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REGULATORY LEGISLATION:
Problems with CL: (1) law was reactive; (2) conducted by non-experts; & (3) initiated largely by private enforces
Impact of Regulation on CL Actions: Int’l Paper Co v. Ouellette (1987) – IPC dumping paper waste into Lake (NY/VT);
VT lakeside residents bring private nuisance action. Court makes a distinction between source state & affected state.
CWA preempts CL of affected state, but not of source state. “Ouellette preserves the ability of plaintiffs to bring state
common law actions against polluters so long as the law of the source state, rather than the receiving state, is applied.”
PRIVATE RIGHT OF ACTION: Congressional intent to provide Ps a remedy to challenge admin agency actions: (A)
Statute expressly grants P a private right of action or (B) APA establishes a “cause of action” for any person suffering
legal wrong or adverse effect because of agency action if there’s no specific piece in the statute for standing
a. ESTABLISHING STANDING: Even when Congress has conferred a private right of action, Ps must still
independently satisfy Article III (1) Court must have SMJ; (2) P must have a private right of action; and (3) P must
have standing.
4 Basic Requirements: party invoking jurisdiction bears the burden of establishing the standing elements (Lujan)
1. Injury in fact - invasion of a legally protected interest which is - (a) concrete and particularized & (b) actual
or imminent, not conjectural or hypothetical. **Minimal hurdle - “when I go there, it’s pretty and stuff” good
enough
a. Lujan v. Defenders of Wildlife (1992) – Enviro aesthetic desires are undeniably a cognizable interest,
but an injury-in-fact requires more than an injury to a cognizable interest. It requires that the party
seeking review be himself among the injured. “Respondents had to show not only that listed species
were in fact being threatened by funded activities abroad, but also that one of more of respondents’
members would thereby be `directly’ affected apart from their `special interest’ in the subject.” ---Past
Injury Not Enough.
b. Sierra Club v. Morton (1972) – injury to “environmental, aesthetic, or recreational interests” actually
suffered by persons can qualify as injury in fact
- Associational/Representational Standing: An association can sue in its own name on behalf of its
members if: (i) a member would have standing to bring the action; (ii) the suit relates to the purposes of
the org, & (iii) neither the claim asserted not the relief requested requires the participation of individual
members (declaratory or injunctive relief is the goal, not individualized damages; for monetary
damages they need to sue on their own)
-- The Sierra Club alleged they had standing without their members being affected; the Sierra Club
could have hit a single on any one of those points, but they tried to hit a home run and struck out.
-- J. Douglas’ dissent: argues trees have standing!?! “Standing” would be simplified if we fashioned a
federal rule that allowed environmental issue to be litigated . . . in the name of the inanimate object
about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of
public outrage.”
2. Fairly traceable to the challenged action - causal connection bw injury and conduct complained of (Lujan)
3. Redressable - Must be likely, as opposed to merely speculative, that the injury will be redressed (Lujan)
4. Injury must be within zone of interests protected by the statute alleged to have been violated
b. STANDING DOCTRINE AFTER SIERRA CLUB – Massachusetts v. EPA (2007) - Refusal of the EPA to regulate
greenhouse gas emissions of cars under the Clean Air Act. To the majority, injury is established by rising sea levels
that, according to affidavits from Ps’ experts already are swallowing up coastal lands. J. Stevens stressed
redressability does not require the problem of climate change be solved “in one fell regulatory swoop.” Incremental
progress to slow or reduce the injury is all that is required.
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REGULATORY PROCESS
1. AGENCY DECISION MAKING –administrative procedure act and environmental laws outline the ground rules for
agency action.
2. RULEMAKING PROCEDURES: Three Steps: (1) notice; (2) comment; (3) publication – in federal register
3. REFORMING RULEMAKING – regulatory agencies are attempting to make it easier for the public to participate in
rulemaking proceedings. Technology improvements make it easier, but if access isn’t accompanied with reforms in
the process, the slow pace and contentious nature of rulemaking may be exacerbated.
Negotiated Rulemaking – major groups interested attempt to resolve their differences through negotiations prior to
issuance of a proposed rule; Congress explicitly endorsed it in 1990 with the Negotiated Rulemaking Act.
Generic Approaches: Formal Rulemaking requires an agency hearing (a public trial); Congress only does this if
they think it’s important; Hybrid Rulemaking - Congress can, and often does, impose specific rulemaking
procedures within specific statutory schemes. These may be more detailed than the informal rulemaking
process but less detaile than the formal rulemaking procedures.
Concerns: administrative rulemaking process can be unduly burdensome to small business by imposing costs
that might be disproportionately heavy to small businesses. The Small Business Regulatory Enforcement
Fairness Act was passed requiring agencies to consider the impact of proposed rules on small business when
such rules may adversely affect them. EPA must give small business reps the opportunity to review and
comment on such rules before the rulemaking process begins.
Reinventing Regulation - Every President from Nixon on has had great oversight of the EPA and tried to influence
the decisions of the administrator as well as the rules that come out of the administrative process.
4. PRESIDENTIAL OVERSIGHT OF RULEMAKING
Sierra Club v. Costle (1981) - A full-record review does not require that courts know the details of every White
House contact in this informal rulemaking setting. An intra-executive branch meeting during the post-comment
period that was not docketed did not violate due process or CAA procedures.
5. JUDICIAL REVIEW AND THE REGULATORY PROCESS
Scope: Courts shall: (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold
unlawful and set aside agency action, findings, & conclusions found to be (a) arbitrary, capricious, an abuse of
discretion or otherwise not in accordance with law; (b) contrary to constitutional right, power, privilege or
immunity; (c) in excess of statutory jurisdiction, authority or limitations; (d) without observance of legal procedure;
(e) unsupported by substantial evidence; or (f) unwarranted by the facts to the extent that the facts are subject to
trial de novo by the reviewing court.
a. Chevron – test for agency’s statutory interpretations - is it reasonable? If it is, then courts defer to
administrations’ interpretations. (1) is the statute silent or ambiguous on the precise interpretive question
at issue? If No, the court must apply (and the agency must follow) the unambiguously expressed intent of
Congress and the inquiry ends. If Yes, then move to (2) Is the agency’s interpretation based on a
permissible (reasonable) construction of the statute? If No, the court proceeds to provide a reasonable
interpretation. if YES, the court defers to the agency’s interpretation.
Justification for Agency Deference:
1. Gap Filling: Congress made a legislative delegation of authority to the agency to fill gaps in the statute.
2. Agency Expertise: Agencies have the expertise, time and resources to consider technical and complex
regulatory policy questions in a detailed and reasoned fashion.
3. Legal Realism: Federal judiciary is not as accountable of a political branch as the executive, which the
agency is a part
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CHAPTER 8
I. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA; 42 USC §§ 4321-4370)
- First major environmental statute, signed into law in 1970 by President Nixon; inaugurating “the environmental decade”
Purpose: inform the public as well as decision makers about the proposed action and available alternatives
Goals: Assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings & attain the
widest range of beneficial uses of the environment without degradation, risk, or other undesirable consequences
NEPA is unusual because (1) it focuses on regulating the decision-making processes; (2) requires federal agencies to weigh
the impact of their actions before activities are performed. **A lot of states have started setting forth state versions
§ 101 use of all practicable means to create and maintain conditions where man & nature exist in productive harmony.
§ 102(2)(c) requires all federal agencies to prepare an environmental impact statement (EIS) on major federal actions
significantly affecting the quality of the environment (**the beating heart of NEPA)
 All agencies are required to (c) include in every recommendation or report on proposals for legislation and other
major federal actions significantly affecting the quality of the human environment, a detailed statement by the
responsible official on
 The environmental impact statement (EIS) is a detailed statement including: (i) impact of proposed action; (ii) any
adverse environmental effects; (iii) any alternatives (**IMPT); (iv) relationship between local short-term uses of
man’s environment and the maintenance and enhancement of long term productivity, and (v) any irreversible and
irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
§ 102 (2)(e) requires all federal agencies to study alternatives to actions involving unresolved resource conflicts
 The Congress authorizes and directs that, to the fullest extent possible…all agencies of the Federal Government shall
–(E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which
involves unresolved conflicts concerning alternative uses of available resources
§ 201 requires the president to submit to congress an annual environmental quality report
§ 202 establishes a three-member council on environmental quality (CEQ) in the executive office of the president
§ 204 outlines duties and functions of CEQ including annual reporting on the condition of the environment, information
gathering, and review and appraisal of federal programs and activities
(1) PROPOSAL:
1. Adoption of official policy such as rules, regulations, and interpretations adopted pursuant to the APA
2. Adoption of formal plans such as official docs by agencies that guide/prescribe alternative uses of federal resources
3. Adoption of programs such as a group of concerted actions to implement a specific policy or plan.
4. Approval of specific projects such as construction or management activities located in a defined geographic area.
(2) TRIGGERS NEPA
NEPA § 102(2)(E) - to the fullest extent possible all agencies of the Federal Government shall (E) study, develop, and describe
appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning
alternative uses of available resources.
(3) PROCEDURE FOR DETERMINING WHETHER OR NOT TO PREPARE AN EIS
Categorical Exclusions
category of actions that are expected to not have individual or cumulatively significant environmental impacts; still allows parties to
petition the agency to prepare an EA/EIS
When CE is not appropriate, agency must perform the Environmental Assessment (EA):
(a) Means a concise public document for which a Federal agency is responsible that serves to: (1) Briefly provide sufficient evidence and
analysis for the decision (EIS or No Significant Impact). (2) Aid an agency’s compliance with the Act when no EIS is necessary. (3)
Facilitate preparation of a statement when one is necessary.
**In most cases the EA is the last word since findings of significant environmental impact are less than 1%
Hanley I required federal agencies to affirmatively develop a reviewable environmental record to support the determinations “environmental assessment” (EA)
EA is used to determine if EIS is required:
- Directs agencies to determine (1) whether proposal normally requires an EIS; (2) whether action “significantly affects” environmental
quality; and (3) whether effects are possible to remedy
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1.
2.
3.
CONTROVERSIAL OR UNCERTAIN: EIS required for highly controversial actions (doesn’t mean opposed, but rather
dispute as to the size, nature or effect of the action)
SIGNIFICANTLY AFFECTING QUALITY OF THE ENVIRONMENT - requires (1) consideration of effects in terms of context
(current state of environment) & (2) intensity of impact (harm the project will cause)
- Consider: (1) impact that may be both beneficial and adverse (note. agencies cannot ignore significant impacts on the
belief that they will be offset by benefits; (2) degree to which the proposed action affects public health or safety; (3)
unique characteristics such as proximity to history or cultural resources, parklands, wetlands, or ecologically critical areas
EFFECTS INCLUDE: (a) Direct effects - caused by action and occur concurrently; & (b) Indirect effects - caused by the
action and are later in time or farther removed in distance, but are still reasonably foreseeable
a. Metro Edison Co v. People Against Nuclear Energy (1984) – psychological effects about restarting a nuclear reactor
were not effects that NEPA contemplated because too far removed from the environment
b. NEPA is generally not considered to be applicable to federal actions abroad or those that have significant
extraterritorial effects. Dept. of Transp. v. Public Citizen (2004) – BC FMCSA lacks discretion/authority to prevent
cross-border operations, neither NEPA nor CAA requires FMCSA to evaluate environmental effects of operations. No
causal connections between decisions about regulation-making and environmental effects (even if it is assumed that
there are environmental effects).
c. Hanley v. Kleindienst (1972) - Where conduct conforms to existing uses, its adverse consequences will usually be less
significant than when it represents a radical change. Ex: one more highway in an area honeycombed with roads
usually has less of an adverse impact than if it were constructed through a roadless public park, BUT the absolute, as
well as comparative, effects of a major federal action must be considered because in some circumstances an action can
be the final straw that breaks the back of the environmental camel.
If, on the basis of the EA, there’s no requirement to
prepare an EIS, the agency must make the finding of
no significant impact (FONSI)
If, there’s no FONSI, then EIS is required.
- The most intensive level of analysis and NEPA
concludes when a Record of Decision (ROD) is
issued
Sierra Club v. Peterson (1983) - Prior to granting the leases (separated sensitive lands with stipulated lease that
required approval before drilling), the Forest Service conducted an EA and determined that w categories and
stipulations, there wouldn’t be significant adverse impact, thus no EIS was required. Agency took a “hard look” but
their conclusions were unsupported.
4-Part Analysis of Agency’s Finding of No Significant Impact (FONSI): Whether the agency (1) took a hard look
at the problem; (2) identified relevant areas of environmental concern; and either (3) made a convincing case that the
impact was insignificant or (4) if there was a significant impact, convincingly established project changes that reduced
the impact to a minimum.
(4) AGENCY DECISION – EITHER
a. YES we are doing it after considering alternatives; or
b. NO we are not doing it. BUT agency decision and the alternatives (specifics) are substantive and NEPA is only the
procedural process leading up to the decision.
TIMING AND SCOPE REQUIRED
Kleppe v. Sierra Club (1976) – When an agency has several proposals that may have a cumulative effect on the
environment, an EIS covering them all is necessary.
Thomas v. Peterson (1985) - Forest Service planned construction of a gravel road to service a timber harvesting area. They
concluded the road wouldn’t have “significant” effects & approved construction without EIS. Conservation claimed they
were looking at their projects in isolation – not considering the bigger picture. CEQ and supporting case law require
“connected actions” to be considered together in a single EIS. The road and timber sales are so interrelated that they are
required to both be on the EIS to evaluate the combined impacts of the road and timber sales. The agency may not escape
compliance with regs by proceeding with 1 action while characterizing the others as remote or speculative.
