an EIS is inadequate than to show that an
agency should have, but did not, prepare an EIS.
c. Contents of EIS
i. 42 U.S.C. § 4332 (2)(C)(i)–(v).
1. Focus
a. (i) the environmental impact of the proposed action.
b. (iii) alternatives to the proposed action.
2. Secondary
a. (ii) any adverse environmental effects which cannot be
avoided should the proposal be implemented.
d. Substantive v. Procedural Problem
i. See E&E 130–31.
ii. NEPA is entirely procedural. It does not mandate particular results but
simply describes the necessary process.
iii. Substantive Duty – Agency’s responsibility to reject or modify a proposal
for action because of unsatisfactory EIS.
iv. Procedural Duty – Duty to comply with NEPA procedures for preparation
of EIS.
v. Judicial Review
1. Court cannot reverse an agency’s decision if NEPA procedure has
been followed.
2. Deferential
3. Standards
a. Arbitrary and Capricious Standard
b. Rule of Reason. See pp. 314–15.
4. Reversing a NEPA decision:
a. Argue that agency decision is arbitrary and capricious
under APA.
b. A & C argument must be made under agency’s organic
statute, not NEPA. Must make reference to factors in
substantive statute, which may or may not be
environmental.
c. Can use NEPA noncompliance as evidence that agency
violated its organic statute. If agency takes an
environmentally harmful action after an EIS, this likely will
not comply with the purpose of its organic statute.
d. This is a way to use an EIS to reverse an agency decision.
5. Reversing Based on NEPA
a. Must show procedural defects.
i. An EIS should have been prepared and was not.
ii. An EIS was prepared, but it was inadequate.
6. Sylva v. Linn (1st Cir. 1973) – Elaborating three-part judicial
review test.
7. Typical Remedy – Preliminary injunction until court makes final
decision.
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a. All NEPA cases should be accompanied by requests for
preliminary injunctions. They should include lists of the
equities:
i. Harm caused by failure to issue an injunction; and
ii. Whether public interest supports issuance of
preliminary injunction.
b. Cases have made this more difficult. Winter; Monsanto.
i. Raised the threshold showing that a plaintiff must
make that it has or will suffer irreparable injury.
This showing is an absolute prerequisite.
ii. Denied that an injunction is the presumptively
proper remedy for a NEPA violation. Imposes
more rigorous showing requirement on plaintiff.
e. Cost-benefit analysis not required by NEPA.
i. See E&E 126–27.
f. Expert Opinion
i. See pp. 307–08.
ii. Courts do not resolve disagreements.
iii. Agency may choose to rely on one expert.
iv. Reasoned scientific explanations are required however.
g. CEQ requires consideration of direct, indirect, and cumulative environmental
consequences of proposed action and any alternatives. Grand Canyon Trust (D.C.
Cir. 2002) (requiring consideration of five factors in order to conduct meaningful
cumulative impact analysis).
i. Cumulative Impact Problem is different than segmentation problem. See
pp. 313–14.
ii. Indirect Effects – Must be considered in EIS.
1. See p. 316.
2. § 1508.3(b).
h. Mitigation Measures
i. See E&E 129–30.
ii. Must be considered in EIS. Robertson (U.S. 1989).
1. Need not be formulated and adopted. Would make NEPA
substantive.
2. NEPA imposes a duty only to discuss mitigation, but no duty to
actually mitigate.
iii. Organic statute may require agency to mitigate, but not NEPA.
13. Supplemental EIS
a. See pp. 324–25; E&E 117–18.
b. Section 1502.9(c)(1) - Agencies: (1) Shall prepare supplements to either draft or
final environmental impact statements if: (i) The agency makes substantial
changes in the proposed action that are relevant to environmental concerns; or (ii)
There are significant new circumstances or information relevant to environmental
concerns and bearing on the proposed action or its impacts.
c. Either obligation may trigger an a supplemental EIS.
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d. Norton – Obligation to supplement only applies as long as there is an ongoing,
major, federal action. Once it stops, there is no need to prepare a supplemental
EIS.
e. Marsh (U.S. 1989).
i. Follows rule of reason in determining whether EIS is required.
ii. Set out criteria to determine whether SEIS is necessary.
Endangered Species Act
1. Reasons to Be Concerned About Biodiversity
a. Utilitarian (Predominant Rationale)
i. Plants and animals have uses directly and indirectly benefiting people,
and we don’t know the extent of this. E.g., medicine.
1. See p. 335.
ii. Healthiest ecosystems are the richest in biodiversity. Better adaption
when change occurs.
iii. Canary in the Coalmine – Endangered species are the canaries. Signal
problems with ecosystems.
b. Aesthetic
i. Preserving natural beauty.
ii. Nature and animals as powerful symbols worth preserving.
c. Ethical
i. Present generation has a moral obligation to provide an equally rich
biological stock to future generations. We should not use irreplaceable
resources to satisfy our piggish, short-term needs.
ii. Other organisms have intrinsic worth, and we should not contribute to
their disappearance.
2. Administration – Two Agencies
a. FWS
b. National Marine Fisheries Service (NMFS or NOAA)
3. Purposes of ESA
a. Passed in 1973.
b. 16 U.S.C. § 1531(b) – “The purposes of this chapter are to provide a means
whereby the ecosystems upon which endangered species and threatened species
depend may be conserved, to provide a program for the conservation of such
endangered species and threatened species, and to take such steps as may be
appropriate to achieve the purposes of the treaties and conventions set forth in
subsection (a) of this section.”
i. Definition of Conserve – “The terms “conserve”, “conserving”, and
“conservation” mean to use and the use of all methods and procedures
which are necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant to this
chapter are no longer necessary.” § 1532(3) (emphasis added).
1. Illustrates comprehensive protection afford by ESA. See also §§
1538; 1533(d); 1533(c)(2); 1540(c), (g). See pp. 349–50.
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c. Most members of Congress thought they were protecting, e.g., bald eagles, grizzly
bears, etc., and not, e.g., beetles.
i. See TVA v. Hill (discussing congressional intent on pp. 350–51).
4. Most Hated Environmental Statute – Constrains development. Most hated and ridiculed
federal environmental statute by developers. Most apparent when it protects seemingly
unimportant species.
5. Relevant Sections
a. 16 U.S.C. § 1533 – Process of listing endangered or threatened species.
i. § 1532 – Definitions
ii. Endangered v. Threatened
1. Endangered – “The term “endangered species” means any species
which is in danger of extinction throughout all or a significant
portion of its range . . . .” § 1532(6). See also p. 356 (discussing
range).
a. Protected more thoroughly than threatened species.
2. Threatened – “The term “threatened species” means any species
which is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.” § 1532(20).
3. Difference between “endangered” and “threatened” is degree and
immediacy of risk of extinction.
iii. Species – “The term “species” includes any subspecies of fish or wildlife
or plants, and any distinct population segment of any species of vertebrate
fish or wildlife which interbreeds when mature.” § 1532(16).
1. Distinct populations not always recognized. See pp. 356–57.
b. 16 U.S.C. § 1538 – Prohibits taking of endangered species by private individuals
or government agencies.
i. § 1539 – Exceptions.
c. 16 U.S.C. § 1536 (§ 7) – Imposes procedural and substantive obligations on
federal government.
i. Applies to federal agencies, not private individuals.
ii. Has procedural and substantive components, unlike NEPA.
iii. Substantive Obligations
1. § 1536(a)(1) – “Carrying out programs for the conservation of
endangered species and threatened species.”
2. § 1536(a)(2) – “Each Federal agency shall, in consultation with
and with the assistance of the Secretary, insure that any action
authorized, funded, or carried out by such agency is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse
modification of habitat.”
6. Listing
a. Initial Listing Decision – Secretary of Interior has exclusive authority to
determine whether a species is endangered or threatened and to ascertain the
factors leading to such a state. 16 U.S.C. § 1533(a)(1).
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b.
c.
d.
e.
f.
i. Affirmative, categorical command – “Each Federal agency shall . . . insure
that any action authorized, funded, or carried out by such agency . . . is not
likely to jeopardize the continued existence of any endangered species or
threatened species.” § 1536(a)(2).
ii. Factors Considered – “The Secretary shall make determinations required
. . . solely on the basis of the best scientific and commercial data available
to him after conducting a review of the status of the species and after
taking into account those efforts, if any, being made by any State or
foreign nation, or any political subdivision of a State or foreign nation, to
protect such species, whether by predator control, protection of habitat and
food supply, or other conservation practices, within any area under its
jurisdiction, or on the high seas.” § 1533(b)(1)(A).
iii. Economic Costs of Listing – NO CONSIDERATION. TVA v. Hill;
Arizona Cattle Growers’ Assoc.
1. Statute imposes an absolute prohibition whatever the cost. Sunk
costs do not matter. TVA v. Hill (requiring dam operations to stop
to save an endangered species, regardless of the economic cost).
