Environmental Law Outline – Spring 2005 – Arnone and Romey
I
Overview of Environmental Law
A) What is environmental law? What is the aim?
1) Some things
(a) Protecting human health
(b) Common resources
(c) Protection of ecosystems
(i) Animals (connected to human health)
(d) Aesthetic
(e) Future generations
(i) Preservation
(f) What is good for those outside of ourselves (stewards of nature)
2) Are we ultimately trying to make human life/welfare better?
3) Book: Any kind of law or regulation that regulates the modifications by human action
B) Key concepts
1) At what cost will we take action to protect the environment?
(a) Money, jobs, inconvenience
(b) How is this calculated
(c) Who bears the burden of showing costs exist
2) Who bears the cost? Is it appropriate?
(a) Polluter pays v. beneficiary pays
(b) Determining who should pay depends on how you allocate the rights
3) Uncertainty and Risks
(a) Things are uncertain because environmental science is so difficult
(b) Risk warnings – what is the requirement to post a sign
4) Are the regulations working?
(a) How was it designed
(b) Studies
(c) Enforcement – agency
C) Two Problems
1) Tragedy of the Commons
(a) Similar concept to Lockean proviso – you can add your labor and take without regulation as long as there is “as
good and enough” for others to do the same
(b) Free access to public good
(c) This is individually rational, yet collectively deficient
(i) Individually – it seems rational for you to take more (individual profit), while only bearing a small risk (because
it is spread out over all owners)
(ii) Collectively - if everyone does this, the risk actually becomes great
2) Public Goods
(a) Transaction costs (injunction, negotiation)
(b) Free riders (get the benefit without paying)
D) Common Law and the Conservative Era (Pre 1945)
1) Common law nuisance/trespass – not particularly effective
2) Federal Laws – public resource development [environmental protection was an incidental effect]
(a) 1862 – Homestead Act
(b) 1872 – Mining Act
3) 1872 – First National Park (Yellowstone)
4) 1901-1909 – Teddy Roosevelt “Conservationist”
5) Regulatory laws
(a) 1899 – Rivers and Harbors Act
(i) Enabled the Army Corp of Engineers to regulate discharge into streams, rivers, etc.
(ii) Goal – unobstructed commercial traffic (interstate waterways)
(iii) Precursor to Clean Water Act
(b) 1906 – Pure Food and Drug Act
(i) Cannot misrepresent effectiveness
(c) 1910 – Federal Insecticide Act
(i) Labeling regulation
(d) 1912 – Esch-Hughes Act
(i) Placed high tax on purchase of white phosphorous to help reduce “phossy jaw”
E) Federal Assistance for State Problems (1945-1962)
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1) Federal government did not do any regulation themselves
2) 1948 – Water Quality Act
3) 1955 – Department of Health, Education and Welfare
(a) Study of air pollution
4) 1956 – funding for municipal sewage plants
F) Rise of the Environmental Movement
1) 1962 – Rachel Carson’s Silent Spring
(a) Story about effects of DDT on birds
2) 1967 – Environmental Defense Fund
3) 1969 – Santa Barbara Channel oil spill
4) 1969 – Friends of the Earth spins off from Sierra Club
G) The Environmental Decade (1970s)
1) January 1970 – National Environmental Policy Act (NEPA)
(a) This is a process regulation, not a prohibitive act
(b) Government agencies must evaluate the environmental impact before taking action
(c) The effects are ubiquitous and incremental – if you did not take special care and do studies like this, you would not
notice it otherwise
2) April 22, 1970 – First Earth Day
3) December 2, 1970 – Environmental Protection Agency created
4) 1970 – Clean Air Act
5) 1972 – Federal Water Pollution Control Act (Clean Water Act)
6) 1976 – Resource Conservation and Recovery Act (RCRA)
7) 1980 – Comprehensive Environmental Response, Conservation and Liability Act (CERCLA)
8) 1973 – Endangered Species Act
H) The Disposal Dilemma
1) What is non-hazardous waste?
(a) Household waste
(b) Industrial waste
(c) Sewer sludge
(i) POTW – publicly owned treatment works
(d) Mining waste
(e) Medical waste
2) How can it be disposed of or reduced?
(a) Landfills
(i) Pre-1976
(1) Thrown in canyons
(2) Smells  attract vectors
(3) Covered with layer of dirt
(4) Rain passes through trash into ground
 Leaches out VOCs (volatile organic compounds)
 Goes into groundwater
(5) Air pollution – methane
 Explosive
(ii) What can you do?
(1) Layer of dense clay along canyon with a layer of polyurethane (impermeable)
(2) Pipes that pump out leachate
(3) Pipe out methane
(4) Cap it – prevents rain from getting in
(b) Incinerators
(i) Smoke and ash
(ii) Dust and particulate matter linked to childhood asthma
(iii) Reduced quantity  concentrated hazard
(iv) Does this all make incinerators bad?
(1) Not necessarily
(2) You could install smoke scrubbers, but this creates new solid waste flow
(c) Recycling
(i) Separating plastics, glass, etc.
(ii) Re-use the object itself
(d) Waste minimization
(i) Be aware of the waste you are generating
3) Landfills
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(a) History of solid waste management
(i) Nearly no regulation until 1970s
(ii) Out of sight, out of mind
(b) Federal regulatory scheme
(i) 1976 – RCRC enacted
(1) Subtitle C regulates hazardous waste
(2) Subtitle D addressed non-hazardous
(c) 1984: RCRA Subtitle D amended
(i) States must have permit program
(ii) Must have groundwater monitoring
(iii) Must have corrective action at contaminated sites
(iv) Battle with Office of Management and Budget (OMB) over cost of regulations
(1) $19 billion/life saved
(2) 1991 – federal regulations finally issued (new president)
(3) How much is a life worth?
(d) Flow control/import restrictions
(i) Negative or dormant commerce clause
(1) Huge amount of money in trash (handling and disposal)
 Tipping fees, trucks
(2) Flow control – didn’t want trash from other areas/states
(3) Dormant commerce clause – if Congress hasn’t regulated, state cannot regulate
(ii) 1978 – Philadelphia v. NJ (USSC)
(1) NJ law banning out of state waste importation
(2) Struck down - Trash is an article of commerce (the service itself)
(iii) 1990 – National Solid Waste Association v. AL (11th Cir)
(1) AL banned out of state waste from any state that did not have a hazardous waste facility
 At the time, 22 states and DC didn’t
(2) Struck down – cannot regulate commerce
(iv) 1992- Chemical Waste Management v. Hunt (USSC)
(1) Increase fee for out of state waste
(2) Facially discriminatory (based on what state it came from)
(v) 1992 – Fort Gratiot, etc. v. MI DNR (USSC)
(1) Michigan – no county can export to another county without permission
(2) Struck down – merely trying to get around the ban
(vi) 1994 – Oregon Waste System v. DEQ (USSC)
(1) Surcharge on out of state waste - Recouping cost
(2) Struck down as facially discriminatory - Haven’t calculated how much it actually costs
(vii) 1994 – C&A Carbone v. Clarkson (USSC)
(1) Private waste facility – law that all waste must go to it
 Very high tipping fee
(2) Struck down - competition with other facilities (partial monopoly)
(viii)
1995 – USA Recycling v. Babylon (2nd Cir)
(1) Must use one company (total monopoly)
(2) This law was OK – the fact that you contract with a private company is ok
II
Controlling Hazardous Waste
A) Background
1) Waste
(a) Municipal waste (not usually hazardous)
(b) Industrial waste
(i) Huge increase post-WWII
(ii) 99% is generated by large-quantity generators (this is a good thing from a regulatory point of view because
there are only a few people to regulate)
(c) Mining waste
(i) Mostly not regulated by RCRA
(1) Lobbying by mining industry
(d) Agricultural waste (not usually hazardous)
2) What is the problem of hazardous wastes?
(a) Industrial waste being dumped on site
(b) Landfills not being managed properly
(c) Sloppy manufacturing practices
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3) What is the solution?
(a) Proposed solutions
(i) Reducing the amount of hazardous waste generated
(ii) Regulate the disposal of hazardous waste that is generated
(iii) Treatment of hazardous waste
(iv) Prohibit production of certain materials
(v) Benefits for reduction of waste
(vi) Tort liability  CERCLA
(vii) Recycling
(b) Pollution Prevention Act of 1990 – Goals of the US
(i) Reduction
(ii) Recycling
(iii) Treatment
(iv) Disposal
(v) Reduction would be the best solution, but the order of achievement starts at disposal
B) Resource Conservation and Recovery Act – RCRA
1) Purpose
(a) Passed in 1976; provides a comprehensive regulatory structure for managing both hazardous and non-hazardous
solid wastes
(b) Regulates both active and inactive waste disposal sites
(c) Contains regulatory standards but also has a health-oriented focus to achieve its goals of conservation, reducing
waste disposal, and minimizing present and future threats to human health and the environment
(d) RCRA has become locus of Congress’s prevention concerns, while CERCLA tackles the problems of cleaning up
past mistakes
(e) Basic statutory structure:
(i) System for identifying and listing hazardous wastes
(ii) Cradle-to-grave tracking system
(1) Cradle being the moment of disposal
(2) Congress did not want to regulate the manufacturing process itself
(iii) Standards for generators and transporters of hazardous wastes and for operators of treatment, storage, and
disposal (TSD) facilities
(1) Permit system to enforce these standards
(2) Uniform Hazardous Waste Manifest – mail copy to Department of Toxic Substance Control to create a
paper trail
(iv) Procedure for delegating to states the administration of the permitting program
(f) 1984 Amendments: sought to speed EPA’s development of regulatory standards and to close certain loopholes in
EPA’s existing regulations; also to fundamentally change waste disposal practices by phasing out land disposal and
by forcing the development and use of improved technology to detoxify hazardous wastes
(i) RCRA permits require TSD facilities that wish to continue operation must clean up any prior contamination at
their facility regardless of when or where it occurred
(1) No longer issuing interim permits
(2) Many TSDs ended up closing because they could not meet the requirements of a properly permitted facility
(ii) TSDs must also conduct regular groundwater monitoring and take corrective action if contamination is detected
(1) Land ban – cannot put hazardous waste in land unless the EPA can show that there will be no migration of
the toxins into the ground while the waste is still hazardous
2) Structure
(a) Act creates 4 separate programs:
(i) Hazardous wastes
(1) Subtitle C
(ii) Non-hazardous wastes
(1) Subtitle D
(iii) Underground storage tanks
(1) Subtitle I; owners and operators under the program are required to register their tanks, upgrade their tanks
to achieve technological minimums, and ensure that thanks are properly closed when not in use
(iv) Used oil
(1) RCRA regulates used oil even if that oil is not a hazardous waste. Regulations apply to generators,
transporters, sellers, and recyclers of used oil
3) Subtitle C
(a) “Cradle-to-grave” system designed to track hazardous wastes from the point they are generated to the point they are
disposed
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(i) Generators: must determine if its wastes are hazardous by looking at EPA’s listed hazardous wastes or
determining if it is a characteristic hazardous waste. Hazardous waste sent off site must be accompanied by a
manifest that identifies the type of waste being disposed and its destination
(ii) Transporters: may only transport hazardous wastes if the wastes are accompanied by a manifest from generator,
and they may only deliver hazardous wastes to a permitted treatment, storage, and disposal facility
(iii) TSDFs: stringent requirements imposed by RCRA; all TSDFs must have a permit before they can receive any
hazardous waste
(b) Hazardous wastes may only be disposed of at a “treatment, storage, and disposal facility” (TSDF)
(i) TSDFs are required to get a federal RCRA permit before they are allowed to receive and dispose of shipments
of hazardous wastes
(c) To be subject to RCRA, hazardous materials must fall under definition of solid waste
(i) § 1004 – Solid Waste
(1) “Any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution
control facility and other discarded material, including solid, liquid and semisolid, or contained gaseous
material resulting from industrial, commercial, mining, and agricultural operations, and from community
activities”
(ii) RCRA doesn’t apply to domestic sewage, even where it contains hazardous waste, industrial and waste water
discharges subject to Clean Water Act permits, irrigation return flows, otherwise regulated nuclear material, and
certain mining wastes
(d) RCRA jurisdiction is only over wastes that are “discarded”:
(i) Abandoned: if it is disposed of, burned or incinerated, or accumulated, stored, or treated (but not recycled)
before disposal, burning, or incineration
(ii) Recycled
(1) Note: RCRA’s restrictions on waste materials do not apply to those materials that are recycled, reclaimed,
or are still useful. However, regulations have left many gray areas
(2) American Mining Congress v. EPA
 EPA could not treat secondary materials that were being recycled and reused in an ongoing