Connected Actions must be considered in a single EIS - actions that (i) trigger other actions which may require EIS; (ii)
cannot or will not proceed unless other actions are taken previously or simultaneously; (iii) are interdependent parts of a
larger action and depend on the larger action for their justification.
Cumulative Actions must be considered in a single EIS – bc of cumulatively significant impacts.
(5) REVIEW:
a. AFTER THE EIS, JUDICIAL REVIEW FOCUS SHIFTS TO DOCUMENT’S ADEQUACY
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i. ALTERNATIVES: not defined by NEPA, but it’s generally bound by notions of feasibility. EIS must include all
reasonable alternatives including: (1) reasonable alternatives; (2) mitigation measure; (3) no action alternative
1. Vt. Yankee Nuclear Pwr Corp. v. NRDC (1978) – agency must consider all reasonable alternatives, whether or
not alternatives are within the agency’s authority, but at least some of the burden of presenting alternatives lies
on the opponents of a project and not just the agency. Both the agency and the opposition are required to
make evaluations of reasonable alternatives in good faith. *Statements of alternatives don’t fail just because
they don’t include EVERY alternative. An EIS should generally consider: direct and indirect effects; possible
conflicts bw proposed action and other land uses; alternatives’ effects including energy requirements,
conservation potential, and mitigation measures; urban quality, and the historical & cultural resources. *Sp Ct’s
tone reflects the view that the enviro group bringing the action was uncooperative and obstructionist.
Note: concept of alternatives is always evolving: today a company building a power plant would always
consider conservation bc now it is well established. This case would be different today.
ii. QUALITY OF ANALYSIS:
1. National Autobahn Society – In cases of obvious avoidance or lack or compliance, the Court will use the “hard
look” requirement and require the company to re-do their analysis.
2. Sierra Club v. United States Army Corps of Engineers (1983) – Corps planned a superhighway and EIS
characterized the Hudson as biological wasteland, but there were populations of fish there; Corps
acknowledged EIS was wrong (“WE DON’T CARE”). Relying on false info demonstrates bad faith and
modern courts use the “hard look” (Kleppe) requirement to decide if an EIS is adequate. Agencies must make
adequate compilations of relevant information that is reasonably analyzed without ignoring pertinent data, and
has made disclosures to the public. It killed the project; even though the Corps could have re-done the report
and came to the same decision, there was not enough money to do so
NEPA IS PROCEDURAL AND SHOULD HAVE NO EFFECT ON THE SUBSTANTIVE DECISION. Basically,
Did the agency consider the report? Yes – court’s review is done
i. Calvert Cliffs (1971) –NEPA says make a report so the AEC made it but never looked at it. Judge Wright
calls it a mockery of the act. Accompany means more than physical proximity; NEPA obviously requires that
the report be considered in the process; it doesn’t require a particular result, but it does require consideration.
ii. Strycker’s Bay (1980) - low-income housing in Manhattan didn’t want to review alternatives because they
were tired of the delay. Court’s only role is to see that the agency considered the factors & the court cannot
“interject itself within the area of discretion of the executive as to the choice of action to be taken.” NEPA
was designed to insure a fully informed and well-considered decision, but not necessarily a decision that
judges would have reached.
iii. Robertson v. Methow Valley Citizens (1989) NEPA does not mandate particular results, but simply
prescribes the necessary process. If the adverse environmental effects of the proposed action are adequately
identified and evaluated, the agency is not constrained by NEPA from deciding other values outweigh costs.
c. SUPPLEMENTAL EIS
i. Marsh v. Oregon Natural Resources Council (1989) – EIS for a dam project. Ps argue for supplemental EIS
bc memos indicated the project would have greater adverse impacts than previously thought. There is a duty
to supplement an EIS after it’s been prepared. Supplemental EISs must be filed up to the point at which the
governmental action would no longer be environmentally “significant” bc it makes sense to hold NEPA
inapplicable at some point in the life of the project because the agency would no longer have a meaningful
opportunity to weigh the benefits of the project versus the detrimental effects on the environment.
Court’s test: (1) how significant is info & (2) how much action has yet to be completed?
ii. Ctr for Bio Diversity v. Nat’l Hwy Traffic Safety Admin (2008) – NHTSA issued a Draft EA, which stated
that the cumulative effects would be very small &, regardless, they are making things better (but if you know
there is a benefit, you should consider alternatives bc there could be more of a benefit). Two questions
regarding the EA: whether it adequately considered possible consequences of the proposed agency action
and whether the determination that no EIS was required was reasonable. The court found NHTSA’s
reasoning is arbitrary and capricious because the EA’s analysis was inadequate (didn’t evaluate
incremental impacts or any alternatives) & the FONSI was contradicted by evidence in the record. The
Record is insufficient to order an immediate preparation of an EIS. FHTSA was required to prepare a revised
EA or, as necessary, a complete EIS.
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CHAPTER 6 WATER POLLUTION CONTROL (CWA 1972
Purpose: Protecting Water Quality
Goals: To make the nation’s waters fishable, swimmable, and to eliminate the discharge of pollutants into navigable waters
(1) Mandated imposition of technology-based discharge limitations; (2) Imposed a nationwide permit system while retaining the
WQS; & (3) Expanded the federal role in financing construction of municipal treatment facilities.
§ 301 - prohibits discharges of pollutants from point sources except as permitted by Act
§ 402 - establishes National Pollution Discharge Elimination System (NPDES) for point source dischargers
§ 404 - establishes the dredge (excavated or dredged from waters of the U.S.) and fill permitting (used to replace an aquatic area
with dry land or change the bottom elevation of a water body)
I. JURISDICTIONAL REACH OF CWA:
a. NAVIGABLE WATERS
i. Riverside Bayview (1985) - Corps construed CWA to cover all freshwater wetlands that were adjacent to other covered
waters, even if not regularly flooded by conventional “waters.” The Court deferred to the agency and determined that it
was an “ecological judgment” made with expertise that wetland protection was necessary to fulfill CWA.
Lopez (1995) – Commerce Clause: (1) Channels; (2) Instrumentalities or persons and things in interstate commerce; and
(3) Intrastate activities that substantially affect interstate commerce.
ii. SWANCC (2001) – Corps 1977 definition of “wetlands” extended jurisdiction to isolated waters whose use could affect
interstate commerce - Migratory Bird Rule included waters (1) used as habitats for migratory birds, (2) habitats for
endangered species, or (3) to irrigate crops sold in interstate commerce. CWA unambiguous: statutory language expressly
precluded jurisdiction over the isolated wetlands then no need for Step 2
iii. Rapanos (2006) – 4-4-1 - Michigan wetlands lie near ditches or man-made drains that eventually empty into traditional
navigable waters are “waters of the United States.” Scalia’s plurality: CWA’s waters includes only: Relatively permanent,
standing or flowing bodies of water (excludes intermittent flow channels), or wetlands with a continuous surface
connection to bodies that are waters of the U.S. in their own right. Based on: dictionary, plain meaning, & congressional
intent. Kennedy’s Concurrence: “Significant nexus” test: jurisdiction extends to wetlands with the requisite nexus.
Controlling Rapanos Test: some circuits apply either or; guidance document suggests applying both
Jurisdiction: (1) TNW, (2) Wetlands adjacent to TNW, (3) Non-navigable tributaries of TNW; & (4) permanent waters
b.
DISCHARGE - NPDES permits are granted to control the amounts of pollutants discharged from industrial and municipal
facilities; the limits are based on either the pollution control technology available or ambient water quality standards
 § 502(16) – “Discharge” when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.”
-- Point source - “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other
floating craft, from which pollutants are or may be discharged”
-- Discharge – “any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to
the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft
**Don’t get confused – pollutants added to waters – dredge or fill material that’s pollutant according to §404. *Don’t need a
point source to have jurisdiction under § 404, point sources are regulated under § 402
c.
ADDITION OF POLLUTANT - to be under either §§ 402 or 404, there must meet be a discharge- “addition of any pollutant.”
i. Addition does not encompass fallback materials because incidental fallback represents a net withdrawal, not an addition.
Subtracting, as a matter of physics, means taking away, you couldn’t possibly be “adding.” Tulloch Rule is set aside.
Nat’l Mining Ass’n v. Corps (1998) –Developers found a way to around the CWA requirement was to not have
“navigable waters” – one way is to eliminate vegetation, but in doing so, they could not create discharge that would
otherwise require a § 404 permit. Corps created Tulloch Rule (the Martha Stewart Rule) - essentially defined 404
discharge to include “any addition of dredged material into, including any redeposit of dredged material.” 33 CFR §
323.2(d)(1) (replacing 1986 exclusion of “de minimis incidental soil movement during normal dredging operations).
CWA § 502(6) language reveals a legislative attempt to be very broad. Majority says our holding should not be taken so
broadly to think there can be no regulation of redeposit, it just cannot go this far.
ii. Deep ripping was held to be a discharge subject to regulation by the CWA because it causes soil to be “wrenched up,
moved around, and redeposited somewhere else”
Bordon Ranch Partnership v. Corps. (9th Cir. 2001) – Someone had some property that would meet the definition of
wetlands; they wanted to turn it into property suitable for vineyard; they went through a process to aerate the land (deep
ripping); you wouldn’t need a permit to do this because it’s not adding anything – no “redeposit of dredged material” –
argument that it is added - is the metamorphosis of disturbing soil essentially transforming the land and making it a
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pollutant which is then “added.” The 9th circuit accepted the metamorphosis argument – same argument that was
rejected in National Mining.
iii. The Supreme Court ducks the unitary water theory by saying it was not raised by the Court of Appeals, but it does
express some opinions with the unitary waters (1) there are other places in CWA where congress clearly treats them as
separate waters and (2) EPA never argued this before
South Florida Water Management District v. Miccosukee Tribe of Indians (2004) – flood control station pumped
water into a reservoir, but canal water contained contaminants/pollutant. Court holds that it is plain that a point source
need not be the original source of the pollutant. District also argues the unitary water theory – all navigable waters are
one body & since they are all the same then you can’t add something to itself – no “any” in front of “navigable waters”
would imply that there were separate ones, every other word is qualified by “any” (“any addition”; “any pollutant”;
“any point source”), but not “any” navigable waters, just “navigable waters.” (Professor Case thinks theory - this was an
act of desperation from a late-night, drunk brief writing argument idea)
d.
“POINT SOURCES” - permitting program posed administrative challenges, so EPA limited it to point source dischargers and
focused on major dischargers first and issued regulations exempting certain categories of point sources
i. NRDC v. Costle (1977) – An environmental group challenged EPA’s decision to exempt certain categories of point
sources. EPA’s argument was that it was infeasible for them to have to deal with the overwhelming number of permit
applications and Congress could not have intended this. The court held that the EPA didn’t have this authority. The D.C.
Circuit says the statute says what it says and you can’t just exempt based on fear of numbers, BUT sanctioned the notion
of having alternative condition permits or general permits (entire industry). General permits are allowed, but not
exemptions bc with a general permit the EPA will revisit it later down the road (5 year renewals)
Congress felt some sympathy so they ADDED – “This term does not include agricultural storm water discharges and
return flows from irrigated agriculture” –last sentence in point source definition was added after this case.”
ii. Plaza Health Laboratories, Inc. (1993) – A person could not be a point source for purposes of the CWA because it
is not in the text or the legislative history. Villegas discarded his blood testing lab’s medical wastes in a crevice below
high water mark in the Hudson, knowing the water would take them out.
Dissent: doesn’t agree that a person can never be a point source – point source is about controllability – if you can ID it
and control it, then it should be regulated. Point sources classically are an organized means of channeling and conveying
industrial waste in quantity to navigable waters, i.e., a “discernible, confined and discrete conveyance.” Case law is in
accord: courts have deemed a broad range of means of depositing pollutants in the country’s navigable waters to be
point sources
c.
TYPES OF REGULATIONS:
1. Technology-Based Effluent Limitations – limiting quantities, rates, & concentrations of pollutants from point sources
- Present or future environment status is not a factor: facilities are to use the “best” technology to control pollution
discharges. Technological infeasibility may result in adjustments but that does not authorize the EPA to exclude relevant
point sources from the permit program (NRDC v. Costle)
i. History: EPA was required by the 1972 Act to establish health-based standards for controlling toxic pollutants. In
1977, dischargers were required to employ “best practicable control technology currently available” (BPT). By
1983, dischargers were required to employ “best available technology economically achievable for each category
or class” (BAT) and new sources are required to reduce effluents to the greatest degree “achievable through
application of the best available demonstrated control technology” (BADT). EPA faced task of translating
technology based standards into enforceable limits on industrial source categories
ii. Method
(1) Info on industry's practices, discharge characteristics, technologies/practices in place, and economic factors.
(2) Identify best available technology (economically achievable for industry) and sets regulatory requirements.
(3) Standards incorporated into National Pollutant Discharge Elimination System (NPDES)
 Note: guidelines do not require facilities to install the particular technology identified by EPA; however,
the regulations do require facilities to achieve the regulatory standards, which were developed based on a
particular model technology.
 This process has been laborious, technically complex, and marked by repeated delays and problems
(missed deadlines & guidelines formed on outdated data)
o §304(b) was ambiguous (“publish regulations providing guidelines for effluent limitations”) EPA determined it would issue industry-wide effluent limitations under § 301 without waiting to
promulgate guidelines under 304(b).
- Supreme Court held in DuPont v. Train that 301 limitations are to be adopted by the
Administrator- they are to be based primarily on classes and categories and…they are to take the
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form of regulations. As a result, the imposition of nationally uniform, categorical effluent limits
was deferred long beyond the initial deadlines
- Section 308 gives the EPA data collection authority to assist in the development of effluent
guidelines
 Effluent trading: allows sources that reduce pollution below the required minimum to acquire pollution
allowances that could be sold to other firms
iii. Industry-Wide Standards
- Plant-by-plant would be economically & practically infeasible for the EPA.
