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Course: Environmental Law Fall 2003
School: unknown
Year: 2003
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Environmental Law Outline




  1. Introduction and Perspectives on Environmental Law

    1. The Environmentalist Ethic

      1. A new set of values that define right/wrong and how we should live

      2. Four major precepts:

        1. ecosystems are complex

          1. our actions create unintended, permanent consequences

        2. humans are dependent on the environment

        3. serious changes are required

          1. can not sustain present behavior in the long run

        4. the environment, per se, has rights

      3. Counter-arguments to environmentalist ethic

        1. complexity is overstated

          1. ecosystem is self-regulating

        2. radical changes are not necessary

          1. “wise use” be sensible and balance interests

          2. cars are preferable to horses, choose less evil

        3. environment doesn’t have rights

          1. human rights outweigh any environmental rights

    2. The Economic Approach

      1. “Positive” version

        1. scientific, factual, not value-based (does not center on benefit to humans)

        2. ex: how much would you pay for clean air

        3. ex: compare housing costs in clean and dirty air areas.

        4. resources go to highest value use

          1. businesses have incentive to reduce costs

      2. “Normative” version

        1. maximize benefit to society

        2. minimize cost to society

      3. Counter- arguments against the economic approach:

        1. incomplete information leads to poor choices

        2. failure of market forces

          1. tragedy of the commons - pollution costs are an externality to businesses.

        3. biases introduced by how the data is collected

        4. unfair to the poor because they can’t make meaningful choices

        5. things that are difficult to measure are generally ignored.

      4. Responses to market failures (regulation)

        1. command and control by central government

        2. pay polluter not to pollute

        3. penalize polluter monetarily for polluting

        4. government industry takeover

        5. tort system

        6. best determined by facts and form of pollution

      5. Counter- arguments against government regulation

        1. incomplete information leads to poor choices

        2. bias introduced by lobbying of special interests

        3. wrong choice of method

      6. Clinton’s Executive Order

        1. government is required to consider costs and benefits before issuing a regulation

          1. however, some statutes do not permit cost-benefit considerations

    3. Pessimist View

      1. demand is greater than resources and so man is on a self-destructive course

        1. finite resources

        2. exponential population growth

        3. non-sustainable levels of production

      2. man needs to cut back and live within limits

      3. restrict individual liberties because they are at odds with steady state consumption

    4. Optimist View

      1. technology will delay, and eventually eliminate barriers and limits to growth

        1. must continue to progress so that we can continue to improve our lives through technology

        2. sustainable development is necessary to go beyond present boundaries

      2. look at history - technology has always overcome

  2. Administrative Law

    1. Restraints on the EPA;

      1. Procedural Restraints

        1. EPA must disclose all of the bases for the proposed regulation (i.e. studies, data, etc.)

        2. public is allowed to comment upon proposed regulations

        3. EPA is required to respond to all public comments and arguments

        4. public can go to court to force EPA to perform its procedural duties

      2. Judicial Review

        1. for factual issues:

          1. standard is whether agency was “reasonable” in their rulemaking

            1. need substantial evidence to support their position

            2. can not be “arbitrary and capricious”

        2. for legal issues:

          1. mere constitutionality - deference to agency

        3. Chevron two-step test:

          1. has Congress directly spoken on the issue?

            1. if so, follow what Congress said

          2. if not, agency’s interpretation must be “reasonable”

        4. Arguments for rigorous judicial review:

          1. agencies might be biased

          2. agencies may abuse their power

        5. Arguments against rigorous judicial review

          1. courts are generalists and untrained in the technical specifics required to review complex environmental decisions

          2. env. issues are policy issues, not legal issues

          3. don’t want excessive litigation over every agency decision

  3. NEPA - National Environmental Policy Act

    1. Essentially a “process” statute that requires agencies to prepare an Environmental Impact Statement (EIS). - no real substantive bite.

      1. ex: in Strycker’s Bay, the Supreme court held that NEPA only requires that the agency adhere to the procedural considerations of the preparation and consideration of the EIS, but not that it weigh the EIS higher or lower than other considerations such as delay, cost, etc., as long as its decision is not “arbitrary and capricious.”

      2. although some basis for substantive bite exists in the purpose clauses, it is not clear enough to be enforceable against the agencies. - it would be an implied amendment to the entire U.S. Code.

