Environmental Law and the
Current Administration
Stacy Taylor
Nelson Mullins Riley and Scarborough LLP
Tragedy of the Commons
• Economics theory by Garrett Hardin
• Individuals, acting independently and
rationally according to each one's selfinterest, behave contrary to the whole
group's long-term best interests by
depleting some common resource
Environmental Awareness
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Smog in Los Angeles (1940's)
Donora, Penn. (1948)
London's "Killer Fog" (1952)
Silent Spring by Rachel Carson (1962)
Santa Barbara Oil Spill (11 days) (1968)
Cuyahoga River, Ohio (1969)
Population Boom
Nuclear Proliferation
Why Not the Courts or
Traditional Legal Arena?
• Complex technical issues
– Science and technology
• Complex social and economic issues
– Balancing of risks versus economic and other
harm to society
• Not the traditional limited number of actors
and limited number of harmed individuals
• Not easily addressed through remedies
available to the courts
– What's a court supposed to do?
How's Environmental Law
Different?
• Traditional law:
– Developed over time
• Grown and expanded from simpler beginnings
– Through decisions and legal analyses
– Lot of gray area and factors
– Courts are the "regulators"
Environmental Process
• Enforcement, permits, issuance of
regulations
• Administrative process
• Like the court process but starts with the
agency
• Potential Traps:
– Deadlines
– Must go through the process
– Must raise and preserve issues
Early Laws – Early 70's
• 1955 – Air Pollution Control Act
• 1960's – Land Management and Protection
– Conservation/Preservation
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1963 – First Clean Air Act
1970 – Clean Air Act
1970 – EPA Established (under NEPA)
1972 – Clean Water Act
1973 Endangered Species Act
Were They Successful?
• Not initially
• No teeth
• Research and development; goals;
expectations
• But was the first step, which put the
mechanisms in place
• State agencies
How Do We Incorporate
Environmental Impacts Into
Decision Making?
• Easiest?
– Traditional command-and-control regulation
• MACT, BACT, LAER
– Early approach to regulation
– Still the challenge of what those limits or
operating requirements should be
– Risk based versus technology based
How Do We Incorporate
Environmental Impacts Into
Decision Making?
• Problem with this approach?
– Does not allow market forces to work
• If markets are the best balance of supply, demand,
and limitations upon production
• Want to capture these issues as real costs
– Not efficient
– Limits ingenuity
Other Approaches
• Incentive based restrictions
– Tax reductions, grants, etc.
– Emission tax/fees
– Essentially a question of whose right it is
• Cap and Trade
– Market based approach
– Puts a value on reductions that can be transferred
– How it works . . .
Cap and Trade
• SO2, NO2, Greenhouse Gases
• Set an overall target or "cap" and let "the
market" dictate where reductions are
made
• An absolute cap is set on total emissions
for a fixed compliance period (usually
yearly)
Cap and Trade
• The cap is subdivided into allowances among
pollution emitters
• How the "shares" are allocated is usually the
challenge
– Allocated based upon prior emissions
– Auction
– Mix of the two
• Typically, overall cap is then reduced
periodically
Advantages
• Market forces control
• Flexibility
• Adapts to larger economic conditions
• Cost-effective
– For industry and regulators
• Better data quality
Cap and Trade
• Is it always the best fit?
– Must have enough facilities to support trade
• Common pollutants / significant number of sources
– Regional pollution issues
– Substances with longer residence times
– Differential Marginal Costs of Abatement
– Strong regulatory/financial/contractual
mechanisms
Credit or Offset Programs
• Similar to cap-and-trade
• Non-attainment areas
– New facility must offset emissions by acquiring
from existing or recently closed facilities
Environmental Statutes
• Emissions and Effluent
– Air
– Water
• Wetlands
• Management of Hazardous Materials
– Hazardous Waste Management
– Toxic Substances
• Solid Waste – Garbage/Trash
• Contaminated Sites
Federal and State
• Feds. (EPA) set the minimum standards
• States are to implement programs and
enforce program to satisfy these standards
• If states fail to implement programs
enforcing the federal standards, then EPA
can impose sanctions and can take over
• Over-file
Clean Air Act
• 42 U.S.C. §§7401 et seq.
