The Roots and Rationale for Environmental Law

INTRODUCTION Roots and rationale of EL  The roots and rationale for environmental law  Goals of EL o (1) cost internalization o (2) natural resource sustainability  two branches of environmental law o (1) pollution control o (2) natural resource management Economic analysis and environmental law  economics can help identify the optimal methods of preventing environmental harms o (1) determining the appropriate level of regulation . cost-benefit analysis o (2) what tools shoud the government use once it deicdes it is going to step in and how far  types of market failure that may justify environmental regulation o (1) incomplete information o (2) transaction costs o (3) externalities Environmental law, ecology, and ethics  advocates use science to question and justify positions  the stewardship obligation Risk assessment and risk management  R (risk) = P (probability of risk occurring) x S (severity of the harm)  Risk assessment…whether question  Risk management…how much question

COMMON LAW BASELINE OF ENVIROMENTAL LAW  Torts claims o Negligence o Public nuisance o Private nuisance o Anticipatory nuisance claims o Trespass claims o Strict liability claims o The public trust doctrine  Constitutionally rooted environmental claims o Statutory regimes do not replace CL regimes . However, state CL environmental claims are virtually non-existent

THE REGULATORY DESIGN OF ENVIROMENTAL LAW  Goals o Protect natural ecosystems of their components; force consideration of adverse environmental effects; protect public health; compensate adversely affected persons  Triggers o No threshold o Risk  Strategies (standards) o Health-based, risk-based, or ambient quality-based o Tech-based o Open-ended balancing o Cost-benefit balancing o Generate and disclose information

ALLOCATING THE POWER TO PROTECT THE ENVIRONMENT: CONSTITUTIONAL FEDERALISM ISSUES

Rationales for federal environmental regulation  Control interstate externalities  Economies of scale and the benefits of resource pulling  Avoid a “race to the bottom”  Achieve uniform regulation and minimize transaction and compliance costs  Avoid NIMBYism (not in my backyard)  Process-based justification Arguments for enhancing the role of the states  Afford greater citizen access and input to government  States are more familiar with local needs  States can adapt regulation more easily to local conditions  States can and do protect the environment What incentives do states have to protect the environment?  Respond to local constituents who value the environment  Attract new residents who value the environment  Qualify for federal resources  Restore useless property to productive use  Minimize intrusive federal regulation  Create a system more likely to project local industry  Take credit for something the federal government would have done anyway

The question of the federal commerce power  CC has provided the most consistent support for environmental regulation o Advocates…broad reading; industry…narrow reading . Broad reading prevails as of today  Three classes of activities subject to federal regulation under the CC (Lopez) o The use of the channels of interstate commerce o The instrumentalities of interstate commerce, or persons or things in interstate commerce o Activities having a substantial relation to interstate commerce i.e. activities with substantial effects on interstate commerce  Lopez also made clear that Congress allows the adoption of a regulatory provision that is part of a larger interstate effort

 Also, the Court held that if the regulated activities are economic in nature than it is appropriate to aggregate all similar activities (including intrastate activities) in combination have an impact on interstate commerce  Raich (post L): aggregation is appropriate if failure to regulate the class of given intrastate, economic activities would undercut regulation of the interstate market.

Federal power and interpretation: commerce concerns as a tiebreaker  So far, direct attacks on the Commerce Clause basis for federal environmental legislation have generally failed to elicit judicial declaration of unconstitutionality. Even if this continues to happen, it would be a mistake to assume that Commerce Clause arguments are therefore of little importance.  Clear statement rule o This is because where an administrative interpretation of a statute, such as the Corp’s (D) interpretation, invokes the outer limits of Congress’s power to encroach upon a traditional state power, there should be a clear indication that Congress intended that result. (SWANCC; Rapanos)

Securing state cooperation  Turns on two different methods of interpreting the 10th Amendment o Model #1 -- 10th Amendment merely states a general principle…the federal government is merely a government of limited powers . Is the statute supported by an enumerated power…  If the answer is yes, the statute is constitutional o Model #2 – 10th amendment imposes independent constraints on the federal government’s power . Is the statute supported by an enumerated power?  If so, does it nevertheless infringe on state sovereignty? o If either the answer to question one is no or the answer to question two is yes, the statute is unconstitutional

State sovereign immunity  What options remain to enforce federal environmental laws against states? o SC’s broad interpretation of the 11th Amendment disallows state citizens from bringing suits against states, even in state court o Congress lacks the authority to abrogate state sovereign immunity o (1) enforcement by the federal government . assumes that the federal government cares about environmental enforcement o (2) waiver of sovereign immunity by the states . must be explicit o (3) exercise of power granted by § 5 of the 14th Amendment . only applies to constitutional violations o (4) exercise of the federal spending power . condition disbursement of federal funds on waiver of immunity to suit o (5) suits against municipal governments . does no good if state is the violator o (6) suits against individual state officers . limited to injunctive relief o (7) citizen suits for civil penalties . not available o (8) the “good faith” of the states . !!!!!!

The power allocation choice: savings clauses, delegated programs, and preemption  Supremacy Clause o Preemption may be express (less common) or implied, the latter of which can be . Field preemption  Determined scope provides both a ceiling and a floor . Conflict preemption  Physical impossibility; purpose based (most cases deal with implied, conflict, purpose based preemption) o A federal agency has power to preempt  Savings clause  Delegated programs o Cooperative federalism

Dormant CC limitations on state regulation  Commerce clause vests affirmative authority to regulate interstate commerce; DCCD is a negative restriction on the authority of the states to regulate interstate commerce o the goal is to prevent states from engaging in a kind of protectionism that negatively affects interstate commerce  Dormant Commerce Clause Tests o Under Philadelphia, a “virtual per se rule of invalidity” applies to state or local laws that discriminate against interstate commerce; they are valid only if the adopting state or locality can show that it had no other means to advance a legitimate local purpose . Involves the strictest degree of scrutiny under the DCCD . Laws virtually never hold up laws found discriminatory under the DCCD o On the other hand, if the law is NOT facially discriminatory, then the Pike test applies . Under Pike v. Bruce Church, a non-discriminatory law:  That is directed to legitimate local concerns;  And that has only incidental effects on interstate commerce is valid,  Unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits

ADMINISTRATIVE LAW ISSUES Introduction  Two predominant issues of federal administrative law: o (1) what is the proper role of each of the three branches of government in the administrative law process? o (2) what procedures must agencies follow when they adopt, implement, and enforce administrative law?  Relationships of federal agencies to the three branches of government o Congress…delegation of regulatory authority…Agency . Congressional oversight o Agency…housed in the executive branch…Executive . Executive oversight o Congress/Agency…responsibility to review agency decisions…Federal Courts . Judicial oversight  Most of the EL will look at falls under informal rulemaking o Three step process: . (1) Publish notice of proposed rule making . (2) Solicit comments from the public and think about them . (3) issue final ruling by publishing it in the federal register  need an precise statement of basis and purpose