    2. 101(a) - Purpose of NEPA is to “use all practicable create and maintain conditions under which man and nature can exist in productive harmony.”

      1. raises consciousness of the agencies about environmental issues by requiring data collection, report preparation and consideration, etc.

        1. minimizes gov’t failure due to lack of information

        2. ex: in Calvert Cliffs, court said that NEPA requires actual consideration of the EIS at all stages of decision making, not just that it “accompany” in case someone wanted to look at it.

      2. produces visibility by allowing public comment

      3. 101(b) places the “continuing responsibility” on federal government to use all practicable means to consider environmental issues

    3. 102(C) EIS must be prepared if a federal agency proposes regulations that will have a “significant effect” on the “quality of the human environment.”

      1. ex: in Strycker’s Bay, EIS was required for effect on “human environment” of low-cost housing project.

    4. 102(C)(1) EIS content requirements:

      1. the adverse environmental impact

      2. the proposed alternatives

      3. irretrievable commitment of resources

    5. Benefits of NEPA

      1. public scrutiny puts pressure on gov’t to do the right thing

      2. EIS buys time to get more and better information

      3. makes potentially harmful construction more costly so that we are sure we want it.

    6. Criticisms of NEPA

      1. too easily ignored or manipulated because of no substantive bite.

      2. adequacy of EIS is unclear

  4. Clean Air Act (CAA)

    1. Introduction

      1. Before CAA (1970), common law nuisance “reasonableness” regulated air pollution, but it only worked well for small numbers of victims and polluters.

        1. ex: in Folmar, the court held that to be actionable, air pollution must be:

          1. substantial; and

          2. intentional or unreasonable

      2. Major conventional pollutants are: CO, NOx, Ozone, lead, and particulate matter.

        1. since CAA, most pollutant levels (except NOx) are substantially lower, greatest success has been lead.

      3. Standards:

        1. “Ambient” - measures amount of pollutant in a volume of air during a certain time period

          1. set by federal gov’t using national, uniform NAAQS

          2. enforced by individual state SIPs

        2. “Emissions” - measures the total output of a pollution source over a certain time period

          1. enforced by federal programs on autos and limitations on emissions for new sources

      4. State vs. Federal regulation

        1. arguments for state-level regulation

          1. states know their problems best

          2. states have their own values on clean air

        2. arguments for federal-level regulation

          1. uniformity prevents one state’s excess pollution from traveling to another state

          2. uniformity prevents “race to the bottom” as states try to keep lower standards to attract industry.

          3. if states are being lax, feds can step in to take over implementation plan.

    2. National Ambient Air Quality Standards (NAAQS)

      1. 108(a)(1) Listing decision

        1. EPA must prepare a list of all pollutants which

          1. “endanger” the public health or welfare

          2. result from numerous or diverse sources

          3. for which EPA plans to issue criteria

            1. 108(a)(2) “criteria” are latest scientific data on the extent of the effects of the pollutant

            2. this is not an extra requirement according to NDRC v. Train, only the first two (endanger health and diverse sources) are required for listing

        2. listing requirement is non-discretionary under NDRC v. Train once the pollutant satisfies the endangerment and diverse sources criteria.

          1. citizen suit may be brought under 304 to compel EPA to perform a non-discretionary action.

      2. 304 Citizen Suit provision - “any person” may bring an action against:

        1. any person in violation of an emission standard

        2. the EPA to force the performance of a non-discretionary duty

        3. any person who makes a new construction without a permit or violates such permit

      3. 109 NAAQS must be provided

        1. “primary” NAAQS

          1. based on the “judgment” of the Administrator (discretionary)

            1. ex: for lead, the math would have allowed NAAQS to be set anywhere from 0 to 18 µg, but the EPA set it at 1.5 µg.

          2. based on the “criteria” (scientific data)

          3. a level which protects the “public health” with an “adequate margin of safety”

            1. ex: in developing the NAAQS for lead, EPA chose the amount that ensured that 99.5% of the population of children (most sensitive population) would not be exposed to level above 30 µg, even though no shown dangers until 40 µg.

            2. “margin of safety” merely requires EPA to show that the level might be harmful.