- Industry wide effluent standards are valid IF individual plants can obtain variances (new sources may be required
to modify the process itself to place pollution control mechanisms within the design of the facility).
1. Chem. Manufacturers Ass’n v. NRDC (1985) – FDF variance is available, but no economic inability
variance will be allowed as to toxic pollutants. Court holds that the EPA’s variance was not a modification
and the justification was a subtle recognition of the extraordinarily difficult task that Congress laid on the
EPA to create these technology based effluent limitations.
Professor Case: the variance allowance basically shifts the burden from the EPA to the plant. If there is
something unique to the business from the industry then the business applies to the EPA on the basis of the
difference. Thus the intellectual distinction between modification and variation is no distinction
- After the case, a new § 301 sets out permissible grounds for FDF variances for toxic pollutants.
 CWA § 301(l) – “Other than as provided in (n) [FDF variance], the Administrator may not modify any
requirement of [effluent limitations] as it applies to any specific pollutant on the toxic pollutant list
under section [307 – toxic and pretreatment effluent standards] of this title.”
 CWA § 301(n) - The Administrator may establish an alternative requirement that modifies the
requirements of national effluent limitation guidelines or categorical pretreatment standards that would
otherwise be applicable to such facility, if the owner or operator of such facility demonstrates to the
satisfaction of the Administrator that – (A) The facility is fundamentally different with respect to the
factors (other than cost) … considered by the Administrator in establishing such national effluent
limitation guidelines or categorical pretreatment standards
Dissent: plain meaning and congressional intent were to ban all “modifications.” While EPA can revise
standards, it must follow the procedure established for promulgating those standards. FDF requirement sets
an individual requirement even where there may be similarly situated dischargers
iv. Publicly Owned Wastewater Treatment Works (POTWs) (separate from CWA industrial point sources)
- Indirect dischargers (discharge toxic waste into sewers) are exempt from NPDES permitting requirements and
RCRA. The thought was that it would be redundant to require treatment when these waters are going to POTWs.
BUT the CWA does require that these wastes be treated for pollutants not susceptible to POTWs.
Indirect Dischargers into POTWs: CWA § 307(b), (c), (d), and (e) – Requires indirect discharges (dischargers into
sewer systems/POTWs) to comply with certain pretreatment standards to control pollutants that would interfere
with the operation of POTWs or pass through POTWs and contaminate “waters of the United States” into which
the POTW discharges. **Illogical to put human waste into the water only to then build huge expensive plants to
take it out
*Note state and local governments can adopt more stringent standards
2.
Water Quality-Based Controls (CWA Safety Net) - 303(d) directs states to id waters with insufficient controls and
calculate limits on pollutant loadings necessary waters to achieve WQS within the margin of safety & § 302 dictates that
WQS should be used to prevent discharges from interfering with attainment or maintenance of desired water quality
i. States were slow to promulgate WQS, so 1987 Amendments added that states must adopt criteria for toxic
pollutants; numerical criteria must be adopted; & endorsed the use of biological assessment criteria when numerical
criteria are not available. Water quality standards ineffective because they focused on tolerable effects rather than
preventing causes; they were retained as a safety net after the CWA was enacted and trended toward TBEL
ii. Two Parts: (1) id designated uses of a water body (purposes for which each water body is to be protected i.e.
drinkable, fishable, swimmable, agricultural, industrial, etc) and (2) design WQS to protect the designated use
(judgments concerning degree of protection necessary). *Note, WQS doesn’t say what criteria
- State standards must be reviewed and approved by the EPA – If EPA disapproves of a state standard, then it
must promulgate its own water quality standard for the state
1. NRDC v. EPA (1993) – EPA could approve such standards so long as they were scientifically defensible
and protective of designated uses, even though they were based on assumptions different from those
employed by EPA in assessing the toxicity of dioxin. Court emphasized that states have the primary goal in
establishing water quality standards and that EPA’s decision to approve them should be upheld if there is a
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rational basis for it in the record. EPAs tolerated risk of dioxin were much larger than the states and the
Court said we are going to accept the EPA’s judgment in approving the state’s decision (probably based on
subsistence fishers in low-income and minority communities)
iii. State Water Quality Certification under § 401 - WQSs transferred into NPDES permits
Four ways WQSs can affect NPDES permits: (1) WQS in downstream states may affect the permit terms for
upstream discharges in another state; (2) CWA § 304(l) - controlling toxic “hot spots”; (3) State water quality
certification requirement under CWA § 401; & (4) CWA § 303(d) total maximum daily loadings (TMDL) program
1. Designated Uses and Anti-degradation § 303(c)(2)(A) – states may not lower existing uses and the water
quality necessary for them. A state may lower the use of certain high quality water to a fishable and swimmable
level if necessary to accommodate important social or economic development
2. Compliance with downstream WQS
Arkansas v. Oklahoma (1992) - (defers to EPA) – Court found that the EPA had to condition the CWA permits
issuing upon compliance with applicable downstream WQS.
- OK argued discharges from AR wastewater treatment plant shouldn’t be permitted because they would degrade
water quality in the upper Illinois River in violation of OK’s water quality standards. ALJ found that the AR
permit wouldn’t have “undue impact” on OK’s WQS. Court of Appeals relied on a different theory
(1) Does the CWA require the EPA, in issuing a permit, to apply the WQS standards of downstream states?
(Court doesn’t address this one). (2) NPDES permits shall not be issued “when the imposition of conditions
cannot ensure compliance with the applicable water quality requirements of all affected States. **6 million
gallons/3,000 miles -- no ability to detect discharge – for an upstream discharger to actually have the ability to
violate a downstream water quality standard to an extent that it gets in the way of their permit, it would have to
require close proximity
3. Compliance with minimum flow requirements - conclusion that activities and not merely discharges must
comply with State WQSs is a reasonable interpretation of §401 and is entitled deference.
PUD No. 1 (1994) – PUD was trying to build a hydroelectric dam & they needed Federal permit, which also
required a permit under the CWA §401. The River was home to lots of salmon, and damming it could reduce the
water flow rate to the point where the salmon would die. So, the State issued a permit, but imposed the condition
that a minimum flow rate must be maintained. PUD argued the State exceeded their authority - it's the Clean
Water Act, not the Lots of Water Act. PUD wasn’t dumping anything. Water quantity can be related to water
quality because a sufficient lowering of the water quantity could destroy designated uses, which is what the Clean
Water Act is designed to prevent.
BUT NC v. FERC (D.C. Cir 1997) P. 738 – project wanted to withdraw 60 million gallons of water a day from
the lake, without putting anything else in. D.C. Circuit Ct said that’s not a discharge, that’s a withdrawal.
Dissent argues majority is inconsistent with PUD. (Prof. Case disagrees with this inconsistency - you have to
have a discharge under 401 for 401 to apply at all. So first ask, is there a discharge that requires a permit?)
4. Total Maximum Daily Loadings (TMDLs)
Pronsolino v. Nastri - Prof Case - only case I’m aware of that’s taken on the non-point source argument under
TMDLs. There is some textual material – it’s been a statute since 1972 but states ignored it for ever. Historically
the EPA had a lot of fish to fry in 1972 and they could only do so much.
-- Most of the states, if not all of the, have very robust TMDL programs to ID Waters, calculate total maximum
daily loadings (chemical engineering process to figure out, in respect to every pollutant, that toxic pollutant that’s
effecting that water body, where is it coming from)
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CHAPTER 5 AIR POLLUTION CONTROL (CAA)
Goal: nationwide attainment and maintenance of NAAQSs
HISTORY: Air Pollution has been one of the foremost concerns of environmental law after the industrial revolution
Georgia v. Tenn. Copper Co – illustrates how virtually uncontrolled emissions from industrial facilities caused such substantial
environmental damage that equitable remedies were imposed. Some air pollution problems can be addressed through litigation or local
ordinances, but many facets transcend state boundaries and originate from so many sources so as to create insurmountable difficulties in
proving causation and fashioning complete relief
CLEAN AIR ACT
- Sets up a system of shared responsibility for addressing the criteria pollutants – NAAQS must be attained and maintained nationwide.
(1) EPA establishes national ambient air quality standards (NAAQS) for these pollutants;
(2) State governments then decide how the numerous existing sources within their jurisdictions whose emissions contribute to the
ambient levels of these pollutants ought to be controlled in order to meet those NAAQSs for their jurisdictions.
- Each state submits its State Implementation Plan (SIP) to the EPA, which approves their adequacy to accomplish the statutory
requirements. States designated air quality control regions are responsible for developing SIPs to attain/maintain air quality
requirements.
FOUR RING CIRCUS:
Title I (Nat’l Ambient Air Quality Standards & State Implementation Plans) & Title V (permit program for major sources)
o § 108 – requires EPA to id air pollutants anticipated to endanger public health or welfare and to publish air quality criteria
o § 109 – requires EPA to adopt nationally uniform ambient air quality standards (NAAQSs) for criteria air pollutants
o § 110 – requires states to develo and submit to EPA for approval state implementation plans
o § 111 – requires EPA to establish uniform national technology based standards for major new stationary sources for air
pollution – New Source Performance Standards (NSPSs)
o § 112 – mandates technology-based standards to reduce listed hazardous air emissions from major sources in designated
industrial categories, with additional regulation possible if necessary to protect public health with an ample margin of safety
o Part C – specifies requirements to prevent significant deterioration of air quality (PSD) for areas with air quality that exceeds
the NAAQSs
o Part D – specifies requirements for areas that fail to meet the NAAQSs (nonattainment areas)
Title II (mobile source controls - primarily motor vehicles)
o § 202(a)(1): The EPA shall prescribe “standards applicable to the emission of any air pollutant from any class or classes of new
motor vehicles … which in [its] judgment cause, or contribute to, air pollution, which may reasonably be anticipated to
endanger public health or welfare…”
Title IV (acid rain program) - creates a system of marketable allowances for sulfur dioxide emissions from power plants and major
industrial sources to reduce acide precipitation
- Prof Case: Title IV has been successful and has really narrowed thinking in respect to green house gas emissions to help get our
arms around a very global problem –we can do so with a cap and trade permitting program which is not always super successful,
but is hopeful in global politics)
Title VI (ozone hole, CFCs - chlorofluorocarbons)
WHAT IS AN AIR POLLUTANT ?
- The CAA and common sense demands regulatory action to prevent harm, even if the regulator is less than certain that harm is
otherwise inevitable.” Ethyl Corp v. EPA, 541 F.2d 1, 25 (D.C. Cir. 1976) (en banc)
- Air Pollutant – Any physical, chemical, biological, radioactive substance or material which is emitted into or otherwise enters the
ambient air as well as any precursors to the formation of any air pollutant.
(Professor Case: pollutant definition doesn’t say anything about what effect the substance must have – very broad definition)
- Welfare – If any such air pollutant endangers either public health or welfare, then different provisions of the Act authorize the agency
to regulate that pollutant
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I.
NATIONAL AMBIENT AIR QUALITY STANDARDS
a. ESTABLISHING NAAQSS – for the most common pollutants, the federal government will determine national ambient air
quality standards (NAAQSs) and then states will decide how to control local pollution sources so as to meet those standards
- § 109 requires the EPA administrator to set primary NAAQSs at the level “which in the judgment of the Administrator, based
on ambient air quality criteria and allowing an adequate margin of safety, are requisite to protect the public health
i. EPA reluctance to regulate/revise due to: (1) Enormous administrative burden & (2) Scientific uncertainty
EPA may be compelled to list a pollutant as a criteria pollutant and promulgate NAAQSs for that pollutant - EPA’s
duty becomes nondiscretionary if the EPA makes a determination that (a) the pollutant endangers the public health or
welfare; and (b) the pollutant results from numerous or diverse mobile or stationary sources
1. Massachusetts v. EPA (2007) – 5-4 ruled that if, on remand, the EPA makes a finding of endangerment (“air
pollution … reasonably anticipated to endanger public health or welfare”), the CAA requires it to regulate. Thus,
EPA can avoid taking further action only if it determines that GHGs do not contribute to climate change or if it
provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether
they do. (1) Rejected the notion that an injury common to all cannot be a specific injury to any party sufficient for
standing. (2) Found the EPA’s refusal was arbitrary and capricious since it’s conclusion was not grounded in
statutory support.
Post-Mass Developments:
- Dec. 2009, the EPA announced final finding, GHGs threaten public health and welfare of Americans. It’s the
trigger to move forward and create rules and regulations to allow the agency to limit these emissions. *Congress
could pre-empt any coverage by the CAA to GHGs in favor of comprehensive legislation
- The EPA defends its decision to depart from the CAA text by implementing GHG emission regulations
incrementally (tailoring) under “absurd results,” “administrative necessity,” and “one-step-at-a-time” doctrines
- Court challenges & legislative attacks to EPA’s authority to regulate GHG, as of now it’s completely stalled.
2. Interstate/International Pollution: CO2 - Should a national ambient air quality standard (NAAQS) be
established for carbon dioxide in light of evidence that it is contributing to global warming??
Lead Industries Ass’n v. EPA - Court said it is a precautionary standard - EPA isn’t required to wait for certainty.