Access to the courts  We need access to the courts, in whole, so as to provide a vehicle assuring that agencies are acting consistent with their statutory delegations  Requirements for standing to sue in federal court o Constitutional requirements (derived from the “case or controversy” clause of Article III) . injury in fact (concrete and particularized, and actual or imminent…not hypothetical or conjectural);  geographical nexus (Lujan I)  temporal nexus (Lujan II)  injury to the plaintiff, not to the environment (Laidlow)  Can Congress define new injuries?  Procedural injury… Another ground put forth by the plaintiffs pertaining to injury in fact o Deprivation of the opportunity of being able to put in our two cents with regards to the consequences of the project to be implements o Any time there is a procedural injury (rather than a substantive injury), the requirements of redressability and causation are much less onerous . causation (i.e., a causal link between the defendant’s conduct and the plaintiff’s alleged injury in fact); and  contributing factor enough (Mass) . redressability (i.e., a likelihood that the relief requested by the plaintiff will redress the alleged injury)  incremental improvement enough (Mass) o Statutory requirements . For causes of action brought under the APA, the zone of interest test (i.e., that the plaintiff is “adversely affected or aggrieved within the meaning of a relevant statute” for purposes of § 702 of the APA); or . Requirements set forth (or waived) in other applicable legislation . Imposed and waivable by Congress o Prudential requirements (created by the courts themselves) . plaintiff must assert his or her own rights, not the rights of a third party; and . plaintiff must not assert a “generalized grievance” . imposes by courts, but waivable by Congress  Threshold Justiciability Doctrines (Other than Standing) o (1) The finality doctrine is derived from § 704 of the APA, which makes reviewable in federal court only “final agency action.” o (2) The doctrine of exhaustion of administrative remedies allows courts to dismiss suits on jurisdictional grounds if the P has not pursued all remedies available in the admin process of the agency whose decision is being challenged o (3) The primary jurisdiction doctrine allows courts to defer ruling on an issue before it until the agency whose actions is being challenged has had the opportunity to provide its input through some kind of admin decision . Issue is concurrently before the agency and the Court o (4) Under the ripeness doctrine, courts defer ruling on issues that they regard as having been brought before them prematurely . two issues to consider when considering ripeness  whether the issue is fit for judicial resolution  whether the P has suffered hardship o all of these consider issues of timing  APA provisions relevant to judicial challenges to an agency’s failure to act o § 702 allows a person adversely affected or aggrieved by “agency action” to seek judicial review o § 704 makes final “agency action” reviewable o § 551(13) defines “agency action” to include “failure to act” o § 706 (1) authorizes the fed courts to “compel agency action unlawfully withheld or unreasonably delayed” . The SUWA test for when a § 706(1) remedy is available under the APA  “[A] claim under § 706(1) can proceed only where a P asserts that an agency failed to take a discrete agency action that it is required to take.”  the vagueness and generalized nature of the program and the language used in it enables the SUWA test to be defeated o problem: agencies will just write vague and generalized programs so as to avoid the SUWA test o the Court has held that there is a strong presumption that an agency’s decision not to enforce a statute is not reviewable

Standards of judicial review  Once environmental Ps clear the standing and other threshold jurisdictional hurdles, the issue becomes how thoroughly the courts will review the outcome of the agency’s decision making process. o The answer tends to be context-specific, varying in accordance with the nature of the decision being challenged and the procedural context in which the agency made it  Judicial review of statutory interpretation o Chevron Step 0 question…Does Chevron even apply? o Chevron Step Zero: Mead . Under Mead, an admin interpretation of a statute qualifies for Chevron deference only when:  Congress delegated authority to the agency generally to make rules carrying the force of law; and  The agency interpretation being reviewed was promulgated in the exercise of that authority . Delegation of that kind of authority may be shown in a variety of ways.  The clearest are explicit delegations of authority to resolve legal questions in adjudication or enact regulations using the notice-and-comment process  Under this test, internal agency guidance documents do not qualify as rules that carry the force of law and are therefore not entitled to Chevron deference . Skidmore deference  If Chevron deference does not apply, deference may be given to the persuasiveness of the agency’s position o Chevron test . (1) If the statute is clear, the SC deems the agency’s interpretation irrelevant  Congress has spoken clearly and it doesn’t matter what the agency says . (2) If the statute is ambiguous, the SC is obliged to defer to a reasonable interpretation of the statute by the agency  it doesn’t matter if the Court would have reached a different conclusion if it was the initial entity that interpreted the statute o courts should be really reluctant to overturn agency in situations where Congress’s intent is unclear o Why should courts defer to agencies when the intent of Congress is unclear? . (1) Because Congress delegated to the agency to address gaps of uncertainty in statute…separation of powers concerns…delegation of authority by Congress to the agencies . (2) Court will not be able to understand the intricacies of the statute as well as the agency does . (3) Democratic accountability  Judicial review of statutory implementation o The reviewability question in Overland Park . Section 704 of the APA provides that “final agency action for which there is no other adequate remedy [is] subject to judicial review.” . But § 701(a) of the APA judicial review is not available if:  a statute precludes judicial review; or  agency action is committed to agency discretion by law. o Court’s selection of a standard of review in OP . De novo is rarely appropriate . Substantial evidence test does not apply  Substantial evidence test does not seem appropriate except in the context of formal adjudications, for which a trial-type hearing record was available to the reviewing court. . The Arbitrary and Capricious Test of APA § 706(2)(A)  OP o Whether the agency’s decision was based on consideration of the factors made relevant by the applicable statute; and o Whether the agency made a clear error of judgment  State Farm: Did the agency o Rely on factors which Congress intended that it not consider o Entirely fail to consider an important aspect of the problem o Offer an explanation that runs counter to the evidence before it o Reach a decision that it so implausible that it could not be ascribed to a difference in view or the product of the agency’s expertise  Boiled down question…Did the agency make a decision based on a rational basis?

Congressional control of admin environmental decisionmaking  Although Congress has been willing to vest in many agencies decisionmaking authority over environmental matters, it has a variety of techniques for limiting the scope of authority. o One technique is to limit the authority of the President to appoint and remove agency decisionmakers o Of greater practical, day-to-day relevance are the use of the appropriations process and the imposition of substantive statutory decisionmaking criteria as means for Congress to confine agency discretion.

Executive control of admin environmental decisionmaking  P influences agency mainly through executive orders o Require agencies to consider certain factors o Require agencies to clear certain decisions with presidential appointees  Important legal questions raised by executive orders o Do they violate separation of powers principles? . Most executive orders avoid conflict with organic agency statutes by ordering “to the extent permitted by law the agency must…” o What is the role of executive authority in shaping agency policy?

ENVIROMENTAL ASSESSMENT: THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)

Congressional Purpose and judicial enforcement  The two principle objectives of NEPA o (1) Consideration of potential environmental impacts . “stop and think” aspect of the statute o (2) Disseminate information to the public . “disclosure” aspect of the statute  NEPA applies to all federal agencies, but not private agencies o NEPA has played its greatest role in regulating development-oriented agencies  Relief available in a NEPA suit…at a minimum, courts have the authority to force agencies to comply with admin procedures