          4. EPA not required to consider the costs of setting the NAAQS low - Lead Industries v. EPA

            1. EPA can go beyond the point where marginal costs equal marginal benefits.

        2. “secondary” NAAQS

          1. also discretionary

          2. a level which protects the “public welfare”

    3. Emissions Standards for Motor Vehicles

      1. Uniform standards set by Congress, not by EPA.

        1. required 90% rollback of emissions in 5 years (but it took 10 years)

        2. “technology forcing” - created suspicion of auto industry hiding or foot dragging.

      2. Pre-empts state vehicle emissions standards, except CA which was specifically excepted because it was more stringent at the time CAA was enacted.

        1. under 209(b)(1) any state can have more stringent standards that the federal standards

        2. but under 177, they must be identical to CA - no state can be more stringent than CA, otherwise there would be three (or more) separate standards.

      3. 202 provides Phase I and Phase II standards

        1. Reduce emissions of HC and CO by 60% in phase I.

        2. Reduce another 50% in phase II.

        3. does not regulate existing cars, only new cars being built.

          1. politically unpopular to go after existing cars

          2. old cars are disappearing anyway

          3. burden on those who can’t afford new cars

    4. 111 Emission Standards for New Sources

      1. New Source Performance Standards (NSPS) - applies to all new sources


        1. regulated at federal level (not states) to prevent “race to the bottom” as factories relocate to clean air areas where they could pollute more but satisfy ambient standards.

        2. requires “best” system of emission reduction (taking cost into account) which is “adequately demonstrated”

      1. NSPS for coal-fired electric plants - required scrubbers

        1. failure of gov’t due to lobbying by Sierra Club and special interest Eastern Coal groups who wanted scrubbers for everyone or else they could not compete with cleaner Western Coal which would otherwise meet the standard without scrubbers.

          1. public choice theory - voters vote their pocketbook, politicians do what gets them re-elected, gov’t agencies do what makes their budget bigger - thus, concentrated special interests are the big winner because they can organize to influence the politicians and agencies.

        2. scrubbing requirement - required percentage reduction below what could be made using clean coal alone - was sneaked in the legislative history.

        3. repealed in 1990 due to publicity from tell-all book and adoption of comprehensive acid rain program

    1. 110 State Implementation Plans (SIPs)

      1. Contains 8 requirements set forth for SIP including:

        1. emission levels required to meet the NAAQS

        2. timetables for achievement of the NAAQS

        3. plans for existing sources and modified sources

          1. including marketable permits

        4. transportation control plans

          1. carpools, HOV lanes

          2. smog checks, etc.

        5. monitoring and modeling

          1. monitoring is a measurement limited by technology

          2. measuring is a prediction limited by the math model used and data accuracy.

      2. If the 8 requirements are met, then the EPA “shall” (must) approve the SIP.

        1. ex: in Union Electric, supreme court held that EPA may not consider cost or require the state to enact more lenient standards. - the EPA review is for determining whether the SIP is stringent enough, not whether it is too stringent.

        2. state may adopt standards more strict than federal government without regard to economic impact.

      3. If the state fails to adopt a satisfactory SIP, then the federal gov’t can take over and promulgate a FIP.

      4. Dispersion control techniques

        1. Tall stacks - 123 does not prohibit dispersion by tall stacks, but it does not allow credit for excess stack height in excess of good engineering practices.

          1. disfavored because it causes acid rain and exporting of pollutants.

        2. Intermittent control - 123 does not allow credit for varying emission with atmospheric conditions (i.e. pollute a lot on clear days, shut down on dirty days).

          1. disfavored because it is unreliable due to unpredictability of the weather.

      5. 502 Comprehensive Permit Program

        1. state issues permits (funded by fees per ton of pollutant) that list all of the limitations on the emissions of each pollutant in one single document

          1. easier for the polluter to understand

          2. easier for the state to enforce and monitor

        2. EPA can step in if the state’s permit program is unsatisfactory

        3. 504 “permit shield” - if you are in compliance with the emission level on your permit, you can not be in violation of the CAA with respect to any provision that is directly addressed in the permit.

          1. however, if your permit is silent on the issue, there is no shield.

        4. EPA has veto power over issuance of any permit

        5. permits are open to public hearing and subject to judicial review in their issuance and enforcement.