• Most complex of the regulatory structures
and most far-reaching
• Stationary sources, such as power plants
and manufacturing facilities, but also
mobile sources such as automobiles and
boats
Clean Air Act
• Ambient air
– Adverse to public health or welfare and
derived from numerous or diverse sources
– Criteria Pollutants
– National Ambient Air Quality Standards
(NAAQS)
– § 108
Clean Air Act
• Regulation of sources
– Hazardous Air Pollutants (HAPs)
– National Emission Standards for Hazardous
Air Pollutants (NESHAP)
– Maximum Achievable Control Technology
(MACT)
NAAQS
• This was the cornerstone of the Clean Air Act
– Congress's goal of assuring healthy air quality
across the nation
• Particulate matter, ground-level ozone,
carbon monoxide, sulfur oxides, nitrogen
oxides, and lead
• No teeth until 1970 amendments
• 1977 amendments extended deadlines
NAAQS
• § 109 – Development of standards
• Economics not considered
• Primary standards – health based
– Protect the most sensitive individuals and provide
an "adequate margin of safety"
• Secondary standards – public welfare
– Environmental, views/scenery, property damage,
etc.
• Five year review
State Implementation Plans
(SIP)
• Submitted to and approved by EPA
– Sanctions/penalties if fail to timely submit
• Evaluate current levels and estimate future
air quality
• Enforcement mechanisms and plan for
protecting air quality and addressing
nonattainment areas
State Implementation Plans
(SIP)
• May include non-stationary sources (i.e.
cars, trucks, etc.)
• Time limits for bringing nonattainment
areas into compliance
– In general, higher pollution levels means more
time to meet the standards, but must also
include certain mandatory control measures in
their plans
• Interstate air pollution
New Source Review (NSR)
• New major stationary sources or major
sources making a significant modification
– Major – 100 tons per year or more of any air
pollutant at a listed source category; otherwise
250 tons per year
– Significant – More pollutant specific
• Preconstruction permit
Prevention of Significant
Deterioration (PSD)
• Attainment areas
• Best Available Control Technology (BACT)
• Air Quality Impact Analysis
• PSD Permit
Nonattainment NSR
• Nonattainment areas
• Lowest Achievable Emission Rate (LAER)
– Most stringent emission limitation contained in
any state SIP or achieved in practice by that
type/class of industry
• Emission offsets
• Air Quality Analysis
• Reasonably Available Control Technology
(RACT)
– Already existing sources
Where this matters today
• Particulate Matter
– Was the original air quality issues – smoke/soot
– Fine dust, soot, smoke, droplets – i.e. particles
– PM10 and PM2.5
• Ozone
– Ground-level ozone
– Currently undergoing review to set new NAAQs
One Other Program
• New Source Performance Standards
• Technology based standards but aimed at
the same ambient air issue
– Criteria pollutants plus a short list of additional
pollutants
• Specific source categories – source
categories that cause or contribute
significantly to air pollution
– Approximately 75 – power plants, glass, cement,
rubber tires, etc.
NESHAP – MACT Standards
• Hazardous air pollutants (HAPs)
– Suspected to cause cancer or other serious health
effects, such as reproductive or birth defects,
neurological, etc.
• Originally health-based program, like criteria
pollutants
• Continuous debate and litigation – whether or not
a chemical was "toxic"
• 1990 Amendments – Congress set out a list of 188
hazardous air pollutants
– Industry/technology based
NESHAP - MACT
• Major source
– ≥ 25 tons/yr of total HAPs
– ≥ 10 tons/yr of any individual HAPs
• Area source
– Any stationary source that is not a major source
– 30 most dangerous HAPs and 7 specifically
delineated HAPs
– Sources accounting for 90%
NESHAP - MACT
• Maximum achievable control technology
(MACT)
– Sets limits based upon available technology
– Top-performing similar sources
Other Programs
• Regional Haze
– Preventing future and remedying existing impairment
of visibility in congressionally designated areas where
visibility is an important value
– Must include regional haze provisions in SIP
• Acid Rain – SO2 and NOx
– 1990 Amendments
– Cap and trade
• Stratospheric Ozone
– CFCs and now phasing out HCFCs
Mobile Sources
• Around half and sometimes more of the pollutants
come from mobile sources
• Title II of the Clean Air Act