Threshold issues: must an impact statement be prepared?  Categorical exclusions o First, did the agency properly create the categorical exclusion in question? o Second, even if it did, does the action in question fit within the scope of the categorical exclusion? o Third, even if it does, were there extraordinary circumstances that preclude reliance on the categorical exclusion?  Environment assessment o Impact statement o Environmental assessment  The environmental review process most often terminates without an impact statement being filed  Exemptions o Direct conflict o Functional equivalence o Emergencies . Pretty narrowly construed o Nondiscretionary agency decisions o Specific congressional exemptions o Enforcement decisions o Statutory exemptions o National security exemption  The environmental assessment process o Used to decipher if an impact is so significant as to warrant the production of an environmental impact statement (EIS) o EAs are much more easily and speedily produced in comparison to EISs o EIS requirements (4332 (2)(C): . (1) major  non-dispositive…look to “significance” analysis . (2) federal  categories of federal action  projects funded by federal assistance  federal approvals, permits, and controls  the “small handle” problem  in close call situations, apply a “but for” test . (3) action  timing  does not apply to nondiscretionary actions  unclear if it applies to inaction . (4) significantly affecting  two factors determining “significance”: o (1) context o (2) intensity . Intensity factors (CEQ § 1508.27) . (5) human environment  the harm must be proximately caused by the action  scope… Social and economic impacts are relevant, but only when there is a perquisite physical impact that would trigger NEPA o In reviewing an agency’s decision not to prepare an EIS under NEPA, we employ an arbitrary and capricious standard that requires us to determine whether the agency has taken a “hard look” at the consequences of its action, “based its decision on a consideration of the relevant factors,” and provided a “convincing statement of reasons to explain why a project’s impacts are insignificant.”  Environmental impacts that must be considered o Uncertainty o Endangered species o Indirect impacts o Risk and psychological stress o Causation o Mitigation Scope of EIS  Assuming… o Lack of qualification for an exemption…statutory, regulatory, or court related o Cannot qualify for the production of an EA  What must an EIS include under § 4332(2)(C) o (1) the environmental impact on the proposed action, . most challenged/litigated segment along with (3) o (2) any adverse environmental effects which cannot be avoided should the proposal be implemented, o (3) alternatives to the proposed action, . §1502.14 . discussion of alternatives has been called “the heart of the EIS” . primary alternative . secondary alternative . The “no action” alternative: 40 C.F.R. § 1508.25(b) . The “purpose and need” requirement: 40 C.F.R. § 1502.13 . judiciary role in reviewing the alternative requirement under EIS is narrow o (4) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and o (5) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.  Segmentation o Florida Keys test . Independent utility analysis  The project stands on its own and it makes sense to treat it as a separate proposal  Regional and program impact statements o Kleppe “proposal” test -- until an agency formally puts forth a proposal to the outside world, there is no proposal triggering NEPA obligations o Three part CEQ statutory “proposal” test… . (1) goal . (2) actively preparing to make a decision on how to accomplish that goal . (3) the ability to evaluate the effects meaningfully o CEQ and SC do not particularly line up here . No case specially addresses this inconsistency between the statute and Kleppe  Tiering  EIS Scope (in sume) o One single EIS must cover all connected actions o One single EIS must cover all cumulative actions o Similar actions should be treated under a single EIS if its is the best approach to take

Adequacy  SC has held that NEPA is 100% procedural  Courts cannot reverse agency decisions on the grounds that they are not environmentally sound o Agency decisions are subject to reversal if the agency considered irrelevant factors or failed to consider relevant factors  NEPA claims generally rest on procedural defects/violations…which are subject to reversal o Not preparing an adequate document . Consideration of alternatives,; description of the effects; consideration of the cumulative impact of the project; mitigation measures o Preparing an EA when an EIS was requirements o Document inadequately promotes NEPA’s two main objectives . Lack of proper environmental consideration and dissemination of information  Assuming a NEPA violation, what relief… o Remand o Injunction

Is NEPA useless (considering it has no real substantive basis)?  Remember: Under NEPA, courts are just validating that agencies have considered environmental impacts and disseminated information pertaining to those impacts, NOT whether an agency’s decision making is correct  However, the power to hinder a project by issuing an injunction will force agencies to play into the purposes furthered by NEPA

BIODIVERSITY AND ENDANGERED SPECIES PROTECTION Introduction to biodiversity conservation  Environmental law is subdividing into two major objectives: the prevention of pollution, especially toxic pollutants, and the conservation of biodiversity o The objective of biodiversity is to conserve species richness  Rationales for maintaining biodiversity o Utilitarian…leading rationale o Esthetic o Moral/ethical  ESA applies to fed agencies only, not state agencies

TVA  The ESA requires that highest priority be given to the preservation of endangered species, whatever the cost. Section 7 of the Act (1536(a)(2)) plainly commands all fed agencies “to insure that actions authorized, funded, or carries out by them do not jeopardize the continue existence of an endangered species…or result in the destruction or modification of [its] habitat.” o 1536 (a)(2) … “no jeopardy” provision  Cost-benefit ratio is completely irrelevant under the statute o Economic waste of not finishing the dam does not matter  The prohibition set forth by the statute is absolute o The highest priority is place on the protection endangered species  Appropriate remedy o Injunction

Listing and critical habitat designation  The listing itself does not require consideration of the economic impact (§ 1533 (b) (1)(A)) o Listing decisions are made solely on the best scientific and commercial data available o Economic impact is irrelevant at the listing stage  In the critical habitat designation stage, economic is definitely relevant (§ 1533 (b)(2))  Cape Hatteras o Holding . Baseline approach is not invalid, the functional equivalence doctrine is invalid . FSW failed to require consultation for actions that jeopardize the recovery of the species even if they do not jeopardize the species’ survival  definition of conservation under § 1532(3) requires consultation until the species has recovered in full (and thus no longer needs protection)  protection of both survival and recovery of a species is required . effects of FSW’s narrowing of the consultation requirement (however, court’s holding broadens the requirement)  (1) consultation would not have been required for species in recovery. Thus, alternatives may be not be produced by the FSW that would have facilitated recovery.  (2) underestimate the economic impact of the critical habitat designation . designation of CHD may produce additional economic impacts that warrant consultation  A specific area may be excluded from a particular CHD when the benefits of exclusion outweigh the benefits of inclusion o E.g., situations in which there is a fear that CHD will actually endanger the species . Owners of a given land will rush to develop land that is proposed for CHD o NEPA applies to CHD

DOW  The irreconcilable clash between ESA § 1536(a)(2) and CWA § 1342(b)  Unless the action is discretionary (and it is not here), the EPA does not have to consult with the FSW, it must merely delegate powers if the requirements are fulfilled (the nine requirements in this case) o CWA trumps ESA, at least in this context  Here, the statute may be read as discretionary and consultation is not required

The Section 9 Taking Prohibition  1538(a)(1)(B) o …unlawful to take any such species within the US or the territorial sea of the  1532 (19) o “take” … means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.  Section 9 prohibits “any person,” which includes both fed agencies and private individuals, from “taking” an endangered species.  Violations of take prohibition o Subject to criminal penalties  Take provision on applies to listed species of fish and wildlife, not plants  On its face, the statute only applies to the taking of endangered, not threatened, fish and wildlife o However, by regulation, the statute is applied to threatened species  Babbitt o 1539(a)(1)(B) . takings may be permitted by Secretary of Interior if the taking is incidental  incidental take permit provision o The scope of the ESA’s taking provision . Harm; harass o Holding . The text and purpose of the statute supported the validity of the regulation (regarding the scope of the ESA’s taking prohibition)  text o Statute is ambiguous and the agency’s interpretation is reasonable  Purpose o Statute is designed to protect ecosystems, wildlife, and habitat. . In some cases, activities not explicitly designed to kill wildlife may be considered a taking. This is so we can avoid the disutility of the incidental take permit provision. One example of an incidental take is the destruction of a given species’s habitat.  If have no incidental takes, then the incidental take permit provision would not make sense. o And it was an amendment.  All though this is not at issue here, incidental takes are analyzed under a proximate cause analysis  In short, harm does not have to be direct o Questions left open . (1) Reasonable for interior department to conclude in its regulations that habitat modification could be considered to be a taking?  Couldn’t the Court change this interpretation if another case comes up? . (2) Does death or injury already have to have occurred to be a taking?  Look at the regulation again  Does risk = harm? o Circuit split . (3) Can inactivity ever amount to a taking?  Look at the regulation again  Harass definition seems to point to the fact that an omission could amount to a taking  Legally speaking, the government could condemn land in order to protect species