All that is required by the statutory scheme is evidence in the record, which substantiates conclusions about health
effects on which the standards were based.
ii. NAAQS: Primary – protection of people and public health. Secondary – everything else - protection of crops, trees, bldgs
Six Criteria pollutants for which NAAQS have been issued:
1. Sulfur Dioxides: Corrosive, poisonous gases produced when fuel (such as coal or oil) containing sulfur is burned
2. Nitrogen Oxides: Produced by fuel burning at very high temperatures which oxidizes nitrogen in the air
3. Carbon Monoxide: Colorless, odorless, poisonous gas produced by incomplete burning of carbon in fossil fuel
combustion processes
4. Particulate Matter: Solids or liquids in various sizes, including the very fine dust, soot, smoke, and droplets formed
from chemical reactions produced by burning fuels such as coal, wood, or oil
5. Ground-level ozone: The primary ingredient of smog formed when nitrogen oxides and volatile organic compounds
chemically react in the atmosphere during periods of intense sunlight
6. Lead: A heavy metal that can be released directly into the air as suspended particles through the burning of leaded
gasoline or by industrial sources such as lead smelters, waste incinerators, utilities, or manufacturing processes
iii. CAA § 110—requires the states to determine how to implement NAAQSs through State Implementation Plans (SIPs)
 SIPs must assure air quality control within the state will come in compliance with the NAAQSs by a specified date
 If the state fails or its plan is deemed inadequate, the EPA is required to prepare a Federal Implementation Plan (FIP)
 All Air quality control regions are divided into 1 of 2 categories
(1) Nonattainment areas (serious consequences) – what happens in nonattainment area – see slide
(2) Prevention of Significant Deterioration (PSD) areas – (1) SIP putting controls in place ensuring that air quality
is maintained; (2) Major new stationary pollution sources must comply with Best Available Control Technology
standards; & (3) New sources must demonstrate added emissions will not cause PSD area to exceed NAAQS
b.
REVISING NAAQS – The EPA is required to review and revise its air quality criteria and the NAAQSs at five-year intervals.
i. Whitman v. Amer. Trucking Association – Duty to review NAAQs is mandatory and nondiscretionary, the EPA
cannot consider costs. Court held that the EPA was required to set standards for air quality that achieved an appropriate
level of health, regardless of the cost of impelmenting the standards to affected industries.
Notes after the case 572 note 7 – talks about essentially that the standard got remanded back to the circuit and analyzed
under arbitrary and capricious and the D.C. circuit rejected that notion so the standard went into effect
SNAPSHOT of how inefficient the system is: standard finalized by the agency reducing it from .12 ppm to .08 (1997) –
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takes agency another couple of years to move forward (2004) – states than have several years to decide how to move
forward (2007). A decade to when it is actually being put into effect – hopefully implemented in a way to be protective
of public health, note any time we make a decision to revise the standards, “this is the beast that is being released.”
Note: EPA is supposed to re-evaluate standards every 5 years – SIP process is a fluid, constantly moving progression
c.
STATE IMPLEMENTATION PLANS (SIPS) - § 110 requires states to determine NAAQS achievement through SIPs;
- If SIP is not prepared OR deemed inadequate, EPA must prepare a Federal Implementation Plan (FIP) for that state
SIP Timeline: (1) NAAQS promulgated/revised; (2) State has 3 years from finalization to submit SIP; (3) EPA has 12 months
to approve/disapprove; (4) If state fails to submit or SIP is deficient there are a number of potential sanctions; & (5) If State
fails to obtain approval of its SIP within 2 years after a disapproval, EPA is required to create a FIP for that State
EPA’S CRUCIAL ROLE IN REVIEWING SIP’S - ensure SIPs include measures that will result in attainment & maintenance of
the NAAQS (really requires a crystal ball/ EPA does use air quality dispersion models, but subject to lost of uncertainties).
- FIPs allow the EPA to step in and make choices normally reserved for the states. “Conditional Approval” is an EPA
technique to avoid writing FIPs (condition SIP approval on the requirement that the state will bring the SIP into complete
compliance so & SIPs deficiencies are minor and corrected within one year)
SANCTIONS - Applied by EPA against states under CAA – if states fail to submit satisfactory SIPs: (1) Federal Implementation
Plan; (2) Other sanctions: non –attainment areas - suspension of federal highway funds. (3) Other sanctions in nonattainment
areas - increasing the ratio of pollution offsets required before new pollution sources can be located w/in nonattainment areas.
i. In reviewing a SIP, EPA may only consider the factors in § 110, an exhaustive list
Union Electric Company v. EPA (1976) – Infeasibility is not a substantive defense to noncompliance, but it may be raised
during the penalty stage to aid in fashioning a remedy. Electric company argued the EPA approved SIP should have been
rejected because it was economically and technologically infeasible. Court held there are no statutory restraints on SIPs.
Note 1: Company subsequently obtained a variance from the state and did not have to shut down
Note 3 and 4 – practical problem is not that the SIPs are overly draconian, but really the opposite that they are “rosy”
scenario plans – look awesome on paper, but they give themselves the benefit of every favorable assumption
Best Available Control Technology (BACT) - emission limitation based on max degree of pollution reduction, which the
permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other
costs, determines is achievable for [the] facility.” *EPA can’t tell states what the BACT has to be, but it has to be
reasonable. Thus the standard of review is under a reasonableness evaluation
ii. Virginia v. EPA – EPA cannot condition approval of a SIP on the state’s adopting a particular control measure which the
EPA deems most desirable; The EPA can only reject a SIP on one of the grounds stated in § 110.
VI. Title V Permit Program (added to CAA in 1990 amendments) - All “major” stationary sources of criteria pollutants must obtain
operating permits under Title V (generally, one emitting 100 tons or more per year of a criteria pollutant is a “major” source, but in
nonattainment areas, smaller sources can be deemed “major” sources)
- Any proposed new source of CAA criteria pollutants must comply with pollution control requirements imposed by locating in
either a nonattainment area or a PSD area
- New sources moving into a PSD area must comply with BACT (best available control technology) standards
- New sources moving into a nonattainment area must comply with LAER (lowest achievable emission rate) standards
- Other nonattainment requirements: § 173 requires general CAA compliance, SIP implementation , & enviro cost-benefit analysis
**Modification regulations are a nightmare to figure out- we are just going to skim this and know it’s there
i. § 173 Permit Requirement Offsets - attempt to create some flexibility – a new source can be located in a non-attainment
area if they (1) employ the lowest achievable emissions rate and (2) get offset requirements
Offsets (1) Owner or operator of a new/modified stationary source may offset its emissions by obtaining reductions from a
source in the same nonattainment area.
- A source can offset its emissions with a source in another nonattainment area if the other area’s non attainment
classification is equal or higher AND the other area’s emissions contribute to the violation of a NAAQS in the source’s
area
- Problems: for an offset to be effective, the reduction must be in the same pollutant; some sources may already be
operating with emissions below their legal limit. If these sources are allowed to offset the difference between their actual
emissions and the legal limit then this is no real reduction only a paper one.
- Offset Reduction Rations - Amount of emission reductions that must be obtained from other sources is dependent upon
how severe a nonattainment zone the new source seeks to enter. For example – “moderate” nonattainment zone reductions
must be obtained at a 1.15 tons to 1 ton ratio; “serious” nonattainment, the ratio is 1.2 tons to 1 ton; “severe”
nonattainment zone, the ratio is 1.3 tons to 1 ton
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CHAPTER 4 WASTE MANAGEMENT AND POLLUTION PREVENTION
WASTE MANAGEMENT AND POLLUTION PROBLEM - EPA reported in 1988 that more than six billion tons of agricultural, commercial,
industrial, and domestic waste was generated in the United States each year.
RCRA: tort-based regulatory program
–Focus is on present – managing current disposal behavior
(provide comprehensive protection against mismanagement of
hazardous wastes)
–Traditional command-and-control regulatory strategy
–Intent of RCRA is to prevent future CERCLA problems
CERCLA: command and control based regulation
–Focus is on past – remediation of past disposal behavior
–Liability statute authorizing remediation of past
contamination and imposition of responsibility for clean up
costs
Imposes strict, retroactive liability
-------------------------------------------------------------------------------------------------------------------The Resource Conservation and Recovery Act (RCRA)
History – Congress had taken the same approach to waste disposal practices (like clean air and clean water). They thought they were
local problems and local entities ought to deal with them. In 1976, Congress enacted RCRA.
RCRA established national goals for:
(1) protecting human health and the environment from the potential hazards of solid and hazardous waste disposal;
(2) conserving energy and natural resources through waste recycling and recovery;
(3) reducing or eliminating the amount of waste generated, including hazardous waste; and
(4) ensuring that wastes are managed in an environmentally sound manner.
Structure - RCRA establishes a tracking system to follow hazardous waste from its point of generation through transportation to a
facility for treatment, storage or disposal (cradle to grave). Regulated stringently -- if you don’t have a permit, you are violating the law;
if you do it knowingly, you are committing a felony
A. RCRA framework
1. Is it a solid waste? (Jurisdictional question)
a. RCRA only applies to solid waste - If solid waste, move to question 2
- Solid Wastes § 1004(27) can be solid, liquid, or gas – note congress has completely revolutionized the English
language; “discarded material” would be more appropriate. Disposal (§1004(3) means the discharge, deposit,
injection, dumping, spilling, leading, or placing of any solid/hazardous waste into or on any land or water so that it
enters the environment
i. RCRA applies only to discarded materials, not recycled.
Amer. Mining Congress v. EPA (D.C. Cir.) – company generated war materials and planned to recapture,
recycle, and reuse dust, inserting it back into production processes. EPA Concerns: (1) recycling process itself
i.e. some stored materials can cause contamination problems like leaching or runoff; and (2) might be sham
recycling process to avoid regulation. So EPA tried to argue materials were solid waste unless directly reused
(closed-loop recycling). Held: “discarded” unambiguously expressed congressional intent that solid waste be
limited to materials discarded by virtue of being disposed of, abandoned, or thrown away. EPA overstepped
their RCRA authority. Dissent - Waste is disposed under RCRA if it is put into contact with land or water in
such a way as to pose the risks to health and environment that animated Congress to pass RCRA.
ii. AMC II –EPA said wastewater in holding ponds was “discarded” and could be regulated. Court limited AMC
I’s holding to those materials destined for immediate reuse that “have not yet become part of the waste disposal
problem”
iii. American Petroleum Institute v. EPA: “Unlike the materials in question in AMC, the waste is indisputably
discarded before being subject to metals reclamation.”
2.
Is it hazardous?
- Although Congress required EPA to regulate hazardous waste under C of RCRA, it didn’t specify how the agency was to
determine what wastes were hazardous. EPA’s slow progress in identifying and listing hazardous wastes was criticized
frequently. In 1986 it abandoned the plan to do more studies and shifted its focus to revising its hazardous characteristics
Hazardous Waste Treatment Council v. EPA (1988) – rejected argument that used oil should not be listed as a hazardous
waste because it would discourage recycling. Despite this decision, EPA ultimately decided not to list used oil as a hazardous
waste because they reasoned that gasoline-powered engine oils already are subject to regulation under subtitle C as
characteristic wastes and that other oils are not hazardous with sufficient frequency to warrant listing.
- EPA has struggled to develop a new hazardous waste identification rule that would tailor regulatory requirements more
closely to the degree of hazard posed by a waste without creating the kind of loopholes the mixture and derived-from rules are
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designed to avoid.
a.
b.
No (Subtitle D – largely non-regulatory – municipal solid waste)
Yes (Subtitle C – stringent regulation) (Move to Question #3)
Determination if solid waste is hazardous under RCRA:
Policy: follow a rulemaking process for the serious and identified hazardous wastes and for those not on the list, we
want them to decide if it exhibits one of the four characteristics and should be treated a hazardous waste (basically –
“hey we don’t know everything and some materials might not have been put on the radar yet”
1. Review list of hazardous wastes in CFR
i. “Listed wastes” – if it is specifically listen by EPA in CFR, then it is a hazardous waste
Why is listed wastes treated so absolutely? EPA says if it’s serious enough that it is on the list, we want it
to be treated carefully and as a hazard at all time, we don’t want people looking for ways around it. If it’s a
listed waste then at every step of the process they are going to have to carry on under the hazardous waste
rules. The listed wastes are really high in one or all four characteristics
1. Mixed Rule Waste - any mixture of a listed waste with another solid waste is deemed to be a
hazardous waste; (avoids dilution attempts to avoid hazardous classification)
2. Derived-from Rule Waste - any waste derived from the treatment storage or disposal of a listed
waste (such as the ash residue from burning or incinerating a listed waste) is deemed to be a
hazardous waste
Absolute Listed rule can over-regulate (can petition to be removed from list)
ii. “Characteristic wastes” - If not listed, determine if the waste exhibits hazardous characteristics either by
(a) Testing the waste through procedures set forth in CFR (not required); or (b) Applying knowledge of
the hazardous characteristic in light of the materials or processes used.
*Problem– limited guidance on test requirements and no guidance on using applied knowledge method
1. Does it exhibit a hazardous “characteristics” – ignitability, corrosivity, reactivity, or toxicity
2. The mixture waste rules and derived from waste rules do not apply to characteristic wastes. A
characteristic waste is only considered hazardous so long as it continues to exhibit one of the 4
hazardous characteristics. *If a waste derived from a characteristic waste no longer exhibits the
hazardous characteristic, it is no longer a hazardous waste.
