Rowberry Fall 2011--Enviro Law Notes

8/3/2019 Rowberry Fall 2011--Enviro Law Notes

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IntroMonday, August 15, 20118:46 AM

98% of enviro law is done outside of the courtroom

Compliance counseling

Rules of admin agencies**Don't read notes at end of cases**

Environmental:

"surroundings" Umvelt (german)

Etam said jury presenteth John Hight for casting the entrails of beasts upon good naves miskin to thegreat annoyance to the king's peace and people

List of acts:

Wednesday, August 17, 20118:57 AM

Neuse River Problem (pg. 3)

Neuse River is a watershed (where all water in area tend to flow) Hog farms--CAFOs (concentrated animal feeding operations)

o American Rivers proposes to stop permitting, also a moratorium__________________

Development & the Delhi Sands Flower-loving Fly

Lobbying

Important part of environmental law

Drivers of Environmental Conflicts

Scientific Uncertaintyo We dont know the benefits (or lack)

Market Failureo

Mismatches Scaleso Geographical spillovers


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Who gets to make the decisions?

Conflicting Valueso Deep ecology

Every individual organismo Utilitarian

Greatest good for greatest number of peopleo Land Ethic

Rather individual tree or all human beings, looks at communities Environmental Justice

o How do we give poor justice?

Enviro Statutes / DelegationMonday, August 22, 2011

8:51 AM

Enviro Statutes

Act--

the formal product of a legislature or other deliberative bodyStatute--

A law passed by a legislative bodyAct can be an individual piece of legislationStatute can be more broad

Statutes & acts are essentially the same thingProcess of creating a statute

Problem --> Bill --> Negotiation --> Drafts --> Final Act (P.L.--Public Law)o Placed in Statutes at Large (chronological order of when acts passed)o Also codified (by topic)

Find statutes from today's classo "Popular Name" database in WestLaw

Antiquities Act of 1906

Gives President authority to reserve lands for the nation without approval of congresso Very effective b/c NOT narrow

Not much structureStatutes in General

Structure:o Head

Findings/Purpose


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Mission statement Definitions

Legal, not commonsenseo Body

Delegation of authority Framework Enforcement Relationship w/ other laws Judicial review provisions

Where and how you can get review of an agency action Effective date

Sources of Statutory Interpretation

Plain meaning Intent

o Legislative history Context

o How createdo How interacts with other laws

Abandoned Shipwreck Act of 1987

What was problem trying to solve?

Who gets the treasure/salvage?What is "abandoned" shipwreck?

Not exactly defined in statute Left broad to be defined by the National Park Service

NOTE: statute will delegate to a department (Interior) and then the dept will delegate to an agency (NPS)

Why title given to US then transferred to the states?

Perhaps so any international dispute would be between the USWhat are "public lands"?

See def in statuteWhat are incentives federal gov't gives for states to create these parks?

Give funds for studies Gives guidelines

o Lightens burden on statesWhat is purpose of guidelines? "to maximize the enhancement of cultural resources"

o Lets states decide cultural resourcesHow are guidelines created?

"consultation" with public & private interestso Not clear what "consultation" means

Will see in many statutes


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No penalties here in ASA

WHY?o To let states decide the penalties

STATUTES ARE ONLY THE FIRST STEP

Then regulations Then cases

Enviro Law happens at the REGULATIONS & CASES level

But you need to start with the statute b/c will give you the whole purpose__________________________________________________________________________

Kelley v. EPA

PROBLEM: owners & operators are liable under CERCLA --> are secured lenders "owners &operators"?

THINK ABOUT: Does EPA have the authority?

o Why or why not?

AEP v. ConnecticutMon. 8/29: Kelley (736Wednesday, August 24, 20118:45 AM

Montana v. Wyoming

Invoked Supreme Court's ORIGINAL JURISDICTION (btwn 2 states)o They appoint a "special master" to deal with pre-trial, etc. then he/she gives a report

Fight over water law (yellowstone river)o WY takes same amount but uses more of it (it doesnt work its way back to the river)

HELD: there is nothing in compact to stop WY from using the same amount of water DISSENT (Scalia)

AEP v. Connecticut

Background:

Clean Air Acto Gives EPA authority to regulate "air pollutants"

Groups filed petition for rulemakingo EPA denied petition b/c:

Can only regulate 6 pollutants (CO2 not one of those) States filed appeal (MA one of those states--Massachussetts v. EPA)

o Standing (whether states have standing--only one needed) "cases & controversies" (Article III, Con.)

