Environmental Law and the Current Administration

Stacy Taylor

Nelson Mullins Riley and Scarborough LLP

• Economics theory by Garrett Hardin• Individuals, acting independently and

rationally according to each one's self-interest, behave contrary to the whole group's long-term best interests by depleting some common resource

Tragedy of the Commons

• Smog in Los Angeles (1940's)• Donora, Penn. (1948)• London's "Killer Fog" (1952)• Silent Spring by Rachel Carson (1962)• Santa Barbara Oil Spill (11 days) (1968)• Cuyahoga River, Ohio (1969)• Population Boom• Nuclear Proliferation

Environmental Awareness

• Complex technical issues– Science and technology

• Complex social and economic issues– Balancing of risks versus economic and other harm to

society• Not the traditional limited number of actors and

limited number of harmed individuals• Not easily addressed through remedies available to

the courts– What's a court supposed to do?

Why Not the Courts or Traditional Legal Arena?

• Traditional law:– Developed over time

• Grown and expanded from simpler beginnings

– Through decisions and legal analyses– Lot of gray area and factors– Courts are the "regulators"

How's Environmental Law Different?

• Enforcement, permits, issuance of regulations• Administrative process• Like the court process but starts with the

agency• Potential Traps:

– Deadlines– Must go through the process– Must raise and preserve issues

Environmental Process

• 1955 – Air Pollution Control Act• 1960's – Land Management and Protection

– Conservation/Preservation• 1963 – First Clean Air Act• 1970 – Clean Air Act• 1970 – EPA Established (under NEPA)• 1972 – Clean Water Act• 1973 Endangered Species Act

Early Laws – Early 70's

• Not initially• No teeth• Research and development; goals;

expectations• But was the first step, which put the

mechanisms in place• State agencies

Were They Successful?

• Easiest?– Traditional command-and-control regulation

• MACT, BACT, LAER

– Early approach to regulation– Still the challenge of what those limits or

operating requirements should be– Risk based versus technology based

How Do We Incorporate Environmental Impacts Into

Decision Making?

• Problem with this approach?– Does not allow market forces to work

• If markets are the best balance of supply, demand, and limitations upon production

• Want to capture these issues as real costs

– Not efficient – Limits ingenuity

How Do We Incorporate Environmental Impacts Into

Decision Making?

• Incentive based restrictions– Tax reductions, grants, etc.– Emission tax/fees– Essentially a question of whose right it is

• Cap and Trade– Market based approach– Puts a value on reductions that can be transferred– How it works . . .

Other Approaches

• SO2, NO2, Greenhouse Gases• Set an overall target or "cap" and let "the

market" dictate where reductions are made

• An absolute cap is set on total emissions for a fixed compliance period (usually yearly)

Cap and Trade

• The cap is subdivided into allowances among pollution emitters

• How the "shares" are allocated is usually the challenge– Allocated based upon prior emissions– Auction– Mix of the two

• Typically, overall cap is then reduced periodically

Cap and Trade

• Market forces control• Flexibility• Adapts to larger economic conditions• Cost-effective

– For industry and regulators• Better data quality

Advantages

• Is it always the best fit?– Must have enough facilities to support trade

• Common pollutants / significant number of sources

– Regional pollution issues– Substances with longer residence times– Differential Marginal Costs of Abatement– Strong regulatory/financial/contractual

mechanisms

Cap and Trade

• Similar to cap-and-trade• Non-attainment areas

– New facility must offset emissions by acquiring from existing or recently closed facilities

Credit or Offset Programs

• Emissions and Effluent– Air– Water

• Wetlands

• Management of Hazardous Materials– Hazardous Waste Management– Toxic Substances

• Solid Waste – Garbage/Trash• Contaminated Sites

Environmental Statutes

• Feds. (EPA) set the minimum standards• States are to implement programs and

enforce program to satisfy these standards• If states fail to implement programs

enforcing the federal standards, then EPA can impose sanctions and can take over

• Over-file

Federal and State

• 42 U.S.C. §§7401 et seq.• Most complex of the regulatory structures

and most far-reaching• Stationary sources, such as power plants

and manufacturing facilities, but also mobile sources such as automobiles and boats