3. Deciding if it meets the Four Characteristics: The Code puts the burden on generators of solid waste.
If they recognize that they have created a solid waste (step 1), they have the burden to determine if it
is a hazardous waste (step 2)
iii. Hazardous waste exceptions
 Mining wastes
 “Household wastes” (1) Too hard to regulate - People need to know (a) they’ll get caught and (b)
there’s a punishment if not then u just rely on compliance (2) No political will/intrusiveness – it would be
intrusive for the government to be able to inspect your wastes
Household Waste Stream: “Household waste” exempted from definition of “hazardous waste”
HOUSEHOLD WASTE 
TREATMENT PROCESS

ASH
(MUNICIPAL GARBAGE)
(INCINERATION)
(RESIDUE)
1. Waste Stream Exemption created in 1980 Regulation Preamble. Companies burned municipal
garbage for energy. It’s clearly generation of a waste, but hazardous? It’s not on the list, so does it
demonstrate one of the characteristics, the burden is on the generator to figure it out. Hazardous
wastes costs money so the goal is to avoid it. This attempted evasion created a problem with
testing/knowledge avenues – municipal incinerators were playing dumb, they weren’t testing and
claiming ignorance that this ash was hazardous. EDF went around and started testing it and showed
that this ash met the toxicity characteristic
2. 1984 Statutory “Clarification of Household Waste Exclusion” RCRA § 3001(i) – a “facility
recovering energy from the mass burning of municipal solid waste shall not be deemed to be
treating, storing, disposing of, or otherwise managing hazardous wastes for the purposes of
regulation under [subtitle C]” if the facility (1) receives and burns only household waste and
nonhazardous waste from commercial and industrial sources, and (2) does not accept hazardous
waste identified or listed under subtitle C, and (3) “has established contractual requirements or other
appropriate notification or inspection procedures to assure that hazardous wastes are not received at
or burned in such facility.”
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3. City of Chicago v. EDF (1994) – Is the ash generated is subject to regulation as hazardous waste
under Subtitle C. Court finds that it is. Even though the EPA had changed its interpretation during
the remand, the 7th circuit didn’t care and said nope household exemption is still not in there.
Supreme Court affirmed and held that § 3001(i) did not apply to residue from incinerated household
wastes
- 3001(i) only pertains to exemption of the facility from Subtitle C regulation, not the ash
Note 3 – City of Chicago case ended the waste stream exception altogether
4. Waste Stream Exemption for Residue is DEAD - After this case the EPA did cut the incinerators
a break by allowing fly ash and bottom ash to be tested in combination, rather than separately;
Bottom ash is less toxic, so regulation of ash/residue was made less stringent by this allowance.
Waste stream exemption lost (i.e. residues not excluded), but that anything mixed in with household
waste (such as commercial or industrial waste) before treatment process.
In the RCRA structure → Who are you?
- Generators – the entity that, figuratively speaking, gives birth to the hazardous waste in question; RCRA obligations on
generator to determine if it has generated a hazardous waste
- Transporters – any entity that moves a hazardous waste from the site on which it was generated; Transporter can store
hazardous waste on its site for up to 10 days;
-- the minute it leaves a site you become a transporter – they can hold on to it, but only for 10 days
-- there aren’t a lot of requirements for transporters – get it to the TSD facility and that’s pretty much all you are supposed to
do – make sure it makes it where it is supposed to go
- TSD Facilities – the entity that receives hazardous waste for either treatment, storage or disposal purposes and which must
have a federally issued RCRA permit in order to operate.
Generators can recycle hazardous wastes in order to avoid TSD status. Two exempted recycling methods:
(1) Closed-loop recycling system is exempted from RCRA; this implies immediate reinsertion of the waste into recycling
process; (2) Store waste in closed containers onsite, recycling the waste prior to end of 90 days; Must be done onsite; with
wastes that aren’t listed wastes, the generator can treat the waste in proper containers or tanks to avoid TSD status; Ship
everything to CANADA!! (section 3017 or RCRA) – note 6 p. 388
note 3 page 387 – sometimes knowing the requirements and where the environmental law is, is a really difficult proposition –
everything you need to know to comply isn’t necessarily easy to find
Manifest - a data sheet that identifies each shipment of hazardous waste; accompanies the waste from the generating facility to
the final disposal site and allows for the “cradle to grave” tracking of the waste
- It must be separately signed by the generator, the transporter, and the TSD facility at each point in the waste’s journey. TSD
facility is required to return a signed copy of the manifest to the generator; a generator that does not receive it within a certain
time period is required to notify the government. Manifest system seeks to ensure that hazardous wastes actually arrive at the
permitted TSD facility and are not illegally dumped elsewhere by the transporter
Generators & transporters don’t want to do things that will bring TSD obligations; only if you are intending to be a TSD and
are charging the high rates to follow obligations of a TSD so that your customers don’t have to.
-------------------------------------------------------------------------------------------------------------------THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT (CERCLA)
Goals: (1) Facilitating prompt and effective clean up at abandoned hazardous waste dump sites by authorizing removal and remediation
operations for hazardous substances & (2) assigning clean up costs to responsible parties through a comprehensive liability scheme
- CERCLA creates Superfund for resources to deal with those risky sites when you can’t find responsible parties to stick with the bill. It
was created by a tax on chemical companies. But this tax expired in 1995 and was never reauthorized. The statute still operates as it
always had, but now the funds need to come from general appropriations.
- CERCLA creates powerful incentives for companies in present to manage waste disposal practices and think about substances and
materials they use that create the waste streams they are required to deal with because no one wants to incur future CERCLA liability.
CERCLA Structure
- Liability is the most important issue under CERCLA bc someone needs to pay to clean up or address hazardous wastes
problem. Look to the liability scheme to determine who needs to pay. CERCLA imposes strict, joint, and several liability
1. Is it under CERCLA Jurisdiction?
i. Is it a release or threatened release? – § 101(22) “any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing into enviro (including abandonment or discarding of
barrels, containers, and other closed receptacles containing any hazardous substance, pollutant, or contaminant).” (dictionary
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dumping)
-- No threshold minimum amount to constitute a release; one drop would be enough; there are restraints in pragmatism
though because EPA cannot go after every puddles
-- A threat of release may be established by: evidence of the presence of hazardous substances at a facility, together with an
unwillingness of any part to assert control over them
ii. Of a hazardous substance? – § 101(14) “pollutants designated under the CWA; any listed or characteristic hazardous waste
under RCRA; pollutants under the CAA; chemical substances or mixtures under § 7 of TSCA; any substance designated as
hazardous under § 102 of CERCLA (entire list at 40 CFR, part 302, table 302.4)
a. Exemptions to Hazardous Substances Categories
(1) Applications of pesticides registered under FIFRA
(2) Federally permitted releases – discharges or releases authorized by permits under CWA, CAA or RCRA
(3) New petroleum products (but not used petroleum products)
iii. Facility - § 101(9) “any site or area where a hazardous substance has come to be located” (so broad it’s practically irrelevant
that it’s included) - wherever you go in life, that’s where you’ll be/wherever you find hazardous substances that’s a facility
2. Is there CERCLA liability? (*most important CERCLA issue – someone needs to pay to clean up/fix problem)
- CERCLA has been interpreted to apply strict liability and joint and several liability (P can sue any one or all of joint and several
Ds – it’s P’s option), even though it’s not used in the statute itself. Gov. is relieved from proving that hazardous substances were
released as a result of negligence or a PRP’s conduct was intentional or unreasonable.
- CERCLA also imposes retrospective liability – liability for conduct that occurred prior to CERCLA’s enactment without limit
If it meets jurisdictional elements,
i. Did the federal government incur response costs? (EPA may investigate and clean up under § 104, then sue for
reimbursment under § 107)
ii. Is D in one of the 4 classes of PRPs under § 107? (EPA may compel 1+ PRPs to conduct necessary investigation or clean
up by seeking a court order or issue a unilateral order requiring investigation/clean up under § 106)
1. Current Owner/Operator
Operator - “someone who directs the workings of, manages, or conducts the affairs of a facility…must manage,
direct or conduct operations specifically related to pollution; that is, operations having to do with the leakage or
disposal of hazardous waste, or decisions about compliance with environmental regulations.” (Bestfoods).
2. Any parties who owned or operated the site at the time that hazardous substances were disposed there
3. Any parties who “arranged for disposal or treatment” of any hazardous substances at the site (“generator” or
“arranger” liability);
4. Any parties who both chose the site and transported hazardous substances to it
5. Nondisclosure, the 5th category of PRP § 101(35)(C) creates a “fifth category” – if a party obtains actual knowledge of
a release while it owns property and subsequently sells or transfers ownership of the property to another without
disclosing that knowledge, that party is treated as a PRP and no third party defenses are available to it.
6. **EPA may negotiate a settlement with some or all PRPs under which they agree to undertake any necessary response
actions
iii. Is there indemnity or contribution issues after first PRP pays?
CERCLA is about shifting risk and liability to those people that have relationship with property and contamination;
it might be unfair that EPA can go with current owner and stop there, but CERCLA mitigates the unfairness of this by
allowing other people in “to share the misery” (Shore Realty Co notes).
3. Is there a CERCLA liability defense § 107(b)?
i. Act of God – 107(b)(1)
i.e. Tornado comes through and upsets hazardous tanks – most courts would say not an act of god because tornados are
foreseeable, thus the narrow construction doesn’t allow much of a defense
ii. Act of War – 107(b)(2) – doesn’t get anyone very far since we don’t have many wars --- think of 9/11 though – we have
said that’s an act of war and lots of contaminations were released, but EPA did not try and impose any CERCLA liability
iii. Third-party defense – 107(b)(3) - “Traditional” third-party defense or Innocent purchaser defense
Traditional Third Party Defense
a. The third-party cannot be: either an employee or agent of defendant, or “one whose act or omission occurs in
connection with a contractual relationship, either directly or indirectly, with defendant”
b. Additionally, D must establish: she exercised due care with respect to the hazardous substances concerned, and took
all reasonable precautions against foreseeable acts or omissions of any such third party
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Because of the contractual relationship, if you had purchased the property from someone who had caused it then you
lost the ability to use a third party defense. This led to the creation of the Innocent Purchaser Defense
-- Innocent purchaser defense: § 101(35)(A)(B) establish the elements:
1. At time of property acquisition, D “did not know and had no reason to know” of the hazardous substances
2. To demonstrate this, D must have undertaken “all appropriate inquiry into the previous ownership and uses
of the property consistent with good commercial or customary practice” at the time
3. D must meet other requirements of third-party defense (i.e., “due care” and “adequate precautions”)
i. OWNERS:
NY v. Shore Realty Corp (1985) - D petitioned NY board for a waiver; he bought it without the waiver and was sued to initiate
a CERCLA clean up and pay. What are the defenses: 3rd party defense – only works if third party is one who dumped the
hazardous substances on your property while you owned it; if it happened before you owned it, then it’s not a third party
defense for you
- he tries to get the court to read causation into the statute, but the court says we cannot do that
Note 1 (p. 406) - Loophole for people to pollute and sell to diffuse all liability - windfall to seller because they end of with a
clean up and no liability - devises an incentive to collude. Whereas, this method helps catch pollution early and provides
incentives to deal with it sooner rather than later (1) creates incentives for seller to deal with the problem and clean it up; (2)
incentives for purchasers to research the land/investigate before purchasing
Note 7 (p. 408) – problem with people who own the property between two categories – owner or operator and parties who
owned or operated the site at the time that hazardous substances were disposed there
Owner 1 (owned the property at the time hazardous substances were dumped) –responsible under category 2
Owner 2 (owed after with no new hazardous dumps) – no responsibility
Owner 3 – responsible under category 1
ii. OPERATORS - The primary issue in evaluating whether an entity should be assigned “operator” status under sec. 107 is the
extent to which it actually controls the operations that result in the hazardous substance release or threatened release that
triggers CERCLA liability in the first instance. Note, **It’s possible for two entities to be a PRP under first or second category
FMC v. US Dep’t of Commerce (1994) - Shows definition and application of factors of how someone came in and was
running the show – deemed to be an operator of a facility it didn’t own. Gov. came in during WWII and operated rayon
manufacturing facility – gov. exercised “substantial control” and was thus “operator” of facility where it – required
company to manufacture rayon to assist war effort; Maintained significant control over production through regulations,
on-site inspectors, and possibility of seizure; Built and controlled plants; Supplied machinery and equipment for
manufacturing; and Controlled product marketing and price
United States v. Bestfoods (1998) - site of a chemical manufacturing plant was polluted over many years. During much of
the time, the companies running the plant were wholly owned subsidiaries. CPC is parent company of Ott II (chem.
plant) and Bestfoods purchased it from CPC prior to initiation of CERCLA clean up.
Two ways to get at a parent corporation: (1) indirect/derivative liability – basically, if we can pierce the veilestablish for fraud intensive purposes that there aren’t two separate companies then you can get to the parent. “a parent
co may be held liable for a subsidiary’s conduct when the corporate veil may be pierced (which happens when the
corporate form would be misused to accomplish wrongful purposes; and (2) Direct Liability – parent corporation can
incur directly liability for its own actions in operating a facility owned by its subsidiary
Rule: only way the parent is liable is if you can pierce the corporate veil. Any person who operates a polluting facility is
directly liable, the difficulty comes in defining actions sufficient to constitute direct parental operation
Ways to conclude parent company liability: When the parent is (1) sole operator, or (2) operates the facility alongside
of its subsidiary (joint venture), (3) When a dual officer of the parent and subsidiary departs so far from the norms of
parental influence exercised through dual office holding as to serve the parent, even when ostensibly acting on behalf of
the subsidiary in operating the facility; or (4) When an agent of the parent with no hat to wear but the parent’s hat might
manage or direct activities at the subsidiary’s facility
Holding: A corporate parent that actively participated in, and exercised control over, the operations of the facility itself
may be held directly liable in its own right as an operator of the facility.