Person bringing suit needs to have standing to do so


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Luvon v. Defenders of Wildlife (leading case on standing)1. Injury2. Causation3. Traceability

If the court gave you the remedy sought it would help yourinjury

MA standing argument: Coastal lands are eroding b/c of climate change Failure to regulate is causing If regulated, lands would not be eroding as rapidly

HELD (standing): states granted "special solicitude"o Interpretation of air pollutants

HELD: EPA does not have to regulate pollutants but can if it wants toC/A: NUISANCE (federal common law)

Procedure:o District Court punted (dismissed)o Appellate:

Is valid c/a **Sotomayor was on panel Opinion was 125 pages long

o Supreme court Grants cert when:

it takes 4 justices to grant cert Court split Cases of national importance

ISSUES: Political question Standing

o Split 4-4 Whatever happens in lower court stands No precedential effect

Meritso Does federal common law Public Nuisance exist for climate change issues

HELD: S. Ct. said that they do not have to decide Missouri sued Chicago over pollution (S. Ct. said was valid) Few areas of law are still under federal common law

o Displacement (If it does exist, is it displaced by federal law)1.Which institutional action is relevant (EPA? Congress? Both?)

Congress2.What does it take to displace the common law?

Whether statute "speaks directly to the issue"?

Rules v. Standards Rules--clear

Overinclusive, and underinclusive Standard--more fuzzy

Doesnt make sense to have a concrete rule


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TAKE AWAY: EPA should take the lead and federal court will review your decisions

Kelley / RulemakingMonday, August 29, 20118:49 AM

Kelley v. EPA

PROBLEM: owners & operators are liable under CERCLA --> are secured lenders "owners &operators"?

THINK ABOUT:

Does EPA have the authority?o Why or why not?

HELD:

EPA did not have authority to define lender liability under CERCLAREASONING:

Congress did not explicitly give EPA power to "legislate""Legislative"

implementation"Interpretative"

Specific statutory provisionso Why ct held not interpretative?

EPA implemented a new regulatory regime & did not just defineDISSENT:

Problems w/ dissent:o CERCLA does not set standards, doesnt have a regulatory regime --> just determines

liability

AFTERMATH: Congress eventually adopted Congress' interpretation to exclude lenders from havingliability

BUT still did not delegate power to EPA to define lender

____________________________________________________________________

Rulemaking

Federal Register

Proposed rules


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Published daily Separated by agencies

Code of Federal Regulations

Codified rules http://www.gpoaccess.gov/cfr/ What is interpreting the statutes and what is law

o Every statutes has its own regulations ***familiarize self with regulations that interpret statutes***

See "The Reg Map" Can download if searched on Google

_____________________________

Endangered Species Act

"take"o To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to

engage in any such conduct "incidental take permits"

o Permits authorizing the incidental take of listed species in the course of otherwise lawfulactivities

"No surprises" policyo Created w/o public commento Later stuck in a Habitat Conservation Planning Handbook, which was open to public

comment

---Where are we on the Reg Map?

Step 6o 4 issues w/ No Surprises in handbook

1.No net benefit required2.Long-term certainty3.Should codify as regulation4.Exceeded authority

A settlement w/ Spirit of the Sage required them to solicit public commentsDept of Interior --> Fish & Wildlife ServicesDept of Commerce --> Nat'l Oceanic & Atmospheric Administration (NOAA)

***EPA does not fall underneath the Dept of Interior Not neat and tidy separations btwn agencies & departments

Public Comment Phase of No Surprises:

NAHB--pro "No Surprises" policyo Provided certaintyo Created more HCPs

Instead of trying to go around rules, builders are actually conserving the species
http://www.gpoaccess.gov/cfr/http://www.gpoaccess.gov/cfr/http://www.gpoaccess.gov/cfr/


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Spirit of the Sage -- cono Policy too vague about "the wide array of authorities & resources" to use in unforeseen

circumstanceso Letter is all about posturing for litigation

Specificity is important Tell agency what you want them to do/not do and WHY

PermittingContinue permitting casesWednesday, August 31, 20119:01 AM

REVIEW:

Kelley summary: Delegations

o Agencies can only act on those powers which have been delegated (implicitly/explicitly)Analytical Framework:

1. What are agencies authorized by congress to do?__________________________________________________

Spirit of the Sage Council v. Norton

Spirit = enviros, native american tribes

Norton = head of Dept. of Interior

ISSUE: No Surprises rule & Permit Revocation Rule

Redefine: Legislative

o "grants rights, impose obligations, or produce other significant effects on private interests" Interpretative

o Internal procedures which have no effect on external partiesOriginal rule v. PRR

Original = Maintenance or recovery of population PRR = survival and recovery of species

o Made it even more difficult to revoke the permits ("this only effects the local population andnot the whole species")

AFTERMATH:

2007, FWS went through notice and commento Court ruled they were vaild

HYPO:


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Admin agency handbookso Interpretive or legislative?