2. No remedy when ESA listing requires a project to cease operations
 ESA prohibits utilitarian calculations and speaks wholly in
favor of endangered species conservation. TVA v. Hill.
a. Judicial Deference – Court recognizes its ignorance as to
value of species and decides not to allow it to be destroyed.
TVA v. Hill.
b. Separation of Powers – Congress clearly did not intend this
sort of balancing to occur. Court may infringe Congress’
authority. TVA v. Hill.
iv. Listing is necessary to give species full protection of ESA.
Five factors under which a species may be listed. One must be met.
§ 1533(a)(1)(A)–(E).
i. The present or threatened destruction, modification, or curtailment of its
habitat or range;
ii. Overutilization for commercial, recreational, scientific, or educational
purposes;
iii. Disease or predation;
iv. The inadequacy of existing regulatory mechanisms; or
v. Other natural or manmade factors affecting its continued existence.
Neither EA nor EIS is required for listing. See E&E 588–89.
Once listed, “the Secretary shall issue such regulations as he deems necessary and
advisable to provide for the conservation of such species.” § 1533(d).
Recovery Plans
i. See 16 U.S.C. § 1533(f); E&E 589.
ii. Required for each listed species.
iii. Most courts think recovery plans are not enforceable.
Judicial Review – Reviewable because based on a scientific record.
i. Courts intervene only if (1) significant departure from scientific mandate
of statute or (2) procedural violations.
69
7. Designation
a. See E&E 589–92; Salzman 281–301.
b. Stat. Mandate – “The Secretary, by regulation promulgated in accordance with
subsection (b) of this section and to the maximum extent prudent and
determinable . . . shall, concurrently with making a determination . . . that a
species is an endangered species or a threatened species, designate any habitat of
such species which is then considered to be critical habitat.” 16 U.S.C.
§ 1533(a)(3)(A).
i. Definition of Critical Habitat – 16 U.S.C. § 1532(5).
ii. Decision Whether to Designate – NO ECONOMIC CONSIDERATION.
Salzman 291.
iii. Decision How Much and Which Habitat to Designate – ECONOMIC
COSTS MAY BE CONSIDERED. Salzman 291.
1. See p. 357 (discussion range of land that may be designated).
iv. Factors – “The Secretary shall designate critical habitat, and make
revisions thereto, . . . on the basis of the best scientific data available and
after taking into consideration the economic impact, the impact on
national security, and any other relevant impact, of specifying any
particular area as critical habitat.” § 1533(b)(2).
1. May not choose not to designate if it will result in extinction.
§ 1533(b)(2).
2. Economic impact of listing is irrelevant. § 1533(b)(1)(A)
(determinations based on “best scientific and commercial data
available”).
3. Broader range of factors than at listing stage.
v. “The Secretary may exclude any area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based on the
best scientific and commercial data available, that the failure to designate
such area as critical habitat will result in the extinction of the species
concerned.” § 1533(b)(2).
1. Cost-Benefit Analysis – Allows secretary to exclude areas from
critical habitat if economic impact outweighs value of designating
the area.
c. Critical habitat designation need not identify point in time at which ESA’s
protections no longer will be necessary. Homebuilders of N. Cal. v. Fish &
Wildlife Serv., 616 F.3d 983 (9th Cir. 2010).
i. No precise date is necessary for compliance.
ii. FWS may determine which elements are necessary without determining
precisely when conservation efforts under ESA are no longer necessary.
iii. ESA requires a determination of criteria for when a species will be
conserved, at which point it adopts a recovery plan.
iv. Congress required specific date identification in other contexts, but it did
not in this regard, so the Court determined that it is not necessary.
d. Designation should occur concurrently with listing. § 1533(a)(3)(A).
i. Often does not occur. See p. 357.
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ii. Non-designation does not excuse non compliance with ESA.
e. Economic Cost of Designation
i. See Glicksman’s Power Point slides. Very helpful.
ii. Which approach is best is very debatable. See Arizona Cattle Growers’
Assoc. pp. 353–54 for a defense of the baseline approach.
iii. Baseline Approach – “Under the baseline approach to economic analysis
under the Endangered Species Act, any economic impacts of protecting a
species that will occur regardless of the critical habitat designation--in
particular, the burdens imposed by listing the species--are treated as part
of the regulatory "baseline" and are not factored into the economic
analysis of the effects of the critical habitat designation.” Arizona Cattle
Growers’ Assoc. (using baseline approach)
1. Baseline approach ignores economic impact of listing when
judging the economic impact of critical habitat designation. ESA
requires economic consideration for the latter, but not the former.
2. If the entirety of the economic impact would be attributable to
listing, then the agency ignores it when considering the economic
impact of designation. It is irrelevant.
iv. Coextensive Approach – “Under the co-extensive approach, the agency
must ignore the protection of a species that results from the listing
decision in considering whether to designate an area as critical habitat.
Any economic burden that designating an area would cause must be
counted in the economic analysis, even if the same burden is already
imposed by listing the species and, therefore, would exist even if the area
were not designated.” Arizona Cattle Growers’ Assoc. (rejecting coextensive approach); New Mexico Cattle Growers Assoc. (using coextensive approach).
1. Agency would consider all of the economic impact after
designation, including that caused by listing. It’s all relevant as
long as it relates to designation.
f. After critical habitat is designated, the ESA requires that “each Federal agency
shall, in consultation with and with the assistance of the Secretary, insure that any
action . . . is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse modification
of habitat of such species.” § 1536(a)(2).
i. Applies to both listing and designation.
ii. Applies only to discretionary agency actions. National Association of
Home Builders (citing 50 C.F.R. § 402.03).
1. “We read 50 C.F.R. § 402.03 to mean what it says: that §
1536(a)(2)'s no-jeopardy duty covers only discretionary agency
actions and does not attach to actions that an agency is required by
statute to undertake once certain specified triggering events have
occurred.”
iii. Definition of “Destruction or Adverse Modification” – “Destruction or
adverse modification means a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and recovery
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of a listed species. Such alterations include, but are not limited to,
alterations adversely modifying any of those physical or biological
features that were the basis for determining the habitat to be critical.” 50
C.F.R. § 402.02.
iv. Definition of “Jeopardy” – “Jeopardize the continued existence of means
to engage in an action that reasonably would be expected, directly or
indirectly, to reduce appreciably the likelihood of both the survival and
recovery of a listed species in the wild by reducing the reproduction,
numbers, or distribution of that species.” 50 C.F.R. § 402.02.
v. Gifford Pinchot.
vi. Cape Hatteras (D.D.C. 2004). See p. 355.
1. Discussed baseline approach and “functional equivalence”
approach.
2. Functional Equivalence Approach Explained – FWS: “[A] project
that is unlikely to jeopardize the continued existence of a species is
not likely to destroy or adversely modify critical habitat.
Therefore, on occupied critical habitat, consultations and project
modifications are likely to flow from the listing of the species, and
no additional consultations or project modifications are likely to
result as a “but for” effect of the critical habitat designation. . . .
Circuit courts are uncomfortable with this syllogism that threatens
to, as a practical matter, remove from consideration the economic
analysis required by statute.”
3. Reactions
a. 10th Cir. – Invalidated baseline approach.
b. 5th, 9th Cir. – Invalidated functional equivalence approach.
vii. Impact of Gifford Pinchot and Cape Hatteras.
1. Any project that adversely modifies critical habitat probably
already impairs survival, which will lead to listing as an ES.
2. These cases suggest that some adverse-modification actions may
threaten recovery, but not survival, and thus will fall outside the
listing arena.
g. 16 U.S.C. § 1533(b)(2) – Secretary may exclude an area from critical habitat if
economic benefits outweigh conservation benefits.  UNLESS EXTINCTION.
8. Agencies’ Compliance with 16 U.S.C. § 1536(a)(2). See p. 367 (note 2); E&E 590–91.
a. Step One – Notify FWS (or other agency) of whether agency is aware of any
listed species affected by the project.
b. Step Two – FWS determines whether the project would affect any listed species.
i. Gifford Pinchot. See p. 368.
1. Habitat Proxy – EPA may assess impact of proposed action on
species habitat, rather than assessing the impact on the species
itself. The one serves as the proxy of the other.
2. Species may be jeopardized by impacts on portions of their
environments not designated as critical habitat. Looking at
different habitats under the no-jeopardy and adverse modification
prongs.
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c. Step Three – FWS may then tell the agency that it may proceed without any
further ESA concerns. Happens at the end of informal consultation.
d. Step Four – If there would be jeopardy or adverse modification, then FWS must
engage in formal consultation with agency.
i. Negative impacts on critical habitat need not be permanent to amount to
adverse modification.
e. Step Five – After formal consultation, FWS issues a biological opinion as to
whether project is likely to result in jeopardy or adverse modification measures.