    2. Non-Attainment Program

      1. 172 and 173 provide the non-attainment requirements which include, in addition to all plans already required for SIPs:

        1. RFP - reasonable further progress towards attainment each year

        2. RACT - reasonably available control technology for all existing sources in non-attainment area

        3. LAER - lowest achievable emissions rate for new sources in non-attainment area

          1. strictest emission standard

        4. “offset” requirements for new sources or major modifications to existing major stationary sources - buy someone else’s right to pollute so that the air doesn’t get worse.

          1. offset must be from:

            1. same source; or

            2. other source in same area; or

            3. source in a different area if:

              1. the other area has at least as high a non-attainment class; and

              2. it contributes to pollution in new source’s area (i.e. migration of pollution across area boundaries)

            4. ex: in CARE v. EPA, offsets in HC emissions from highway asphalt across the state are not creditable to the building of a new refinery on the coast.

          2. offset must “enforceable” meaning that it was not voluntary or otherwise going to happen anyway.

      2. Ozone non-attainment

        1. five categories:

          1. extreme, severe, serious, moderate, marginal.

        2. deadlines for attainment according to class:

          1. for extreme areas: 20 year time to compliance

        3. RACT for smaller sources according to class:

          1. extreme areas: RACT on sources that emit as little as 100 tons per year

        4. offsets are greater ratios to result in a net reduction

          1. extreme areas: offsets are bought in 1.5 to 1 ratio (have to purchase 150% of what you plan to pollute).

          2. however, this creates a disincentive to create new factories with better technology. The best thing would be to make each factory reduce according to who can most cheaply reduce.

        5. 182 reporting milestones - every three years, state must report its progress to EPA

          1. requires 15% reduction within 6 years and reasonable further progress thereafter

        6. Transportation Control

          1. Enhanced Smog Checks

            1. higher value repairs before waiver

          2. reduction of traffic congestion

            1. flexible work hours

            2. carpooling requirements

            3. reducing parking downtown

        7. Monitoring

          1. measure over one hour period, can not exceed .12 level

          2. get one bad hour per year (look at 4th worst day over three year period)

          3. ozone is usually only a problem in the afternoon but can damage health quickly

        8. rules may be suspended in case of energy emergency declared by President

    3. 163 Prevention of Significant Deterioration (PSD)

      1. For areas that are attainment of a particular pollutant, no degradation above a certain baseline is allowed

        1. Class I areas - Federal Parks

          1. very small degradation allowed

          2. also no visibility degradation

        2. Class II areas - everywhere else

          1. somewhat more degradation allowed

      2. sometimes called a “tertiary standard”

        1. primary standard (NAAQS) is health protection

        2. secondary standard (NAAQS) is welfare protection

        3. PSD is third standard - stricter than NAAQS

      3. almost everywhere is PSD for one pollutant, even though non-attainment for others

        1. 165(a)(4) all “major sources” require Best Available Control Technology (BACT) for all emissions if they are PSD for any pollutant emitted.

          1. ex: if existing major source emits NOx and SO2, and is PSD for NOx but non-attainment for SO2, it must use BACT for both, even though non-attainment provision would otherwise require only RACT for the SO2.

    4. Acid Rain

      1. Built on Emissions Trading Allowances

        1. Offsets - buy another’s right to pollute

        2. Bubbles - trading within a facility to treat it as one single emitter

        3. Banking - store tradable credit for unused allowances so that you can use them in the future

          1. incentive for owners to replace old technology with new technology

        4. Netting - using bubbles to avoid going above threshold where more strict standards apply.

      2. Sulfur Dioxide is subject to trading, nitrogen oxides are regulated in the traditional manner

      3. Two Phases:

        1. Phase I: take the 1980 emission level and then cut back 10 million tons

          1. applies to 111 “big dirty” plants specifically listed

        2. Phase II: 8.9 million tons per year total allowances

          1. applies to all significant SO2 sources

          2. new sources must get allowances from old sources because they will not get any allowances of their own.

      4. Criticisms of Tradable Permits

        1. market inefficiencies

        2. ethically wrong to have a “right to pollute”

        3. local hot spots will be caused by cross-country trading because western plants can reduce more cheaply

        4. there have been many fewer trades than expected because of fear of the year 2000 Phase II deadline, causing excessive banking

        5. unclear whether regulated utilities can realize profits from allowance sales because they are not “for-profit” institutions.