Probably interpretive___________________________________________

Permitting Proceedings

Army Corps of Engineers

Sec.o --> division & district engineers (make local/regional decisions)

Big firms have "Legislative groups" (aka Lobby groups)___________________

Wind Farm Permitting

Pre-applicationo Talk with agency to determine needso Meet with private interests to discuss viabilityo Mostly concerned with FINANCINGo TIME: could be up to a year

Application Review Decision-making

o Agency always changes things, requiring more mitigationo One or more town hall meetings w/ town council, etc.

Common objections to windfarms Administrative Appeal & Judicial Review

o Agencies Bureau of Land Management

Land Corps of Engineers/EPA

Water FWS FAA Sometimes a lead agency may be appointed

o Admin Law Judge / Panel Usually more negotiation than court

o Judicial Review Usually starts at lowest level of trial court (could be federal or state, depending on

issue) Permit Compliance

oNote 8 principles to successful permitting (pg. 792)

SIGNIFICANT PUBLIC INVOLVEMENT is key______________________


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Airport Communities Coalition v. Graves

Permit 404 (Wetlands)

Under Clean Water Act (issued by Army Corps of Engineers)ISSUE:

Whether permit issued is validSTANDARD:

Rational basis (lowest standard)o Rational connection in facts made

"Public interests analysis"

Probable impacts of a proposed activity Costs-benefits analysis

Cumulative impacts analysis

Hard to determine scopeo How far out in time do you go?o What all do you take into account?

General Judicial Review of administrative rule process1. Did agency follow procedures?2. Did they evaluate relevant procedures?3. Did they reach a reasoned decision?

*************if a battle of expert --> DEFER TO AGENCIES*****************

General Permits

NAHB v. US Army Corps of Engineers

Corps made it harder to qualify for a general permitISSUE:

Whether ACE exceeded their authority in modifying their Nationwide permits (NWP)

ACE conducted REGIONAL analysis for a

NATIONWIDE permit

Wanted flexibility to go back and check on permits

individually --> to ere on side of environment so theycan go back and regulate individuals

Wanted court to define "minimum adverseenvironmental effects" --> to provide certainty

Impossible to define on a national level b/c of regionaldiversity

Streamline Permits


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Cost Benefit

Is it too quick/lack of protection

Defenders of Wildlife v. Kempthorne

FACTS:

Po FWS violated order of courto Challenge set of regulations

Healthy Forest Initiative "Alternative Consultation Process" (820)

CONSULATION FLOW under ESA

Action (agency) No effect "may affect"

o "not likely" (+ written concurrence from FWS)__________________________________________________________

o "Possibility of adverse impact" (NEPA) FWS Biological Opinion (separate report by agency)

No jeopardy on species Jeopardy + Reasonable & prudent alternatives

Either dont do the action or you can go forward in compliance withregulations

Alternative Consultation Process

Ball is in the court of the action agency "Consultation" not defined

o COURT: You can set up a different scheme but you cant bypass the consultation processaltogether Agency's rationale:

To promote efficiency Needed to act rapidly to prevent forest fires

9/11 + National Security = "Streamlined Process"

Example:o Wind Farms

Nat'l Security: getting off foreign oilInformal Consultation

Formal Consultation(LONG PROCESS)


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Environmental ResearchWednesday, September 07, 20119:00 AM

FEDERAL

FDSys

Official versions of all public laws (statutes & codes) Can rely on in court FREE

THOMAS

From Library of Congress Back to early 90s Links to public laws Also has legislative histories, etc.

US Statutes at Large Library (HeinOnline) All fed statutes back to 1789 Must come to library to use

ProQuest Congressional

PDF, fully searchable Must come to library Congressional Research Service (CRS)

o Prepare expert reports for Congresso From 1916 to presento Usually 8-30 pages; great bibliographieso Not published

Legal Information Institute

Free access to US Code Text of many historic supreme court opinions

Justia

Click "more" at topo Regulator Tracker

Great way to get into Federal Register Breaks it up into easily discernible parts

Back to 2005Federal Register Docket ID on right column

o Take towww.regulations.gov Use to find related documents that underlie proposed rule All public comments are posted in PDF format

Federal Register Collection

Paid service @ library
http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/