FWS must include mitigation measures in its biological opinion. Action agency
is not required to implement recommended and prudent alternatives. (That’s why
they’re recommended.) However, most agencies implement the mitigation
measures because if they fail to they may be in violation of two ESA provisions.
i. Practical Implications of Accepting RPAs – This will affect scope of the
projects. It may reduce the temporal duration of the project.
ii. See National Association of Home Builders (pp. 358–59).
iii. Judicial Review of Biological Opinions – Arbitrary and capricious
standard.
1. See pp. 367–68.
f. After jeopardy opinion  agency must (1) terminate project, (2) implement
RPAs, or (3) seek exemption from God Committee.
9. Reconciling Incompatible Statutes. National Association of Home Builders.
a. Court disfavors repeals by implication. National Association of Home Builders.
i. Court will not find one unless Congress’ intent to repeal an earlier statute
is clear and manifest, i.e., absolutely necessary to give any meaning to
later statute.
ii. § 1536(a)(2) – “Reading the provision broadly would thus partially
override every federal statute mandating agency action by subjecting
such action to the further condition that it pose no jeopardy to endangered
species.”
iii. Court will not read ESA to create implicit repeal of CWA. National
Association of Home Builders.
b. To avoid direct statutory conflict, Court cites 50 C.F.R. § 402.03, saying that
§ 1536(a)(2) applies only to discretionary agency actions.
i. Because statutory language does not clearly indicate guidance  Defer to
agency interpretation (i.e., C.F.R.) under Chevron deference.
ii. “We read 50 C.F.R. § 402.03 to mean what it says: that § 1536(a)(2)'s nojeopardy duty covers only discretionary agency actions and does not attach
to actions (like the NPDES permitting transfer authorization) that an
agency is required by statute to undertake once certain specified triggering
events have occurred. This reading not only is reasonable, inasmuch as it
gives effect to the ESA's provision, but also comports with the canon
against implied repeals because it stays § 1536(a)(2)'s mandate where it
would effectively override otherwise mandatory statutory duties.”
iii. Supported by TVA v. Hill. See p. 363.
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iv. Court rejects argument that transferring NPDES permitting authority
under the CWA to a state is discretionary. It must be done once certain
criteria are met. See ppp. 363–64.
10. Climate Change – See p. 367 (note 1).
11. Affirmative Conservation Duty
a. § 1536(a)(1) – “All other Federal agencies shall, in consultation with and with the
assistance of the Secretary, utilize their authorities in furtherance of the purposes
of this chapter by carrying out programs for the conservation of endangered
species and threatened species listed pursuant to section 1533 of this title.”
i. § 1536(a)(2) is phrased in negative terms. Agencies are required to refrain
from harmful actions. No-jeopardy duty.
ii. § 1536(a)(1) is phrased in affirmative terms. Agencies must take
affirmative steps. Affirmative conservation duty.
iii. Much less litigation over (a)(1) than (a)(2).
1. Sierra Club v. Glickman.
2. Affirmative Conservation duty applies to FWS. Andrus. Page
369.
12. Section 9 Taking Prohibition
a. See E&E 596–98; Salzman 292–94.
b. 16 U.S.C. § 1538(a)(1)(B) – “Except as provided in §§ 1535(g)(2) and 1539 of
this title, with respect to any endangered species of fish or wildlife listed pursuant
to § 1533 of this title it is unlawful for any person subject to the jurisdiction of the
United States to . . . take any such species within the United States or the
territorial sea of the United States.”
i. Applies only to listed fish and wildlife, not listed plants.
1. Bars only taking of endangered fish or wildlife, not threatened fish
or wildlife. But FWS is going to exercise its discretion to apply
the provision to threatened species.
ii. Applies to federal agencies and private individuals (unlike § 1536, which
applies only to federal agencies).
iii. Exceptions – (1) Those permitted by God Committee or (2) incidental
takings under § 1539.
iv. Violators are subject to real criminal penalties, e.g., 1 year in prison.
c. Definitions
i. Take – “The term “take” means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any such
conduct.” § 1532(19).
1. Interpreted broadly.
ii. Harass – “Harass in the definition of “take” in the Act means an
intentional or negligent act or omission which creates the likelihood of
injury to wildlife by annoying it to such an extent as to significantly
disrupt normal behavioral patterns which include, but are not limited to,
breeding, feeding, or sheltering.” 50 C.F.R. § 17.3.
iii. Harm – “Harm in the definition of “take” in the Act means an act which
actually kills or injures wildlife. Such act may include significant habitat
modification or degradation where it actually kills or injures wildlife by
74
significantly impairing essential behavioral patterns, including breeding,
feeding or sheltering.” 50 C.F.R. § 17.3.
1. Modification of habitat can invoke a § 9 taking. To establish harm,
must show impairment to the essential behavioral patterns listed in
definition of “harm.”
a. Harm may be imminent, but cannot be too speculative.
d. No Taking – Must show no imminent actual injury to species or habitat.
i. For harm, one-time instances are not enough. Neither is numerical
probability or scientific data.
ii. Need actual injury.
e. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon
i. Congress intended to protect wildlife habitat in two different ways:
1. Federal government may acquire important land.
2. Through § 1536 duties, including those to avoid jeopardy or
destruction or adverse modification of habitat.
ii. Court held that “the § 9 prohibition on takings, which Congress defined to
include "harm," places on respondents a duty to avoid harm that habitat
alteration will cause the birds unless respondents first obtain a permit
pursuant to § 10.”
1. Offered three textual arguments in support. See pp. 371–72.
2. Rejected argument that “the Secretary's only means of forestalling
that grave result [harm caused by habitat alteration]--even when
the actor knows it is certain to occur--is to use his § 5 authority to
purchase the lands on which the survival of the species depends.”
iii. O’Connor, Concurring – Proximate Cause
1. “I see no indication that Congress, in enacting [§ 1538(a)(1)],
intended to dispense with ordinary principles of proximate
causation.”
2. “I note, at the least, that proximate cause principles inject a
foreseeability element into the statute, and hence, the regulation,
that would appear to alleviate some of the problems noted by the
dissent.”
3. This allows the takings prohibition to apply in circumstances such
as, “the landowner who drains a pond on his property, killing
endangered fish in the process.”
a. Do not want this private individual to be able to harm
endangered species just because he did not apply the force
directly. Proximate causation allows § 1538(a)(1) to reach
him.
f. Habitat Modification as Taking Before Actual Injury?
i. Yes, reasonably certain threats of imminent harm to a protected species
and threats of future harm suffice. Marbled Murrelet. See conflicting case
law on pp. 375–76. But see:
1. NWF – “The plaintiff must make a showing that a violation of the
act is at least likely in the future.” Speculative future harms are not
good enough.
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2. American Bald Eagle – “courts have granted injunctive relief only
where petitioners have shown that the alleged activity has actually
harmed the species or if continued will actually, as opposed to
potentially, cause harm to the species.”
g. Failures to Act as Takings
i. Scalia, Dissenting in Babbitt – Failure to act never can qualify as a taking.
ii. It may qualify as a taking though. Some argue that a preexisting duty to
act is a prerequisite. This is what the government argued in its amicus
brief in Babbitt. Glicksman has a hard time imagining where this
preexisting duty would come from, but it might come from the affirmative
conservation duty, i.e., agency violates duty by failing to adopt a
conservation program.
h. Section 10 Incidental Takings
i. See p. 376; Salzman 295.
ii. 16 U.S.C. § 1539(a)(1)(B) – “The Secretary may permit, under such terms
and conditions as he shall prescribe . . . any taking otherwise prohibited by
section 1538(a)(1)(B) of this title if such taking is incidental to, and not
the purpose of, the carrying out of an otherwise lawful activity.”
iii. Why Exception for Incidental Takings – Purpose of land development is
not to kill species. If taking provision required a direct application of
force, it never would be invoked. People usually do not go into the woods
and kill endangered species. Reading the taking provision as requiring
direct application of force would render it superfluous.
iv. Incidental take permit need not specify number of animals killed that will
amount to take. Ecological conditions could be used if no such numerical
value could be practically obtained. Arizona Cattle Growers Assoc.
13. Exemption Mechanisms
a. ES Committee (“God Squad”) may issue exemptions from the no-jeopardy
provision under § 1536(e)-(h).
i. Criteria for exemption are rigorous.
ii. Committee has issued exemptions only a few times, and one issuance was
reversed.
b. FWS may issue exemptions for private individuals from the take prohibition by
issuing incidental take permits under § 1539(a).
i. Must not appreciably reduce the survival or recovery of species.
c. FWS may issue an incidental take statement under § 1536(b)(4) and (o) that
shields a federal agency action that complies with the no-jeopardy provision (and
the conditions of the incidental take statement), but that nevertheless causes the
incidental take of listed species, from being regarded as violations of § 1538(a)’s
take prohibition.
14. Support and Criticism of ESA’s Effectiveness
a. See p. 376.
