1. Environmental Law
Chapter 18

2. Federal Environmental Regulation
During 1960’s environment became major issue
Since 1970, explosion of federal regulation
Created Environmental Protection Agency (EPA)
Clean Air Act
Clean Water Act
Resource Conservation and Recovery Act
The Superfund
Endangered Species Act
See Exhibit 18.1

3. Pollution and the Common Law
Nuisance Law
Private nuisance: used to protest interferences with rights- either public (a right held in common by the community) or private
Trespass
physical invasion
Often hard to distinguish trespass and nuisance

4. Negligence, Strict Liability and Pollution
Failure to use reasonable care to prevent pollution from causing a foreseeable injury.
Strict Liability for Abnormally Dangerous Activities
Applied to businesses producing toxic chemicals or emitting toxic pollutants.
Courts look at the location of a business relative to population centers.

5. Water Rights and Pollution
No common law right to pollute water
Most states rely on riparian water law
People living along streams & bodies of waters have right to use reasonable amounts of water, but must allow water to flow downstream in usable form.
Therefore, there is no right to use and pollute water that later affects downstream users.
Nuisance and other common-law rights used in the enforcement of riparian water rights.
Western states have variety of other water rights, such as appropriation doctrine.

6. Whalen v. Union Bag & Paper Co.
Whalen used water from a nearby creek to water livestock and plants. UB&P built a pulp mill upstream and polluted the creek.
Whalen sued for damages & an injunction to stop the pollution.
The trial court awarded $312/year and issued an injunction.
Appellate court reduced damages to $100/per year & eliminated injunction. Whalen appealed to NY Appeals Court.
The NY appeals court ruled that the injunction could not be eliminated simply because it would cause great expense for UB&P as compared to the slight damage done to Whalen.
The NY court of appeals reinstated the injunction and awarded costs to Whalen.

7. Clean Air Act
EPA establishes National Ambient Air Quality Standards (NAAQS)
NAAQS established when air pollution “may reasonably be anticipated to endanger public health and welfare”
Each state develops a State Implementation Plan (SIP) which must include:
enforceable emission limits
schedules and timetables for compliance
measures for monitoring air quality & emissions
adequate resources for implementing and enforcing SIP
See Exhibit 18.2 – Major Air Pollutants Subject to NAAQS

8. Clean Air Act Permit System
Clean air area (better than NAAQS)
attainment areas or prevention of significant deterioration (PSD) areas
only slight increase allowed (maximum allowable increase)
can construct in PSD only if:
agree to Best Available Control Technology (BACT)
won’t exceed maximum allowable increase
Dirty air area
nonattainment areas - even more restrictions than for PSD areas
emissions offset policy has three requirements for construction
use Lowest Achievable Emissions Rate (LAER) technology
any other plants they own meet SIP requirements
pollution from new plant must be offset by more than 1 to 1 from other plants in area
when plant operates air quality should improve

9. Sierra Club v. Mississippi Environmental Quality Permit Board
Bill Cook owns swine facility – eight barns hold up to 7,000 pigs.
Concentrated animal feeding operation (CAFO) subject to water and air pollution controls.
When facility built in 1996, no air pollution permits required.
New state law required a permit for him in 1999.
Under new rules, Permit Board issued a permit to Cook in 2002, approving methods of operations (fans and windbreak wall disperse odor).
Sierra Club challenged the permit process – said odors should be subject to more stringent air pollution rules.
That challenge was considered by Permit Board.
Board affirmed Cook’s permit.

10. Sierra Club v. Mississippi Environmental Quality Permit Board
Club challenged the Board’s determination in state court.
Court held Board’s permit in compliance with Mississippi Air Quality Standard. Club appealed to Supreme Court of Mississippi.
HELD: Affirmed.
Must look at all evidence of both sides – here both Club’s and Cook’s witnesses.
Testimony here was conflicting yet credible.
Permit Board’s decision was supported by substantial evidence.

11. Mobile Sources of Pollution
Vehicles are a primary source of pollution that affects the ozone
The law imposes direct controls on certain emissions
State Implementation Plans (SIPs) often impose tougher standards
Vehicle emission inspections
Vapor recovery systems at gas stations
Reformulated gasoline
Alternative fuel sources
Forced carpooling

12. Toxic Pollutants
1990 amended Clean Air Act lists 191 substances declared as hazardous air pollutants
EPA sets maximum emission rates (MERs) for each one
General goal:
90% reduction in emissions for pollutants that had been uncontrolled
75% reduction in cancer caused by air pollution
These rules are highly technical.