POLLUTION CONTROL…

4 approaches to controlling pollution  Harm (or ambient quality)-based o E.g., CAA o Uncertainty (margin of safeties used) often leads to a switch from a harm- based to a tech-based standard  Tech-based o E.g., CWA  Market-based  Liability-based

THE CLEAN AIR ACT  Harm (or ambient quality)-based statute  Goal of the CAA o purposes of the CAA are to protect and enhance the quality of the nation’s air resources so as to promote the public health and welfare and the productive of its population (7401 (b))  how do we achieve this overall objective? o The adoption and implementation of national ambient air quality standards . Primary standards protect public health (§ 7409 (b)(1)) . Secondary standards protect public welfare (§ 7409 (b)(2))  For which pollutants does the EPA have to issue these national ambient air quality standard? o Those that qualify for the list under § 7408 (a)(1) o 7408 (a)(2)…air quality criteria  There are only 6 air pollutants for which the EPA has ever issued national ambient air quality standard (NAAQS)  Should we be troubled that there is only 6? … no, there’s only 6 pollutants regulated under this particular program o No, the EPA has other CAA programs that allow for regulation.

Air pollution: types, sources, impacts, and control techniques  7408(a)(1)…3 tests for including a substance on the list of pollutants o danger test o many sources test o there must be a plan to issue air quality criteria  Economic issues are not considered in the promulgation of ambient air quality standards under the Clean Air Act. o The function of the margin of safety was to allow for a buffer zone or margin of safety that is needed because of scientific uncertainty  Lead Indus. held that EPA has the authority under 7409 (b)(1) of the CAA to protect against the RISK of pollution rather than just than adverse EFFECTS o Taking into account the change of harm to develop of the magnitude of this potential harm

The harm based approach  (1) figure out goal o EPA is responsible for adopting the NAAQS (goals)...7409  (2) calculate aggregate maximum aggregate emissions level…(3) divide up aggregate maximum aggregate emissions level o State governments are delegated authority to implement these statutory programs in order to achieve nationally established pollution control objections…7407(a) . Cooperative federalism o 7410 (a)(2) . each implementation plan submitted by the state under the CAA should be adopted by the state after reasonable notice and public hearing  procedural aspect . states must include 13 different things in the implementation plan  substantive aspect o if procedural and substantive aspects are met, EPA is required to approve SIP…7410 (k)(3) o 1977 and 1990 Amendments reduced discretion provided to the states in deciding how to implement to achieve standards . states have not done the job…have no achieved NAASQ . Congress strived to constrain fed control from the outset  7411…authorizes EPA to establish national uniform emission standards for new stationery sources o new source performance standards o here we are talking about emissions standards, not goals . we are talking about goals, not means  7412…hazardous air pollutant standards  7521…EPA has the authority (always, since 1970) to adopt admissions standards for new motor vehicles o states had never had control in any of these three areas . Congress imposed statutory-mandated deadlines for imposition of SIPs in order to counteract states’ natural incentive to do nothing (and avoid expenditures) . One way to combat states’ inclinations to delay is to impose sanctions for failing to adopt an adequate SIP  EPA may impose a fed implementation plan as a form of sanctions…7410 (c)(1) . Variety of options for divvying up allowed emissions (step 2, from above)  (1) Historical practice  (2) Allocate emissions with regards to the emitter’s importance to the state’s economy  (3) what is technology feasible  (4) allowances auction o use funds to ameliorate environmental damage and finance alternative energy sources o this model has not had that much success . mobile source v. stationary source emissions  Congress has regulated stationary sources more so than mobile sources  People in the US “have a love affair with their cars” o There may be a “backlash” to the whole statutory scheme if mobile sources are regulated, and we do not want this  Inadequacy o EPA may reject a plan as inadequate when it does not meet the procedural and/or substantive aspects o 7410 (a)(2)(h)…EPA may call for revisions to a SIP when the plan is found to be substantially inadequate . state plan must have a revision provision in it . confirmed in 7410 (k)(5)  EPA shall required the state to revise the plan when it is inadequate o As a penalty, the EPA may adopt the federal plan for a state if the state entirely failed to submit a plan by the deadline or submitted an inadequate plan and did not fix this inadequate plan in the time allotted to do so o States generally want to avoid the EPA’s take over of the implementation measures of the CAA . The way to avoid intrusion is the abide by requirements o VA…EPA does not have authority to tell the states that there is a problem and exactly how this problem must be fixed . SIP call…direct the state to do what is minimally necessary to cure to defect stopping them from meeting CAA standards  It cannot mandate anything more  What happens when a NAAQS does not work? o The original deadlines for all states the achieve NAAQS for the original 5/6 pollutants was 1975/1976 (five years after 1970) o Standards not met, extension to 1982/1983 o Non-attainment areas…areas in non-compliance . 7501 (2) o deadlines were extended again in 1990 until years from 1993 to 2010 . standard meeting has not happened o General principle from the 90 amendments . Further out of compliance that a state is the less time they get to meet the standards . Further out of compliance, longer the checklist, less discretion . 7511 (5)(a)  checklists with regards to degree of non-compliance  Nonattainment areas o Air quality control region that has yet to meet the NAAQS for a particular pollutant . Rare that any area meets standards for all pollutants o Penalties are imposed . Important industries are hit with nonattainment fees o What if there are already factories within the NA? . (1) Shut down some of the factories so that they are no longer emitting  cutting enough emissions will reduce pollutants to level of compliance . (2) Prohibit the construction/operation of any new sources that would add to the already existing nonattainment problem in this area  slap a moratorium . by in large, Congress has done neither of these things  Why not? o Economic reasons o Congress felt that these solutions were too draconian in terms of economic impact to serve as viable solutions . The prospect of shutting down plants and throwing people out of work was unpalatable for Congress  So, what is the solution? … statutory o Any area not meeting NAASQ 1 or more pollutants must amend their SIP to produce an outcome where their pollutant emission goes above and beyond meeting the standards o 7502 (c)…requirements for states’ with nonattainment areas . Congress has resorted to a technology-based risk management approach to achieve NAAQS  All reasonably available control measures must be enacted o E.g., reduction of current emissions if the technology so provides the ability to do so . Schedules and deadlines for compliance with the source being subject to penalties enforceable by the EPA and fed courts . Provide reasonable further progress toward compliance  Reasonable further progress (7501(1))…such annual incremental reductions in emissions of the relevant air pollutant as required and for the purpose of reaching the required standard by the required date o Phrased in terms of “reduction in emissions” rather than levels of “ambient concentrations” … but the two are similar . Reduction in organic compost in specific percentages with regards to certain ozone nonattainment areas (7511(a))  Sierra Club… EPA was not authorized to grant conditional approval to plans that did nothing more than promise to do tomorrow what the CAA required today. o Plans can not be open-ended