manufacturing or industrial production process as RCRA solid wastes
 Court said the materials had “not yet become part of the disposal problem” because they were
“destined for beneficial reuse or recycling in a continuous process by the generating industry itself”
(iii) Considered inherently waste-like
(iv) Factors for determining if something is discarded or recycled:
(1) Whether the material is typically discarded on an industry-wide basis
(2) Whether the material replaces a raw material when it is recycled and the degree to which its composition is
similar to that of the raw material
(3) The relation of the recovery practice to the principal activity of the facility
(4) Whether the material is handled prior to reclamation in a secure manner that minimizes loss and prevents
releases to the environment
(5) Length of time the material is accumulated
(e) Two ways RCRA requires EPA to develop criteria for identifying hazardous wastes:
(i) Listed wastes; OR
(1) Two rules for listed wastes
 Mixture rule – mixing a listed waste with a nonlisted waste  still a listed waste
 Derived from rule – if you process a listed waste into something not listed  still a listed waste
(ii) Characteristic Waste
(1) Ignitability
(2) Corrosivity
(3) Reactivity
(4) Toxicity
(iii) By determining a waste to be hazardous because of certain “characteristics”
(1) EPA regulations lay out the criteria used to identify characteristics of hazardous wastes
(2) Can be mixed or diluted so that it no longer has that characteristic, and thus no longer hazardous
(f) Definition of hazardous wastes:
(i) A solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical,
chemical, or infectious characteristics may (1) Cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or
incapacitating reversible illness; OR
(2) Pose a substantial present or potential hazard to human health or the environment when improperly treated,
stored, transported, disposed of, or otherwise managed
4) Subtitle D
(a) Governs solid wastes NOT considered hazardous
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(b) Subtitle D: bans dumping of a solid waste, including nonhazardous wastes, anywhere other than at a sanitary
landfill
(c) Responsibility for controlling the management of these wastes has remained largely the province of state and local
governments
(d) Subtitle D, rather than being a fed regulatory program, is a modest program of financial assistance to encourage
states to engage in area-wide waste management planning (with the exception of its “open dumping” ban and EPA’s
minimum standards for municipal landfills)
(e) Nonhazardous waste landfills can pose threats to human health and the environment:
(i) Landfills receiving nonhazardous waste still posed a substantial threat to groundwater
(ii) Prior to RCRA, hazardous wastes from industrial operations were often sent to municipal landfills; even after
RCRA, considerable amount of hazardous waste continued to be sent to municipal landfills
(iii) Midnight dumping: wastes dumped surreptitiously
(f) 1984 Amendments  changed federal role regarding solid waste management under Subtitle D
(i) Revised criteria required municipal dumps at least to perform groundwater monitoring and undertake corrective
action as appropriate
(ii) Congress also required states to adopt “permit program” to assure compliance with EPA’s revised subtitle D
criteria
(iii) Landfills are required within 5 years to conduct regular groundwater monitoring and to take corrective action to
clean up contamination
5) Government Enforcement
(a) §7003 provides government with a means of responding to existing contamination problems
(b) EPA is authorized to assess civil penalties for past or current violations, issue compliance orders, revoke permits, or
seek temporary or permanent injunctive relief
(c) RCRA also contains criminal provisions for knowing violations of the Act
6) Citizen Suits
(a) §7002 permits individuals to commence an action in federal district court to enforce RCRA’s waste disposal
requirement or remedy contamination
C) Comprehensive Environmental Response, Compensation and Liability Act – CERCLA
1) Purpose: First enacted in 1980. The Sins of our past.
(a) Superfund program which governs liability for the cleanup of hazardous substances. It is essentially a remedial
statute designed to clean up hazardous waste sites and respond to hazardous spills and releases of toxic waste into
the environment
(b) Provides mechanisms for reaching a range of liable parties to pay cleanup costs
(c) Focuses on remediation of past activities, which includes liability for both past and future cleanup costs of sites
2) Superfund: CERCLA creates the “Superfund” which the government may use to finance governmental response
activities, to pay claims arising from response activities of private parties who are not themselves liable parties under
CERCLA, and to compensate federal and state governments for damage to natural resources. Superfund is largely
funded by excise taxes on industries such as petroleum industry and chemical industry
3) Liability: Section 107(a) Federal government, state governments and private parties may sue those responsible for the
generation, transportation, or disposal of hazardous substances to recover the costs of cleanup
(a) Strict liability
(i) Courts, in reading the provisions that impose liability and finding no prongs for having to show negligence,
illegal conduct, etc. and looking at the underlying purpose (making polluters pay), concluded that since almost
all of the contaminations were not illegal or negligent, they interpreted CERCLA as strict liability statute or its
fundamental purpose would fail
(b) Joint and several liability
(i) More than one actor in the causal change; “all for one, and one for all”—everyone who is liable is liable up to
the full amount of the clean up
(ii) Find someone who has the money to be able to be responsible for the clean up
(c) Retroactive liability
(i) Nothing in statute says you’re liable for the sins of the past, but how else can you interpret the law? If the point
is the make polluters pay for the things in the past, how can this be anything but retroactive?
(1) US v. Olin Corp (1987)
 Court determined that Congress intended CERCLA to be applied retroactively to acts committed
before the effective date of the statute and that such retroactivity did not violate due process
(ii) Are we going to hold liable someone for doing a normal, legal activity 50 years ago that turned out to be illegal
now? Tough to swallow, but the judges determined they were going to interpret everything in a practical way to
reach public purpose of cleaning up
(d) Perpetual liability
(i) Prospective liability
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(e) Subject to very limited defenses that the hazardous release was caused solely by an act of God, act of war, or an act
or omission of a third party unrelated to D
(f) Statute of limitations was added in 1986 amendment – triggered when someone incurs response costs (not when
your activity caused contamination)
4) Section 107(a) - 4 key elements of cost recovery:
(a) Release or threat of release
(i) Passive migration of molecules of contamination is not a release
(ii) Movement out of a point of contamination is a release
(b) of a hazardous substance (not petroleum)
(i) Specifically excludes petroleum, though petroleum and its constituents would count as hazardous; why this
exclusion? Petroleum industry protected themselves by having this exclusion; however, this protection came at
a price—they had to pay the fee; so Superfund was going to be funded by the chemical and petroleum industry
(ii) But they are regulated under RCRA
(c) from a vessel or facility
(i) CERCLA defines “facility” as “any site or area where a hazardous substance has been deposited, stored,
disposed of, or placed, or otherwise come to be located.” Definition covers every single thing you’ve seen or
touched or heard of
(d) that caused response costs
(i) Liability is triggered when someone responds to it; liability isn’t triggered when you release or threaten to
release it; it’s when someone else incurs costs responding to your release
(ii) Response means two types of actions:
(1) Short-term cleanup measures called “removal” actions
(2) Comprehensive long-term “remedial” measures involving permanent containment or disposal
(iii) Not included in this is “compensation”: no victim compensation provision; response cost is investigating and
cleaning up the compensation; different from the compensation that was thought to happen when law was
enacted (victim compensation)
5) Who is liable?
(a) If person falls into one of the categories listed in §107(a) that is related to a Superfund site, they become known as
“potentially responsible parties” (PRPs) until a legal determination is made regarding liability:
(b) Four classes of persons liable:
(i) Current owners or operators of a facility or vessel
(1) Liability follows the land
(2) Doesn’t matter if the release happened before your ownership
 CERCLA was amended in 2002 to address the Bona Fide Prospective Purchaser (107(r))
 You must show by a preponderance of the evidence that all the disposal occurred prior to your
acquisition, you made every inquiry into prior ownership and provided every legally required
notice, took reasonable steps to stop continuing releases, etc etc
 Basically impossible to show
(3) NY v. Shore (2nd Cir 1985)
 Someone tried to argue they were excluded because the contamination happened a long time ago and
they had nothing to do with it; court ruled no exception for mere innocence—merely not having done
anything is irrelevant
(4) US v. Best Foods (Sup Ct. 1998)
 If parent corporation had some role in operation of its subsidiary and daily operations of subsidiary,
then maybe we’re not piercing the veil, maybe they are directly owners and operators for the purpose
of this statute
(ii) Former owners or operators at the time of “release”
(1) Concept of owner or operator is a challenge because some people that own a company doesn’t control the
operation so they had no ability to oversee anything, basically everybody who owned it was liable
according to the courts, this tied in with strict liability
(2) Nurad v. Hooper (4th Cir 1992)
 Prior owners liable if owned land while hazardous material was leaking; BUT other cases reject
liability for purely passive conduct
 “purely passive conduct”: if you release something into the land, then you have a little area of
contamination, over time it continues to move around, the argument was made that this migration
(passive migration) should not constitute a release under the Superfund statute
(iii) Generators or those who arranged for disposal of hazardous substance
(1) US v. Aceto (8th Cir 1989)
 Company sent ingredients to make pesticides to another company; thought was that they weren’t
intended to dispose of anything; however, liable if send pesticide ingredients to another facility to be
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turned into pesticide product; key was that they didn’t sell the ingredient—they still owned it; so by
not having sold it, they still had liability
(2) Other courts reject liability if selling “useful product”
(3) but if you transfer harmful substance to another company to make useful product, you may still be liable
(iv) Transporters who select destination
(1) If you are a trucking company and you are hired to take waste and the person who generated the waste told
you to go to a certain place to get rid of it, you are not liable
(2) But if a company just calls the truckers up and told them to get rid of the waste and the trucker decides
where to take the waste, then the trucker is liable
6) Who can sue?
(a) “Any person” may sue; standing to sue is very broad
(i) Note: One requirement for private cost recovery under CERCLA §107(a) is the presence of a hazardous
substance at the site. However, RCRA covers hazardous and non-hazardous “solid wastes,” a much broader
range of substances than CERCLA
(ii) Exception – if you are a PRP, you may not sue directly but you may sue for contribution under § 113(h)
(1) Suing for contribution costs from other PRPs
(b) May recover costs to investigate, plan and conduct clean-ups
(c) Costs must comply with National Contingency Plan (NCP)
(i) EPA planning document as to how to identify contaminated sites, figuring out which ones need cleaning up first
and giving a standard of care as to how to clean up. Basically, NCP is designed to establish procedures and
standards for preparing for and responding to releases of hazardous substances
(ii) Government costs: “not inconsistent with” NCP
(iii) Private costs: “consistent with” NCP
(1) What’s the difference? Burden of Proof
 “not inconsistent with” means the person being sued has to prove that the costs are inconsistent—
burden is on them; government is presumptively consistent with the NCP; anybody resisting that has to
prove that they were not, this is something that is pretty much impossible
(2) For a private party, they have to prove their costs were actually consistent with the NCP
7) Six defenses to liability:
(a) Act of God
(b) Act of war
(c) Act solely caused by unrelated third party and if defendant exercised due care
(i) What is due care?