 Sp Ct concluded that the question is not whether the parent operates the subsidiary, but rather whether it operates the
facility, and that operation is evidenced by participation in the activities of the facility, not the subsidiary. The
appropriate test should be participation-and-control
**Take home point: basic corporate rules are not surpassed by CERCLA – if there is fraud you can be reached with
liability and if you are involved as an operator you may be liable in your own right directly
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Note 2 p. 417: experts “speak the language” & can establish that a parent has departed from norms of standard
corporate relationships you would rely on expert witnesses to determine what the normalcy standard is
iii. ARRANGERS (AKA GENERATORS) – one area where CERCLA is far more expansive than equivalent Tort law areas
Elements to impose liability on generator (generator is not in statute, but courts routinely call it this)
That the relevant generator arranged for the disposal or treatment of hazardous substances,
At a facility which now contains hazardous substances of a type similar to those sent by the generator,
That there has been a release or threatened release of hazardous substances at the site,
That has caused the occurrence of response costs.
Policy justification – arrangers will be more careful – strong incentives to be careful in selecting who are you doing business
with/who will dispose of your materials (solvent, stability, credible
U.S. v. Aceto (1989) (superseded) – representative of stretching the definition of generator liability. Companies send raw
materials; waste stream was a foreseeable by product of this product and you knew there would be a need to get rid of
the hazardous byproducts, so that knowledge makes you an arranger for disposal of hazardous substances
Two Justifications: (1) you controlled what Aceto was going to do; they are making it based on your materials and your
specifications, you give them their marching orders; and (2) this is an independent contractor, but one dealing with a
dangerous activity and because of that u can hide behind your indepdnent contractor
Burlington Northern v. U.S. (2009) – how expansive is liability
“Traditional” Arranger – entity that transacts directly with another for the specific purpose of disposing of a hazardous
substance. “Broader Category” of Arranger – disposal of a hazardous substance was not the direct purpose of a
transaction, but was a “foreseeable byproduct” of the transaction
-- Lower court ruled similar to Aceto case – waste disposal problem was foreseeable given what Shell knew about
operations and should be liable. Sp Ct reversed bc mere knowledge that a hazardous substance is being disposed, that’s
not your intention, and unless you intend there be a disposal, you haven’t arranged for it and without intention we can’t
find that Shell qualifies as an arranger
- J. Ginsburg in dissent (aceto rationale)
1.
LIABILITY
a. APPORTIONMENT (R2d Torts § 433a) - Damages will be apportioned only if D can demonstrate the harm is divisible
(D has burden of proof). If this burden is not met, the harm is considered indivisible and JS liability will be imposed
i. Burlington N. & Santa Fe v. U.S. (2009) - §433A(1)(b) – is there a reasonable basis for apportionment? This
case gives hope and ammunition to PRPs to argue that the concept of establishing a reasonable basis for
apportionment is really a broader universe than the lower courts had previously indicated
- District Ct found that the contamination caused a single harm but it was divisible and able to be apportioned.
District Court calculated the RRs liability: 19% surface area; owned property for 13 years - 45% of time;
hazardous substance released on B&B property 10x greater; and only 2 RR chemicals contributed to the
contamination -2/3 of the overall site contamination requiring remediation. Their Formula: .19 x .45 x. 66 (2/3)
and rounded up to 6% then added calculation error of 50% (1/2 of 6 is 3)  9% liability --problem this is kind
of like multiplying apples, oranges, and pineapples. Lots of formula problems, but the trial court’s
apportionment is upheld as reasonably supported by the record.
Dissent: Court should not have pursued the matter sua sponte; the burden of proof is on defendant to prove
divisibility and they have done nothing, why not just find them jointly and severably liable for everything; and
because of this “heroic effort” the government therefore was not able to respond and rebut the facts.
b. MITIGATION OF J&S LIABILITY
i. De minimis settlements under § 122(g): - PRPs are provided a statutory cause of action for contribution
against other PRPs under CERCLA § 113(f) **before 113 there was considered an implied right of
contribution, but once 113 was added the implied right kind of went away
- The EPA has a “thumb-screw rule” by which the first person to settle gets the best number, and the next gets a
higher number, and those that hold on the longest get the worst (highest) settlements
- Smaller, earlier contributors pay a premium to settle over what their true cost of contribution would be
ii. Contribution Actions § 113(f) – complimentary remedies that PRPs can avail themselves of contribution
- “Any person may seek contribution from any other person who is liable or potentially liable under section
[107(a)], during or following any civil action under section [106 or 107]. … In resolving contribution
claims, the court may allocate response costs among liable parties using such equitable factors as the court
determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action
for contribution in the absence of a civil action under section [106 or 107].”
 Court said the only implied right of contribution is 113 and this added sentence didn’t save that; Prof Case
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says that conclusion renders that sentence pretty much meaningless (saving implied right of contribution that
had been read into the statute before 113)
PRPs’ Right to Recover Response Costs From Other PRPs - CERCLA § 107(a)(4)(B) – “Notwithstanding
any other provision or rule of law, and subject only to the defenses set forth in subsection (b) … [PRPs] shall
be liable for … any other necessary costs of response incurred by any other person consistent with the national
contingency plan.”
1. Provides statutory cause of action for contribution against other PRPs
2. Provides Rights to recover response costs from other PRPs
a. Cooper Industries v. Aviall - Party can only bring a § 113 contribution action after it has first
been sued under § 106 or § 107; i.e. a party can’t voluntarily clean up a contamination and then
seek contribution under § 113 for the costs associated with the cleanup.
Reason → § 113 says that a contribution action may be brought “during or after any civil action
under § 106 or 107”; Rule also applies to settlements that occur prior to institution of any § 106 or
107 action.
- “Orphan shares”: the share of pollution from parties not part of the suit are apportioned among
known parties
Aviall could have sued under 107 for cost recovery –diff type of action but would essentially get
them to the same place – no real reason why they didn’t, but they didn’t
This case left open whether PRPs have rights under 107(a)(4)(B) – court answered this in Atlantic
Research Corp in the affirmative and said yes “PRPs” are “any other person”
3. Previously Settled Parties & Contributions Actions - § 113(f) cannot be instituted against a party who
has already settled; settling party’s liability is completely extinguished for both (1) Contribution actions
AND (2) for future cleanup costs.
4. Private Party Rights to Action Under § 107
- Private party as a plaintiff for costs associated with cleanup
- NOT a contribution action but an original action for cleanup costs;
- U.S. v. Atlantic Research Corp. - Held that yes, a private party can bring a § 107 action;
§ 107 states - [PRPs] shall be liable for … any other necessary costs of response incurred by any other
person consistent with the national contingency plan.” Doesn’t just say costs incurred by the
government.
5. Factors for Allocation In Contribution Actions under CERCLA
a. U.S. v. Vertac Chemical Corp (1999): Considered equitable factors to apportion J & S Liability;
b. Gore Factors – When Gore was a senator he set forth a bill that didn’t pass, but the Gore Factors
from the bill have become almost a common law standard – this is a starting place of factors – the
list is not exhaustive or exclusive- the primary emphasis is placed on the harm each party causes
the environment and care on the part of the parties”;
1. Ability of parties to demonstrate that their contribution can be distinguished from others
2. The amount of hazardous substance involved- Case: must prove amount you contributed is
smaller than other; court uses this factor the most.
3. The degree of toxicity of the hazardous substance involved,
4. The degree of involvement by the parties in the generation, transportation, treatment, storage,
or disposal of the hazardous substance,
5. The degree of care exercised by the parties with respect to the hazardous substances concerned,
taking into account the characteristics of such hazardous substances (the more careful you are the
better you look in terms of allocation – if you were intentional or reckless that’s bad – none of this
is relevant to liability you are responsible regardless but it does matter in terms of degree of
contribution)
6. The degree of cooperation by the parties with federal, state, or local officials to prevent any
harm to the public health or the environment
-- remember those who have settled are out of the equation, but for those that haven’t settled the
court takes 100% of what is left and divides it up
7th is orphan share – the share of responsibility for people we can’t get to – they were involved,
but for whatever reason (insolvent; absent) they aren’t present to be included – so the orphan
share is split up among the six tortfeasers in accordance with their present share
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c. EPA’S RESPONSES- § 104 – allowed to expend taxpayer money to respond to releases/threatened releases assuming
that the national contingency plan procedural and substantive rules concerning hwo the EPA is allowed to respond
i. Removal Actions (short-term necessary fix) you don’t need to be on national contingency plan for EPA to
go in and take Removal Action
- Typically short-term response actions to address releases or threatened releases requiring prompt response
- Removal actions are classified as: (1) emergency; (2) time-critical; and (3) non-time critical
ii. Remedial Actions (long-term clean up)
- Usually more long-term response action than a removal action
- Intended to permanently and significantly reduce the risks associated with releases or threatened releases of
hazardous substances that are serious but lack the time-criticality of a removal action
iii. National Contingency Plan – Extensive cleanup measures (“remedial measures”) may only be undertaken if
site qualifies for listing on the National Priority List (NPL)
(1) “Preliminary Assessment and Site Investigation” (PA/SI) – site evaluated for NPL placement by use of
the Hazard Ranking System and whether short term removal action or longer term remedial action should be
undertaken  it has to be on national priority list to be eligible for superfund dollars (no real superfund
anymore – it works the same, but there’s not a pot of money that’s available to be tapped into – we must now
get general appropriations to spend this money which is much harder to do with congress, especially in tight
budget times)
(2) “Remedial Investigation and Feasibility Study” (RI/FS) – assess site conditions and evaluate alternatives
to the extent necessary to select a remedy (heart of CERCLA remedy-selection process – goal is to gather
enough data to characterize status of site to evaluate choices – in this sense it is kind of like NEPA)
(3) Issuance of proposed plan
(4) Provide opportunity for public comment
(5) Issuance of Record of Decision (ROD)
d.
SCOPE OF CLEAN UP - CERCLA § 121 establishes 5 requirements for remedial actions:
(1) Must attain a degree of cleanup assuring protection of human health and environment (threshold criteria)
[contemplates that cleanup may not be 100%] --- KIDS EAT DIRT
(2) Hazardous substances remaining after cleanup must meet all “applicable” and/or “relevant and appropriate”
requirements under federal and state law (ARAs) (threshold criteria)
(3) Technological feasibility – must utilize permanent solutions and alternative treatment technologies or resource
recovery technologies to the maximum extent practicable (balancing criteria)
(4) Economic feasibility – must provide for cost-effective response, taking into account total long and short term
costs of such actions (balancing criteria). Note - for Gov’t will have very different ideas about what is economically
feasible than will the responsible party who will actually have to pay for it. For this reason, it is really best just to start
cleaning a contamination up prior to the government getting involved. **When government is in charge, cost-effective
response is going to cost 3x more than it should, most CERCLA lawyers tell clients clean it up then give government
the bill
(5) Must be in accordance with the NCP to the extent practicable (modifying criteria)
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----------------------------------------------------------------------------------------------------------------------------- ---------CHAPTER 9: ENDANGERED SPECIES ACT (ESA) – RATIONALE FOR PRESERVING BIODIVERSITY - MOST COMPREHENSIVE LEGISLATION
FOR ENDANGERED SPECIES IN THE WORLD; WHEN IT APPLIES IT IS THE MOST POWERFUL ENVIRONEMNTAL STATUTE
I. ESA PRESERVE BIODIVERSITY - § 2 (A)(3) – Congress declared “species of fish, wildlife, and plants are of esthetic, ecological,
educational, historical, recreational, and scientific value to the Nation and its people….”
a. AESTHETIC – is the world not a much cooler place with polar bears
BUT like our case later today – who gets hype about killing flies there can be a shortcoming in this argument for some
species and in some cases, aesthetic notions can lower willingness to invest resources -**remember back to dolphin PR in
save the dolphins (not the tuna) efforts
b. UTILITARIAN (ECONOMICS) – diversity of species is an important resource (although highly under-utilized – i.e. Myers
estaimated that we ustilize 7,000 kinds of plants for food, yet 75,000 exist that are edible and even superior to the crop
plants in use)
(A) Untapped potential – we may be losing wonderful opportunities that we aren’t aware of; there is a potential
benefit/value to humans that we don’t know of yet
-- It is estimated that the world contins 13-14 million species, but only 1.75 million have ever been described
--EX: Taxol is a rare plant that waas discovered to treat breast and ovarian cancer – the drug is made from material found
in the bark and needles of the rare Pacific Yew Tree
(B) Law of unintended consequences (Jenga Blocks) – you don’t understand it well enough to see how it fits in (some
reflection of the precautionary principle – since we don’t know it’s better to presume the effect would be bad)
(C) Money from species – tourism, hunting, fishing, etc.
c. MORAL/ETHICAL - Protect endangered species because it is the right thing to do - allowing species to become extinct is
wrong; possibly rooted in religious views – god gave man plants/animals and charged man with caring for the earth
PURPOSE OF ENDANGERED SPECIES ACT: § 2(B) – “The purposes of this chapter are to provide a means whereby the ecosystems
upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of
such endangered species and threatened species….”
--Dual purpose: (1) Protect the species; and (2) Ecosystems/habitats that they rely on – habitat part makes the ESA a land-use
regulation tool (*makes statute controversial – not just protecting species, but their ecosystems too, which becomes an intrusion of
land-use regulation and affects private lands causing regulation of private land use)
II. THE ACT
a. Defining Endangered Species - ESA § 3(6) Any species in danger of extinction other than a species of the Class Insecta
determined by the secretary to constitute a pest whose protection under the provisions of this chapter would present an
overwhelming and overriding risk to man. (i.e. we can kill mosquitoes, ticks, cockroaches)
*In general, threatened species have been extended the same protections accorded species listed as endangered
b. Species must be listed under § 4 for ESA to apply (§ 4 is ESA gateway)
- Listing decisions are made either by the Secretary of Commerce or the Secretary of the Interior under the administrative rule
making process (public comment, notice, etc.), so there is incentive for the agencies not to make these determinations (because
of the accompanying hassle) BUT § 4(b)(3) allows citizens to petition to force a listing determination.