13. Enforcement
EPA has primary authority to enforce Clean Air Act & other environmental statutes
State agencies also are involved
Citizens can bring citizens suits
Environmental groups also bring citizens suits
Recently more environmental offenses have been criminally prosecuted
Over 100 criminal indictments per year
EPA and state agencies collect hundreds of millions of dollars in fines each year

14. Industrialization Brings Environmental Problems in China
As economy of China has grown in past decades, environmental damage has increased.
China has laws and agencies dealing with pollution.
On the books, structure looks like EPA.
In practice, there is little enforcement.
At least 70% of major rivers are “severely polluted”.
Chinese monitoring agency says no major city has good air quality.
Coastal waters are badly polluted.
Warnings that marine ecological systems near Shanghai and other major cities are “dangerously close to collapse.”
When a fertilizer plant dumped large amounts of ammonia & nitrate into a river, killing 450,000 pounds of fish and poisoning drinking water for downstream cities, nothing much happened.
Government EPA said there is no authority to shut down offenders; can only fine them small amounts; and basically “it’s a cost that doesn’t matter” to them.

15. Clean Water Act Passed in 1972, amended in 1977 and 1986
5 main elements:
national effluent stds for each industry
water quality stds set by states w/EPA approval
discharge permit program to enforce pollution limits
special provisions for toxic chemicals & oil spills
construction grants and loans for publicly owned treatment works (POTWs)
Unlawful to dump pollutants in “navigable waters”
Almost all waters are under EPA jurisdiction
Passed in 1972, amended in 1977 and 1986
Objective: “restore and maintain the chemical, physical and biological integrity of Nation’s waters.”

16. Toxic Pollutants
1990 amended Clean Air Act lists 191 substances declared as hazardous air pollutants
EPA sets maximum emission rates (MERs) for each one
General goal:
90% reduction in emissions for pollutants that had been uncontrolled
75% reduction in cancer caused by air pollution
These rules are highly technical.

17. Point Source Pollution
Water pollution that comes out of a pipe (point source) is easiest to identify
Billions spent to treat it
Water dumped into drinking areas must be cleaner than water in recreation areas
Controlled with permit system (NPDES)
Conventional pollutants, i.e. human wasted are controlled by best conventional technology (cost effectiveness will be considered)
Toxic or unconventional pollution has tighter control are with best available technology that are the best control “capable of being achieved.” (costs not so important)
Industrial Permits: If new plant or source of pollution created, even tighter controls called new source performance standards (NSPS) (use best technology existing to minimize pollution)
See Exhibit 18.3

18. Nonpoint Source Pollution and Wetlands
construction sites, run-off from street and agriculture, etc.
difficult to solve technologically and politically
Wetlands
formerly destroyed, they are now protected
use permit system
Permit to dredge or fill wetlands may require restoration to wetlands

19. Enforcement Permit system is a key to enforcement
States have primary responsibility for enforcing permits, subject to EPA monitoring and approval
Operating without a permit or discharge more pollution than allowed violates the law
Firms must monitor their own performance and file discharge monitoring reports (available for public inspection)
Lying about violations is more serious than admissions
Serious violations can lead to criminal prosecution
Citizen suits against polluters are common under the Clean Water Act
See Issue Spotter: “Does Obeying EPA Regulations Make You Safe from Environmental Litigation?”

20. Responsible Economic Development v. S. C. Dept
Responsible Economic Development v. S.C. Dept. of Health and Environmental Control
Wal-Mart intended to build a new store in Florence, S.C.
Needed permit for stormwater runoff from its parking lot.
Water would flow in direction of holding pond, then would flow into assorted creeks.
S.C. Department Of Health & Environmental Controls (DHEC) granted stormwater permit.
The Responsible Economic Development (RED) group challenged the permit.
Claimed runoff would degrade creek water, then flow into Jeffries Creek (an impaired body of water).
ALJ of DHEC ruled permit was proper.
RED challenged the ruling.
Ruling upheld by DHEC Board and then the Circuit Court.
RED appealed to State Supreme Court.

21. Responsible Economic Development v. S. C. Dept
Responsible Economic Development v. S.C. Dept. of Health and Environmental Control
HELD: Affirmed.
Allegations that stormwater runoff would further depress oxygen levels in the unnamed tributary of Jeffries Creek are not founded.
ALJ found that the stormwater would not flow directly into Jeffries creek (an impaired body) but into an unnamed tributary (an unimpaired water body).
Then stormwater would flow for ½ mile, converge with Jefferies Creek after it obtained re-aeration properties.
Three other commercial developments flowed into that unnamed tributary without negatively affecting the water quality of Jeffries Creek.

22. Land Pollution Toxic Substance Control Act passed in 1976
EPA controls, tracks chemicals
biotechnology monitored
Pesticides
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) in 1947
most are toxic, some extremely so
Registration of pesticide good for 5 years if:
product does what claim it will
registration material accurate, label accurate on proper product use
will do what it should w/out “unreasonable adverse effects on the environment”

23. Resource Conservation and Recovery Act
Covers toxic substances in market or at disposal
transportation, storage, treatment and disposal
Old procedure
out of sight, out of mind
Now must have permit from EPA to run treatment, storage and disposal sites (TSD)
Hazardous wastes defined
Have ignitability
Have reactivity
Have toxicity
Manifest system
TSD sites must keep manifest
waste must be packaged and labeled appropriately
identifies origin, shipping route and final destination
provides “cradle to grave” control over hazardous waste

24. Superfund Clean up old hazardous waste sites
Since may have many responsible parties for a site, they can be held liable
current owners
prior owners at time of waste disposal
waste generator who arranged for disposal at site
transporter who selected site
Joint and several liability
Most Superfund money is spent on legal and engineering costs rather than actual clean up
Owners can be responsible for cleanup of toxic waste they did not generate, resulting in a movement toward an environmental audit of property prior to its purchase
EPA is responsible for cleanups at federal facilities.
Because of potential liability, some property is abandoned (brownfields) & not used productively.