New Source Review (NSR) o The principle mechanism for evaluating new sources without exacerbating the NA problem o New or modified (physical change or change in method that increases emissions) major stationary sources must get a permit when they are first built or modified . Major stationary source (7602 (j))…stationary source that can emit 100 times or more per year of any air pollutant (7602(j)) o NSR is actually composed of two different permit program run by the states . (1) new or modified major stationary sources in NA areas . (2) new or modified major stationary sources in PSD areas o 7502 (c)(5) . permits for new and modified major stationary sources . refers to 7503 for requirements o requirements . technology-based controls (7503 (a)(2))  using a tech-based tool to achieve our ambient goal  7503(a)(2)…show compliance with the lowest achievable emission rate (7501(3)…meaning either the most stringent emission limitation imposed at this time by any SIP; or the most stringent control of emissions actually being achieved by a SIP anywhere in the country; whichever is more stringent…very rigorous) in order to qualify for a permit . 7503(a)(1)(A)  you have to show that new or increased emissions will be offset by decreased emissions elsewhere in the NA  in this way, if the permit is granted, emissions will be lower (more than offset) in general  so… o you either have to shut down somewhere else already operating . like bubble o or, get someone else to shut down their plant and make it legally enforceable . however, these external offsets are fare less common than internal offsets (within the “bubble”) . like cap and trade  thus, you force these people to lower their emissions o everyone wins…other people have more money, you may emit, and the air is cleaner  NRS has been very controversial o Congress wanted to achieve CAA goals while promoting economic growth o It is economic burdensome to sources . Applying for a permit is very burdensome . Even with permit, compliance to the stringent standard is very difficult/expensive . Industry lobbies EPA to make standard less stringent  What about NA areas and mobile sources? o Transportation controls for heavily polluted NA areas . E.g. mandatory carpool lanes, increase in bridge and highway tolls (provide incentive to take mass transit), centralized vehicle inspection and maintenance  What happens in the reverse situation…if ambient concentrations of the criteria pollutant are lower than the NAASQ? o Policy questions? . Is it okay for the state to dole out the right to emit that pollutant so that over time emissions will increase up to the point where they are abutting the NAASQ?  Is deterioration allowed?  PSD (below as well) o Limits on the incremental amount of pollution allowed in clean air areas o PSD areas are divide into three classifications (7472) . Class I…national parks, etc.  Most protection . Class II  Less protection  Most prevalent class distinction . Class III…  Least protection  Almost no Class III areas exist o Increments of degradation are established . Degradation is allowed if not significant . What is significant is determined by the Class of the area?  Class I areas allows for less degradation o II and III allow for some more o Constraint is grounded in second half of the NSR program 7475(a)(1) . New or modified major stationary source in a PSD area . Requirements (7475(a)(3-4))  Tech-based…best available control technology ((a)(4)) o Consideration of both economic and environmental factors o Like most tech-based standards in the CWA, this is a performance standard rather than a design standard . The agency cares whether you hit the target, not how you got there  You will not get a permit if issuance will cause pollution to exceed the limited amount of degradation that the statute allows ((a)(3)) o In no case can PSD allocation violate the NAAQS . i.e. if Class II area is allocated a 20% increase in emissions, but the current concentration would allow only for a 5% increase before it abuts the NAAQS, then only the 5% increase may be allowed o Degradation can only rise up to the levels of pollution required by the NAAQS  Not as rigorous as NA areas o NA areas are the really problematic areas where public health is being jeopardized  Litigation involving NA and PSD o Both start with a new or modified stationary source o Modifications 7411 (a)(4) o Whether a physical change amounts to a modification so as to trigger NSR… . Emitter can use any 2 consecutive years of the past 10 years to determine the baseline amount of pollution in determining whether a physical change amounts to a “modification”  Thus, emitters would select the highest emitting 2 years in hopes to avoid determination of a “modification” and the triggering of NSR  7411…definitions/procedure  Allows for the national uniform, tech-based standards for new major stationary sources  (b)(1)(A) o EPA must require a list of categories of new stationary sources that cause or contribute to air pollution endangering public health or welfare  (a)(2)…definition of a new source  (a)(1) o once listed, a statute must provide a standard of performance for that category . another tech-based approach to risk management…best available technology  Reilly o Best available technology must be required o We refrain from state-regulation here so as to avoid a “race to the bottom” . Under 7411, states are divested of the ability to undercut EPA tech- based standards . Under 7416, states can apply more stringent controls than EPA  Focused on NAASQ of CAA so as to get an understanding of ambient-quality harm-based standards

THE CLEAN WATER ACT  CWA is technology-based o CWA is mixed like the CAA though  Under a tech-based approach you eliminate cause/effect problems of source because the cause/effect does not need to be shown  Harm-based standards serve as a safety net when there is so many dischargers complying with tech-based standards in one area that the water still becomes foul  Disadvantages to tech-based approach o Tech-based approaches are inefficient o Discourages investments in pollution control technologies  CWA is a performance-based tech standard rather than design-based tech standard  Point v. nonpoint source  Statute has almost no mechanisms for controlling NP sources  Direct and indirect dischargers  New v. existing point sources o Congress generally regulates new point sources more so than existing point sources  Harm-based v. tech-based o Harm…how clean do we want the water to be? o Tech…how clean can we make the water? o CAA has aspects of both, but we will generally focus on the tech-based aspects  Federalism aspects…EPA applies standards to control direct and indirect discharges and point and nonpoint sources o Permit programs o NPDES . Regulates point source dischargers . States may apply to administer the NPDES program  48 states have received this authority

NPDES program  At a min, states must impose federal tech-based regulations o EPA regs are the floor o However, states can go above and beyond and adopt more stringent controls  EPA has the power to revoke the entire state permit program o More theoretical than practical  Every state must adopt water quality standards and admit them to the EPA for review o The EPA may review and veto these standards and apply standards to be applied  EPA maintains the power to review both its own permits and those granted by the states

CWA  Goals o Goal of the CWA is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters o National goal is that the discharge of pollutants be eliminated by 1985 o Interim (more realistic) goal…water quality provides for the protection and propagation of fish and the wildlife by July 1983 . Fishable/swimmable goal of the CWA o How did Congress go about achieving this goal? . The CWA’s “No Discharge” general rule (1311 (a))…SLIDE  Central provision of the CWA  “the discharge of a pollutant” (1362 (12))…SLIDE o we focus on subsection A . (1) addition of . (2) a pollutant into . (3) navigable waters . (4) from a point source  “pollutant” (1362 (6))…SLIDE o broad definition  “navigable waters” (1362 (7))  “point source” (1362 (14))  “person” (1362 (5))  “except in compliance with 1342 (a)(1))