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All volumeseCFR

Not official But more regularly updated than CFR (only updated once a year)

FEDERAL AGENCIES

EPA Bureau of Land Management US Forest Service National Park Service US Fish & Wildlife Service

o Can find endangered animals/plants by county

GEORGIA

OCGA Free off legislature's website

GA Legislative Docs

Session laws since 1799 HTML only

Session Laws

PDF access 1787 on

GA Government Register

GA Regulationso Not officially available onlineo Does have online version

Has index (print version does not) Available on Sec of State's website

GA Environmental Protection Division (EPD)

State implementation plans for how to implement Clean Air Act, etc.o EPD very approachable

Other State Regulations

State Regulation Guides in library in reference section

How to do research in different states Even doing administrative research

www.administrativerules.gov

States links
http://www.administrativerules.gov/http://www.administrativerules.gov/http://www.administrativerules.gov/


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Fifty-State Surveys

Subject Compilation of State Laws (HeinOnline)

Browse subjectsNational Conference of State Legislatures

www.ncls.orgo What states are doing

Track current legislation

Secondary Sources tab

Library subscribes to Environmental Law Reporter online Environment Complete

o What scientists are saying about ecology, etc

Judicial Review + NEPAWednesday, September 14, 20119:02 AM

Judicial Review

Administrative Procedure Act (APA)

Default rule for judicial review of agency decisions if there is nothing listed in statute STANDARD:

o Arbitrary & capriciousCitizens to Preserve Overton Park v. Volpe

Wanted to put interstate through public park Violates statute preventing such unless last resort

o RULE: Yes, courts should review agency actions HELD: reversed & remanded for more fact finding

Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (NRDC)

"new or modified stationary sources"

Must give agency discretion if:

1. Congress has not spoken directly to precise question at issueo Has spoken directly

STOP
http://www.ncls.org/http://www.ncls.org/http://www.ncls.org/


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o Has not spoken directly STEP 2

2. Whether the agency's answer is based on a permissible construction of the statuteo Agency almost always wins

________________________________________________________________________________

National Environmental Policy Act (NEPA)

To improve decision-makers of agency actionso By using an Environmental Impact Statements (EIS)

Majorfederal actions ...significantly affecting the quality of the human environment

Process:

Environmental Assessmento FONSI -or-o EIS

What regulation does NEPA encompass?

All public federal actions and possibly even private involving permittingo RULE: If you need a license or permit or federal monies involved then the agency will have

to do an EIS

Does not prohibit unwise actions--only uninformed actionso Does not demand a specific result

REMEDY:o Stay on action until they comply

SCOPE of agency actiono Agency action on its own must have independent utility

Cant "segment"Thomas v. Peterson

Forest Service tried to segment road, separate individual timber sales RULE:

o Connected actionso Cumulative actions

Independent utility? Could be ok for a road if connecting 2 roads

"Significant" effects to human environments

Context


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Intensityo 10 factors

"Categorical exclusions" Statutes which don't apply:

o Clean Air & Clean Water Acts Have a specific analysis built in

Fund for Animals v. Norton

ISSUE: Were alternative analysis in EIS adequate?o No. Was arbitrary & capricious

Did not consider the full range of alternatives (did not even consider impact of stoppingaltogether)

Endangered Species Act (ESA)Monday, September 19, 20118:57 AM

KEY: Listing Process

Who can list:o Agencyo Interested person

90 days to decide if move forward 12 months

12 monthso Possible 6 month extensiono Rare exception: Emergency Procedures

Can issue 240 day stayTennessee Valley Authority v. Hill

Why the ESA is the "pitbull"

BRIGHT LINEo If you find endangered species then you must grant them the HIGHEST PRIORITYo Endangered species are

invaluableAppealed to the "God Squad"

Rejected in 1979

Northwest Ecosystem Alliance v. US FWS

What is a "species"?


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"distinct population segment" (Sub-Species)o Also, Distinct Population Segment (DPS)

Discreteness Significance

1. Ecological setting2. Significant gap in range3. Only surviving natural occurrence4. Marked genetic differences

STANDARD: Best scientific evidence available

o Peer-reviewed journalso Anecdotal evidence

Endangered Distinct Population Segment Act

Tucson Herpetological Society v. Salazar

ISSUE:

Is the lizard's range being significantly shrunk?Did the court get it right?