Clean Air Act
Introduction
76
1. See pp. 389–90 (discussing why it is appropriate to study CAA before other major
pollution control statutes).
2. States are at heart of CAA (and CWA).
Air Pollution: Types, Sources, Impacts & Control Techniques
1. Pollutants & Their Sources
a. Naturally Occurring Air Pollution – Hydrocarbons; hydrogen sulfide; carbon
monoxide from forest fires and volcanoes; background radiation; etc.
i. See p. 391.
b. Criteria Pollutants
i. Six Criteria Pollutants
1. Carbon Monoxide
2. Nitrogen Oxides
3. Hydrocarbon Compounds
4. Ozone
5. Lead
6. Sulfur Dioxide
ii. “Criteria” refers to scientific criteria.
iii. Levels have significantly declined.
iv. But millions still live with polluted air.
c. Other Pollutants – Arsenic, beryllium, cadmium, mercury, asbestos, chlorine,
radioactive substances, organic compounds, etc.
d. Total Suspended Particulates (TSPs) – Collection of solid or liquid particles, e.g.,
dust, pollen, soot, metals, chemicals, etc., dispersed in atmosphere.
i. Composition and size determine public health risk.
ii. Cause many health problems, e.g., asthma.
e. Primary v. Secondary Pollutants
i. Primary – Directly emitted as a result of human activities.
ii. Secondary – Form when human emissions combine with naturally
occurring materials.
1. Must curtail primary pollutants to curtail secondary pollutants.
f. Adverse Health Effects – Very attenuated, but real.
g. Vehicles as a Source of Pollution – Percentage of VOC emissions attributable to
cars has declined since 1970s.
h. Pro & Con Arguments – See pp. 399–400.
i. Pro – CAA has produced benefits worth trillions at a cost of billions.
ii. Con – Costs have outweighed benefits.
i. Environmental Justice – Minorities and low-income people face worse air quality
than the wealthy and whites.
2. Relies on technology-based approach.
a. Alternatives – Harm-based; market-based; remedial-liability-based approaches.
i. [Glicksman wants us to be able to recognize statutes that use these
approaches without having seen them before.]
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b. No federal statute relies on one approach to the exclusion of the others. All are
hybrids to some extent.
3. First Step – What is the goal? What level of protection are we aiming to provide?
a. Informal Goal – Clean air; air that people can breathe without becoming sick.
i. Absolute protection is rarely desirable, even if achievable.
1. Air and water are able to absorb certain amounts of pollution
without causing any discernable adverse effects.
b. Official Goal – Protection of public health with an adequate margin of safety.
i. See § 101(b)(1) (describing paramount goals of CAA).
ii. NAAQS – Principal mechanism of CAA.
1. Some pollutants: EPA has issued short- and long-term NAAQSs.
a. Maximum concentrations over three hours (short) or one
year (long).
b. Isolated instances of pollution can create severe health
risks, which are different from those produced by more
incremental, longer-term pollution. This illustrates why
annual limits alone are insufficient. Short-term
concentration limits also are required.
iii. 42 U.S.C. § 7409(b)(1) – “National primary ambient air quality standards,
prescribed under subsection (a) of this section shall be ambient air quality
standards the attainment and maintenance of which in the judgment of the
Administrator, based on such criteria and allowing an adequate margin of
safety, are requisite to protect the public health. Such primary standards
may be revised in the same manner as promulgated.”
1. Primary NAAQS.
2. Our primary focus will be here. EPA has focused almost all of its
attention here and has not addressed § 7409(b)(2) extensively.
3. Margin of Safety – Required because of scientific uncertainty
regarding air pollution. We want to provide a buffer against
erroneous determinations.
a. Precautionary: err on the side of overregulation. Preference
for false positives, rather than false negatives.
iv. § 7409(b)(2) – “Any national secondary ambient air quality standard
prescribed under subsection (a) of this section shall specify a level of air
quality the attainment and maintenance of which in the judgment of the
Administrator, based on such criteria, is requisite to protect the public
welfare from any known or anticipated adverse effects associated with the
presence of such air pollutant in the ambient air. Such secondary
standards may be revised in the same manner as promulgated.”
1. Secondary NAAQS.
2. EPA has not addressed § 7409(b)(2) as extensively as it has
§ 7409(b)(1).
3. Welfare – Defined in § 7602(h). “All language referring to effects
on welfare includes, but is not limited to, effects on soils, water,
crops, vegetation, manmade materials, animals, wildlife, weather,
visibility, and climate, damage to and deterioration of property,
78
and hazards to transportation, as well as effects on economic
values and on personal comfort and well-being, whether caused by
transformation, conversion, or combination with other air
pollutants.”
4. Criteria Pollutants
a. Six Criteria Pollutants Requiring NAAQSs:
i. Carbon Monoxide
ii. Nitrogen Oxides
iii. Hydrocarbon Compounds
iv. Ozone
v. Lead
vi. Sulfur Dioxide
b. 42 U.S.C. § 7408(a)(1) – “For the purpose of establishing national primary and
secondary ambient air quality standards, the Administrator shall within 30 days
after December 31, 1970, publish, and shall from time to time thereafter revise, a
list which includes each air pollutant.”
c. § 7408(a)(1)(A)–(C) – Three factors for determining which pollutants are criteria
pollutants:
i. “Emissions of which, in his judgment, cause or contribute to air pollution
which may reasonably be anticipated to endanger public health or welfare;
ii. “The presence of which in the ambient air results from numerous or
diverse mobile or stationary sources; and
iii. “For which air quality criteria had not been issued before December 31,
1970, but for which he plans to issue air quality criteria under this section.
d. Listing requires issuance of NAAQS.
e. § 7412 – Addresses another 189 air pollutants. Separate provisions for ozone and
acid rain.
Summary of Clean Air Act
1. Regulatory Framework
a. Two Types of Regulatory Standards
i. Ambient Standards
ii. Technology-Based Standards
b. Two Governmental Roles
i. Federal Standard Setting
ii. State Implementation
c. Two Other Factors
i. Whether sources are stationary or mobile; and
ii. Whether sources are located in clean-air or dirty-air areas of the country.
2. Ambient Air Quality Standards
a. Maximum pollutant concentrations deemed to be safe for exposure over various
periods of time.
b. Do not specify limits on actual sources.  Must be coupled with measures
limiting individual source emissions.
c. EPA Regulation – See §§ 108–09 (describing NAAQS).
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3.
4.
5.
6.
d. States must attain ambient standards by limiting emissions from mobile and
stationary sources.
i. Must adopt a SIP (subject to EPA approval) for each criteria pollutant.
Technology-Based Standards
a. Pollution control performance levels expected from particular types of air
pollution sources.
b. Four Types of Federally Uniform Emissions Standards
i. Vehicle emissions. See p. 405.
ii. New source performance standards (NSPS) for various categories of
stationary sources. See p. 405.
iii. National emission standards for hazardous air pollutants (NESHAP). See
pp. 405–07.
iv. Existing sources in nonattainment areas (not yet having achieved
NAAQS) must install, at a minimum, reasonably available control
technology (RACT). See p. 407.
State Implementation Plans (SIPs)
a. Used to achieve NAAQS.
b. Designed and implemented by states. §§ 107(a), 110(a)(2).
c. Enforceable by states and federal government.
d. Clean-Air v. Dirty-Air Regions – Different SIPs required.
i. Nonattainment Areas
1. CAA includes requirements.
ii. Prevention of Significant Deterioration (PSD) Areas
1. CAA includes requirements.
iii. Note
1. Different SIPs apply to each pollutant individually.  Separate
“sub-SIP” for each pollutant depending on PSD or nonattainment
status.
Nonattainment Provisions
a. Imposes on states general and pollution-specific requirements.
i. General – See p. 408.
ii. Pollution-Specific – See p. 408.
1. Supplement or increase severity of general requirements.
b. Controls on Mobile Sources – See p. 408.
i. 1990 Amendments allowed more regulation of mobile sources and of
ozone and CO.
c. Sanctions for Noncompliance
i. Withholding of federal grants.
ii. Imposition of multiple offset requirements.
iii. Imposition of penalty fees for pollution-specific violations.
PSD Provisions
a. Major emitting facilities must install “best available control technology” (BACT),
to be determined for each facility, and demonstrate that plant operation will not
cause ambient air to be “significantly” degraded. §§ 165(a)(4), 169(3).
i. Significant Increment – Depends on location of proposed facility. § 163.
b. Three Classes of Clean-Air Areas
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i. Class I
ii. Class II
iii. Class III
c. Visibility – “Best available retrofit technology” (BART). § 169A.
7. Hybrid Emission Standards
a. Three Hybrid Emission Standards
i. LAER
ii. BACT
iii. BART
b. Applied under nonattainment, PSD, and visibility.
c. Case-by-case basis.
d. States play a larger role.
e. Compromises on pollution abatement.