NPDES (cont)  Miccosukee o For purposes of a CWA requirement that a NPDES permit be obtained for the discharge of pollutants into the nation’s waters, such a discharge includes a point source that does not itself generate the pollutants. o We have a (1) pollutant; (2) navigable water; (3) point source o The issue is whether there is any “addition” o Arguments that there is no addition (by the government)…none taken . (1) the prohibition of 1311(a) only applies when a pollutant originates from a point source, not when it merely passes through a point source  rejected . (2) unitary waters argument…no addition, merely moving around pollutants in one unitary (American) water system  not decided but disfavored . (3) even if not all bodies of water are part of a single unitary body of water, these two amount to a single body of water…even if the unitary water argument is not adoptable  not decided o Court remanded…District won in the 11th Cir. on remand . What changed?...EPA adopted standards on the unitary waters theory  EPA interpreted “waters of the US” under the unitary waters theory o All water in the US is part of one body . SC deferred under the second step of Chevron even though it seemed to think this theory was a fundamentally bad idea . In most circuits, the unitary waters theory has been rejected . …After the decision in this case was handed down, the EPA concluded that water transfers – “activities that convey or connect navigable waters without subjecting the water to intervening industrial, municipal, or commercial use” – are not subject to NPDES permitting requirements.  The concept of navigable waters o Riverside . Wetlands are “waters” under the CWA, even if they are not regularly flooded by adjacent waterways.  Dredge and fill permit program (1344(a)) . SC held that an area can be considered to be a wetland if it is…  (1) inundated by surface water, OR  (2) saturated by ground water . SC held that it was reasonable to hold that an adjacent wetland as a navigable water  SC held that adjacent wetlands were covered because there was a significant nexus between the adjacent wetlands and river o SWANCC . The US Army Corps of Engineers has jurisdiction only over navigable waters or waters that abut navigable waters. . Issue… if intrastate wetlands that are NOT ADJACENT to navigable waters could be defined as navigable waters  No  SC is not willing to adopt a reading that reads “navigable” out of the statute o There still must be some nexus between the wetland and a navigable body of water . Chevron deference issue . Permits/prohibitions  Expulsion of fill materials requires a dredge and fill permit…discharge of a pollutant requires a NPDES permit  Same definitions/scope for each… o Discharge of the pollutant in navigable waters  However, it may be a close call in determining whether expelling fill materials must be viewed as a land regulation rather than an environmental regulation. However, the dumping of pollutants is clearly and environmental regulation. o Rapanos . The term “waters of the US” in the CWA encompasses only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams,” “oceans,” “rivers,” and “lakes,” and does include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall, so that wetlands that do not contain and are not adjacent to waters that are navigable in fact, or do not have a continuous surface connection to such waters, are not covered by the CWA. . Whether a permit is required for wetlands adjacent to tributaries?  no answer…because there is no majority opinion in the Rapanos case . plurality (Scalia)  2 limits on the Corps’s jurisdiction o (1) continuous surface connection between wetlands at issue and traditionally navigable bodies of water . difficult to determine where the wetlands end and the waters begin…good sign of continuous connection o (2) relatively permanent, standing, traditional bodies of water…streams, oceans, rivers, and lakes . connection must be with one of these bodies of water and the wetland at issue . concurrence (Kennedy)  Test…the significant nexus test o Significant nexus between wetlands the court is trying to regulate and traditionally navigable waters . Who’s opinion is most important?  COAs have splintered on this issue  We can look at both Kennedy’s and Scalia’s decisions . After the opinion, the Corp issued guidelines (no force of law, may or may not represent the last word on CWA jurisdiction)  Certain wetlands categorically meet the significant nexus  Other cases will have to be resolved on a case-by-case basis

Establishment of tech-based effluent limitations  Once EPA establishes tech-based regulations for an industrial category, they constitute floors – that must be incorporated into all NPDES permits (subject to limit variances in the Act).  The CWA’s “no discharge rule” (1311 (a)) o Getting around the “no discharge rule” … . Starting point…zero discharge o 1342…NPDES permit program o 1344…Dredge and fill permit program  “Except as in Compliance with § 1342(a)(1)” o (A) all applicable requirements… . 1311…most important  The permit shield provisions (§ 1342(k)) o 1319 and 1365…enforcement provisions of the statute . “permit shield” allows you to avoid enforcement brought against you by the EPA or private citizens  § 1311(b) Effluent Limitations o point sources must achieve effluent limitations . effluent limitations… o initial level of control (1311(b)(1)A) and a secondary more stringent level of control under 1311(b)(2)(A) . two phase system pushing towards the elimination of all pollutants from our nation’s waters  Two phase system o Phase 1 . BPT (best practicable control technology available) limitations… what point sources could accomplish if they employed the BPT available . How does EPA figure out the BPT?  Factors listed in 1314(b)(1)(B)  EPA must establish BPT based on the performance of the average of the best plants in the industry  Anybody who is discharging pollutants must abide by BPT o Applies to any discharge of any pollutions across the board o Phase two . Effluent limitations are determined by industrial category  Remember that ELs are performance standards, not design standards o What counts is the end result…best practicable tech could achieve such a level, but the source is free to achieve that level in any what that it so chooses, so long as the level is met . The CWA’s tech-based effluent limitations for existing industrial point source discharges  Nice chart  Different regulatory options depending on what kind of pollutant is being discharged o This two phase approach only applies to existing point sources . New point sources are regulated on 1316, which is similar to CAA 7411  A national, industry-wide approach o Dupont . SC held that EPA can issue ELs across categories for Phase 2 . SC held the same result for Phase 1 as they did for Phase 2 . Therefore, in both phases, the EPA is allowed to issue ELs in the form of category wide limitations  Condition…if ELs are allocated by industry-wide categorization then variances must be available . Category-wide regulations are more likely than point source by point source regulation to promote uniform, industry-wide standards o Fisheries . it is okay if the EPA takes the BPT standard from a similar industry if it can be reasonably translated to the industry being regulated Two phase system (cont)  Phase 1…cost-benefit analysis (1314 (b)(1)(B)) o Same level of regulation applies regardless of the kind of pollutant o Standard…BPT . Set categorically across industries  Phase 2…no requirement to engage in cost-benefit analysis (1314 (b)(2)(B)) o Cost is considered in isolation . CBA generally results in less stringent controls o Phase 2 controls are more stringent than the Phase 1 controls . Intentionally so, as EPA is more focused on eliminated these more dangerous pollutants o Standard is determined by the pollutant being discharged o Represents an incremental step past BPT . Deadline was to come years later after the BPT was supposed to be achieved  Phase 1 deadline was originally set for 1977, and Phase 2 deadline was originally set for either 1989 or 3 years after compliance with BPT  Everybody ought to be complying with Phase 2 by now o Remember: goal is to move from status quo to the eliminate of all discharges o Practicable…good; available…better; conventional…conventional . BAT v. BPT  (1) BPT stage (phase 1), EPA performs CBA analysis…BAT stage (phase 2), EPA only does a cost analysis  (2) BPT: average of the best performers within an industry… BAT: single best performer o Calculating BPT… . Focuses on all plants of industry using the best technology and then looks at the average level of the performers using that best technology o Calculating BAT . Focuses on the single best performer within a given industry  More rigorous standard . Congress took the risk that business may not be able to effectively comply with these tech-based controls  Congress was okay with some companies going out of business . BCT  Step from BAT to BPT is not as big as the step from BAT to BCT o this is because “conventional pollutants” are not as harmful as “toxic pollutants”  BCT does not push quite as far as BAT does . These differences in standards is exemplified in the difference of the factors considered under each standard  BCT…two-tiered CBA o (1) regular cost-benefit analysis o (2) CBA comparing compliance between public plants and industry plants . the first compares the costs and benefits of moving from BPL-Level controls. The second ensures that the BCT-Level controls for industry don’t require much more of them than the CWA requires for public sewage treatment plants. . Why have two different BAT boxes?  Difference in back-end adjustments o Fundamentally different factors determining back-end adjustments/variances . Differences relating to the factors EPA takes into account when it is issuing the regulations and determining standards in the first place. o FDF (fundamentally different factors) has been codified and applies at all levels of the statute o Back-end adjustment must be in relation and proportional to the degree of the fundamental difference  Few back-end adjustments available for those who discharge toxic and non-toxic/non-conventional pollutants  Back-end adjustments are pretty rare o Not typically awarded, nor not typically even sought  Other tech-based controls under the CWA…nice chart o new sources are more stringently regulated (1316) . new sources are on notice of standards; it might be more economical for new sources to abide by standards starting from the ground up . 1316…nearly equivalent to Phase 2 BAT controls o POTWs . only one level of control for sewage treatment plants…secondary treatment o Indirect discharger o Biosolids disposal  Tech-based provisions are the CORE of the CWA

 NPDES permits and ELs o If there is no set ELs for a particular industry…EPA is to craft ELs on the particular case-by-case basis . best professional judgment provision