25. Species Protection Endangered Species Act
Covers all species, not just humans
Little federal $ to accomplish goals, so usually activity is blocked or altered
Secretary of Interior declares species of animal or plant life “endangered” and to establish the “critical habitat” of such species that is listed
“Endangered” means any species which is in danger of extinction throughout all or a significant portion of its range
Federal court stopped logging on federal land in Washington, Oregon and California to protect habitat of spotted owl at cost of $20 billion+

26. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (in text)
Logging and other activities have the possibility of harming the red-cockaded woodpecker and the spotted owl.
Private landowners, logging companies and others challenge Secretary of Interior’s definition of the word “harm” in the Endangered Species Act, stating that the Secretary went beyond what Congress intended in the Act.
The court of appeals agreed, and the Interior Secretary and the Fish & Wildlife Service (FWS) appealed.
HELD: Judgment reversed. The U.S. Supreme Court stated that Congress gave broad interpretive power to the Secretary when it enacted the Endangered Species Act.

27. Center for Biological Diversity v. Marina Point Development Associates
A condo project on the shoreline of Big Bear Lake, CA began in early 1980s.
Developers obtained multiple construction permits from Big Bear Municipal Water District, County of San Bernardino, CA Regional Water Quality Control Board, CA Dept. of Fish and Game, and Army Corps of Engineers, among others.
After 20 years of background work, permits were in place; construction began.
Center for Biological Diversity watched process, took photos and complained to the Corps and other agencies of the development’s violations – improper dredging along lake, improper rock movement, improper use of silt screens at lake edge, AND disturbance of trees used as habitat by bald eagles (on endangered species list at that time).
Corps ordered corrective actions.
Center kept gathering evidence of violations. Center sued to enjoin further work on the project by the development.

28. Center for Biological Diversity v. Marina Point Development Associates
Bald eagles are protected by Endangered Species Act (ESA).
Cutting trees and human disturbances along shorelines, and contamination of waterways threaten the eagles’ survival.
Project harassed the bald eagle population by modifying and disturbing its habitat.
Development never issued a stormwater discharge permit, but have point source discharges in violation of Clean Water Act.
Discharges of fill material into the lake also violated the Clean Water Act. Ignored some prohibitions of permits
HELD: Development is in violation of the Clean Water Act and the Endangered Species Act.
Ordered to pay $2,500/day for violations, totaling $1,312,500.
Development enjoined from any development of the site without prior authorization of the Court.
Development must take remedial measures that the Army Corps prescribed -- repair & restore shoreline of Wetlands.
Court retained jurisdiction over the matter to ensure Development will comply with the Court’s orders.

29. Global Environmental Issues
Ozone
chlorofluorocarbons (CFCs) are “eating” ozone layer which protects earth from ultraviolet radiation
producers of CFCs agreed to phase out production in the Montreal Protocol
Global Warming
Looked at by developed nations but as yet not a major unified approach
International Cooperation
CFC production control
Montreal Protocol provided fund, set up by wealthier nations, to pay poorer nations to sign agreement to ban CFCs
See “Exporting Hazardous Waste”: 300 tons of mercury exported from U.S. to Mexico, Vietnam, Peru, and others, where it’s easier to dispose of hazardous waste

30. Massachusetts v. Environmental Protection Agency
12 states, local government & private organizations sued EPA.
Said EPA did not live up to Clean Air Act obligation to regulate greenhouse gases resulting from vehicle emissions.
EPA said regulations were sufficient. Appeals court agreed.
Plaintiffs appealed.
EPA is to protect Massachusetts and others from emissions of motor vehicle engines.
Harms from such emissions are well recognized.
Already environmental changes such as global retreat of mountain glaciers, reduction in snow-cover, earlier spring melting of rivers/lakes, rise of sea levels, etc. are occurring.
EPA says the motor vehicles do not contribute significantly to injuries. Problem lies w/developing nations’ industrial pollution.

31. Massachusetts v. Environmental Protection Agency
HELD: EPA has the statutory authority (and duty) to regulate the emission of gasses form motor vehicles.
Risk of catastrophic harm, though remote, is real.
Regulating vehicle emissions will not by itself reverse global warming, but that does not mean the court lacks jurisdiction to decide that EPA has a duty to slow or reduce it.