  1. Clean Water Act

    1. Comparison/Contrast with CAA

      1. Similar to CAA in that:

        1. it provides effluent standards on how much may be emitted

        2. requires permits to emit - permits detail what standards apply

        3. bias against new sources

        4. allows citizens suits

      2. Different from CAA in that:

        1. less reliance on ambient quality standards

        2. non-point source regulation (agricultural runoff) as well as point-source regulation

        3. regulation of wetland development

        4. municipal sewage treatment

          1. primary, secondary and tertiary treatment

    2. Divides into classes of pollutants:

      1. conventional pollutants

        1. suspended solids

        2. oxygen demanding organic material

      2. non-conventional pollutants

      3. toxics - requires BACT

    3. Effluent Limitations

      1. categorize bodies of water by their intended purpose (i.e. swimming, drinking, etc.)

      2. standards are tied to the purpose of the water

      3. the state then determines “criteria” (similar to SIP in CAA) for protection of those uses

    4. Wetland regulations

      1. Authority to regulate wetlands - Riverside Bayview

        1. 404 prevents discharge into “navigable waters” without a permit

        2. 502(7) defines “navigable waters” as “waters of the United States.”

        3. the Army Corps of Engineers issued Regs. interpreting “waters of the United States” to include “adjacent wetlands”

        4. the Corps further defined “wetlands” as places where sufficient saturation exists to support wetland vegetation

      2. Wetland Permits - sequencing

        1. by regulation, permits may not be issued if there is a “practicable alternative” which would result in less impact on the wetland ecosystem

          1. in Bersani, the court held that the time to determine whether a practicable alternative existed was at the time of market entry, not at the time of application for a permit.

        2. if an alternative site is not available, then:

          1. developer must select a method that will result in the least damage to the wetland; and

          2. provide compensatory mitigation for damages done by creating wetland somewhere else

            1. “mitigation banking” - previous creation of other wetlands can be credited and sold to developers.

          3. it is unclear how “unavailable” the site must be - perhaps the site is “available” if a developer could buy it for some reasonable sum from a competitor.


  1. Common Law and The Environment

    1. Nuisance - reasonableness - cost/benefit

      1. Requirements for liability:

        1. substantial damages; and

        2. either intentional and unreasonable; or

        3. unintentional and negligent

        4. causation

      2. ex: in Folmar, the court found that the harm was not unreasonable because the plant had done everything feasible to prevent the harm.

    2. Strict Liability - absolute liability for category of actions

      1. Requirements for liability:

        1. non-natural use of the land (Rylands v. Fletcher); or

        2. ultrahazardous activity

      2. ex: in City Services, the court found that the extreme danger presented by settling tanks made it a non-natural use of the land.

    3. Comparison of Common Law and Regulation

      1. Deterrence

        1. nuisance - deters efficiently by cost/benefit - allows reasonable harms

        2. strict liability - deters efficiently because owner won’t pay for precautions that cost more than the amount of damages he will have to pay.

        3. Regulation - CAA overdeters because it does not allow any harm to health, regardless of whether the costs outweigh the benefits

      2. Compensation

        1. nuisance - compensates only for unreasonable harms, so it undercompensates

        2. strict liability - compensates for all harms

        3. Regulation - no compensation.

      3. Procedural problems:

        1. nuisance and strict liability - poor fit for large numbers and complex technical issues

        2. Regulation - good fit for large numbers and complex technical issues

    4. Standing to sue

      1. Common law nuisance

        1. public nuisance - damages like in kind among many

          1. only state can bring the action

          2. ex: in Frady, the non-landowners did not have standing because their damages were not different than the rest of the public

        2. private nuisance - damages special to the plaintiff

          1. private party can bring the action

        3. concerns:

          1. public prosecutor may be too busy to represent the interests of the minority

          2. individuals may have different interests than the majority

      2. Clean Air Act

        1. any person can bring suit.

        2. safeguard against governmental failures

    5. Causation

      1. Market Share Liability - Sindell v. Abbott Labs

        1. defendants are liable according to their individual market share if you can join enough defendants to have a “substantial” portion of the market share

        2. provides full compensation for victim who can not identify the actual source of the product

        3. attempts to approximate the result that would have occurred in the presence of perfect information over the long run.