*Fish & Wildlife Service (FWS) administer ESA for species under jurisd. of Sec / Interior & National Marine Fisheries Service
(NMFS)→ ESA → Sec of Commerce
c. ESA § 7 – requires all federal agencies to carry out programs to conserve endangered and threatened species
 Similar to NEPA; § 7 addresses federal action and provides that the actions of federal agencies cannot “jeopardize” the
continued existence of any endangered or threatened species or result in the destruction or adverse modification of such
species’ critical habitats
Prescribes steps Fed. Agencies must take to ensure actions don’t jeopardize species
- Consultation → Issue finding; If finding of jeopardy or adversely affect; Sec. suggest “reasonable & prudent alternatives”;
Potential Actions after finding of jeopardy- Terminate the Action; Implement the Proposed Alternative; Seek exemption
d. Unlawful to “take” any endangered species - much broader than § 7 because it applies to public and private actors
ESA § 9- prohibits sale, import, export, or transport of any species listed as endangered
“Take” is defined very broad - § 3(19) to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or
to attempt to engage in such conduct.” (note, includes attempt)
-- If you have a dog chasing an endangered species that is harassment, but what if the dog is not very good at it, has the intent
but is not very good, attempted harassment is still a “taking”
- Harm is a broader concept
e. § 10 can allow incidental takings as long as the secretary approves an HCP
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WHEN IT APPLIES IT IS THE MOST POWERFUL ENVIRONEMNTAL STATUTE
TVA v. Hill (1978) - Dam construction started; project was halted temporarily in 1972 when Enviro Defense Fund obtained an
injunction requiring an EIS under NEPA and in 1973 the injunction was lifted, but by that time the ESA was passed and law
students at TN petitioned to get snail darter on endangered species act
This case is about § 7 jeopardy provision – the dam’s action is going to jeopardize continued existence of snail darter which is now
listed under § 4 as an endangered species
- TVA argues that act shouldn’t apply bc dam construction started prior to ESA’s passage;
Court rejects this argument – Construction doesn’t trigger the statute, but rather the turning the dam, which will take place after the
act was passed, thus jeopardy will occur well after the Act’s enactment
- The Act doesn’t give the court the authority to weigh benefits of protection against the utility of the proposed “taking” in order to
determine if species should be protected; The court said that even if they could partake in that balancing, Congress said biodiversity
“literally incalculable” so even $100 million investment in the dam wouldn’t be enough
 Notes 4, 5, and 6 – tell the story after TVA v. Hill
-- Congress amended the act to include the God Squad – collection of agency heads that can evaluate exemption requests
(this is used sparingly). Committee is authorized to grant an exemption if it determines that: (1) there are no reasonable
and prudent alternatives to the federal action; (2) the action is in the public interest ona regional or national basis; and (3)
the benefits of the action clearly outweigh the benefits of alternatives that do not jeopardize preservation of the species.
- TVA was the first company that petitioned for an exemption, but the exemption was rejected because the dam itself had
no particular need or demand, thus did not warrant an exemption.
 Prof Case – if story would have been about farmland and farmers instead of this quirky, weird endangered fish the case
would have probably received a different public perception
III. FEDERAL AUTHORITY – ESA IS VULNERALBE TO A COMMERCE CLAUSE ARGUMENT
Congress’s Commerce Clause Authority for Regulation: Was ESA a proper use of CC authority?
i. Lopez (1995) – state couldn’t show that possession of a gun near a school would have a substantial effect on interstate
commerce. Court held that Congress has the authority under the Commerce Clause to regulate three areas: (1) channels of
interest commerce, (2) instrumentalities of interstate commerce or persons and things in interstate commerce, and (3)
activities that have a substantial affect on interstate commerce
ii. Nat’l Ass’n of Home Builders v. Babbitt (1997) - Dehli Sands flower-loving fly lived only in a small area of California;
its habitat did not cross State boundaries; the Fish and Wildlife Service (FWS) determined that the fly was an endangered
species, and its habitat was a critical habitat; hospital had worked out a deal with FWS, but San Bernadino then tried to
redesign a highway to improve access to the hospital. FWS determined that this was constituted a taking of the fly, in
violation of Endangered Species Act §9(a).
- Trial Court found FWS had authority to regulate the fly because botanists traveled across State lines to visit the fly's
habitat, the fly was involved in interstate commerce, and the Commerce Clause applied.
- Appellate Court affirmed, but for different reasons - the fly is involved in a 'channel of interstate commerce' bc the
prohibition against takings of an endangered species is necessary to enable the gov. to control the transport of the
endangered species in interstate commerce.
 Citing Heart of Atlanta Motel (1964) - if interstate commerce feels the pinch, it does not matter how local the operation
which applied the squeeze. ESA in general can be construed as 'substantially affecting interstate commerce' because of the
importance of the continuing availability of a wide variety of species to interstate commerce.
 "ESA substantially affects interstate commerce: (1) provision prevents destruction of biodiversity and thereby protects
current and future interstate commerce that relies upon it & (2) provision controls adverse effects of interstate
competition."
Attempted arguments:
(1) Use of channels of interstate commerce BUT intrastate activity and the fly is not being transported anywhere
(2) Instrumentalities of interstate commerce BUT again there’s no movement here
(3) Utilitarian argument – potential value of this fly is an option value – don’t know what the actual value is, we know it’s
greater than zero BUT greater than zero does not mean it has a “substantial” effect – we need to show in the here and now
there is a substantial effect
Judge Henderson → ESA protects the fly’s habitat, not just the species. **Remember the dual purpose; if we focus on
protecting not only the species but also the habitat (pretty prime real estate) that may be where you can find your effect on
interstate commerce
 The substantial effect on commerce can be found in the regulation of land use - i.e. construction of the hospital will
have economic effects on interstate commerce; i.e.- protection has impact on land development, land development has a
substantial interstate impact.
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iii. Morrison (2000) – same Lopez 5-4 majority. Congress’s commerce power is far broader when economic activity is
regulated but, you can’t just say something is economic activity when it is not, i.e. it’s economic just because it has some
affect on economic activity;
- Although there is no “categorical rule against aggregating the effects of any noneconomic activity” in order to justify
federal regulation under the commerce power, “thus far in our Nation’s history our cases have upheld Commerce Clause
regulation of intrastate activity only where that activity is economic in nature.”
iv. Gibbs v. Babbitt (4th Cir) (cert denied) - FWS extended “takings” prohibition to cover experimental red wolf populations.
Group of farmers & ranchers unsuccessfully challenged authority of gov to protect red wolves on private land.
-- “Takings” themselves would be economic activity, so regulation of such would be a regulation of activity - thus
Morrison is not a problem. Tourism - people cross state lines to hear and see the wolves; Scientific research; Possibility of
a renewed pelt industry in the future; Interstate Markets for Agriculture Products & Livestock
1. In analyzing a case, to see if it exceeds authority delegated by Congress:
Lopez (1995) – state couldn’t show that possession of a gun near a school would have a substantial effect on
interstate commerce. Court held that Congress has the authority under the Commerce Clause to regulate three areas:
(1) channels of interest commerce, (2) instrumentalities of interstate commerce or persons and things in interstate
commerce, and (3) activities that have a substantial effect on interstate commerce (preponderance of the evidence –
usually needs a quantity - it cannot just be an effect, it needs to be substantial). *Only need to show that one is
applicable
2. Morrison- dealt with an economic activity; Gibbs ruled wolves are economic activities because (1) tourism, (2)
research, (3) possibility of fur pelts, and (4) negative impact agricultural products and lifestyle. Possible arg. people
traveling to see these rare species – using interstate highways and hotels
3. Note 9: Gonzales v. Raich – this case has made it far less likely for ESA to face a problem; Medical marijuana case.
Regulating intrastate activities that do not themselves substantially affect interstate commerce may be necessary if
the failure to do so would leave a gaping hole in a larger, comprehensive regulatory scheme that does regulate
interstate commerce. Cf. sec. 9 of ESA – even if some aspects of 9 are getting at some sections that don’t affect
interstate commerce they are part of a larger scheme (i.e. largely getting at trade)
WHICH SPECIES ARE PROTECTED § 4 - gateway of ESA through which an “endangered” or “threatened” species must pass in order to
be protected. If a species is not “listed” pursuant to the requirements set forth in Section 4, the ESA does not apply.
- The act provides powerful protections to species, but only those species that have been listed as endangered or threatened by the
Secretary of the Interior
a. LISTING PROCESS:
•Secretary of the Interior designates the Fish and Wildlife Service (F&WS) to make Sec. 4 listing decisions
•Secretary of Commerce designates the National Marine Fisheries Service (NMFS) to make Sec. 4 listing decisions
•The ESA requires the Secretary (through its designee) to act on a citizen petition to list a particular species under the
Administrative Procedures Act
•The Secretary has 90 days to decide whether a citizen petition makes a substantial case for listing a particular species
•The Secretary has a year to decide whether to proceed with a listing
•The Secretary can postpone action upon certification that the listing cannot be timely processed because of the press of other
pending listings
•These duties and deadlines can be enforced by citizen suit
i. N. Spotted Owl Case – refused to list the owl as endangered because of lobbying pressure that critical habitats will
subsume too much property and this property will affect logging, which was a major area activity. Fed. Courts overturned
their decision as arbitrary and capricious
ii. As of today the number of listed species are 1,990 and of that 1,193 were animals
Listings increased under every president since Ford, but drastically declined under George W. Bush. Reaga n32 per year,
George HW Bush 59 per year, Clinton 65 per year, George W. Bush 8 per year; appear to have increased under Obama –
99 new listings, 51 of which are animal since June of 2009
b.
AFTER LISTED, THEN MUST ANALYZE CRITICAL HABITAT DESIGNATIONS
- Listing decisions trigger requirement to designate critical habitat and they are necessary to afford listed species the protections
against federal actions that jeopardize them, and against private or public actions that “take” them.
•When a species is proposed for listing as endangered or threatened under the ESA, the agency must consider whether there are
areas of habitat essential to the species’ conservation
•“Critical habitat” is defined in ESA § 3(5) as specific geographical areas essential for the conservation of threatened or
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endangered species and that may require special management and protection (including areas not currently occupied by the
species but that will be needed for its recovery).
i. N Spotted Owl v. Hodel (1988) – forced habitat designation – allocating 7 million acres greatly affected logging industry
ii. Recent numbers on critical habitat designations: As of May 2000, only 150 critical habitat designations for 1,231
species … they are once again being made under Obama admin; As of May 2009, 523 total critical habitat designations
had been made, As of Nov. 2011, F&W lists 610 total species including plants with critical habitat designations - 30.6% of
all listed species
iii. Why the Slow Pace? F&WS explanation: (1) Backlog of listing and listing is more important; (2) we aren’t convinced
that designated habitats do much good anyway (but they do not provide any statistics or basis for this).
iv. De-listing decisions – goal of the act is to eventually get species off the list not by going extinct obviously, but because
they’ve recovered. Recently American eagles were de-listed, certain gray wolf species. De-listing decision is like the
listing decision in reverse.
v. §7 and §9 still apply for those listed species that do not have designated critical habitats
2.
REVIEW OF FEDERAL ACTIONS § 7
- “Each Federal agency shall … insure that any action authorized, funded, or carried out by such agency … is not likely to
jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse
modification of habitat of such species which is determined … to be critical…. In fulfilling the requirements of this paragraph each
agency shall use the best scientific and commercial data available.”
-- Jeopardy: an action would “jeopardize” a species if it “reasonably would be expected to reduce the reproduction, numbers, or
distribution of a listed species to such an extent as to appreciably reduce the likelihood of the survival and recovery of that
species in the wild.”
a. THREE STEP PROCESS for determining if an action is likely to jeopardize a species:
Step One - The agency proposing to act must inquire of the reviewing agency (F&WS or NMFS) to determine whether any
threatened or endangered species are in the area of the proposed federal action.
Step Two - If so, the agency proposing to act must prepare a biological assessment to determine whether any such species is
“likely to be affected” by the action. [This biological assessment can be included in an EA or EIS under NEPA.]
Step Three - If the biological assessment determines a species is “likely to be affected,” the agency proposing the action must
formally consult with the reviewing agency (FWS or NMFS); The reviewing agency must produce a biological opinion on
whether the proposed action will jeopardize the species or destroy or adversely modify critical habitat.
-- If a finding of “jeopardy” is made, the action cannot go forward unless the reviewing agency can suggest an alternative that
avoids the ESA violations.
-- If a finding of “no jeopardy” is made, the action can go forward but the reviewing agency may still require measures to
minimize any impact (mitigation of harm to the species);
i. Thomas v. Peterson (1985) - Forest Service argues that missing Step 1 was a de minimus violation; court says you
missed step 1 AND step 2 (if you knew there were endangered species you should have proceeded to step 2. Missing
step 2 cannot be a de minimus violation because then you never get to Step 3. Step 3 is the important part.
Attempts to say we rigidly enforce procedural requirements of NEPA, but that’s because there’s no substantive
provisions and ESA has substantive provisions so we can enforce the procedural requirements less stringently. The
court says that it would cut the other way, if there are substantive provisions then we should enforce procedural
requirements more stringently.
ii. Nat’l Ass’n of Home Builder v. Defenders of Wildlife (2007) – CWA and ESA conflict – both statutes appear
mandatory (“shall” language). Issue: In short, whether § 7(a)(2) operates as a 10th criteria under CWA 402(b)
Chevron Step 2: EPA regulations interpreted as only applying to discretionary federal action. Where the agency action
is mandated, such as action like NPDES permitting transfer authority, § 7(a)(2)’s no-jeopardy duty does NOT attach
§ 7(a)(2)’s duty only attached for discretionary agency action - Ex. TVA v. Hill dam-building was discretionary
- If you say they have to think of § 7 that would be a 10th criteria and you can’t do that. Prof Case says this is a
completely defensible position.