Water quality standards  WQSs are the back-up mechanism if the tech-based standards does not produce clean water  If a state wants to adopt WQSs, what does it have to do?... o (1) establish a designated use….1313(c)(2)(A) . EPA regs prohibit the downgrading of use designations if it is still attainable o (2) adopt water-quality criteria for each segment of the water body being considered…1313(c)(2)(A) . criteria…scientific info, not legal standard . maximum concentration of a particular pollutant that will allow for achievement of a the designated use o (3) apply nondegradation policy…1313 (d)(4)(B) . 3 tiers of nondegradation (similar to CAA)…SLIDE  Tier 1…least protected  Tier 2…middle protected  Tier 3…most protected  establish TMDLs (by the state)  allocate the TMDLs o amount of a pollutant that can go into a water body without violating the water-quality criteria o Required Elements of a TMDL…SLIDE  chain of events….establish water quality standards, establish TMDLs that enable the meeting of water quality standards, divvy up the TMDLs  Role of EPA in making sure TMDLs are established at a level that could reasonably meet water-quality standards  Pronsolino (9th Cir.) o Waters that are impaired only by nonpoint sources of pollution are subject to the CWA listing and TMDL requirements. o Based on the language of the CWA alone, the list must contain any waters for which the particular effluent limitations will not be adequate to attain the statute’s water quality goals. o Furthermore, there is no general division throughout the CWA between the regulatory schemes applicable to point and nonpoint sources. o The TMDL expressly recognizes that implementation and monitoring are state responsibilities, and for that reason the EPA (D) did not include implementation and monitoring plans within the TMDL. In addition, the CWA requires that each state include in its continuing planning process adequate implementation for revised WQSs. Therefore, the TMDL is an informational tool for the creation of the state’s implementation plan independently required by Congress. CA (P) can chose if and how it would implement the Garcia River TMDL. . States have to adopt TMDLs, however once they adopt them, there is no EPA requirement for states to implement them  Thus, there is no intrusion on the state authority…no federalism problem  1341 o Certification requirement 1341 (a) o 1341 (d) . if a state includes a condition under one of its certifications, then the federal permitting agency must include that condition under its own permits

Recap of CWA  Statute starts with the goal o Limiting all pollution discharges o Realistic goal…fishable and swimmable waters o Statutes are all structured around these goals  Core provision of statute (1311) o No discharge rule  Permits that allow you to avoid the no discharge rule o Dredge and fill…1344 . Substantive requirements  permit must be issued for water-dependent use  all feasible steps for mitigation must be taken o NPDES…1342 . Covers discharges of pollutants other than dredge and fill material . Compliance must be met with 1313 (b) ELs  1370…states can be more stringent if they want . 1342 (d)…federal veto power over issuance of state permits that do not comply with state WQSs  tech-based sources have done pretty well in the last 40 years o two weak links: . failure to regulate nonpoint sources . disabling of the EPA’s ability to use TMDLs to achieve better water quality  Quick recap o In terms of big picture for the CWA, the tech-based regs are federally set by effluent limitation standards and can be made more stringent by the states’ NPDES permit program. o Then, as a second-tier reg the harm-based water-quality standards exist and the TMDLs are used in attempt to achieve those standards. . States must achieve their WQSs if full compliance with the 1311 and 1316 tech-based standards does no accomplish that, states must adopt TMDLs that reflect the aggregate amount of pollution that may be discharged into the impaired waters without violating the WQSs. Presumably, this will be less than is currently allowed by a combination of the tech-based regs. In effect, that means either controlling nonpoint sources or requiring point sources to do better than the tech-based controls require.

CRITICISMS OF AND ALTERNATIVES TO TRADITIONAL REGULATORY APPROACHES  Criticisms of “command-and-control regulations” … not good to call it command-and-control…better referred to as “traditional regulation”) o It is not sufficiently tied to cost-benefit analysis o It does not get as much pollution control benefit for each dollar spent . The uniform regulatory approach does not allow for the economic efficiency that would be achieved by taking a market approach . Counter-arguments  Uniform regulations allow for easier administration and dissemination of information across industries than would be if analysis was done on a case-by-case basis  Very difficult to trace environmental problems back to their sources…thus, it is impossible to craft solutions on a case-by- case basis  Uniform standards produce greater consistency o Competitors in the same industry are generally subject to the same levels of control…no competitive advantages provided . May be some difference in situations where one polluter is polluting into a protected area (e.g., PSDs) o However,  Cannot really take all these criticisms at face value o Less scrupulous business people, politicians, etc. use these argument to disguise deregulation as regulatory reform . Arguments made by these people (using climate change):  Prove it o show that the facts prove climate change to exist  Its not my fault o Its not my gases causing climate change  I can’t help it o There’s no technology out there, and even if there is I cannot afford it  That’s not fair o You regulate me and not them o Its so unfair that it is a 5th Amendment taking without just compensation  What do critics like then? o Main criticism…traditional regulation is inefficient o So, critics advocate a market approach…assuming that people and firms engaged in environmentally damaging behavior will act rationally, and all the government needs to do is to provide the incentives sparking polluters to act upon their own self-interest . Key aspects of the market approach:  Polluters with the lowest levels of pollution will benefit the most economically and thus the existence of these kinds of polluters will be augmented  Transaction costs are fewer in the market approach than in the government adoption of regulations and the implementation of said regulations o Possible regimes . Pollution taxes…favored by most economists (but not going to happen…stigma against taxes)  fee or tax for each unit of pollution produced  polluters can generate as much pollution as they can afford  a profit maximizing companies will not spend to control pollution than it stand to profit  easy for government to set up and administer  not used by federal government o implementation problems o political obstacles . emission tax system would provoke public outcry  left…polluters should not be given to right to pollute  right…all taxes are bad . Emissions trading…has made better in roads than pollution taxes, but it has not replaced traditional regulation  Serves as a supplement to traditional regulation, rather than as a substitute  Forms of emissions trading programs o Allows for polluters to trade permits to emits if they fall under caps limiting their emissions o Allows regulated sources to buy and sell permit emissions among one another o Most successful US regime…cap and trade program designed for acid deposition control (§§ 7651-7651o: acid deposition control) . Goal of the program…reduce emissions (such as SO2) of pollutants that lead to acid deposition  Initially, allowances were allocated  7651c (e)…allocation of allowances  allowances can be bought and sold o facility is better off selling an allowance when the gain to be had is greater than the gain to be had from greater production/pollution o facility is better off buying an allowance when the price is less than the cost of reduction o sometimes allowances are purchased and retired from the system permanently . double penalty for exceeding emissions  (1) fine for exceeding  (2) reduction to proper emissions level . this program has been quite successful  much lower cost than many predicted o Would such a cap and trade program work as well for greenhouse gas emissions? . Acid rain context is characterized by some factors that facilitate the cap and trade program for reduction  (1) Technology for reducing SO2 was already in place, not so for the reduction of carbon emissions o Only proven way to reduce carbon emissions is through cleaner energy  (2) acid rain program covers a relatively small group of sources…the coal/fire industry o limited transaction costs for engaging in emissions trades o greenhouse gases come from a diverse array of sources…thus, emissions trades would come with much higher transaction costs o benefits of emissions trading with regards to pollution control . benefits are mostly economic . low cost polluters overcontrol and high cost polluters undercontrol… either way we get a set aggregate of pollution . overall emissions are reduced over time…overall reduction of pollution o problems with emissions trading (using market-based approaches… generally as a supplement to command-and-control regulations) . hot spots  facilities that buy pollutants are sometimes concentrated geographically  this kind of shift in air pollution can create dangerous environments for those living near multiple stationary sources  often located in low-income and racial minority neighborhoods  hot spots are not an issue when there are not localized concentrations o e.g., greenhouse gases emitting in DC have the same effect as greenhouse gases emitted in Beijing  environmental justice problem o considered solution…provide those living near hot spots with financial compensation . those engaged in trades may not properly report their activities  those making reductions that in turn generate credits may not in fact have made the reduction that they purported to have made  exacerbated by inadequate agency monitoring  considered solution…trades take place on something other than a one-to-one basis o i.e., if you want to sell 10 allowances, you must reduce your own emissions by 20 . built-in margin of safety  fear that the financial industry would manipulation emissions markets has decreased support for cap and trade programs in Congress o public interest will not be supported, the beneficiaries will really be the traders making money . trading programs are potentially susceptible to slippage for political reasons  strong temptation for politicians to simply increase the cap and thus increase emissions . if you have a declining cap and allowances and credits are becoming scarcer, the price of the credits will increase. Smaller businesses on the margins may be driven out of business, which may result in increased concentrations of industries in given sectors.  Environmental law may not have qualms with this, but antitrust law may  Possible solution…subsidies . Philosophical/moral problem…pollution credits/allowances given companies the legal right to pollute even if it harms the surrounding environment  Some regards this legal right to pollute as immoral