(1) Whether you did a reasonable investigation before purchasing
(2) Chicken and the egg argument
 If you investigate and buy anyway  liable
 If you investigate and don’t find and then buy  liable
(d) “Innocent landowner” if defendant didn’t know and made appropriate inquiry
(i) Release or threat of release and damages were caused solely by the third party
(ii) Third party’s act or omission didn’t occur in connection with a contractual relationship with the defendant
(iii) Defendant exercised due care with respect to the hazardous substance
(iv) Defendant “took precautions against foreseeable acts or omissions of any such third party and the consequences
that could foreseeably result from such actions
(e) Lenders, if they didn’t participate in management of facility and hold indicia of ownership primarily to protect
security interest in property
(i) Banks are protected under this defense
(ii) This exclusion doesn’t apply if the lender “participated in management” rather than simply held the property on
paper
(iii) However, if you foreclose, you are now “owner”
(f) As of 2002, “bona fide purchasers” who are only liable as owner/operator who bought after 1/11/02 and can
prove all of 8 listed elements
8) Liability Allocation
(a) Statute is silent on how much people have to pay. How do you split up the costs? Factors considered in allocating
costs:
(i) Equitable factors
(ii) Gore factors (proposed but defeated – notwithstanding, these are the law)
(1) Distinguishable: if your waste is unique in some way that you can show how much you contributed to the
total waste
(2) Amount of hazardous waste involved
(3) Toxicity: degree of toxicity
(4) Degree of involvement: in generation, transportation, treatment, storage or disposal
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(5) Level of care: degree of care you spent to prevent environmental damage
(6) Cooperation with enforcement agencies: degree of cooperation by the parties with government officials
to prevent any harm to the public health or the environment
 This is the single most important factor
(7) Benefits received from the contaminating activities
9) Clean-Up Provisions – Two Options
(a) EPA may conduct clean up, using the “Superfund” then recover costs in a §107 recovery action (suing PRPs), OR
(b) EPA can compel PRPs to clean up with §106 orders
(i) For §106 orders:
(1) EPA issues administration order
(2) No hearing needed
(3) No right to challenge unless EPA sues defendant first after PRP refuses
(ii) Refusal to comply with §106 order:
(1) $25 K/day penalty
(2) Punitive damages up to 3X the response action costs
(3) Unless PRP can show a reasonable belief that
 It was not a liable party
 Defense to liability
 Order was invalid
 Inability to comply
 e.g. EPA tells you to do something that is technologically impossible; however, EPA usually never
does this
 de minimis contributor: a really small fraction
 Order was not cost effect or inconsistent with NCP
III Proposition 65: Safe Drinking Water and Toxic Enforcement Act
A) Purpose
1) Prop 65 supports the notion that no one should knowingly expose another without warning to chemicals known to cause
cancer or reproductive toxicity unless the discharger can demonstrate that the risk is not significant
2) Prop 65 has had a huge effect on manufacturers to use alternatives that are less toxic if the alternatives are available
(a) Fear of adverse consumer reactions to warning labels has encouraged them to reformulate their produces to remove
carcinogens and reproductive toxins
B) Two primary provisions
1) Provisions don’t apply to:
(a) Private parties
(b) Government
(i) Electability question – don’t want to lose support for Prop 65
2) Discharge Provision
(a) Prohibition on discharge to sources of drinking water
(b) No person
(i) “in the course of doing business”
(ii) shall knowingly discharge or release a chemical
(iii) “known to the state to cause cancer or reproductive toxicity”
(iv) into a source of drinking water OR land where it might pass into a “source of drinking water”
(c) Exceptions to requirement:
(i) Will not cause any significant amount of the chemical to enter source of drinking water, AND
(1) “Source” includes pretty much all ground water in the state
(2) no significant amount is akin to nothing
(ii) Release in compliance with all other laws
(1) Very difficult to show, because if you were complying with all laws and permits, you wouldn’t have had a
release that gets into drinking water
3) Warning provision
(a) No person
(i) “in the course of doing business”
(ii) shall knowingly and intentionally expose any individual to a chemical
(iii) “known to the state to cause cancer or reproductive toxicity”
(iv) without first giving a “clear and reasonable warning” to such individual
(b) Can’t qualify the warning—can’t undercut the scariness of the warning
(c) Exceptions to requirement:
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C)
D)
E)
F)
(i) No significant risk of cancer assuming lifetime exposure at the level in question (10 in 1 million – significance
threshold)
(ii) No observable effect of reproductive toxicity assuming 1000x level (assuming exposure 1000 times the level of
the product). E.g. birth defects
(d) Exemption: Naturally occurring chemicals in food products
(i) Food products containing naturally occurring carcinogens and reproductive toxins are exempted from the
requirements of the legislation
(ii) However, producers and distributors of food are required to use quality control measures that reduce natural
chemical contaminants to the “lowest level currently feasible”
Penalties
(a) Up to $2,500/day for each day of violation
(b) Injunctive relief
(c) Attorneys’ fees
Key Concepts
(a) Burden shifting
(i) Plaintiff has to make out a prima facie case that someone in the course of doing business has discharged a
chemical known to the state to cause cancer
(ii) Clear and reasonable warning is an affirmative defense
(iii) Defendant has to prove that the exemption applies
(b) Private and Public enforcement (after notice)
(i) Prop 65 allows public and private enforcement
(ii) Public enforcement – State attorney general, public prosecutors, any district attorney, any city attorney
(iii) To get standing for private enforcement, must give notice to alleged violator of what the violation is, and must
give same notice to Attorney General, district attorney of county area, and city attorney; usually 60 days notice
before bringing lawsuit
(1) During this time, if no prosecutor takes the case or is diligently looking into it, then you have the right to
sue
(c) “Known to state”
(i) AFL-CIO v. Deukmejian
(1) CA case that held chemicals found to be carcinogens or reproductive toxins as a result of animal testing had
to be included in the minimum list of chemicals “known to the state to cause cancer or reproductive
toxicity”
(ii) Good number of chemicals on the list that the fed government doesn’t find carcinogenic:
(1) Calcium supplements
(2) Car batteries
(3) Lead tape for golf equipment
(4) Lead machine molds
(5) Smokeless tobacco products
(d) “Significant risk”
(i) for carcinogens, risk greater than 1 in 100,000
(ii) for reproductive toxins, exposure at a level of one-thousandth the no-observed-effects level or above constitutes
a “significant risk”
(e) “Clear and reasonable” warning
(i) What do you say?
(1) “Safe harbor” language
(2) Context?
(ii) How do you say it?
(1) Write it on product
(2) Ads, mailings
(3) Internet/website
(4) Signs
Policy Considerations
1) Is it possible to overwarn?
(a) If you can’t put a warning into context, what are the good things and bad things of putting a warning on the product?
(b) Who has the right to decide that the risk from the lead is outweighed by the risk of not taking calcium?
(c) Overwarning can dilute the effectiveness of any warning
2) Is warning meaningful to help people assess risks?
3) What about explaining benefits?
Many unresolved questions
1) Interplay between statute of limitations and “passive migration” theory
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(a) Prop 65 has no statute of limitations; so you go to penalty provision has a one year statute of limitations; for
injunctive relief, you can go back 3 yrs
(b) Release from a tank: can think of it as a release that occurred 10 years ago, or it’s a release that is occurring
presently, since the release occurs over and over again
2) “one new molecule” theory
(a) you have an old release (e.g. gas tank that leaked a lot but you have a new one now; it starts leaking a little); by
leaking a little tiny bit in a place where you used to leak a lot before  does this trigger the injunction to clean up
the whole thing?
3) abstention/primary jurisdiction
(a) almost all sites are already under governmental regulation
(b) primary jurisdiction – equitable doctrine that allows courts to decide not to hear a case while it is pending before a
regulatory body
G) 2002 Reforms
1) 60 day notice to include “certificate of merit” – some technical scientific person to certify it, saying there is some merit
2) All settlements to be submitted to AG’s office for opportunity to comment
IV Air Quality Protection
A) Clean Air Act
(a) Purpose: Fundamental goal of the Act (passed in 1970) is the nationwide attainment and maintenance of National
Ambient Air Quality Standards (NAAQS)
(b) Regulates two different types of pollutants:
(i) Criteria pollutants (main focus) - § 108
(1) Definition: criteria pollutant is one which the EPA has determined endangers the public health or welfare
and which is produced by numerous and diverse sources
 Carbon monoxide - cars
 Sulfur dioxide – emitted by burning coal; pollutant that causes acid rain
 Nitrogen oxide – auto emission and fuel combustion
 Volatile organic compounds (VOCs) – auto emissions, paint shops
 Particulate matter
 Lead – air emissions of lead
(ii) HAPs = hazardous air pollutants (Conventional) - § 112
(1) Toxic substances that get into the air
(2) Regulated by National Emissions Standard for Hazardouz Air Pollutants (NESHAPs)
(3) Regulations designed to regulate factories
(4) Not the major type of air pollution
(5) Asbestos, beryllium, mercury, benzene
B) NAAQS (National Ambient Air Quality Standards)
(a) NAAQS = acceptable concentration of a pollutant in the ambient air, measured over a designated averaging time,
that will protect the public health with an “adequate margin of safety”
(b) Two parts:
(i) Concentration (cubic meter of air; micrograms/m3)
(ii) Time element: how long in the average is someone going to be exposed to it
(c) Ambient air, not some odd exposure at the work place or residence in a unique area
(d) Health-based standards = based on what is healthful to breathe; NOT based on cost or what is technologically
feasible
(i) Lead Industries Ass’n v. EPA
(1) First case in which court articulated that the NAAQS are health-based and not based in any way on cost or
technological feasibility
C) Implementation
(a) Air Quality Control Regions (AQCRs)
(i) Entire nation is divided into air quality control regions. Each state is required to designate every area in the
state as attainment, non-attainment, or unclassifiable as to each criteria pollutant within 1 yr of EPA’s
promulgation or revision of a NAAQS
(1) CA = divided up into different regions within the state (unlike other states)
(b) State Implementation Plans (SIPs) = each state must come up with a plan to get the emissions within their state
and their control regions to meet the NAAQS
(i) 5 things SIPS must do:
(1) Must determine existing and projected levels of criteria pollutants in each of the air quality regions
(2) Need to determine what emissions deductions are necessary to meet the NAAQS
(3) Need to inventory where the emissions are coming from and where they are likely to come from in
the future
(4) Must decide on control strategies and allocations of reductions of emissions from these sources
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(5) SIP must demonstrate to EPA that in fact doing all of this, you will indeed come to have a state or a
region that meets the NAAQS
(ii) General SIP requirements (examples):
(1) Enforceable emissions limitations and other measures necessary to attain and maintain the NAAQS
(2) Methods for compiling air quality data for the state
(3) Boundaries of the SIP
(4) An enforcement program
(5) Provisions to control interstate and international pollution
(6) Measures to ensure adequate personnel, funding, and authority
(7) Requirements for sources in the state to monitor and report their emissions
(iii) Process
(1) After a NAAQS is promulgated or revised, a state has 3 years to prepare its SIP
 State develops plans and then presents it to EPA
(2) EPA then decides whether or not the SIP will meet the requirement
 EPA has 1 year from its completeness determination to decide if SIP meets the requirements of the
CAA
 EPA may approve, disapprove, partially approve, or conditionally approve an SIP
(3) State has 3 years to implement the SIP after approval
 Upon approval, it becomes federal law
(iv) Variances: States may adopt variance provisions which allow individual sources to seek relief from stringent
SIP provisions if they feel the SIP requirements are economically or technologically infeasible
(v) If SIP doesn’t meet the NAAQS, then fed government can impose its own plan (FIP)
(1) Federal implementation plans (FIPs) = EPA has 2 yrs to promulgate an FIP for a state that has failed to
meet SIP requirements unless the state corrects the deficiency and has its plan approved within that time
period
(2) Deficiencies that trigger FIP sanction:
 Failure to submit or revise an SIP
 Failure to submit a complete SIP
 Partial approval or disapproval of an SIP
 Disapproval after not meeting the conditions of a conditional approval
D) Nonattainment Areas
(a) Areas of the country that are not able to attain the NAAQS
(b) Various ways EPA or state can “kick it up a notch” to get this non-attainment area into an attainment area
(c) Special SIP provisions are required for nonattainment areas  most significant requirement is the preconstruction
review process for new and modified sources in a nonattainment area
E) New Source Review (NSR) – for stationary sources
1) If there is a new source after 1970, Congress wants to impose SIP criteria that applies directly to the new sources
(a) When someone modifies an existing power plant, is that considered a new source? (e.g. replacing the inside of the
factory, but having the same building)
2) Any new source, construction or commencement of which occurs after 1970 OR
3) Any modification of a source
(a) What is new?