- In most situations there won’t be a problem/conflict and when there is there should be a joint analysis; prof. case
finds this to be kind of a close decision. The bottom line is that the majority determines is tha t§ 7 could be a problem
but it doesn’t affect the CWA because it would basically write something into CWA that’s not there.
Steven’s Dissent - argues that the majority does not give full effect to §7 and limits its reach, which is inconsistent
with both the text and history of §402.03 and the ESA itself. 2 ways to give CWA and ESA full effect without
privileging one over the other: (1) even w conflict between the ESA and another federal statute, the ESA nonetheless
encourages working out a reasonable alternative that would allow an agency to move forward while still not violating
§7. (2) Even after EPA transferred NPDES permitting authority to a State, the agency continues to oversee the State’s
permitting program.
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1. Carson-Truckee Case - there is also § 7 (a)(1) – Ps wanted to buy reservoir water, but secretary says there are
endangered species that depend on that water and although it wouldn’t jeopardize them, it would hurt us in our
efforts to recover them. Court upholds secretary’s decision – obligation to promote species’ recovery.
iii. Thomas v. Peterson: Ds failed to inquire with reviewing agency.
Ps: can’t determine likelihood of threat without meeting procedural requirements
Ds: no need for strict adherence to procedures.
Court: stricter substantive provisions require strict procedural compliance; Can’t get to substantive requirements
without first meeting procedural requirements
3.
ESA § 9 “Takings” -Applies to both Fed. action & Private persons;
(a) Generally (1) …it is unlawful for any person subject to the jurisdiction of the United States to –(A) import any such
species into, or export any such species from the United States; (B) take any such species within the United States or the
territorial seas of the United States; (C) take any such species upon the high seas; (D) possess, sell, deliver, carry, transport, or
ship, by any means whatsoever, any such species taken in violation of subparagraphs (B) and (C); (E) deliver, receive, carry,
transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of commercial activity, any
such species; (F) sell or offer for sale in interstate or foreign commerce any such species; or (G) violate any regulation
pertaining to such species or to any threatened species
i. Breadth of § 9 comes in w/ the broad definition of “take” - “`take’ means to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such conduct.” (§ 3(19))
ii. “Harm” Definition under § 9 “take” - Secretary of the Interior Regs. define “harm” - “an act which actually kills or
injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures
wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.”
iii. “Incidental” takings: ESA § 10(a) - “The Secretary may permit, under such terms and conditions as he shall prescribe
– … any taking otherwise prohibited by section [9](a)(1)(B) of this title if such taking is incidental to, and not the
purpose of, the carrying out of an otherwise lawful activity.”
iv. Babbitt v. Sweet Home Chapter of Communities - Complaint alleged that harm was interpreted too broadly to mean
interfering with the species activity by the agency; D.C. Circuit held that the regulatory interpretation went too far →
harm should at least be construed to mean direct physical harm; USSC overruled D.C. Circuit, upholding the regulation:
Reasons – Chevron Step Two:
1. If “harm” didn’t include direct harm AND indirect harm, there would be no need for the statutory provision of a
process for permitting of incidental takings; (§ 10)
2. “Broad purpose” of the ESA - purpose is to protect endangered species; Also, TVA v. Hill previously recognized
that the ESA protected habitats and ecosystems; protection of habitats is fundamentally a prevention of indirect
harm to the species - thus, the Court had already upheld defining “harm” as including indirect harm;
3. Dictionary definition doesn’t limit “harm” to only direct harm; If dictionary definition doesn’t limit, why should
it be assumed that Congress intended to limit the definition.
4. Problem then is determining the consequences of conclusion that indirect harm is included in definition of “harm”
- how far is this going to go; (Direct v. Indirect Harm sufficient)
O’Connor and Scalia disagree about this;
Scalia: If harm is read to include this type of harm, there is rarely going to be activity which won’t harm an
endangered species in some way;
- No causation requirement - only cause in fact is required; so, it is possible that liability could extend way back
to some small action which ended up harming a population of species in the future;
- Case - Basic conceptions of Strict Liability have always incorporated an element of “foreseeability” “Scope of
Risk” Case likes this test better for proximate causation over the “remoteness” test.
O’Connor: Harm requires actual injury or death to the species; Can be directly caused or indirectly caused, but it
must eventually lead to extinction; There is still proximate cause requirement - injury caused by action must
within the scope of the risk created by actor’s conduct; Even strict liability requires proximate causation - think
about the classic Mink farming case from first year torts;
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ENVIRONMENTAL ENFORCEMENT
 Survey – 2/3 of companies surveyed admitted their companies recently violated environmental laws - maybe cause the
laws are complex (companies might not understand) and voluminous (companies might not know) or they don’t perceive a
high risk of getting caught or if caught, not a very high penalty.
 Enforcement Efforts Ex: 4 speeding tickets  Prof Case changed his behavior – didn’t slow down, just avoided that
road
A. Self-Auditing/Reporting (need to create incentives to for people to voluntarily comply w/ environmental laws): In
response to concerns that self-audits could generate info. that would make it easier to prosecute companies, several states
have enacted laws making the results of such audits privileged information:
- Some state have even given blanket immunity (from penalties and fines - not costs of cleanup and other obligations) for
violators who self-report violations;
- EPA seriously disapproves of blanket immunity; May allow culpable people to just violate w/out repercussion, until they
think they are going to get caught - at that point they can just self-report and avoid fines and penalties
a.
b.
c.
d.
e.
EPA’s Incentives: Reduced civil and criminal penalties for violations discovered through regular environmental
audits if self-reported and promptly corrected & greater benefits for discovering violations through environmental
audits or other system procedures
- Encourages companies to make environmental audits a regular part of operations;
- Discourages companies from disclosing violations only after they believe they are about to be discovered
i. Gravity-based penalties - punitive, over and beyond the economic benefit realized by the company via noncompliance
- For violations discovered through systematic means are reduced by 100%
- For violations discovered through other, non-systematic means are reduced only 75%
- Criminal penalties are eligible for waiver if violations are discovered either through systematic or nonsystematic means (i.e. regardless of how the violation was found).
§d3 prompt disclosure ( used to you only had ten days) now the definition of prompt disclosure is 21 days –u
don’t want ot report a compliance problem to reg. authorities too quickly bc you need to consult w attorneys
on the best way to tell them (maybe correct them before you report it)
EPA policy: compliance incentives for small businesses (100 or fewer employees) - small businesses are often
affected disproportionately by Env. Regs., so the EPA will forgo all penalties – including recovery of the economic
benefit of violations – for small businesses that make “good faith” effort to comply either through environmental selfaudits or receiving on-site compliance assistance
EPA policies only cover voluntary discovery; excludes violations identified through legally required monitoring;
i. Violations reported prior to “imminent discovery of the violation by a regulatory agency” are not given
benefit of the policy;
ii. Also, violations which cause actual harm to the environment or endangerment to human health do not receive
the benefit.
Note 1:
Note 2: Exxon valdez qualified for reduced penalties – all kinds of reasons why they wouldn’t – given sudden events
discovery was relatively imminent; also §d(8) – if no harm then you don’t get any benefit from the policy
(**Remember when we regulated enviro conduct through tort, injury was required; but under regulatory system –
injury is not part of it, non-compliance is failure to meet regulation and all you have to show is obligation applied and
it wasn’t met, you don’t have to show it actually harmed the environment
B. Enforcement Authorities:
a. Sierra Club v. Cedar Point Oil: (5th Cir.) - the statutes contain maximum penalty provisions, but these aren’t the
same as what is enforced by the district courts
- CWA § 309(d) requires that courts consider the following factors in determining civil penalties for violations:
(1) seriousness; (2) economic benefit; (3) violator’s history of such violations; (4) whether the violator made good
faith efforts to comply; (5) the economic impact of the penalty on the violator; and (6) requirements for justice.
So first calculation is that of the maximum penalty; “First, calculate the maximum penalty that could be assessed
against the violator. Using that maximum as a starting point, the court then determines if the penalty should be
reduced from the maximum by reference to the statutory factors.”
- Court then looks to the factors to determine if the penalty should be reduced from the maximum;
- In this case, the maximum was 809 days of unlawful discharge TIMES $25,000 per day maximum fine = maximum
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penalty of $20,225,000;
- Court then went on to the factors to see how this max. figure should be reduced: Moderately serious; economic
benefit of $186K; Violators history of such violations: should imply whether the violator is a reoccurring violator;
Good faith efforts to comply: → NO
Economic impact of the penalty on violator – Intended to ask what penalty can be imposed w/out putting the company
out of business while deterring it from repeat violations; district court just says that they can afford it the penalty, but
fails to determine what size penalty is needed to deter future violations and sufficiently punish the violator;
5th circuit → No Abuse of Discretion by Dist. Ct. This is really a bad result; no real analysis of the factors and the
factors actually seem to go against the violator, but the district court didn’t give any weight to the factors;
**Note that this company actually comes out better in this case than if it had self-reported the violation.
b.
Federal/State Enforcement
Harmon Industries: “Overfiling” Issue
RCRA Delegation/Authorization of state Program:
- § 6926(b) – if a State has been authorized by EPA “to administer and enforce a hazardous waste program”, the
“State is authorized to carry out such program in lieu of the Federal program in such State and to issue and enforce
permits under [RCRA]”;
- § 6926(d) – “any action taken by a State under a hazardous waste program authorized under this section shall have
the same force and effect as action taken by the [EPA] under this subchapter”;
Issue: whether the EPA has the authority to “overfile”, which is a policy that they have always had; Overfilling
implies the EPA taking enforcement action on its own when it does not believe that a state has adequately addressed
certain violations, even where the state has an authorized state program;
RCRA’s federal enforcement provisions: § 6928(a)(1) – “Except as provided in paragraph (2), whenever … the
[EPA] determines that any person has violated or is in violation of any requirement of this subchapter, the [EPA] may
issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a
specified time period, or both, or the [EPA] may commence a civil action in the … district in which the violation
occurred for appropriate relief….”
RCRA § 6929(a)(2) – “In the case of a violation of any requirement of [RCRA] where such violation occurs in a
State which is authorized to carry out a hazardous waste program under section 6926 …, the [EPA] shall give
notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under
this section.”
RCRA’s provisions for refusal of authorization of withdrawal of authorization:
§ 6926(b) – authorizes EPA to reject application from State to administer and enforce RCRA if determined that the
State program “does not provide adequate enforcement of compliance”
§ 6926(e) – allows EPA to withdraw authorization of State if it “is not administering and enforcing a program
authorized under this section in accordance with the requirements of this section”
8th Circuit’s holding in Harmon: §§ 6926 & 6928 when read together mean the following:
- An authorized State has the primary enforcement authority for RCRA violations in that State;
- If the State’s authority to administer and enforce RCRA is rescinded by EPA, then the State cannot act and EPA can;
- If the EPA has given notice to an authorized State under § 6928(a)(2), and the State fails to initiate any enforcement
action, EPA can then institute its own enforcement action.;
State program, under EPA authorization, supplants federal administration authority, which includes enforcement;
Plain meaning of statute implies that EPA can’t also enforce RCRA in a state which has been authorized; if the EPA
doesn’t think a state is doing enough or is going to do enough, it can refuse authorization or withdraw authorization,
respectively;
- Problem: The state can pretty much just hold the EPA hostage - how long does the EPA have to wait on the state?
- 10th Circuit rejects Harmon’s interpretation in every aspect - EPA has the authority to overfile under RCRA; No
other circuit has answers this question.
- Harmon result doesn’t apply to CAA: 42 U.S.C. § 7413(e) – “in determining the amount of any penalty to be
assessed under this section …, the court [] shall take into consideration … payment by the violator of penalties
previously assessed for the same violation”.
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C. Criminal Enforcement: (this is where the serious deterrence is supposed to be)
**Tension: criminal law is traditional and long-established – mens rea (intent) what is and is not criminal and culpable
intent and usually specific intent is required, but that could make enforcement very difficult - -- big questions on allowing
relaxed standards for environmental enforcement
a. Weitzenhoff (1994) (not every circuit follows Weizenhoff – general intent is not always good enough) - Sludge
discharge from holding tanks into ocean to bypass the effluent sampler. The managers get caught and are criminally
charged § 309(d) of the CWA for knowingly violating the act; get sentenced to prison.
 Their argument: what is knowingly violate mean? (Case: “They knew what they were doing – they
didn’t rob the bank accidentally, so to speak”). They say they knew they were polluting, but they didn’t
know they were polluting in excess of their permit.
 Government: don’t have to know you violated the permit, only have to know that you took violative
actions
Issue: specific criminal intent v. general criminal intent
Court concluded that the prosecution only has to prove general intent BECAUSE: policy – these are under the
public welfare offense doctrine (kind of like SL)– supreme court says these present such a great risk to public
welfare that the court will presume knowledge of those legal requirements bc of being engaged in this dangerous
area
 quoting us v international minerals – obnoxious waste materials are involved – outcome is so deleterious that
anyone involved must be presumed to know the outcome p. 1044
5 judges write dissenting from the order rejecting the suggestion for rehearing en banc - concern about making
innocent conduct criminal now - making felons out of people with innocent mindsets.
- Why dispense with mens rea? Remove reasonable doubts from mind. Don’t have to demonstrate that they
knew EXACTLY what the permit level was. That would give a good defense attorney room to work. *malum
prohibitum: wrong because it is against the law. Wrong because a statute makes it so vs. malum in se:
inherently, morally wrong; people know they are wrong.
- **There are risks of going way too far and this is why we have specific intent statutes (it shouldn’t be easy to
put someone in jail)
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