HAZARDOUS WASTE

RCRA o approach to risk management…a technology-based, with a little ambient quality-based mixed in o two goals . (1) minimize hazardous waste  legitimate recycling is good; sham recycling is bad and is regulated . (2) safely dispose of hazardous waste o Prevents improper hazardous waste management . Regulatory statute designed to prevent improper hazardous waste management from occurring in the first place o 6902 (a)(4-5)…RCRA goals… . (4) take into account human health and the environment when handling hazardous waste . (5) properly management hazardous waste o cradle to grave program . generation to disposal of waste and everything in between is to be regulated o 6902 (a)(6) . objectives include minimizing hazardous waste o one way to avoid RCRA is to not manage hazardous waste in the first place o hazardous waste generators must show the EPA that they have adopted a certified waste management program o RCRA is divided into 2 main parts…Subtitle C and Subtitle D . both apply to the management of solid waste  6903(27)…solid waste…any garbage, refuse, slug, and any other discarded material resulting from industrial activities, with certain exception o solid waste actually includes liquid and gaseous materials as well o scope of the definition of “solid waste” is the single most complicated issue in RCRA . reused and recycled waste does not take you out of the definition of solid wastes . Subtitle D…applies to nonhazardous solid waste  Not really federally regulated  Authority for controlling nonhazardous solid waste is mostly delegated to the states . Subtitle C…applies the hazardous solid waste  6903(5)…Hazardous…solid waste that does some very bad things  SLIDE  How do we know when a solid waste is actually hazardous? o EPA has listed some hazardous solid wastes by name o If not on list… . A solid waste is hazardous if it exhibits one of the four following traits  (1) toxicity  (2) ignitable  (3) corrosive  (4) reactive . A solid waste also becomes hazardous if it subject to EPA’s mixture or derived rules  Nonhazardous waste mixed with a hazardous waste…resulting mixture is a hazardous substance  Anything derived from changing the chemical composition of a hazardous waste is regarded as hazardous as well . Chemical generator must go through all these steps to determine whether the waste is hazardous  If the waste is not hazardous, the waste is regulated by the state (Subtitle D)  What if the waste is determined as hazardous?...Subtitle C o Generators must comply with EPA’s manifest system so as to create a paper trial enabling the EPA to follow waste from the cradle to the grave o Generators of waste do not need a RCRA permit unless it is deemed to be engaged in stored (i.e., holds it for 90 days) o Generators typically hand over the wastes to transporters . Transporters are regulated  Must comply with manifest system  Must comply with EPA packaging and labeling requirements  Must minimize any adverse environmental effect that occur while they are in possession of the waste  Must apply with regulators set forth by Department of Transportation o TSD (treatment; storage; disposal) facilities are subject to regulations . All terms are defined in 6903  Treatment…6903 (34) o Neutralize or render waste less hazardous through chemical alteration  Storage…6903 (33) o Containment on a temporary basis that does not amount to disposal  Disposal…6903 (3) o Discharge, deposit, injection, dumping, spilling, leaking or displacement… . Very broad . TSD is prohibited without a Subtitle C permit granted by EPA or an authorized state  Substantive qualifications for a permit: o You comply with all standards issued by EPA under 6924 . Tech-based performance standards . Record keeping and reporting requirements . Design standards . Locations standards . Regular monitoring . Corrective action . Financial responsibility requirements…insurance requirements, etc. that allow permit holder to make good; obligations continue for long after closure of the facility . 6924 (c-m)…prohibition of certain wastes on land, except for when you first treat the waste  LEAN o On the merits, the court found that threats to be minimized under 6924 (m) included the threat posed by leaving waste where it currently was.

CERCLA  Improper hazardous waste management that occurred in the past o Backward looking in large part  Government cleans up substances then seeks recovery for the government’s cleanup  Reflects to the liability-based approach to risk management o Threat of liability deters bad behavior  Two objectives o (1) creation of the authority in the fed government to cleanup hazardous substance releases or the threat of hazardous substance releases that could potentially affect the environment o (2) designating liability for these careless waste management releases so as to provide a deterrent for future releases  where does the Superfund come from? o General revenues from the US Treasury o A lot of the money in the fund initially came from taxes imposed on businesses likely to be responsible for the release of hazardous chemicals o Additional taxes were placed on the petroleum industry . Quid pro quo…taxes exempted the petroleum industry from CERCLA liability (petroleum was not included on the hazardous chemicals list) o Money gained by the fed government in CERCLA litigation  Authorization to continue to collect special taxes ended in 1995 o What’s left in the fund is a lot less…Superfund cleanups are being paid today far more by ordinary tax payers than the companies that are often responsible o Litigation judgments still go into the fund, but have turned out to be far less than what has been needed  Superfund was designed to finance the cleanup of orphan sites, where no wrongdoer can be definitively fingered  Liability standards in CERCLA are different from liability standards in traditional tort actions  Section 9607(a) Liability…VERY GOOD SLIDES o In order to make a prima facie case under 9607(a), the government has to prove that there was a release or threatened release of a hazardous substance from a facility by one of the four categories of PRPs o RCRA hazardous wastes are a subset of CERCLA hazardous substances  National Contingency Plan o How CERCLA cleanups by the government are to occur, with regards to both procedure and substance  CERCLA liability is retroactive o Retroactive liability is imposed so long as there is a rational reason for doing so  What does the government have to show? o CERCLA is a strict liability statute…if you did it, you are liable o Some limited defenses . You can avoid CERCLA liability if you can show that the release was due solely to an act or God or an act of war . 9607 (b)(3)…most important affirmative defense  release that generated the cleanup was caused solely by an unrelated third party  CERCLA authorizes the imposition of joint and several liability o One can recover of the entire amount of damages from one of the parties responsible (among numerous responsible parties) o If the harm is not apportionable or divisible, joint and several liability is appropriate o JS liability acts to shift the burden to the D . D has to prove to the court that the damages are divisible so as to avoid the imposition of JS liability  Traditionally very few PRPs successfully avoid JS liability o If successful, D may engage in a contribution action under 9613 (f)  Burlington Northern o Increase in the ability to escape JS liability for CERCLA PRPs  CERCLA loosens the causation requirement for the government o 9607 (a)…government has to prove that there was a release or threatened release that caused the government to incur response costs o however, Monsanto holds that the federal government does not have to “fingerprint” the hazardous waste as released by the company found liable for the costs incurred by the government in cleanup