(i) A “new” source is one that is constructed or modified after the publication of the standard of performance
(ii) “Modification” is “any physical change in, or change in the method of operation of, a stationary source.” A
modification must result in an increase in emissions of a particular pollutant or in the emission of a new
pollutant
(iii) “Stationary source” is any “building, structure, facility, or installation which emits or may emit any air
pollution”
F) Title V
1) 1990 Amendments in Title V require all “major sources” and other sources regulated under the CAA to have a permit
(a) “Major source”: source is “major” if it emits or may potentially emit 100 tons per year of criteria pollutant
2) Federally mandated permitting program
3) States must submit permit programs to EPA for approval, which the EPA may reject if they fail to meet the standards of
the CAA
(a) Elements of a state permit program:
(i) public access
(ii) public participation
(iii) minimal conditions
(iv) modification provisions
(v) standardized permit application
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G)
H)
I)
J)
K)
(vi) fees
4) Public participation. Public has opportunities to participate in the permitting process = under state permit programs,
any person has the opportunity to comment on permits, to seek review of permits in state courts, and to compel the state
to take final action on a permit application. Any person also may petition EPA regarding state permits and seek judicial
review of EPA’s action
5) How does it work?
(a) If you’re a major stationary source, you can go to fed government, tell them about your factory, and they will issue
you a permit
(b) Permit says what you’re allowed to emit
(c) Like the SIPs, Title V permit process is given to the states, with EPA watching over the function; EPA can step in
and object
6) Benefits of permits:
(a) Enforcement benefits: permits simplify monitoring and review because all requirements that a source must meet
are in one document. Permits also allow for increased monitoring by state agencies and reporting by sources
(b) Environmental group benefits: environmental organizations like the permit system because the public may
participate in the permitting process at several levels
(c) Source benefits: sources like the permit system because compliance with a permit is generally deemed to be in
compliance with the CAA
Prevention of Significant Deterioration Program (PSDP)
1) Prevention of significant deterioration (PSD) areas = areas that have better air quality than that required by NAAQS
2) All SIPs must contain measures necessary to protect these areas
(a) Sierra Club v. Ruckelhaus:
(i) Sierra Club brought suit in 1972 to compel EPA to prevent serious deterioration in areas that had superior air
quality because Sierra was afraid the air quality would be allowed to degrade to the NAAQS level. Sierra
argued that purpose of CAA was to protect and enhance the nation’s air resources, and that the EPA was
required to create a program to protect these areas
(ii) Holding: EPA did have a non-discretionary duty to prevent significant deterioration of air quality in
these areas
3) PSD program was designed by Congress to prevent deterioration of areas that have already met the NAAQS; preventing
new sources from coming in and polluting an area that is “good”
Title II
1) Mobile source review under Title II
(a) Mobile sources are the other sources that are directly regulated by the fed government
(b) “Mobile sources” of emissions are the primary source of hydrocarbons, carbon monoxide, and nitrogen oxides
2) Four ways to control mobile emissions:
(a) Emissions standards
(i) Control the combustion process of the automobile, such as a catalytic converter or make car that burns fuel
more efficiently
(b) Fuel content
(i) Burn cleaner fuel; change the fuel somehow, make it so it doesn’t emit as much air pollution
(c) Alternative vehicles
(i) Drive cars which are cleaner cars, brand new technology (e.g. electric cars)
(d) Transportation controls
(i) Drive less
Enforcement
1) CAA is enforce by the EPA, through citizen suits, and through petitions for judicial review of EPA’s actions
(a) EPA enforcement: primary method is to bring a civil suit for injunctive relief or penalties. Can also impose
administrative penalties and criminal sanctions
(b) Citizen suits (see below)
(c) Petitions for judicial review: certain actions by EPA are subject to judicial review under CAA
(i) a person or group may petition for review of the actions of EPA in promulgating or acting upon any national,
local, or regional standard or regulation, including primary and secondary NAAQS and state implementation
plans
Citizen Suits (Title III)
1) Citizen Suit Provision in the Clean Air Act that allows citizens to sue for violations of any provision of the Act
2) Any person may bring a citizen suit against a source to enforce any emission standard or permit limitation, or may sue
EPA if the Administrator fails to perform a non-discretionary duty
Acid Deposition Control Program (Title IV)
1) Title IV – concept of trading as an attempt to control emissions from certain types of sources
2) Title IV program for acid rain reduction is an example of a “cap and trade” program:
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V
(a) Title IV caps acid rain emissions nationwide, assigns each of the sources included in the program an allowance o
permissible emissions, such that the total allowances equal the cap, and then permits emissions trading among the
sources
Environmental Risks
A) By mid-1970s, policymakers were forced to develop new process for studying and regulating hazards
B) Policy-making for these hazards involves two steps:
1) Risk assessment: use of scientific research to define the probability and severity of some harm coming to an individual
or a population as a result of exposure to a substance or situation
2) Risk management: public process of deciding what to do where risk has been determined to exist, including integrating
risk assessment with considerations of engineering feasibility and figuring out how to exercise our societal imperative to
reduce risk in the light of social, economic, and political factors
C) Risk Assessment
1) When a pharmaceutical company wants to make a new drug, before they can sell it on the market, they need approval
from the FDA. But, there is no requirement that you take a new product to the federal government and ask if it is ok to
manufacture and sell
(a) Why?
(i) Unchallenged assumption about the way the law treats hazardous chemicals. Allow manufacturers to do
whatever, and have regulators come in after the harm
2) Anatomy of Risk Assessment
(a) Risk identification – What is the risk, if any?
(i) Reserve Mining
(1) They knew breathing Taconite was a risk, but that’s not what the case was about. What they wanted to
determine was the risk of ingesting it
(ii) Epidemiological studies
(1) Study of incidence of distribution of disease in human populations
(2) Can you make a link between the riks you are looking at and the incidence of disease
(iii) Toxicological studies
(b) Dose-response assessment
(i) Risk assessment is usually an inexact science  to determine risk of particular substance, lab animals are
exposed to high-level doses of the substance until some reaction (usually cancerous tumors) develops. Then
scientists take this data and extrapolate backwards to determine the probability of injury from some percentage
of that dosage
(c) Exposure Analysis
(i) What are the various ways that people can be exposed to the chemical
(1) Drinking
(2) Eating
(3) Touching
(4) Breathing
(ii) What is the connection between the release of the chemical and where you are
(1) Exposure pathways
(iii) Hazard quotient - Add up all the exposure pathways
(1) Exposure / reference dose
 If greater than 1 , you have an unacceptable risk
(2) Built into all of this are policy and scientific assumptions that make the “risk” not all as black and white as
the finals numbers make it seem
D) Risk Management
1) Some statutes are based on
(a) Cost benefit
(b) Feasibility
(c) Health
2) Reserve Mining
(a) Before risk assessment, the only model people had was from tort (duty, breach, cause, harm) – which the plaintiff
had to show –
(i) That what the defendant did was a substantial factor in causing their harm
(1) General causation – does this chemical cause this type of harm
(2) Specific causation – did my exposure to the chemical cause my injury
(b) What did the Court of Appeals determine from the three studies
(i) Not more likely than not that Taconite was causing the harm
(1) There is no risk
(ii) BUT, at the same time, the court said that these charges give rise to a reasonable medical concern to public’s
health. Chemicals in water create some health risk
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(1) Court is confusing risk with uncertainty
3) Ethyl Corp v. EPA
(a) Court rejected argument that they must prove higher levels of lead from the gasoline was harming children. Don’t
have to prove it, just establish a relationship between blood levels of lead in children and lead in gasoline. As soon
as lead was phased out of gasoline, the lead levels in children went down
(b) Clearly established that the level of lead in the children’s blood was the kind that would cause significant health
issues
4) AFL-CIO v. American Petroleum Indus.
(a) Permissible exposure limit under OSHA – what is the daily level a worker can be exposed to
(i) Set it at 10 ppm, then took it down to 1 ppm
(b) What is the problem with this?
(i) OSHA needed to do a cost/benefit analysis of moving down to 1 ppm
(c) SC – OSHA hasn’t established that 1 ppm isn’t safe
(i) Not only did they not know whether 10 ppm was a risk initially, they wouldn’t know if 1 ppm was a risk. They
could not justify making the move if the burden was on them to show they needed to do it to make a safe
working environment. And the burden was on the government – so the court said they were not justified in
moving the levels
5) Corrosion Proof Fittings v. EPA
(a) Issue under Toxic Substance Control Act – whether or not asbestos should be banned. No safe use
(b) In the end, despite all the caveats (any action you take will be better than the status quo; do we take the action that
saves more lives, or the action that is more efficient) you have to make a decision – you must know that people will
die who otherwise might be alive if you made a different decision.
VI Water Quality Protection
A) Federal Water Pollution Control Act of 1972 – renamed - Clean Water Act (1977)
1) Act imposes national, technology-based standards on individual sources to make the nation’s waters fishable,
swimmable, and to eliminate the discharge of pollutants into navigable waters
2) In reality, this was an amendment to the Harbors and Rivers Act
3) Why is it so difficult to regulate water (in comparison to air)?