Clean Air Act

• Ambient air– Adverse to public health or welfare and

derived from numerous or diverse sources– Criteria Pollutants– National Ambient Air Quality Standards

(NAAQS)– § 108

Clean Air Act

• Regulation of sources– Hazardous Air Pollutants (HAPs)– National Emission Standards for Hazardous

Air Pollutants (NESHAP)– Maximum Achievable Control Technology

(MACT)

Clean Air Act

• This was the cornerstone of the Clean Air Act– Congress's goal of assuring healthy air quality

across the nation• Particulate matter, ground-level ozone,

carbon monoxide, sulfur oxides, nitrogen oxides, and lead

• No teeth until 1970 amendments• 1977 amendments extended deadlines

NAAQS

• § 109 – Development of standards• Economics not considered• Primary standards – health based

– Protect the most sensitive individuals and provide an "adequate margin of safety"

• Secondary standards – public welfare– Environmental, views/scenery, property damage, etc.

• Five year review

NAAQS

• Submitted to and approved by EPA– Sanctions/penalties if fail to timely submit

• Evaluate current levels and estimate future air quality

• Enforcement mechanisms and plan for protecting air quality and addressing nonattainment areas

State Implementation Plans (SIP)

• May include non-stationary sources (i.e. cars, trucks, etc.)

• Time limits for bringing nonattainment areas into compliance– In general, higher pollution levels means more

time to meet the standards, but must also include certain mandatory control measures in their plans

• Interstate air pollution

State Implementation Plans (SIP)

• New major stationary sources or major sources making a significant modification– Major – 100 tons per year or more of any air

pollutant at a listed source category; otherwise 250 tons per year

– Significant – More pollutant specific• Preconstruction permit

New Source Review (NSR)

• Attainment areas• Best Available Control Technology (BACT)• Air Quality Impact Analysis• PSD Permit

Prevention of Significant Deterioration (PSD)

• Nonattainment areas• Lowest Achievable Emission Rate (LAER)

– Most stringent emission limitation contained in any state SIP or achieved in practice by that type/class of industry

• Emission offsets• Air Quality Analysis• Reasonably Available Control Technology (RACT)

– Already existing sources

Nonattainment NSR

• Particulate Matter– Was the original air quality issues – smoke/soot– Fine dust, soot, smoke, droplets – i.e. particles– PM10 and PM2.5

• Ozone– Ground-level ozone– Currently undergoing review to set new NAAQs

Where this matters today

• New Source Performance Standards• Technology based standards but aimed at the

same ambient air issue– Criteria pollutants plus a short list of additional

pollutants• Specific source categories – source categories

that cause or contribute significantly to air pollution – Approximately 75 – power plants, glass, cement, rubber

tires, etc.

One Other Program

• Hazardous air pollutants (HAPs)– Suspected to cause cancer or other serious health effects,

such as reproductive or birth defects, neurological, etc.• Originally health-based program, like criteria

pollutants• Continuous debate and litigation – whether or not a

chemical was "toxic"• 1990 Amendments – Congress set out a list of 188

hazardous air pollutants– Industry/technology based

NESHAP – MACT Standards

• Major source– ≥ 25 tons/yr of total HAPs– ≥ 10 tons/yr of any individual HAPs

• Area source– Any stationary source that is not a major source– 30 most dangerous HAPs and 7 specifically

delineated HAPs– Sources accounting for 90%

NESHAP - MACT

• Maximum achievable control technology (MACT)– Sets limits based upon available technology– Top-performing similar sources

NESHAP - MACT

• Regional Haze– Preventing future and remedying existing impairment of

visibility in congressionally designated areas where visibility is an important value

– Must include regional haze provisions in SIP• Acid Rain – SO2 and NOx

– 1990 Amendments– Cap and trade

• Stratospheric Ozone– CFCs and now phasing out HCFCs

Other Programs

• Around half and sometimes more of the pollutants come from mobile sources

• Title II of the Clean Air Act• Emission standards and fuel or fuel additives• Reduced lead content of gasoline and then sell of

unleaded gasoline; reduced sulfur in highway diesel; lower volatility gas in the summer; addition of ethanol