8. Acid Deposition Control
a. Cap and trade program for SO2 emissions. Title IV of CAA.
9. Stratospheric Ozone Protection
a. Title VI.
b. Phasing out CFCs.
c. Protecting ozone layer.
10. Global Climate Change
a. Not addressed by specific CAA provisions.
b. Supreme Court has held that CO2 qualifies as a pollutant so that EPA has
authority to establish motor vehicle emission standards for CO2 and other GHGs.
11. Permits
a. Title V – Federal permit program for acid rain deposition; NSPS or NESHAPs;
nonattainment or PSD; and other major sources.
b. States must develop permit programs to conform to minimum EPA requirements.
c. EPA may administer a permit program if state fails to do so.
d. Permit Applications – See p. 410.
12. Enforcement
a. § 113 – Civil and criminal penalties.
b. § 304 – Citizen suit provision.
c. § 303 – EPA may administer orders or sue in federal court.
13. Judicial Review
a. § 307 – In federal courts of appeals.
b. § 307(d) – Special provisions for EPA rulemaking supplementing APA.
Implementing NAAQS
1. Generally
a. Health-Based – Protecting public with adequate margin of safety.
b. Once EPA issues an NAAQS for a criteria pollutant, it has established the
maximum permissible concentrations in the ambient air.
c. NAAQS are goals, not emissions controls. Not prohibitions, e.g., no lead in
gasoline.
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2. First Step – Figure out how much pollution can be assimilated into the air without
exceeding the maximum permissible concentrations reflected in the NAAQS.
a. Gives you an aggregate amount of emissions over a specified period of time.
3. Step Two – Source-by-source emissions limits. Divide aggregate amount of emissions
among polluters.
4. States are responsible for achieving NAAQS within their borders and imposing emission
limits on individual sources so that NAAQS are achieved within statutory timetables.
a. 42 U.S.C. § 7407(a) – “Each State shall have the primary responsibility for
assuring air quality within the entire geographic area comprising such State by
submitting an implementation plan for such State which will specify the manner
in which national primary and secondary ambient air quality standards will be
achieved and maintained within each air quality control region in such State.”
5. State Implementation Plans – 42 U.S.C. § 7410.
a. Required by CAA.
b. § 7410(a)(1) – Process by which states adopt SIPs.
c. § 7410(a)(2) – Mandatory minimum contents of each SIP. List of a dozen
necessary items.
i. § 7410(a)(2)(A) – Including “enforceable emission limitations and other
control measures, means, or techniques (including economic incentives
such as fees, marketable permits, and auctions of emissions rights), as well
as schedules and timetables for compliance, as may be necessary or
appropriate to meet the applicable requirements of [the CAA].”
6. 42 U.S.C. § 7410(k) – Once SIP has been submitted, EPA must review it.
a. Does it contain all of the required information?
b. § 7410(k)(3) – “In the case of any submittal on which the Administrator is
required to act under paragraph (2), the Administrator shall approve such
submittal as a whole if it meets all of the applicable requirements of this chapter.”
i. EPA shall approve plan if it meets requirements of § 7410(a)(2).
Mandatory language.
7. State needs a different SIP for each criteria pollutant.
a. Each must specify the manner in which the state will move from noncompliance
to compliance or the manner in which the state will maintain compliance.
8. States determine contents of SIP, as long as they comply with the minimum requirements
of § 7410(a)(2). States have discretion to determine how to meet NAAQS.
a. In 1977 and 1990, Congress reduced state discretion to allocate among their
pollution sources the right to emit criteria pollutants.
i. Applies most forcefully to states that have not achieved NAAQS.
Congress pulled in the reins.
9. Deadlines by Which States Must Submit SIPs
a. Why would states have incentives to delay submission of SIPs?
i. To take advantage of more developed plans of other states.
ii. Economic – The longer a state delays, the longer its polluters may operate
without costly pollution controls. Fosters race to the bottom.
iii.  Congress recognized these incentives, and so it imposed deadlines.
b. Sanctions for Late Submission
i. Adverse consequences.
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ii. § 7410(c) – EPA may develop a plan for a delinquent state. Not an
attractive option. State loses control over ultimate policy choices.
10. Three Options for State to Allocate Its Aggregate Emissions
a. Divide pie of allowable emissions based on historical practice. “If you polluted in
the past, we will allow you to pollute to the same extent in the future.”
b. Divide pie based on importance to the state economy of the emitters. State will
not crack down on valuable industries, but it will impose stringent economic
burdens on less valuable players.
c. Allocate pie based on technological feasibility of emission controls for various
industries. Industry-specific technological standards.
d.  Train v. NRDC (Page 5 of Virginia case) – Recognizing discretion of state to
choose among these schemes (or other policy choices) as long as it achieves the
NAAQS.
e.  New Stationary Sources (Federal) – Almost always subject to technologybased controls.
11. Dividing Responsibility for Reducing Emissions Among Stationary & Mobile Sources
a. Congress and states have been more reluctant to crack down on mobile sources.
i. Few attempts to change behavior of individual vehicle drivers. E.g., HOV
(“carpool”) lanes; tolls; prohibitions on certain people driving on certain
days (possible).
ii. EPA and states expected a backlash against an individual-driver
crackdown.
iii. Some crackdown attempts have been repealed.
b. Thus, there has been a greater effort to control industrial emissions.
12. Federal Control Retained
a. Tailpipe emission standards, i.e., how car manufacturers must build pollution
controls into their cars. 42 U.S.C. § 7521.
i. California has limited discretion in this area.
b. 42 U.S.C. § 7412 – Hazardous air pollutants. Shifted from ambient standards to
technology-based standards. Congress retains control here. National, uniform
standards. States may not allow their own sources to undercut these standards.
c. 42 U.S.C. § 7411 – Governs emissions by new stationary sources. National,
uniform, federal standards.
i. Relevant to lead standards.
d. Note – Beyond these three areas, states have a lot more discretion.
Nonattainment Provisions
1. Generally
a. Context – State fails to achieve compliance despite having an adequate and
approved plan.
b. Original deadline for compliance was 1975–76. Clearly, this deadline was not
met.
2. 1977 Amendments – Designed to facilitate compliance with NAAQS.
a. Distinguished between attainment and nonattainment areas.
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b. Imposed more rigorous requirements on nonattainment areas. Reduced states’
discretion. EPA became more vocal about which emission controls were required
in these areas. The more extreme the noncompliance, the more rigorous the EPA
standards became.
c. 42 U.S.C. § 7511(a) (“Classification and attainment dates for 1989 nonattainment
areas”)
i. Added by 1990 Amendments.
ii. Statute distinguishes among five ozone noncompliance areas. More
rigorous control obligations are imposed on greater noncompliance levels.
d. 1977 and 1990 Amendments also extended deadlines for compliance.
e. EPA may impose penalties on states not meeting extended deadlines. E.g., perton fee on non-attained pollutants.
3. 1990 Amendments
a. Certain areas must reduce certain ozone precursors, i.e., VICs, by specified rates
annually. § 57511(c)(2)(B), (G).
b. Removes some discretion from states to abate air pollution. EPA dictates that
states must reduce VOCs by a certain rate in certain nonattainment areas.
4. Characteristic Problem – Air Quality Control Region (AQCR) is nonattainment because
it is noncompliant for a particular criteria pollutant.
a. Compliance could be achieved by:
i. Shutting down some emitting factories.
ii. Not allowing any new stationary sources of the criteria pollutant.
iii.  These two strategies essentially are off the table.
b. Congress largely has pursued neither strategy. Why?
i. Not willing to pay the price of economic disruption.
1. E.g., people losing their jobs. This would result in a great public
backlash against the EPA.
ii. Shutting down factories may result in greater pollution than keeping them
open.
1. Risk-Risk Argument – People that would be fired would suffer
worse health effects than if they continued working, e.g., because
they could no longer afford health insurance.
iii. Want to incentivize modernized, more efficient factories.
5. More Feasible Solution
a. 42 U.S.C. § 7502(c)(1)–(9).
i. Added in 1977.
ii. Adds another list of mandatory elements for SIPs over and above existing
requirements if a state has nonattainment areas for particular pollutants.
iii. Non-attainment-specific requirements.
b. Examples
i. Reasonably available control measures implemented as expeditiously as
possible.
1. Illustrates technology-based controls.
ii. Enforceable emission limitations as necessary to attain NAAQS by
statutory deadlines.
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iii. § 7502(c)(2) (“Such plan provisions shall require reasonable further
progress.”)
1. Assumes that some progress has occurred and then requires more.
2. Definition of “Reasonable Progress” – § 7501(1) (“The term
‘reasonable further progress’ means such annual incremental
reductions in emissions of the relevant air pollutant as are required
by this part or may reasonably be required by the Administrator for
the purpose of ensuring attainment of the applicable national
ambient air quality standard by the applicable date.”).