        4. Problems:

          1. systematic overdeterrence to the extent that not all defendants can be joined.

          2. if the π knows the identity of the manufacturer, then he pays for the whole amount in that case.

          3. not well suited for many possible causes - regulatory approach that prevents harm works better.

      2. Increased Risk of Disease

        1. in Ayers, an unquantified increased risk of disease is not presently compensable, but significant enhanced risk is presently compensable

        2. compensation is systematically inaccurate because some people will never develop the disease, but be paid anyway, whereas others who do contract the disease will be undercompensated. The result is that nobody is correctly compensated.

        3. deterrence is fairly good, but only as good as the information on the probability of increased disease.

    6. Remedies

      1. Injunctions

        1. to enjoin a prospective nuisance, π must show a high probability of significant future harm

        2. balancing of the equities between the defendant and the public and the plaintiff.

        3. ex: in Village of Wilsonville, the court sustained a permanent injunction against a prospective nuisance, even though no harm had yet occurred, due to the high probability of significant harm.

      2. Damages

        1. even though a nuisance is permanent and unabatable, an injunction will not be granted if the benefit of the nuisance significantly outweighs the harm it is causing.

        2. instead damages are granted to prevent the coercion caused by a holdout plaintiff.

        3. ex: in Boomer, the court awarded monetary damages to the plaintiff rather than shut down a valuable cement plant.

  2. Introduction to Toxics

    1. Risk Assessment

      1. hazard identification - is it dangerous?

      2. dose response assessment - what dose is dangerous?

        1. problems - difficult to extrapolate between a mouse and a human

        2. response curve (linear v. threshold) choice is critical to the risk

        3. ex: in Alar case, differences in modeling assumptions led EPA to estimate danger at 25 times less than NRDC.

      3. exposure assessment - what is expected exposure?

      4. characterization - what is the nature of the risk?

      5. no need for scientific consensus to find that risk exists and have a legal remedy

        1. ex: in Reserve Mining, court found a risk to endanger public health, even though the quantity, effect, and nature of the asbestos-like fibers was unknown.

        2. however, courts may use a sliding scale for injunctions based on the uncertainty, i.e. the probability of the harm times the severity of the harm determines the remedy (contrast to Ayers).

    2. Risk Management

      1. deciding whether and how to regulate

      2. involves policy decisions - not pure science

      3. too many policy choices being made during risk assessment period.

    3. Statutes

      1. Three Types:

        1. Balancing Statutes - cost/benefit; reasonableness standards

          1. ex: Toxic Substances Control Act

            1. §4 - EPA can require you to test the substance

            2. §5 - must notify EPA in advance and provide evidence of “no unreasonable risk”

            3. §6 - EPA may take “least burdensome” steps to regulate existing substance that it finds to present “unreasonable risk”

          2. ex: FIFR - Federal Insecticide Fungicide and Rodenticide Act

            1. burden on producer to show safety

            2. ex: in Alar case, EPA refuses to cancel Alar but public pressure influences mfgr to quit using it anyway.

          3. results in economic efficiency

        2. Technology Based Statutes - reduce to the extent feasible

          1. ex: OSHA

          2. marginal costs slightly outweigh marginal benefits

        3. Health Based Statutes - categorically prohibits danger to health

          1. ex: Clean Air Act

          2. marginal costs significantly outweigh marginal benefits

    4. Uncertainty in Risk Assessment

      1. Ames Excerpt:

        1. leading causes of cancer are not being pursued

        2. large doses of anything causes cancer in lab rats merely because of the dosage

        3. 99.99% of all toxic substances occur naturally, only .01% are synthetic

        4. natural cancer-fighting agents are found in fruits and veggies so the small harm from introducing Alar is outweighed by the great benefit of more people eating them

      2. OMB Report - risk is systematically overstated by:

        1. use of sensitive animals

        2. counting benign tumors

        3. giving greater weight to positive studies

        4. using linear instead of threshold model

        5. assuming everyone is maximum exposed

    5. Breyer’s Book - Breaking the Vicious Circle

      1. goal of government regulation should be to maximize the number of lives saved per dollar spent on regulation.