(a) Many different types of water bodies
(b) Non-point sources
(c) Involves various political actors
(d) Publicly-Owned Treatment Works System
(e) Water use is localized
(f) Difficulty with information gathering
(g) Different standards for different uses of water
(h) Existence of the water bodies themselves
B) Regulatory Framework
1) Three major programs addressing the individual pollutant sources:
(a) Point source: “any discernible, confined and discrete conveyance discharges pollutants from a specific
conveyance.” Direct discharges into water systems are permit-controlled
(i) Point sources do not include human beings
(ii) NPDES: National Pollutant Discharge Elimination System grants permits that control the amount and
concentration of pollutants that are discharged directly into streams, lakes, or the ocean by industrial and
municipal facilities
(b) Non-point source: pollution from runoff or from a nondiscrete source, also called areawide pollution, requires
different methods of control. Includes pollution from nonspecific areas, but regulation of these areas has produced
little actual control
(c) Oil spills: directly addressed through the oil spill program
2) Types of Pollutants
(a) Conventional pollutants: group of things that are organic waste and chemicals that decompose in the water
(i) Biochemical oxygen demand (BOD)
(1) Organic waste that when it decomposes, it uses up oxygen
(ii) Bacteria
(iii) Suspended solids and total dissolved solids
(iv) Nitrogen and phosphates, and other nutrients/fertilizers
(b) Toxic pollutants
(i) Arsenic, chromium, solvents, stuff manufactured and disposed of by a modern industrial society
(ii) Very acidic/basic solutions
3) §301
(a) Prohibits the discharge of pollutions into navigable waters unless the discharge are in compliance with the terms of
the Act (which includes getting a permit under §404 and §402)
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(b) “Discharge of pollutant”: any addition of pollutant to the navigable waters from any point source
(c) “Point source”: “any discernible, confined and discrete conveyance.” If it is a point source, you can’t discharge
from it unless you have a permit
4) §502
(a) Definitions for terms in the Act
5) §402
(a) Establishes a national permit program NPDES to cover the entire nation for any point-source discharging pollutant
in navigable waters of US
(b) Permit: permit has a fluid limitations put on it; it tells you how much and at what rate and what concentration you
can discharge certain kinds of pollutants from point-sources
6) §404
(a) Gives power to Army Corp of Engineers to regulate the disposal of dredged or filled materials into the waters of the
US
7) NOTE: Emphasis of Clean Water Act is not the water quality but on the effluent standards
8) NOTE: Unlike the Clean Air Act, CWA’s focus is on what the achievable limitations are, allowing only what is
technologically feasible
C) Commerce Clause
1) What can Congress do, what can EPA do, to regulate discharges into bodies of water? What does the Commerce Clause
allow?
2) Riverside Bay View Homes
(a) Adjacent to navigable waters was wetlands.
(b) Issue: Are wetlands a body of water that can be regulated by Congress?
(c) Holding: Yes, Congress can regulate. Purpose of the CWA is to protect water quality; it was appropriate for the
Army Corp of Engineers to look at the entire body of water. They have to make sure wetlands are okay so the entire
body of water is protected
3) Cook County
(a) Former landfill that wasn’t being used for anything anymore; it was miles away from any navigable waters; there
were little ponds in the landfill (formed because the landfills had little areas where water could gather when it
rained); Cook County wanted to get rid of the water bodies; Army Corp of Engineers said they had to get a permit to
get rid of those ponds; question was whether they needed to get permits
(b) Argument: Cook County said that these weren’t navigable waters. Corp said there is a migratory bird rule. One of
the things they can regulate under the Clean Water Act are bodies of water that birds which migrate need to stop at
on the way to where they were going. They found that there were birds that stopped at these landfill ponds.
Commerce Clause rationale. There are many Americans that follow migratory birds so therefore this is an interstate
issue
(c) Holding: (5-4) said this particular application of migratory birds was an unreasonable interpretation of statute by
Army Corp of Engineers; they dodged the constitutional issue under the statutory construction; majority
distinguishes this case from Bay View Homes
(d) Dissent: Stevens said majority is not following the rationale of Bay View Homes
D) Permits
1) CWA permit system is the National Pollutant Discharge Elimination System (NPDES)
2) Permits may be issued by the state or by EPA
(a) State-issued permits: state may issue permits if it has an EPA-approved permit program
(b) EPA-issued permits: EPA has permitting authority in states without an approved program
3) Permits last for 5 years
4) Purpose of a permit is to identify and limit the most harmful pollutants while leaving a vast number of other pollutants to
disclosure requirements
E) Effluent Limitations
1) Technology based
2) Must ask what is it that you want to achieve, a limitation that makes the water drinkable or regulate on the principle that
you are merely concerned about the fish and wildlife; or do you ask the question of what’s economically and
technologically feasible, ignoring the other issues
3) Different standards:
(a) Best available technology to limit the effluents coming out of point source (up to EPA to determine what is the best
available technology for a given industry)
(b) Best practicable technology, which is a little bit less stringent than best available technology
(c) Best conventional technology that applies to conventional pollutants
4) Problem: puts burden on regulator on what the correct limits should be
5) There was an attempt to control toxic effluents in the exact same way the Clean Air Act does; develop health based
standards of water quality of receiving bodies; it turned out EPA couldn’t figure out how to do it—it is TOO
COMPLICATED in a way that could be justified
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F) Water Quality as “Safety Net”
1) In addition to fed effluent standards, each state retains the authority to promulgate its own standards regulating water
quality
(a) Effluent limitations are applied independent of water quality (even if the receiving water is fine)
2) States go through several steps in promulgating and revising water quality standards:
(a) Designate uses: a state must designate the use of each body of water within the state
(b) Determine criteria: state then determines criteria, or the maximum concentration of a pollutant that can be allowed
without jeopardizing the designated use
(c) Determine total maximum daily load (TMDL): state next determines the total maximum daily load, or the total
amount of a pollutant from point sources and non-point sources that will not cause the water to exceed the criteria
(d) Translate into permit limitation: Finally, the state translates an individual plant’s share of the TMDL into a
numerical limitation in the source’s permit
3) Under EPA’s anti-degradation policy, states may not lower existing uses and the water quality necessary for them.
However, a state may lower the use of certain high quality water to fishable and swimmable level if necessary to
accommodate important social or economic development.
(a) State may not lower the use of outstanding national resources such as waters in national and state parks or of other
exceptional importance
4) Toxic Hot Spots
(a) These are areas that consistently fail to meet water quality standards due to toxic pollution
(b) CWA requires states to identify those areas and the facilities involved in those areas, and to develop “individual
control strategies” to ensure that these areas come into compliance (figure out a way to deal with the problem)
G) Non-point Sources
1) Non-point source pollution is usually runoff, or pollution not channeled through a discrete conveyance
(a) Farms, construction sites, mining operations, discharges from storm sewers; animal waste
(b) Section 208, 319: state was to go out and assess the problem and may be given money; states were to develop
management programs to deal with the issues. However, these provisions have failed to control the significant
amount of nonpoint source pollution that is produced
H) Wetlands
1) Definition: “those areas that are inundated or saturated by surface or ground water at a frequency and duration
sufficient to support . . . a prevalence of vegetation typically adapted for life in saturated soil conditions”
2) No specific provision in the CWA addressing wetlands protection, but EPA and the Army Corps of Engineers have
utilized the §404 permit process to provide some protection for wetlands
(a) Section 404 governs discharge of dredge and fill material. It requires a permit if you’re going to discharge dredge or
fill material into navigable water
(b) Basically, CWA is not designed to protect wetlands, but we want to stop the destruction of wetlands by developers
3) Permit requirement  If you want a permit you have to show 4 things:
(a) There is no practical alternative that will have a less impact on the ecosystem
(b) There is no statutory violation that will occur
(c) There will be no significant adverse impacts such that if you dredge or fill the wetlands it will cause a million
problems, either individually or cumulative
(d) You’ve taken all reasonable mitigation measure
4) Exemptions from permit requirement: certain activities are exempt from the permit requirement for discharges of
dredged or fill material
(a) Normal farming activities
(b) Maintenance or reconstruction of dams
(c) Construction or maintenance of farm ponds or irrigation and drainage ditches
(d) Construction of temporary sedimentation basins
(e) Construction of farm roads forest roads, or roads for mining operations
(f) Activities covered by nonpoint source pollution programs
5) Section 404 does not protect other activities other than filling or dredging that can threaten the wetlands. The statute
says you can’t discharge dredge or fill into the wetlands. That means you can’t throw stuff into it. It doesn’t say
anything about making a channel through the wetlands.
I) Enforcement
1) EPA enforcement: EPA may issue a compliance order, may institute a civil action, or may pursue criminal sanctions
against an alleged violator
2) Citizens suits: any person with standing may sue any alleged violator of an effluent limitation or an order issued by a
state or EPA
VII Environmental Impacts Analyses in Public Decision Making
A) National Environmental Policy Act (NEPA)
1) Introduction
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(a) National Environmental Policy Act is an environmental statute that emphasizes information rather than regulation.
It requires the publication of information about the environmental effects of and alternatives to potential government
actions
(b) NEPA doesn’t dictate environmental standards or controls
(c) One of the most important things about NEPA is that it set a goal for environmental protection, and it set up a
methodology
(i) Instead of imposing substantive mandates, it says our policy is for fed decision-makers to consider when
making environmental decisions
(d) Method: consider impacts
(e) Real procedural mandates: doesn’t impose mandates on private actors, only government actors
(i) Only federal actions are affected by EIS requirements. State and local governmental actions, as well as
private actions, are not subject to NEPA
(ii) if there is a sufficient amount of fed involvement in a private action, the EIS requirement may be triggered
2) Purpose
(a) NEPA establishes policy, sets goals, and provides the means for carrying out the policy
(b) It’s emphasis is on information: both the documentation of environmental statistics and the dissemination of the
documentation
(c) NEPA requires fed agencies to consider the effects of their actions on the environment by preparing a detailed
Environmental Impact Statement (EIS)
(i) Agency only needs to consider the environmental consequences of its actions
(ii) Once the agency has made a decision, the ct may only interject to ensure that environmental consequences were
indeed considered, and not to change the decision made by the agency
(iii) Where environmental consequences have been considered, no more is required by NEPA
(iv) Included in the EIS must be a discussion of the alternative proposals to the government action and the
environmental impact of each
(v) Main purpose of the EIS is to inform the public as well as the decision-makers about the proposed action and
the alternatives to such action
3) Council of Environmental Quality
(a) NEPA established CEQ to assist the President with environmental concerns
(b) Main responsibility of the CEQ is to issue guidelines to interpret NEPA’s requirements
4) EIS: Environmental Impact Statement
(a) Exemptions from EIS obligation: certain situations exist in which the obligations under NEPA cannot or need not
be met by an agency
(b) Environmental Assessment: EA is a short document which outlines the proposal and its possible environmental
impact. It aids the agency in determining whether a full EIS is necessary
(c) Finding of No Significant Impact: With the aid of the EA, the agency decides whether to do an EIS. If it decides
not to, it issues a “Finding of No Significant Impact” or FONSI
(i) Issuance of a FONSI is usually the last NEPA action on a project
(ii) FONSI may not be issued for activities which have a potential
(d) When must an EIS be prepared?
(i) EISs are only required for “proposals for legislation and other major Federal actions significantly affecting the
quality of the human environment.”