• Emission standards and fuel or fuel additives
• Reduced lead content of gasoline and then sell of
unleaded gasoline; reduced sulfur in highway
diesel; lower volatility gas in the summer; addition
of ethanol
• 1990 Congress mandated some of these
• Became more important with GHGs
Greenhouse Gases
• CO2, CH4, N2O, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride
• Massachusetts v. EPA, 549 U.S. 497 (2007)
– 5 to 4
– § 202 – emission of any air pollutant from new
motor vehicles/engines, which "in his judgment
cause, or contribute to, air pollution which may be
reasonably be anticipated to endanger public
health or welfare
• EPA's response – if pollutant then must go
through broader analysis
GHG
• Light-Duty Vehicle Greenhouse Gas
Emission Standards and Corporate Average
Fuel Economy Standards Rule (LDV Rule)
• Subject to regulation – PSD kicks in
• Tailoring Rule – largest stationary sources
– >100,000 tons/yr. or modification increasing by
more than 75,000 tons per year
• New Source Performance Standards
Mechanism
• Permit
– Legally enforceable document (like a contract)
– Construction and then operating permit
– Fees
• New Source Review – Preconstruction
– PSD, Nonattainment, Minor
• Title V – added with 1990 amendments
• Conditional major/Synthetic minor
– Federally enforceable conditions
Enforcement
• Fines, penalties, corrective action
– Consent Order
– Administrative Order
• Voluntary self-disclosure
Energy Independence and
Security Act of 2007
• Energy Policy Act of 2005
• Renewable fuels standard program for
gasoline and diesel
• Expanded with the 2007 act
• Two goals:
– Reduce oil imports
– Reduce greenhouse gas emissions
• Advanced biofuels
Clean Water Act
• Federal Water Pollution Control Act (1948)
• As we know it – Clean Water Act (1972)
– Federal Water Pollution Control Act
Amendments of 1972
– 33 U.S.C. §§1251 et seq.
• Regulates discharges into waters
• Regulates quality standards for surface
waters
Applicability
• Feds. don't have jurisdiction over everything
– "Navigable Waters"
• Defined in wetlands arena
• "Duck Butt Rule"
• Sold Waste Agency of Northern Cook County
(SWANCC) v. Corp., 531 U.S. 159 (2001)
• Rapanos v. U.S., 547 U.S. 715 (2006) – "substantial
nexus"
• Some states have stepped in to fill the gaps
Water Quality
• Classify based upon usage and value
– Public water supply, protection of fish and
wildlife, recreational waters, agricultural,
industrial, and navigational
• Anti-degradation policy
– Tier 1 – all surface waters
– Tier 2 – fishing and swimming
– Tier 3 – outstanding national resource waters
(ONRWs)
Pollution Control Approach
• National Pollutant Discharge Elimination
System (NPDES)
– Permit
• Technology based standards
– New Source Performance Standards
– Best Available Technology (BAT)
Pollution Control Approach
• Impaired waters – water quality standards
– Total Maximum Daily Load (TMDL)
• Indirect dischargers
– Publicly owned treatment works (POTWs)
– Pretreatment program
– Categorical pretreatment standards
Stormwater Runoff
• Act regulated point sources
• 1987 Amendments
– Municipal storm water systems (MS4)
– Industrial stormwater
Wetlands
• How many think that there is a law against
destroying wetlands?
– Nope
• Permit
– 404 permit – US Army Corp.
– 401 water quality certification – SCDHEC
• Jurisdictional determination
– Substantial nexus
• What constitutes a wetland is broader than one
might assume
Resource Conservation and
Recovery Act (RCRA)
• 42 U.S.C. §§6901 et seq.
• Regulations and permitting system for the
handling of hazardous waste
• Hazardous waste
– Listed or categorical
Resource Conservation and
Recovery Act (RCRA)
• Cradle to grave program
– Cleanup regulations and standards
• Requirements on how it is stored and for how
long
– Small quantity generator - >100 kg; <1,000 kg per
month
• 180 days without a permit
– Large quantity generator - > 1,000 kg
• 90 day accumulation
CERCLA
• Comprehensive Environmental Response,
Compensation, and Liability Act
– 42 U.S.C. §§9601 et seq.
• Cleanup statute
• Strict liability
– Owners, operators, arrangers, transporters
• Bona fide prospective purchaser (BFPP)
– Due diligence / All appropriate inquires
• State voluntary cleanup or brownfields programs
Community Protection and
Information
• Community Right to Know Act
• 112(r) of the Clean Air Act
• Toxic Substances Control Act
• Citizen suit provisions
• Administrative process