3. Measuring progress by concentrations of pollutants in ambient air.
4. RFP aims to bring ambient concentration levels down from
nonattainment levels to NAAQS levels by the NAAQS deadlines.
New Source Review
1. Generally
a. Context – Improving air quality when you have new stationary sources being built
in a non-attainment area.
b. Obvious solution of prohibiting new plants until the area comes into compliance
may not be available.
c. New stationary sources need to obtain new permits when they are initially built or
subsequently modified.
2. Two Permit Programs (State-Run)
a. Major new or modified sources in nonattainment areas.
b. Major new or modified sources in PSD areas.
3. § 7602(j) – Definition of “major stationary source” or “major emitting facility.”
a. “The terms ‘major stationary source’ and ‘major emitting facility’ mean any
stationary facility or source of air pollutants which directly emits, or has the
potential to emit, one hundred tons per year or more of any air pollutant.”
4. § 7502(c)(5) – “Such plan provisions shall require permits for the construction and
operation of new or modified major stationary sources anywhere in the nonattainment
area.”
a. States must institute a NSR program.
5. Routine repair and replacement do not qualify as modifications.
a. Even if such a project increases emissions, it does not amount to a modification
that justifies NSR.
b. Two Justifications
i. Not a real physical change.
ii. Slight increase in emissions fall within authority of EPA to exempt de
minimis activities from regulation. EPA has inherent authority to ignore
de minimis threats.
c. Scope changed by EPA in 2003.  Any physical change in a plant that would
cost up to 20% of cost of entire plant replacement (but not more than), then that
change qualifies as a routine repair or replacement and is exempt.
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6.
7.
8.
9.
i. Does not matter how much the change increases emissions. They could
quadruple, and if the change cost less than 20% of entire replacement cost,
the change is exempt from NSR.
ii. Challenged in New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006). Held
that any physical change triggers NSR as long as it increases emissions.
Overruled 2003 EPA changes.
EPA used to look at average annual emissions. Now, EPA looks at hourly emissions
rates. As long as a physical change does not increase hourly emissions, it does not
qualify as an increase in emissions.
a. Results in increased emissions.
b. Environmental Defense v. Duke Energy Corp. – Court disagreed with this reading
of statute. This is an inappropriate attempt to narrow scope of NSR.
State may grant a permit only if certain requirements are satisfied.
a. § 7503(a)(2) (“The permit program required by section 7502(b)(6) of this title
shall provide that permits to construct and operate may be issued if . . . the
proposed source is required to comply with the lowest achievable emission
rate.”).
b. Lowest Achievable Emission Rate – Defined at § 7501(3).
i. Technology-based control.
42 U.S.C. § 7411 – EPA may issue national emissions standards for new sources.
a. Technology-based. Not technology-forcing. (There is a little bit of technologyforcing, but not much.)
b. EPA must compile a list of polluting stationary sources that may be thought
reasonably to endanger public health.
c. Once EPA lists a category, it must list a standard of performance for any source
built belonging to one of these categories.
i. § 7411(a)(1) – Standard of performance. “A standard for emissions of air
pollutants which reflects the degree of emission limitation achievable
through the application of the best system of emission reduction.”
1. Technology-based standard.
d. National standards are necessary to prevent states from setting different NSR
standards and initiating a race to the bottom. National uniform standards set a
level playing field—a floor.
e. 42 U.S.C. § 7416 – Allows states to apply more stringent controls than those
imposed by the EPA.
i. States may not impose less stringent standards.
Problem – If we build new sources, won’t there be more pollutants in the air? How do
we address this problem when we want to reduce pollutants?
a. Any pollutants emitted by a new stationary source must be offset. § 7503(a)(1).
Effectively, there must be fewer emissions in the air after the new facility is built.
i. This makes it an “offset-plus” requirement.
b. Reduced emissions come from other facilities. The new source pays existing
sources to better control their emissions.
i. E.g., “Hey, neighbor. If you reduce your allowable emission cap, we’ll
compensate you.” If the cost of paying off its neighbors outweighs the
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value that the new source achieves from operating, then everyone is
happy. This is a form of emission trading.
10. Evaluation of NSR
a. Allows for the achievement of emissions reductions while not directly stifling
economic growth, i.e., imposing a moratorium on new sources.
i. However, the permit program has time and energy costs. New sources
have to work hard to make it work. They often attempt to find ways to
escape the NSR program. They have lobbied the EPA to limit the scope
of NSR, and the EPA has accommodated them at times.
b. More Controversy – Offset trades on paper may not advance the goals of the
CAA. A source may be contemplating shutting down, which would mean that it
would no longer be emitting. Then, a new source comes along and offers to buy
the soon-to-close source’s emissions. Effectively, a new source pays another
source to close, and the trading program ensures that almost the same level of
emissions continue to be pumped into the atmosphere.
11. Keep NSPS and NSR distinct.
a. NSPS - § 7411.
i. Technology-based standards.
b. NSR - § 7502(c)(5), § 7503, § 7475(a)(1).
i. Permit program.
Mobile Sources in Nonattainment Areas
1. Increased tolls.
2. Vehicle inspection programs for tailpipe emissions standards.
a. EPA received a lot of flak about this program, and so it allowed the states to run
decentralized programs. Eventually, this program was repealed.
i. Exemplifies Congress’ inability to reduce tailpipe emissions by changing
individual driver behavior. Addressing the automotive industry probably
is more effective.
Prevention of Significant Deterioration (PSD) Provisions
1. Generally
a. See pp. 497–501.
b. Context – Air quality already is better than required by the NAAQS.
c. PSD program introduced with 1977 Amendments.
2. Purposes – See p. 498
a. Three Primary Purposes
i. Health-based.
ii. Protecting scenic vistas in the West.
iii. Preventing degradation of air quality in clean-air areas that would occur
without protection beyond NAAQS.
b. Stopping humans from degrading environment.
c. Moral duty to enforce non-degradation principle.
3. Regulations at 40 C.F.R. § 52.21.
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4. AQCR may be a PSD for one or more pollutants even though it is nonattainment or
others; and no AQCR is nonattainment for all pollutants.
5. Limits the incremental introduction of pollution in attainment areas. Only negligible
increases in pollution are permitted in certain areas.
a. Degradation is measured by ambient air concentrations.
b. Measured in “PSD increments.” 42 U.S.C. § 7473 (concerning sulfur oxide and
particulate matter).
6. Three Classes
a. Class I – National parks and wilderness areas.
i. Most protection.
ii. Only smallest amount of deterioration allowed.
b. Class II – Intermediate amount of degradation allowed.
c. Class III – Greatest amount of deterioration allowed.
7. PSD Permit Program
a. § 7475(a)(1) – “No major emitting facility on which construction is commenced
after August 7, 1977, may be constructed in any area to which this part applies
unless . . . a permit has been issued for such proposed facility in accordance with
this part.”
i. § 7475(a)(3) – Contribution of pollutants must fall below allowable limit.
ii. § 7475(a)(4) – Each PSD polluter is subject to best available control
technology. Case-by-case determination of what is economically and
technology feasible.
1. Related to § 7501(3) (lowest achievable emission rate), which is
stricter than this provision.
iii. Assures that new sources do not increase pollution beyond the small
allowable limits.
8. Two-Part Modification Test
a. Physical change; and
b. Increase in emissions.
i. What is the baseline against which a comparison is made?
1. 2002 reforms allow sources to pick any two of the previous ten
years, average them, and use that rate of emissions as the baseline.
The years with the highest emissions always are used because this
results in the lowest increase in emissions.
2. This procedure has been challenged. New York v. EPA, 413 F.3d
3 (D.C. Cir. 2003) (upholding procedure). Court held that
regulated sources must keep records of their emissions.
Cases
1. Natural Resources Defense Council v. Train
a. General Contents
i. Procedure for listing a pollutant under §§ 108–10.
ii. Mandatory language of § 108(a)(1).
iii. Purpose of CAA as discerned from statutory language.
iv. Legislative history behind listing procedure.
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v. Scope of EPA’s discretion in listing pollutants.
b. Court did not buy EPA’s argument in this case.
c. § 7408(a)(1) contains mandatory language. If any of the (A)–(C) criteria are
satisfied, a pollutant must be listed.
d. Only two factors for pollutant listing: (1) dangerous and (2) in the air.
e. EPA could supplement the NAAQS with fuel standards, but it was required to list
lead as a criteria pollutant.
i. Since this case, lead has been listed as a criteria pollutant.
2. Lead Industries Association, Inc. v. EPA
a. General Contents
i. Legislative history/congressional intent concerning subordination of
economic or technological feasibility to achievement of health goals.
ii. Because of scientific uncertainty, EPA is to err on the side of caution in
setting ambient air quality standards.
iii. Clinical/subclinical distinction.
iv. Protecting against subclinical (i.e., requiring laboratory tests to diagnose)
effects of air pollution.
v. Limited role of court in resolving disagreements among experts.
vi. Choosing an adequate margin of safety is a policy choice left up to EPA.