(1) Human environment means the natural and physical environment and its relationship with the people of
that environment
(2) Economic and social effects are not enough in and of themselves to require an EIS
(3) Significant impact on the physical environment must be demonstrated
(ii) Kleppe: SC has ruled that an EIS need only be prepared when an agency has actually made a proposal, not
when it is merely contemplating some action
(e) “Significantly affecting the quality of the human environment”
(i) Hanly: balancing test  it is up to the agency to decide (2-part test):
(1) The extent to which the action will cause adverse environmental effects in excess of those created by
existing uses in the area, and
(2) The absolute quantitative adverse environmental effects of the action itself
(f) Adequacy of the Environmental Impact Statement
(i) Generally, the EIS must include the environmental effects of the proposed action and alternatives to the
proposed actions, and the alternatives’ own effects
(ii) Consideration of Alternative: Agency must consider alternatives to the proposal and the environmental impact
of those alternatives, even if no EIS is required
(iii) Mitigation: mitigation of the environmental impact must be considered in the EIS
(g) Quality of EIS
(i) Almost every NEPA case focuses on the quality of the EIS
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(ii) Sierra Club v. Army Corp of Engineers: EIS must set forth sufficient info for the general public to make an
informed evaluation and for the decisionmaker to make a good decision
(1) Ct struck down the EIS for relying on too little data; didn’t satisfy the arbitrary and capricious standard
5) Recap:
(a) NEPA regulations set many less-than-EIS rules:
(i) EA: environmental assessment
(ii) FONSI: finding of no significant impact
(iii) Public review and comment: must be circulated for public review so people can lobby if they want to
(iv) Alternatives: alternatives could be reduced intensity of the proposal; EIS must include alternatives
B) California Environmental Quality Act (CEQA)
1) Introduction
(a) Amazing statutory scheme from fairly modest roots
(b) CEQA gave people a tool to influence policy that was hugely powerful
(c) State analog to NEPA
(d) Much broader (than NEPA)
(i) applies to more projects
 CEQA applies to all state, local, and regional agencies
 It says that before undertaking any discretionary action that might impact the environment you have to
prepare an EIR (Environmental Impact Report)
(ii) Case law: must do EIR if there is a “fair argument” that there “might” be “significant impact”
(1) If you do an EIR then the EIR is to be upheld if there is any substantial evidence supporting its conclusions
(2) So very undeferential standard if you don’t do EIR, but very deferential if you do the EIR
2) Substantive mandates
(a) Must adopt feasible alternatives or mitigation procedure that will decrease or avoid significant impacts; not optional
(b) Different from NEPA, where you are only required to consider it
3) Strict procedural rules
(a) CEQA has more than NEPA
(b) Prepare and circulate DEIR – Draft of Environmental Impact Report
(i) People can comment on them
(c) Agency must respond in writing in FEIR (Final EIR) to every comment
(i) Different from NEPA
4) Broad standing to sue under CEQA
(a) Beneficial interest OR
(b) Citizen exception
(i) Anyone who has beneficial interest can sue or if you’re a citizen and you allege that you care that is enough to
sue, you have standing
(ii) Organizations can take advantage of the citizen suit as well as long as they show they have members that care
(iii) Agency can’t question members; the court will just believe the organization. So basically, almost EVERYONE
can sue
(c) Exception: operator of one facility sued the competitor facility. Operator #1 said that they had to deal with so much
shit and the other facility doesn’t have to. So they filed a suit saying that Op #2 doesn’t have a sufficient EIR. Ct
said that the statute is not designed to protect competition. Operator #1 can’t support the citizen exception.
(i) CA “private attorney general” statute allows for attorney’s fees if you win: if someone bring litigation to
enforce important public right, they are entitled to recover reasonable attorney’s fees
(1) The whole point is to help the groups that don’t have an economic interest that would be sufficient to
justify the bringing of the lawsuit (not for corporations that would have sued anyway, regardless of whether
this AG provision exists)
5) Practical Effects
(a) Forces focus on environment
(b) Empowers communities and others
(c) Leverage (maybe for other issues, like competition, labor contract, NIMBY)
(d) Delays
VIII Land Use Controls and Regulatory Takings
A) Introduction
1) Fifth Amendment provides that the federal government shall not take private property for public use “without just
compensation.”
(a) It’s fine for government to invoke its power of eminent domain to come in and take your property
(b) MUST be done for public purpose
(c) MUST be compensated
2) Regulatory takings: What the government does to regulate the use of the land; claim is that the regulation is prohibiting
the uses in such a way that it’s making the property not as valuable
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B) Applicability
1) Takings clause of 5th Amend applies to all levels of government: federal, state, and local
2) Not limited to physical seizures of property
(a) Physical invasion of property is a per se taking
(b) Pennsylvania Coal: Holmes said when a regulation “goes too far” it is a takings. Question this raises is, to what
extent is “too far”?
(i) Coal miners had to leave columns of coal in substructure to support the houses.
C) Legitimate State Interest
1) In imposing environmental regulations which affect land use, the state acting pursuant to its police powers must have a
“legitimate state interest”
2) Penn Central: regulation of a private owner’s use of his property to protect the environment is regarded as a public
interest (finding that a NY landmark preservation law didn’t constitute a taking of plaintiff’s property)
(a) SC determined it wasn’t a takings, but came up with a balancing test:
(i) RIBE: reasonable investment back expectation
(ii) Character of government action: is government action in good faith? Are there alternatives? Is it reasonable?
Etc.
(b) In this case, government was granting them other air rights over other buildings—so government was doing things
to substitute what they were taking
D) Cases
1) Lucas v. South Carolina (1992)
(a) Facts: Lucas had beachfront property; two years after, South Carolina legislature enacted the Beachfront
Management Act, which prohibited the building of residence at a certain distance from the beach.
(i) SC hade huge erosion problems and their beaches were getting wiped out, so the government prevented people
from building things on beaches to alleviate the problem; people had already built houses on their lots before
the Act; Lucas and a few other people were prevented from building on their own lots
(b) Lucas argued the regulation constituted a taking because now he had no economic use of his land anymore, and that
was the reason why he bought the land in the first place, to be able to build a house on it
(i) Trial court made a couple of findings: it was a takings, and the land had NO value at all anymore; defense of
state was it was a normal exercise of its police powers, and there is no 5 th Amend analysis that could take place
at all
(ii) South Carolina SC: ruled there was NO taking
(c) Holding: (Scalia) SC agreed with trial court because there’s no economic value of the land anymore, it was a
takings. He said the state’s exercise of its police powers doesn’t give them immunity—brushes aside this issue. He
goes on to formulate the new rule
(i) RULE: it is a takings under 5th Amend when a regulation deprives the owner of land of all economic uses
of the land regardless of whether the state articulates some police power basis for what it did
2) So after Lucas, we have: (things to look at when looking at a takings situation)
(a) Physical possession, no matter how small
(b) No beneficial economic use which is inconsistent with state’s decisional law
(i) Categorical: if you show this, it’s a takings, period
(ii) Problem with categorical analysis: what is it that you are saying is rendered value-less? Go back to the bundle
of rights = property. Think of the property as being split up into A, B and C, and only B gets harmed, and A’s
prop gets rendered half-valueless
(iii) What does “inconsistent with state decisional law” mean?
(1) Determine whether or not the regulation would have been something the state could have done by just
applying state decisional law (i.e. remember if the underlying claim could be construed as nuisance)
(c) Penn Central showing  balancing test
(i) Not categorical: it all depends
3) Palazzolo v. Rhode Island (2001)
(a) Timeline
(i) 1959 – Corporation purchases land (wetlands area)
(ii) 1960s – unsuccessfully sought to develop
(iii) 1971 – Restriction placed on wetlands
(iv) 1978 – Corporation dissolves, Palazzolo gets the land
(v) 1983 – Again sought to develop
(1) Regulations require that there be a compelling public purpose for development – he wanted to develop a
beach club
(b) RH SC ruled his takings claim wasn’t ripe
(i) Issue is, has he pushed this proceeding far enough along before the RI Coastal Council that they made a final
decision that he can’t use the land in a certain way so that SC has a record to go on to figure out if there was a
taking
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(c) Holding: (Kennedy) said that the record was pretty clear that they weren’t going to allow any development on this
property, but he was not deprived of all economic use. Therefore, this should not be counted as a taking.
(d) Did he have a right to challenge the regulations that were in place before he took title?
(i) RI SC – He has no right
(1) His two claims
 All economically beneficial use taken away
 Not inconsistent with state decisional law
 He wasn’t completely deprived of all use
 Penn Central ad hoc analysis
 The fact that he took the property with notice of the law and restrictions, would also destroy his
claim for RIBE
(ii) SC held that a regulatory takings claim is not necessarily defeated simply because the regulation existed
before petitioner acquired the land.
(1) Court pointed out that one of the main purposes of Takings Clause was to enable citizens to obtain
compensation for manifestly unreasonable and onerous state actions, and that such actions do not become
more reasonable merely through passage of time or transfer of ownership
4) Tahoe v.Tahoe (2002)
(a) Facts: CA and NV decided to pass rules to restrict land use around the lake; council imposed a moratorium around
the lake. The purpose was to figure out what to do with the problem. The moratorium lasted 3-6 yrs.
(b) People who owned vacation home property around the lake couldn’t develop for several years. These people argued
this was a taking based on a categorical concept of Lucas. They said they were deprived of all uses of their land for
that period. They did not sue under Penn Central.
(c) Holding: (Stevens) situation didn’t fit the categorical Lucas rule because the property was NOT completely
valueless and deprived of all economic use. SC concluded that a temporary moratorium on development—even
one that denies all economically viable use—is not a per se or categorical taking
(i) There were portions of their property that still had value
(ii) You can’t aggregate a piece of property and point to one portion of what you aggregated out and say you don’t
have any property value
(iii) Also, a temporary moratorium by its very nature restores the value of the property once the restriction is lifted
(iv) Stevens also said the kind of rule the Lake Council imposed was a good idea (moratorium)—moratorium good
because by having a temporary freeze, it allows people to get together and figure out what they should do
instead of rushing and doing a sloppy job at trying to fix the problem
5) Dolan v. City of Tigard (1994)
(a) Rule: takings situation but comes up in different context. It is a violation of First Amendment to place
unconstitutional condition on government granting of discretionary benefit
(b) Facts: Context of people wanting to use their land and they want to get discretionary entitlements granted by local
governments for building permits. There are rules about local government to say you could get this permit but you
need to dedicate a certain land for our use
(i) Bike path: hopefully will mitigate the effects of the bigger store
(c) Holding: government can do this, but there needs to be a nexus or connection between the granting of the
permit and the dedication
(i) SC held that conditions placed on development permits must be “roughly proportional” to the effects the
applicant’s proposed land use will have on the community
(ii) How closely do those two fit together? And how has to prove that there is a close fit?
(iii) Majority said it has to be a close fit, not necessarily a tight fit, and we’re going to require the government
prove the fit is close enough, not the person trying to get the permit
(iv) Burden here is extremely important in this case; here Dolan was successful because government failed to meet
the burden SC expected them to meet
(d) Dissent: doesn’t take issue too much with how closeness the fit should be; where they differ is that the burden was
on Dolan to show the connection didn’t exist instead of the government to show there was a connection
IX Criminal Enforcement
A) Background
1) Criminal Enforcement as a concept is important for every lawyer to know  have some basic understanding of some
criminal enforcement concept
2) 1899: Refuse Act
(a) There was a criminal enforcement provision. Remember, Refuse Act was the law that banned the blocking of
waterways in rivers and lakes. Idea at the time was primarily a logging problem and abandoning old steamships. It
would be a CRIME if you blocked the waterways
3) 1970s: all major environmental statutes including criminal penalties
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(a) Virtually every single one of them included criminal enforcement provision, often misdemeanor provisions or felony
provisions for worst possible provisions
(b) Also had civil penalties
4) As major laws re-authorized and expanded, criminal penalties increased
(a) Most laws had “expirations” – something new
(b) Congress put in deadlines by which the statute would go away, or part of it would go away
(c) Statutes would then come up for reauthorization, and as they were reauthorized, they were always revised
(d) As reauthorization occurred for every one of the statutes passed in 1970s, in every case criminal provisions were
added, expanded, increased, etc. Greater emphasis on criminal enforcement to assure that the laws would be
followed
(i) Ex: Clean Air Act made almost all “knowing violations” a potential felony
(ii) You create paper violations when you make a felony (because environmental stuff is all on paper, e.g. RCRA 
one piece of paper that follows the waste everywhere)
B) “Knowing” or “Willful” Violations
1) Criminal vs. civil?