• 1990 Congress mandated some of these• Became more important with GHGs

Mobile Sources

• CO2, CH4, N2O, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride

• Massachusetts v. EPA, 549 U.S. 497 (2007)– 5 to 4– § 202 – emission of any air pollutant from new motor

vehicles/engines, which "in his judgment cause, or contribute to, air pollution which may be reasonably be anticipated to endanger public health or welfare

• EPA's response – if pollutant then must go through broader analysis

Greenhouse Gases

• Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards Rule (LDV Rule)

• Subject to regulation – PSD kicks in• Tailoring Rule – largest stationary sources

– >100,000 tons/yr. or modification increasing by more than 75,000 tons per year

• New Source Performance Standards

GHG

• Permit– Legally enforceable document (like a contract)– Construction and then operating permit– Fees

• New Source Review – Preconstruction– PSD, Nonattainment, Minor

• Title V – added with 1990 amendments• Conditional major/Synthetic minor

– Federally enforceable conditions

Mechanism

• Fines, penalties, corrective action– Consent Order– Administrative Order

• Voluntary self-disclosure

Enforcement

• Energy Policy Act of 2005• Renewable fuels standard program for

gasoline and diesel• Expanded with the 2007 act• Two goals:

– Reduce oil imports– Reduce greenhouse gas emissions

• Advanced biofuels

Energy Independence and Security Act of 2007

• Federal Water Pollution Control Act (1948)• As we know it – Clean Water Act (1972)

– Federal Water Pollution Control Act Amendments of 1972

– 33 U.S.C. §§1251 et seq.• Regulates discharges into waters• Regulates quality standards for surface

waters

Clean Water Act

• Feds. don't have jurisdiction over everything– "Navigable Waters"

• Defined in wetlands arena• "Duck Butt Rule"• Sold Waste Agency of Northern Cook County

(SWANCC) v. Corp., 531 U.S. 159 (2001)• Rapanos v. U.S., 547 U.S. 715 (2006) – "substantial

nexus"

• Some states have stepped in to fill the gaps

Applicability

• Classify based upon usage and value– Public water supply, protection of fish and wildlife,

recreational waters, agricultural, industrial, and navigational

• Anti-degradation policy– Tier 1 – all surface waters– Tier 2 – fishing and swimming– Tier 3 – outstanding national resource waters

(ONRWs)

Water Quality

• National Pollutant Discharge Elimination System (NPDES)– Permit

• Technology based standards– New Source Performance Standards– Best Available Technology (BAT)

Pollution Control Approach

• Impaired waters – water quality standards– Total Maximum Daily Load (TMDL)

• Indirect dischargers– Publicly owned treatment works (POTWs)– Pretreatment program– Categorical pretreatment standards

Pollution Control Approach

• Act regulated point sources• 1987 Amendments

– Municipal storm water systems (MS4)– Industrial stormwater

Stormwater Runoff

• How many think that there is a law against destroying wetlands?– Nope

• Permit– 404 permit – US Army Corp.– 401 water quality certification – SCDHEC

• Jurisdictional determination– Substantial nexus

• What constitutes a wetland is broader than one might assume

Wetlands

• 42 U.S.C. §§6901 et seq. • Regulations and permitting system for the

handling of hazardous waste• Hazardous waste

– Listed or categorical

Resource Conservation and Recovery Act (RCRA)

• Cradle to grave program– Cleanup regulations and standards

• Requirements on how it is stored and for how long– Small quantity generator - >100 kg; <1,000 kg per

month• 180 days without a permit

– Large quantity generator - > 1,000 kg• 90 day accumulation

Resource Conservation and Recovery Act (RCRA)

• Comprehensive Environmental Response, Compensation, and Liability Act– 42 U.S.C. §§9601 et seq.

• Cleanup statute• Strict liability

– Owners, operators, arrangers, transporters• Bona fide prospective purchaser (BFPP)

– Due diligence / All appropriate inquires• State voluntary cleanup or brownfields programs

CERCLA

• Community Right to Know Act• 112(r) of the Clean Air Act• Toxic Substances Control Act• Citizen suit provisions• Administrative process

Community Protection and Information