1. EPA may use whatever process it wants to achieve an adequate
margin of safety—even if it chooses to use multiple margins of
safety.
b. “Where Congress intends the Environmental Protection Agency to be concerned
about economic and technological feasibility, it expressly so provides. Section
109(b) of the Clean Air Act, 42 U.S.C.S. § 740(b), speaks only of protecting the
public health and welfare. Nothing in its language suggests that the
Administrator is to consider economic or technological feasibility in setting
ambient air quality standards.”
i. Concerned listing lead as a criteria pollutant.
ii. NAAQSs are health-based, not economic-based or technology-based.
Statute mandates that the air be clean enough to offer an adequate margin
of safety.
c. “Section 109(b) does not specify precisely what Congress had in mind when it
directed the Administrator to prescribe air quality standards that are ‘requisite to
protect the public health.’”
d. “Congress' directive to the Administrator to allow an ‘adequate margin of safety’
alone plainly refutes any suggestion that the Administrator is only authorized to
set primary air quality standards which are designed to protect against health
effects that are known to be clearly harmful.”
i. Gives EPA more room to protect public health. Precautionary principle;
erring on the side of caution.
ii. EPA recently (within past few years) has admitted that there is no safe
level of exposure to lead. This reinforces the importance of taking a
precautionary approach to regulation.
e. “Requiring EPA to wait until it can conclusively demonstrate that a particular
effect is adverse to health before it acts is inconsistent with both the Act's
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precautionary and preventive orientation and the nature of the Administrator's
statutory responsibilities.”
i. Congress intended CAA to serve a preventive or precautionary function,
and imposing a more stringent standard would lead to many people being
hurt while we were waiting for the “evidence to come in.” Much public
health harm would occur before medical consensus came to be.  EPA
may regulate in the face of scientific uncertainty.
ii. EPA can regulate risks, which contain some degree of uncertainty, in
addition to known harms.
1. See note 2 following case.
f. Other Cases
i. Many cancer-causing substances are non-threshold. Science cannot
determine a safe level of exposure. Only safe level of exposure is zero.
1. Considering this, how is the EPA to determine an appropriate level
of safety or an adequate margin of safety? It must adopt a zerolevel standard, but EPA has been reluctant to do this.
a. E.g., banning the use of mercury would reek havoc on the
economy.
ii. Thus, EPA regulated only six pollutants until 1990. After 1990, Congress
switched CAA from a health-based approach to margins of safety to a
technology-based approach. Now, industry must do the best it can to curb
pollutants.
iii. Economic impact may be considered during implementation.
3. Virginia v. EPA
a. General Contents
i. Harmful effects of ground-level ozone; process by which ozone is
produced; regulation thereof.
ii. All aspects of SIPs
iii. SIP Call – “EPA's declaration that a state's implementation plan is
substantially inadequate and must be revised.”
iv. SIPs – When they are required; how they are implemented; sanctions for
failure to implement; EPA review process.
v. Whether EPA can require states to adopt particular emission controls.
vi. Extent to which EPA can require states to modify inadequate SIPs.
b. May EPA reject a state plan that it regards as inadequate?
i. Yes. § 7410(k)(3). Then it must give state a chance to cure problem. If
state does not sure problem, EPA must intervene and adopt a plan for a
state. § 7410(c).
1. § 7410(k)(3) – EPA may reject inadequate plans lacking a
necessary element. EPA may accept adequate portions of a plan
and reject inadequate portions; thus, EPA may reject wholly
inadequate plans. Plan revisions do not satisfy CAA until EPA
approves the entire plan.
c. May EPA demand that state revise an inadequate plan?
i. Yes. § 7410(k)(5) (“Whenever the Administrator finds that the applicable
implementation plan for any area is substantially inadequate to attain or
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maintain the relevant national ambient air quality standard . . . the
Administrator shall require the State to revise the plan as necessary to
correct such inadequacies.”).
ii. § 7410(a)(2)(H) – SIPs must provide for occasional revisions in light of
evolving standards, newly developing problems, or EPA rejection.
iii. If a state refuses to revise plan, EPA may adopt a plan for it. § 7410(k)(3).
Two scenarios in which this occurs:
1. State submits no plan within required time.
2. State submits a defective plan and has not revised it within
required time.
d. EPA may not force states to adopt particular emission controls.
i. § 7410(k)(5) limits EPA authority actually. EPA may not require a state
to revise its entire plan if only a small tweak would correct the
inadequacy. Only the small tweak is necessary.
e. Federalism Concerns – Court would not interpret 1990 Amendments as resulting
in a dramatic power shift/reallocation of authority.
4. Sierra Club v. EPA
a. General Contents
i. Attainment and nonattainment areas.
ii. SIP requirements for nonattainment areas; extension of deadlines for
inadequate SIPs; states’ promises to cure missing requirements.
iii. Conditional approval of SIP.
iv. New Source Review.
b. “In the context of 42 U.S.C.S. § 7410(k)(4), the purpose of the conditional
approval provision is not to permit states more time to identify control measures,
but rather to give the Environmental Protection Agency (EPA) the opportunity to
determine whether a state implementation plan, although not approvable in its
present form, can be made so by adopting specific EPA-required changes within
the prescribed conditional period. Such a determination cannot reasonably be
made unless the conditionally approved submittal contains something more than a
mere promise to take appropriate but unidentified measures in the future. And
that requires that the States complete the analyses necessary to identify
appropriate measures before, rather than after, conditional approval is granted.”
i. EPA cannot approve a plan if a state does not specify how specifically it
will cure the deficiencies in its existing plan. DC was required to put
some actual measures on the table. Empty promises are not sufficient.
c. EPA was not authorized to grant conditional approval to plans that did nothing
more than promise to do tomorrow what the CAA required today.
5. New York v. Reilly
a. General Contents
i. Ban on lead-acid vehicle battery combustion.
ii. NSR – Standards of performance.
b. Incineration of lead batteries did not amount to “the best system of emission
reduction.” EPA needed to justify why it did not choose not to burn the batteries.
Clean Water Act
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Introduction
1. CWA is centerpiece of nation’s efforts to protect its waters.
2. Other federal laws protecting water:
a. Safe Drinking Water Act (SDWA)
b. Resource Conservation and Recovery Act (RCRA)
c. Oil Pollution Act of 1990
d. CERCLA
3. Success & Failure
a. Success of CWA – p. 546.
b. Success of NPDES – p. 546.
c. Despite success, much pollution remains, and waters remain unavailable for
designated uses.
i. See p. 546.
4. Data on Quality of Nation’s Waters – See p. 547.
a. Extremely limited.
b. Collecting data is difficult for a number of reasons.
5. Causes & Sources of Impairment – See pp. 547–48.
a. Rivers/Streams
b. Lakes/Reservoirs
c. Bays/Estuaries
6. Impacts of water pollution on public and environmental health. – See p. 548.
7. Money & Costs – See p. 549.
a. Total Reported Water Quality Needs - $ 298.1 billion
b. Total Public and Private Spending on Water Pollution Control 1972–96 - $700
billion.
c. Water pollution control appropriations in 2009 stimulus bill.
d. Uncertainty in calculating costs and benefits of water pollution control. See pp.
549–50.
8. Must address more than point source pollution in order to improve water quality. See p.
550.
9. Water, National Security & Terrorism – See p. 550.
10. Effects of Climate Change on Water – See p. 550.
a. Five response action areas.
Clean Water Act: Overview
1. Goals
a. Primary – “To restore and maintain the chemical, physical, and biological
integrity of the Nation's waters.” 33 U.S.C. § 1251(a).
i. § 1251(a)(1)–(7) specify CWA goals.
b. National – “It is the national goal that the discharge of pollutants into the
navigable waters be eliminated by 1985.” 33 U.S.C. § 1251(a)(1).
c. Interim – “It is the national goal that wherever attainable, an interim goal of
water quality which provides for the protection and propagation of fish, shellfish,
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and wildlife and provides for recreation in and on the water be achieved by July 1,
1983.” 33 U.S.C. § 1251(a)(2).
i. Fishable & Swimmable Waters Goal – We want all bodies of water to
support fishing and swimming.
ii. Primary goal of CWA in reality.
d. “It is the national policy that the discharge of toxic pollutants in toxic amounts be
prohibited.” 33 U.S.C. § 1251(a)(3).
i. Note that this means that some toxic pollutants may be discharged in nontoxic amounts.
e.  Enforced through technology-based standards, not ambient-quality-based
standards.