(a) Criminal penalties for “knowing” or “willful” violations  just knowing you are doing the act that is ultimately
causing the violation
(b) Malum prohibitum:
(i) Ex. Going 65 when the law says to drive 55; things that are bad because they are prohibited; makes sense even
though its prohibited
(c) All of these laws have criminal and civil provisions
(d) Something very odd about these statutes is that, by increasing the range of activities that can create criminal
penalties, you create an almost perfect overlap—in environmental law, there’s practically perfect overlap on what
you could bring as a criminal matter vs. a civil matter
(i) You can have a huge range of possible enforcement tools
(ii) Having both criminal and civil penalties not totally unique to environmental law; what is unique is the extent to
how much they overlap
2) Prosecutorial discretion
(a) In environmental law, it is the same individual wearing two different hats (civil and criminal) who make decisions
on what kind of lawsuit to bring
(b) Concept: prosecutors don’t prosecute every case that comes before them. We trust them to use their discretion to
decide when something doesn’t need the full weight of maximum criminal penalties
(c) NOTE: It is against the law for a prosecutor to trade off civil and criminal penalties, enforcement, etc. You can
negotiate over both types of enforcement—if there is prosecution for civil matter, you negotiate and try to work
something out, within the context of it being a civil matter. But let’s say there’s both criminal and civil prosecution
going on at the same time—client’s willingness to make concessions on the civil side will be closely tied to what’s
going to happen on the criminal side
(d) When you have an almost total overlap, when you’ve effectively criminalized all violations, and the decision-makers
are the same people, you end up with this very difficult ethical balance (for example, knowing that you’re being
prosecuted criminally, asking for civil charges to be dropped)
(e) Ends up relying HUGELY on pros discretion
C) Lighter Standard for Health and Safety Crimes
1) Mens rea
(a) Some sense of badness, a guilty mind
(b) Need to have this in order to be guilty of a crime – fundamental element of what we consider to be a part of our
criminal jurisprudence
(c) Mens rea mostly came up in food safety rules, e.g. milk laws for pure milk products (bigger dairy operations, it
became very clear that if milk isn’t handled well, it could hurt people); public health worry that made people want
stronger protection for health and safety crimes
(d) They had misdemeanor provisions for public health and safety violations
(e) Problem was, people were sloppy but didn’t intentionally poison the milk, didn’t even know it was bad milk when
they sold it. Lack of mens rea.
(f) So courts started lessening what MR meant in public health and safety context.
(g) Debate whether that was constitutional or not. Resolved in the affirmative in the case Dotterweich
2) US v. Dotterweich (US 1943): SC confirmed that for health and safety, public health statutes, a lighter MR
requirement is acceptable. It didn’t say we only mean this for misdemeanors, but it did say, “this is only a
misdemeanor.” Wasn’t considered an important case at the time, but now it is because now there are a lot more public
safety laws that cover a much broader scope of human conduct and almost give broad discretion for felony prosecution
D) Penalties/Enforcement aimed at responsible corporate officers
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1) Primarily, responsible corp officers get most of the risk; they get tagged because they are people who are in the position
to prevent the violation. So over time most corporate structures have designated people whose job is to oversee the
enforcement regiment.
2) Increase if harm caused
(a) One big factor is if you have caused harm and to what extent
(b) Vast majority of criminal matters involved no harm at all, no actual harm. Violations of laws caught before harm
happened (e.g. sent waste off using unpermitted waste hauler)
(c) You need compliance, even if nothing bad happens. That’s why these are important things to enforce
(d) If harm does occur, then you’re usually talking about substantially greater penalties
3) US v. Weitzenhoff (9th Cir 1994): Hawaii case where under Clean Water Act, it was necessary for facility to have a
certain permit; facility does treatment of waste, waste water is discharged into the ocean; it allows the waste stream to
bypass the treatment. Almost all water system treatments will have that allowance – not desirable, and you’re not
supposed to do this a lot, but the permit allows for it. Permit created a total amount of solid matter in waste water that
you’re allowed to discharge in this given facility. Facility did several bypasses in a month and as a result, exceeded its
permitted level. It got prosecuted as a crime.
(a) Holding: majority said the statute was fine, it’s okay to enforce this as a criminal matter. It explained that the two
managers prosecuted under statute told their employees to keep quiet about it; lied to lifeguards. Held they had the
mens rea.
(b) Dissent: very unhappy, criticized majority for even discussing those facts—if you think these people have MR then
why are they creating a law that doesn’t require MR.
E) Practical Tips and Thoughts
1) Almost every violation can be enforced civilly with penalties that can be massive; when there’s a violation, something
has to be done about it. The best thing client can do is have a good enforcement program, good training program—to
minimize chances of environmental violations, and also to learn when environmental violations occur, and to response
quickly
(a) If you have a good internal process, it’s very unlikely that criminal prosecutions will follow, or even be threatened
2) Search warrants
(a) The way you minimize risk of violence occurring during search, make it clear that you’re showing you can’t win—
overwhelming force by having agents with machine guns busting in is very intimidating, but that’s the point
(b) Never interfere with what they’re doing—they are going to trample on your client’s rights, but don’t try to interfere
because they’re going to do it anyways, and they will most likely get away with it
(c) Often circumstances are so intimidating that people don’t ask to have their lawyer present.
(d) As a company lawyer, you can tell your client not to talk—however, you cannot tell its employees not to talk to
investigators without “obstructing justice”; you will be prosecuted because the employees aren’t your clients, only
the company is
3) A little case study
(a) Popular recreational lake; client owned big piece of land around the lake; rent boats to people who come; dumpy
shed near lake that contained a barrel for waste oil; when barrel gets filled up, he calls licensed facility to pick it up
and recycle; sometimes it takes a long time for barrel to fill up; client waits until its full—sometimes it takes more
than 90 days; RCRA says, if you store hazardous waste for 90 days, then that is a waste storage facility—you can
have this kind of facility, but you need a special permit. So this was an unlicensed hazardous waste storage facility.
Huge roster of regulatory mandates once you are this kind of facility—so client committed many violations
(b) DA was very active in this area and wanted to do something to get his name in the paper in the good way. Natural
canyon near client’s land—DA though canyon would make a great public amphitheatre. So DA started talking
criminal enforcement.
(c) DA faxed draft indictment to set the context. DA said if client gives up the little canyon with some money, then that
will resolve the civil matter. Client could’ve gotten arrested easily.
X
Environmental Justice
A) Problem of Definitions & Type of Problem
1) Environmental justice: the secondary effects of environmental regulation, especially those that disproportionately
affect the poor or minorities by redirecting the cost of protection or the placement of facilities
2) Environmental Justice is hard to address because people have such different definitions
(a) There is no universal concept of environmental justice
(b) Other terms that are used include environmental equity, environmental racism
3) Definition: Disproportioned threats to health based on the disparity of race, ethnicity, or income. Some people strongly
believe to take income out of the provision. Others think you should take race out. There is a good deal of debate on
that.
4) Battle of the Studies: there have been various studies that have tried to put into objective data to determine whether bad
things are more likely to happen to a certain race or poor people
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(a) LULUs: Locally undesirable land uses include public benefits such as highways, waste disposal landfills, and
nuclear storage facilities
(i) There is a concern that sites for such uses are placed most often in low income and minority neighborhoods
(ii) These sites are problematic in part because benefits are received by a large population but the costs are imposed
on a small group
(b) Study of Studies
(i) Reviewed 15 studies
(ii) There is fundamental truth that locally unwanted land uses are disproportionately located near the local
community with low income and minorities. Of those 2 factors, race became the bigger factor  this study
kicked off the modern environmental justice issue
(c) Professor Been Study
(i) Disproportionate Latino areas did attract polluters, but not the same with black communities. Having a high
percentage of low income people have a lower percentage of polluters. Working class has higher percentage of
polluters.
(1) Demographics tend to change after siting decision is made
(ii) Conclusion: it may well be one factor in where you decide to build, might be where your labor source is going
to be. To the extent it shows community empowerment.
B) Litigation
1) Equal Protection Clause
(a) Wide applicability: federal and state actions (private requests)
(i) Applies to any governmental action, good for plaintiffs
(ii) Private action
(b) Plaintiff must show “discriminatory intent”
(i) It is not enough to show that something is going to have a disproportionate impact—must show there’s
the discriminatory intent
(c) Plaintiffs rarely win and cases rarely brought
2) Title VI of 1964 Civil Rights Act
(a) Narrower applicability – federally funded actions
(i) Greatly narrows the scope because relatively rarely do land use controversies require significant federal action
(b) Seemed like plaintiffs must show “disparate impact” then shift burden
(i) if you can show disparate impact based on race, then burden shifts to D that disparate impact wasn’t based on
race
(c) But, Alexander v. Sandoval (US 2001): it concluded that it is not the case that if you just show a statistical variance
that effects race, that that is enough to shift the burden
(i) Must show some other indicia of discriminatory intent
3) Executive Order 12898 (1994)
(a) Part of all federal agencies’ mission
(i) Every federal agency is charged as their mission with considering concept of environmental justice
(1) Make sure there’s enforcement of existing laws
(2) Improve research and data collection relating to the health of minorities and poor communities
(3) Get the public involved
(4) Identify differential patterns of consumption of natural resources among minority and poor communities
(ii) Idea was, it’s not part of your job to think about this; at a minimum, we want to make sure you don’t
discriminate based on race or income
(b) EPA’s EJ “Action Document” (1994)
(i) “our EJ mission is to achieve environmental protection for all . . .”
(ii) Sustainable communities
(c) In re Louisiana Energy Services (1997)
(i) Only EJ decision that profs really knows about that came out with doing something about environmental
injustice
(ii) Company wanted 30 yr license from Nuclear Regulatory Commission to have uranium enrichment facility.
(1) Facility was very much wanted in the county in which it was located; within the county, they had to
determine where to put it
 They went through process of identifying certain areas and narrowing the locations based on different
factors; ended up in location where 97% of community was black. Every single step of determining
where to place it, the population of the remaining sites became more highly African-American
dominated.
 Factors were things like, we don’t want to harm economic activity by putting this within 5 miles
of a lake—but people living near lakes are whites.
(iii) Panel of 3 Administrative Law Judges overturned the decision and sent it back
4) Environmental Justice Tests (totally non-official, BTW)
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(a) 3 general tests that if you want to comply with majority idea of what EJ considerations are:
(i) Disproportionate impact on minority or poor populations
(1) Ex: hiring experts to go and get census data
(ii) Shared Economic Benefits
(1) Idea that conduct of some is going to affect others, but we accept that because there will be benefits
(2) Is there a great disparity between who’s getting the burden and who’s getting the benefits
(iii) Effective Community Participation
(1) All of the writings talk about empowering communities—if something is locally unwanted, why does it end
up there? Means decisionmakers imposed it on them anyways
(2) Do some communities end up with more polluters because their not that powerful, not as organized?