      2. The vicious circle prevents this efficiency:

        1. public sentiment is swayed by sensationalized media stories about the latest danger to your health

        2. congress, due to public pressure, over-reacts to the latest danger resulting in inefficiency

          1. this “random” agenda selection prevents focusing energy on actual greatest dangers

        3. agencies, responding to the latest statutory mandates of congress, takes the regulation of the substance too far.

          1. agencies go for “last 10%” even though marginal cost significantly outweighs marginal benefit

          2. agencies are inconsistent in their approach

      3. Breyer’s Proposal:

        1. make a central agency, having authority, prestige and expertise to direct priorities of all agencies.

          1. takes away peoples’ irrational behavior because they trust the agency’s prestige

          2. prevents inconsistency and tunnel vision of agencies

      4. Criticisms:

        1. not all deaths are equal:

          1. public may tolerate risks from voluntary behavior, but not involuntary behavior

          2. public may tolerate death of old person more than young person

          3. “dread of disease” people might fear one disease more than others due to pain

          4. different social classes may be affected differently

        2. not democratic

        3. not effective because it is merely a reshuffling of the beurocracy.

  3. RCRA - “cradle to grave” regulation of toxics

    1. Overview

      1. defines “hazardous waste” as “solid wastes” which either:

        1. causes or contributes to serious illness

        2. poses a substantial threat to human health or the environment when improperly handled

      2. defines “solid wastes” as everything, including liquids and contained gasses, except sewage and irrigation runoff.

      3. requires tracking by manifest system

      4. requires listing of hazardous wastes

        1. “characterization” approach - the waste meets certain dangerous characteristics

        2. “listing” approach - the waste is specifically listed

    2. Requirements for Generators, Transporters, and TSD’s

      1. Generators

        1. obtain ID number from EPA

        2. package and label waste and accompany with manifest

        3. can’t keep waste for more than 90 days or become subject to the more stringent standards of a TSD

        4. notify EPA of lost waste and the efforts made to find it.

      2. Transporters

        1. similar to Generators

      3. TSD’s

        1. requires operating permit

        2. designed to minimize release of wastes

        3. groundwater monitoring/response systems

        4. upon closure (beyond the grave)

          1. “clean closure” - make as good as new by removing wastes

          2. monitor for 30 years to prevent leakage

      4. “Land Ban” - the requirements for land disposal are so stringent that it is a virtual ban on land disposal

        1. unless treatment of the waste substantially reduces their toxicity to minimize threat to health or the environment.

    3. Penalties for non-compliance

      1. EPA may:

        1. assess $25,000/day fine

        2. bring civil action for damages or injunction

        3. seek criminal penalties for knowing violation

      2. Citizens may bring citizen suits if EPA doesn’t


    1. 101 defines almost everything bad as “hazardous substance” except petroleum and natural gas

    2. Three ways to clean up a site:

      1. EPA can mandate a clean up by the private entity under 106.

        1. requires imminent and substantial endangerment

        2. can be accomplished by:

          1. court action or

          2. presidential order

      2. Gov’t can clean up site themselves under 104(a)

        1. get money from Superfund

        2. seek reimbursement under 107

      3. Voluntary clean up by private party under 104(a)

        1. private party may get reimbursement under 107

    3. Response actions

      1. all clean ups begin with removal action which is short term clean up.

      2. remedial actions are long-term permanent remedy

    4. National Contingency Plan 105


      1. National Priorities List (NPL) of most hazardous sites

        1. gov’t will only fund clean up of NPL sites from the Superfund.

        2. based on a criteria hazard ranking system.

      2. National Response Plan

        1. tells how to clean up the site

        2. ensures clean-ups are done properly

    1. Superfund

      1. established originally from taxes on hazardous materials industries.

      2. replenished by contributions from Prospective Responsible Parties (PRP’s).

    2. Four standards of liability

      1. strict liability

      2. joint and several liability

      3. retroactive liability

        1. if you dumped prior to CERCLA in a legal manner, still liable for cost of cleanup

      4. limited causation

        1. don’t have to show defendant caused the harm, only the prima facie case that:

          1. site is a facility

          2. there was a release or threatened release

          3. gov’t incurred clean-up costs

          4. defendant is a PRP

            1. present owner

            2. owner at time of disposal

            3. arranged for transportation to site

            4. transported waste to site

    3. U.S. v. Monsanto - one of first CERCLA cases

      1. Owner’s Liability

        1. owners refused to settle, subjecting themselves to joint and several liability.