2. Structure
a. 33 U.S.C. § 1362 – Definitions
b. 33 U.S.C. § 1311(a) – “Except as in compliance with this section and sections
1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any
pollutant by any person shall be unlawful.”
i. No Discharge General Rule – Central/primary operative provision of the
CWA.
ii. “Discharge of Any Pollutant”/”Discharge of Pollutants”
1. “(A) any addition of any pollutant to navigable waters from any
point source,
a. Requirements – See § 1362 for definitions.
i. Addition
ii. Pollutant
iii. Navigable Waters
iv. Point Source
2. “(B) any addition of any pollutant to the waters of the contiguous
zone or the ocean from any point source other than a vessel or
other floating craft.” 33 U.S.C. § 1362(12).
iii. “Person” – “An individual, corporation, partnership, association, State,
municipality, commission, or political subdivision of a State, or any
interstate body.” 33 U.S.C. § 1362(5).
1. Very expansive definition.
iv. Exceptions
1. § 1342 – National Pollutant Discharge Elimination System
(NPDES)
a. Primary exception to the No Discharge Rule.
b. Permitting Provision – Cannot pollute unless you have a
permit.
3. Technology-Based Standards
a. Principle Approach
i. Ambient, quality-based standards constitute a backup to the technologybased defenses of the CWA.
1. Why do we need backup ambient-based controls?
a. Serve as safety net.
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b.
c.
d.
e.
b. Protect water quality when every discharger is in
compliance, but a large concentration of polluters in a small
area nevertheless makes water unsafe.
c. If technology is poor, then implementing it will not raise
water quality. Ambient-based standards pick up the slack.
ii. Contrast with CAA – Technology-based standards constitute the main line
of defense, unlike CAA, where ambient, harm-based standards are main
line of defense.
iii. Example of Control – Limiting pollutants to X lbs. per day.
Why does the CAA focus on ambient-based controls and the CWA focus on
technology-based controls?
i. Historical Accident – CAA was adopted before CWA. Ambient-based
controls were all that were on Congress’ mind when the CAA was
adopted. By the time the CWA was adopted, Congress’ thinking had
evolved.
Deficiencies in ambient-based controls led to adoption of technology-based
controls.
i. Only one successful prosecution for a violation of the 1948 Federal Water
Pollution Control Act occurred between 1948 and 1972 under the ambientbased standards.
1. Not everyone was in compliance. Cuyahoga River caught on fire.
2. Why did the 1948 law fail?
a. Procedure – Time-intensive; high burden of proof on
government.
b. Substantive – Difficult to trace water pollution back to a
particular polluter.
Advantages of Technology-Based Standards
i. No need to trace pollutants back to a particular discharger. Regulation
occurs up front—at the technology-implementation stage.
ii. No need to prove an excessive amount of pollutants in water.
iii. No need to inquire as to impact of pollutants.
iv. Easier to implement than ambient-based controls.
Disadvantages of Technology-Based Standards
i. There may be many dischargers in one area.
ii. Poor technology may not adequately protect water quality.
iii. Economic – Overkill Scenario: potentially economically inefficient
because technology-based standards may require regulation above and
beyond that necessary to achieve desired water quality. May impose
regulation that achieves no discernable environmental benefit.
1. Regulated entities call this “treatment for treatment’s sake.”
iv. May disincentivize research into better technology.
1. Industry is not going to invest in R&D because once new
technology is adopted, it will require industry to achieve a higher
level of compliance. It is like shooting yourself in the foot.
2. Counterarguments
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a. May give developer of new technology lead-time over
competitors.
b. Technology may become cheaper with time.
c. Companies developing new pollution controls may receive
an economic boost.
f. Design-Specification Standards v. Performance Standards
i. Design-Specification – EPA requires a certain technology, and if industry
does not implement it, industry will be in noncompliance. Effectively,
EPA tells industry what to do.
1. Rare.
ii. Performance – EPA requires industry to limit its emissions of, e.g., sulfur
dioxide, to 10 lbs. per day. EPA does not care how industry does that as
long as it achieves the goal. Industry seeks out cheapest/most efficient
compliance mechanism available.
1. Gives industry an ongoing incentive to conduct R&D into more
efficient—though not necessarily more effective—pollutioncontrol technology.
2. Most environmental controls are performance standards.
3. Not one-size-fits-all. The only part that is one-size-fits-all is the
emission limitation.
4. Requires a vigorous monitoring regime. Regulators must be able
to verify monitoring on a periodic basis. Performance-based
standards do not work unless pollution output is measured
accurately.
4. Water-Quality Standards
a. Complement technology-based standards. Act as a safety net.
b. Permits may be based on more stringent water-quality standards when
technology-based standards fail to achieve applicable water quality standards. 33
U.S.C. § 1311(b)(1)(C).
c. Embody “antidegradation.”
5. CWA controls point-source pollution, but not non-point-source pollution.
a. Point Source – “Any discernible, confined and discrete conveyance, including
but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding operation, or vessel or other
floating craft, from which pollutants are or may be discharged. This term does not
include agricultural stormwater discharges and return flows from irrigated
agriculture.” 33 U.S.C. § 1362(14).
i. Definite and discreet conveyance, e.g., pipe.
ii. Technology-based standards focus on point source pollution.
iii. Well-controlled.
iv. Regulated under NPDES.
b. Non-Point Source – Disperse pollution, e.g., runoff. Anything that is not point
source pollution.
i. Technology-based standards do not focus on non-point sources.
ii. Most remaining water pollution is from non-point sources.
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iii. Agricultural non-point sources, e.g., manure washing into rivers, are a
very problematic source.
iv. It is easier to put a screen on a pipe than prevent runoff from flowing into
a river.
v. Small farmers dealing with non-point source pollution may not have the
money to address the pollution.
1. If farmers are large, factory farms, they have powerful lobbyists.
They have been very successful in building in exemptions for
agricultural activities in the relevant statutes.
vi. Requiring dischargers to comply with offsets from rivers is tantamount to
land use regulation, which is a traditional state concern. Makes it an
unlikely object of federal regulation. Worried about putting the entire
CWA at risk.
6. Three Dichotomies
a. Direct v. Indirect Discharges
i. Direct – Discharge pollution directly into surface waters.
1. Permits required.
ii. Indirect – Send waste to publicly owned treatment works, which discharge
it into surface waters after treatment. No pipes going directly to surface
waters.
1. Must comply with pre-treatment standards.
iii.  Different controls apply to each category.
b. New v. Existing Point Sources
i. New –
ii. Existing –
iii.  Both are subject to mandatory, technology-based controls, but the
specific controls are different for each.
c. Federal v. State Governments
i. Federal
1. EPA adopts technology-based controls.
2. EPA has authority to issue discharge permits, but states may apply
to EPA to take over administration of EPA’s clean water program.
46 states have done so.
ii. States
1. Implement standards.
2. Most states implement the permitting program. When permits are
issued, dischargers at bottom must comply with EPA standards.
3. States may impose more stringent controls.
a. States must impose more stringent controls if EPA’s
technology-based controls are insufficient to achieve the
desired goals. (This is where the backup ambient-standards
come into play.)
4. States issue water quality standards. Very different from CAA,
where the EPA issues the air quality standards.
a. EPA may veto insufficient water quality standards.
b. Two Ways of Keeping State Standards Adequate
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i. EPA’s scientific studies and their recommendations
for suggested water quality levels. States must
show why their lesser standards are justified.
ii. Statutory requirements. Minimum standards.
iii.  EPA and states share enforcement authority.
iv.  33 U.S.C. § 1319(a)(1) – State gets first crack at enforcement.
National Pollutant Discharge Elimination System (NPDES) – 33 U.S.C. § 1342.
1. Generally
a. Primary exception to No Discharge Rule.
b. Regulation of point sources.
c. Established effluent limitations that a discharger must meet and the deadline for
meeting them.
d. Federal Regulations – 40 C.F.R. § 122.
2. Two Classes of Point Sources
a. Municipal Sewage Treatment Plants/Publicly Owned Treatment Works/POTWs
i. Technology-based standards known as “primary” and “secondary”
treatment. 33 U.S.C. § 1311(b)(1)(B).
ii. Summary of regulatory regime on p. 555.
b. Industrial Discharges
i. First – Must satisfy minimum level of treatment required by best practical
control technology currently available (BPT).
1. Initially by 1977.
ii. Second – Must satisfy minimum level of treatment required by best
available technology economically achievable (BAT or BATEA). 33
U.S.C. § 1311(b)(2)(A).
1. Initially by 1983.
2. More stringent technology-based controls than BPT.
c.  Both must apply for and operate in compliance with federal or qualified state
permits.
d. New Source Performance Standards – Best available demonstrated control
technology (BADT). 33 U.S.C. § 1316.
i. Not an official program.
ii. Similar to NSPS of CAA.
3. Three Classes of Pollutants
a. Conventional
i. E.g., biochemical oxygen-demanding substances, total suspended solids,
fecal coliform bacteria, pH, oil, and grease.
ii. Best conventional pollutant control technology (BCT) is required.
1. Less rigorous treatment standard than BAT.
2. Must be at least as stringent at BPT.
b. Non-Conventional
i. BAT is required.
c. Toxic
i. BAT is required.
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