(3) Create community participation that is effective
(4) Profs example of hiring Latino activists to create a community organization—they ended up suing his client
(but shows it was a very effective community participation)
(5) To the decisionmaker, it shows that you are being fair if you deal with a strong community participating
organization
C) Compensation proposals
1) One solution to such disparate effects and the resulting opposition to LULU siting is to compensate the community in
which the proposed site will be located
(a) Different types of proposals: compensation may serve as either a remedy for damages suffered by the community,
as a mitigating factor to prevent possible community harm, or as a reward and incentive for the community’s
acceptance
(b) Justifications for proposals: proponents argue for the positive effects of compensation, in that it reduces
community opposition, promotes efficiency by forcing developers to internalize community costs, and results in
equity by reducing the impact of a community bearing the disproportionate burden of the site
(c) Equitable concerns: positive compensation effects must be weighed against questions of fairness including
whether it is moral to pay a community to assume health and safety risks, how “voluntary” a poor community’s
acceptance of compensation is when no other funds exist, and the lack of representation for future generations
XI Endangered Species Protection
A) Endangered Species Act (1973)
1) To conserve both endangered and threatened species and also to protect the ecosystems upon which those species depend
2) Two Aesthetics
(a) There are those who are of the view that their nature is to conquer and tame (development view)
(b) There are those who feel that by doing this, we are doing something harmful to nature (Thoreau view)
3) Much of the rationale here is in the range of values that fall within the Thoreau view, which complete ignores the
development view (this is where the controversy lies)
4) Economic rationale
(a) Nature creates tourism
5) Ecological rationale
(a) If you eliminate a species, over time, you create a danger that you will create an ecological imbalance and some
unintentional consequence that in the end will be harmful to humans
B) Overview
1) Section 3
(a) Endangered Species – any species which is in danger of extinction throughout all or a significant portion of its range
(b) Threatened Species – any species that is likely to become endangered in the foreseeable future
(i) These are treated quite differently
2) Section 4 – Listings of Species
(a) Secretary of the Interior has the authority to list any species which are endangered or threatened
(1) Secretary of Commerce deals with marine mammals or any other marine sea water creatures
(b) List should be based on the best scientific and commercial data
(i) It is not allowed to look at any consideration other than the pure science of the issue in determining whether or
not to list a species
(c) Following factors Secretary considers in determining if a species is endangered:
(i) Degree of habitat destruction
(ii) Over-utilization for commercial or other purposes
(iii) Disease or predation
(iv) Failure of existing regulatory mechanisms to protect; and
(v) Any other factors affecting its continued existence
(d) Snail Darter Case  Construction of a substantially completed dam on the Tennessee River had to be halted due to
the threat posed by the endangered snail darter found in the river
(i) SC held that once a violation had been established, an injunction had to be issued
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(ii) SC thought that if they flooded the TN Valley the Snail Darter would be extinct because it was the only known
place in which they exist, it turned out later that there were other habitats, but this doesn’t take it out of
threatened species, it might take it out of endangered species
(e) Requirement to designate a critical habitat for an endangered species.
(i) The Secretary of Interior has to figure out where the critical habitat is.
(1) Use best scientific or commercial data
(2) Economic impact of such a designation.
(ii) Whenever the Sec decides to list a species as endangered and publishes this listing in the Federal Register, he is
required to specify the range over which the species is endangered and designate areas of critical habitat
(iii) Red Wolf Example  you know red wolves are endangered, you have to figure out where they live so you
know the area that you have to protect or preserve, but in doing so you have to take in account for instance there
is a city near the preserve area where development has already begun, they won’t make the city go away, but
they will make them slow traffic down or something
(iv) A city that is listed can become meaningless without a critical habitat preserve. If you don’t have a critical
habitat you’re not doing anything to protect them. What’s the point of listing them if you’re not going to save
them?
(v) Northern Spotted Owl Example  if you designated a critical habitat for it then there would be SO much land
in WA just to protect them, that means a lot of construction and development won’t happen, many people in
WA don’t want that, the Sec. of Interior is scared to do it, so they just said that they don’t have the funding, they
either don’t ask for it or the Sec. of Interior just conveniently doesn’t allocate enough funding
(f) This procedure is critical to the working of the statute
(i) Why? If its not a listed species, the ESA doesn’t apply
(ii) Resource issue – takes a lot of resources in order to go through the process of getting this right
(iii) Political issue – people don’t want a species listed, because then it requires habitats to be designated and it
affects people’s use of the area
(iv) Bush administration has put a moratorium on any further listing until there is a new system
(1) Need more funding from Congress, which they have been unwilling to do
C) Section 7 – Federal Action
1) This section works a lot like NEPA. §7 prohibits a federal agency from engaging in any action that is likely to
jeopardize the continued existence of endangered or threatened species or that destroys or adversely affects the critical
habitat of such species
2) 7(a)(1) - Duty to conserve
(a) All federal agencies must conserve all endangered and threatened species.
(b) This is an affirmative duty to take actions to make sure endangered species thrive as opposed to a negative duty to
take no action that is going to jeopardize the existence.
(c) There is a question of whether or not this imposes a duty that can enforce the federal agency to take certain actions.
(d) Cutthroat Trout Case 
(i) Sec. of Interior operated a damn and it was required under a certain Act to release certain amounts of the water
to farmers in the area for agricultural purposes. He decided that because it was best to conserve the cutthroat
trout that lived in the water behind the dam.
(ii) The farmers sued, saying that Sec. of Interior had a legal duty to sell them the water, and that the trout were not
being jeopardized
(iii) Court – that may be true under 7(a)(2), but 7(a)(1) is discretionary on their part and trumps the obligations
under the other sections
3) 7(a)(2) - Not jeopardize
(a) All federal agencies must make sure their actions aren’t likely to jeopardize the continued existence of any
endangered species or adversely modify any critical habitat.
(i) Notice that the government can kill, harm, and maim and endangered species as long as it doesn’t jeopardize
their continued existence or destroy their habitat
(b) Rocky Mountain Grey Wolf Case  3 Step Process
(i) If you’re an agency of a federal government and you want to build a road, you have to think about whether or
not you’re gong to endanger the existence of a certain species.
(ii) (1) Ask Fish and Wildlife Service whether or not there is an endangered species where you want to build the
road.
(iii) (2) If the answer is yes, the agency must prepare a biological assessment to determine if the species is likely to
be effected by the agency’s action
(iv) (3) If the biological assessment shows there will be an effect on the endangered species, then the agency must
get a biological opinion from the Fish and Wildlife Service about what will be the effect of the action
(1) If the Fish and Wildlife biological opinion is the action will jeopardize the existence of the species or
adversely impact its habitat then the agency cannot move forward its planned action unless it takes steps to
eliminate that jeopardization
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(v) If an action will jeopardize a species and there’s no way you can get around it you can appeal to a cabinet (“God
Squad”) and ask them to still let your actions go forward despite harming the species
(1) This has only been invoked less than 12 times.
D) Section 9 – Limits on Private (and state) Conduct
1) §9 has the greatest impact on private land development activities
2) It prohibits the sale, import, export or transport of an endangered species.
3) Takings prohibited: It is illegal to take any endangered or threatened animal species.
(a) “Takings” defined: A “taking” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,
or attempt to engage in any such conduct”
(i) What does harass mean?
(1) 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
(b) Fed government can do all the takings it wants as long as it doesn’t jeopardize the endangered species.
(c) It only deals with animal species.
4) As for plants there is a different provision; it is illegal to remove or damage endangered plants either on federal land or in
knowing violation of state law.
(a) For instance if you went out and trespassed on someone’s property and stole their endangered plant you are in
violation of this provision.
(b) If you went to your own backyard and you smashed an endangered plant is not in violation of this provision. If plant
is on your own property then you can do it.
5) The big question under Section 9 is what constitutes a taking and how far does this concept extend?
(a) Northern Spotted Owls Case  What does taking mean? It boils down to what harm means. Shooting, harassing,
killing are all ways to harm an animal species
(i) What does harm mean?
(1) Shooting, harassing, killing, etc.
(2) “An act which actually kills or endangers wildlife. Such an act may include significant habitat
modification or degradation where it actually kills or injures wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding, or sheltering.” Very broad definition
(ii) Ex) You own a lake, you drain the lake, the endangered fish in the lake dies, have you harmed/taken the fish
under Section 9?
(iii) Ex) If you own a lake and you go out fishing on your lake and you fish up an endangered fish, have you taken a
fish? Yes.
(iv) Ex) If you’re building next to a lake. Your building has made increased run off into the lake. The fish die.
Have you taken the fish?
(v) How direct must the harm be between the action and the harmful act for it to constitute a taking? How
foreseeable must it be? Is it a proximate cause?
(vi) Court says harm within Section 9 could mean indirect harm caused by people’s actions. So therefore,
draining a lake IS a taking.
(vii) Dissent says that you have to be careful, because not all indirect harm is foreseeable.
E) Section 10 – Habitat Conservation Plans (HCP)
1) This was created in 1982. It didn’t make sense that § 7 will allow fed government to harm all the fish as long as it
doesn’t jeopardize where Section 9 says no taking at all.
2) This allows an actor who is thinking of taking an action that might have the incidental effect of taking an endangered
species to Fish and Wildlife and work with them to make a Habitat Conservative Plan. They will allow you to take
actions that might harm some fish in lake as long as you take other actions that will help minimize the actions of your
first.
(a) Ex) You’re going to build houses, you will harm fish in lake, you talk to the Fish and Wildlife Service to figure out
what you can do to lessen the effect of your house building, you can build another lake nearby and transport the fist
there, if a few fish die in the process you won’t be in trouble for it
(b) Section 10(a) provides for the issuance of permits in 2 situations: scientific studies and incidental takings
(i) Scientific purpose: if the prohibited activity is to be carried out for scientific purposes or to enhance the
survival of the species, a permit may be issued
(ii) Incidental taking: Secretary may permit any taking otherwise prohibited by §9 “if such taking is incidental to,
and not the purpose of, the carrying out of an otherwise lawful activity.”
(1) No incidental taking permit may be issued unless the permit applicant submit a habitat conservation plan.
(2) Upon review of habitat conservation plans, cts consider issues such as whether the taking will appreciably
reduce survival likelihood and any measures taken to “minimize and mitigate possible adverse effects”
F) Commerce Clause
1) Commerce Clause comes in the application of the Endangered Species Act because you are dealing with local land use
issues for the most part.
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2) Question is: What power/business does the fed government have in regulating a local issue? What is the extent of the
Commerce Clause in the constitution? The extent will tell you what business the fed government has.
3) The Endangered Species Act evokes the Commerce Clause for its authority.
4) This has become an issue because the SC has been trying to give some teeth to the Commerce Clause in the US v.
Morrison Case where SC said that the Violation Against Women Act was intended to regulate and criminalize
violence against women and give federal prosecutors the power to prosecute gender crimes, the court said fed
didn’t have power to do something like this because typically a state issue
5) Dehli Sand Loving Fly Case & Red Wolf Case  under US v. Lopez and US v. Morrison, Congress does have the
power to protect endangered species even when those species are local because the courts look to the aggregate affect of
losing endangered species, either from the outlook of losing the species will effect ecosystem and it’s affect on
commerce, of it will take a look at tourism because people travel through state lines to go see these species, because of
that Congress has the right to regulate
(a) Ironically, Red Wolf gets more protection than women do.
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