        2. ignorance is not a defense - strict liability

        3. defendant claimed affirmative defense of “third party” intervention;

          1. requires no contractual relation (direct or indirect)

          2. requires owner exercise due care and

          3. take precautions against foreseeable acts

        4. owner liable because lease is contractual relation and no precautions taken

        5. special provision for innocent buyer under 101(35)

          1. must not have reason to know of previous release.

          2. must have made reasonable inquiries, title search may show dumping activities

      2. Generator’s Liability

        1. does not have to be same substance as that released

        2. “such” means similar to - substance only has to be “like” the one released.

      3. Joint and Several Liability is appropriate unless there is a reasonable basis for apportionment (not likely).

        1. court says apportionment can be handled in a suit between defendants for contribution.

    4. Settlements

      1. In return for voluntary settlement, the PRP receives a covenant not to sue.

      2. De-minimis settlements - if you are a small contributor and did no wrong, government may offer you a de-minimis settlement, releasing you from joint and several liability for the whole.

    5. Private Party Reimbursement - Cadillac Fairview

      1. 107(a)(2)(B) provides an express private right to reimbursement from PRP

        1. any cost of response incurred by any person

      2. however, private party can not enjoin clean up or abatement

        1. 106 provides for president to enjoin, but not private party.

    6. Site Clean Up Process

      1. Site discovery

        1. determine who are PRPs

        2. determine whether to put on NPL

      2. Send PRP general notice letters to PRP

      3. Remedial Investigation Feasibility Study (RI/FS)

        1. remedial investigation - study conditions at the site

        2. feasibility study - study methods that can be used for clean up

          1. methods must achieve the ARARs

      4. Record of Decision

        1. determines what the remedy will be

        2. PRPs may comment

      5. Remedial design - detailed remedial engineering plan

      6. Remedial Action - perform clean up

    7. 121 Clean Up Standards - how clean is clean?

      1. clean up must “assure protection of human health and the environment.”

      2. comply with all Applicable or Relevant and Appropriate Requirements (ARARs)

        1. applicable - substance is directly regulated by statute

        2. relevant and appropriate - not directly regulating, but nevertheless analogous and should be considered

        3. ex: in Akzo, the court found that the non-degradation of groundwater statute of the state of Michigan was and ARAR for the clean up of a site, and so it must be complied with.

    8. Policy Arguments for and against CERCLA

      1. Deterrence - close race

        1. CERCLA -strong deterrence due to liability provisions

        2. Common law plus RCRA - need causation, but RCRA manifests make causation easier

      2. Compensation/Funding

        1. CERCLA - PRPs pay, but high overhead transaction costs due to excessive litigation

        2. common law plus RCRA - taxes could pay for clean up without high transaction costs

      3. Fairness

        1. CERCLA - most PRPs are culpable, but often small guy gets left holding the bag

        2. Common law plus RCRA - public pays for clean up, but that happens anyway due to trickle-down from PRPs.

  1. Endangered Species Act

    1. §3 Definitions

      1. “endangered species” - in danger of extinction

      2. “threatened species” likely to become endangered in the foreseeable future

    2. §4 Listing Requirements

      1. Secretary of Interior required to list all endangered species and threatened species

      2. 4(b)(3) private citizens may petition to list a species - Secretary has one year to respond with the decision being judicially reviewable

        1. ex: in Northern Spotted Owl, citizens brought suit to force listing, and the court mandated it, holding that the EPA’s failure to list in the face of unrebutted compelling scientific evidence was arbitrary and capricious.

      3. listing must be based on best available scientific data

    3. §7 federal government may not take action which jeopardizes the species or results in destruction or adverse modification of the habitat unless exception is granted by the “god squad” committee.

      1. ex: in TVA v. Hill, the construction of a federal dam which was almost complete was enjoined because the ESA makes protection of species absolute, without regard to cost

    4. §9 private parties may not “take” endangered species

      1. “take” is defined broadly to include “harm”.

      2. ex: in Babbitt, the court defined “harm” to include “habitat modification” thus preventing farmers from farming on their private land due to modification of the Northern Spotted Owl’s habitat.










































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