It seemed to use the best evidence available but still got rejected by court

Delisting

45 species have been delistedo 20 have recoveredo 17 have had new infoo 8 have gone extinct

4 factors in determining whether a species is Endangered or Threatened

ESA: Federal/Private Party ResponsibilitiesWednesday, September 21, 20118:58 AM

How to access Endangered Species List on FWS website

________________________________________

Federal Responsibilities:


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Listing Agencieso Fish & Wildlife Service (Interior)o National Marine Fishery Service (Commerce)o STEPS to list:

Identify "Critical Habitat" Physical & biological features which:

1. Essential to the conservation of the species -AND-2. Which may require special management considerations or protections

Done concurrently with listing STANDARD: "to the maximum extent prudent & determinable"

Establish a "recovery plan" ALL federal agencies

o Consultation duty (informal & possibly formal)o Jeopardy Prohibition

****LISTING is the trigger to requiring protection*****

National Resources Defense Council v. US Dept of Interior

ISSUE: does gnatcatcher bird need a critical habitat?NRDC DoI

Critical habitat no prudent b/c:--increased risk of destruction--no benefit bc most of habitat is on private land

Private land:o NOT affected unless require a federal permit

STANDARDS OF REVIEW:

For an agency Action:o Arbitrary & capricious

For an agency's Statutory interpretation:o Chevron test

1. Did Congress speak directly to it2. Is agency's interpretation based on a permissible construction of a statute

Private Responsibilities

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon

Def of "Harm" within def of "take":o An act which actually kills or injures wildlife


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Habitat Conservation Plans

TWEN

Low effect HCP Larger area HCP

Clean Air Act (CAA)Monday, September 26, 20118:53 AM

Overview

"Cooperative federalism"o Federal gov't sets the standardso States enforce the standards

States can set more stringent standardso Is this a good idea?

"Race to the bottom" Becoming global instead of just national

National Ambient Air Quality Standards (NAAQS)

"Criteria Pollutants" (Primary): Human health + Adequate margin of safety

Nitrogen dioxide Carbon monoxide Lead Particulate matter Sulfur oxides

Acid rain Ozone

o Secondary standards for criteria pollutants Public welfare

Animals, wildlife, water & visibility Standards set for each CP must be reviewed every 5 years

SIPs (State Implementation Plans)

How the states get to the standardo What happens if states do not set a plan w/in 3 years?

EPA steps in to create a FIPNSR (New Source Review)

New or modified major stationary sources require permits


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o What is a modification? Not clear

o Attainment areasPSD (Prevention of Significant Deterioration)

To assure that areas that are in attainment remain in attainmento Must implement the Best Available Control Technology (BACT)

Most effective technology already in use in the market placeNonattainment Program

New or modified sources must achieve the Lowest Achievable Emission Rate (LAER)o LAER:

"most stringent emission limitation" contained in any SIP -OR- that is "achieved inpractice", WHICHEVER IS MORE STRINGENT Technology-forcing provision

Mobile Sources California is exempt from CAA requirements for mobile sources

o Cars are often manufactured to the CA standardMajor Stationary Sources [Power Plants]:

Attainment --> PSD --> BACT

Non-attainment --> nonattainment Program --> LAER

CAA: NAAQS, SIPsWednesday, September 28, 2011

9:01 AM

Train

If pollutant meets the endangerment finding, EPA cannot refuse to list the pollutant--they do nothave discretion

Am. Trucking

When revising or setting NAAQS, EPA may not take economic considerations into accounto Remember: the standard of protection of CAA is to protect inner city cities

NO cost/benefit analysisUnion Electric

EPA cannot and may not use technological and economic infeasibility to reject a SIP.

Technologically-forcing provision If states want to be more stringent, then EPA cannot look over state's shoulder

Mobile Sources


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Exxon Mobil

Oxygenated gasoline = ETHANOL

ISSUE:

Whether EPA's approval of Clarke County's more stringent standards is permissible.States can have more stringent standards for mobile sources as well.

Alaska DEC v. EPA

PSD program:

Class Io National parks

Class IIo Rest of the country

ISSUE: What role EPA has with respect to ADEC's BACT determinations

EPA does have authority to make sure states have BACT with a reasoned analysis (p. 218)

Enviro Defense v. Duke Energy Corp.

Duke replaced 29/30 tubes in coal power plant over a 40 year time span NSP standards -- hourly rate of discharge

o Then in 1980, a new standard comes down with an annual rate

Clean Water Act (CWA): Regulating Water PollutionMonday, October 03, 20118:55 AM

Overview

Actually called "Federal Water Pollution Control Act"

33 USC 1251Began in 1899 as concern for commerce (river navigation)

Purpose?

"to restore & maintain the chemical, physical, and biological integrity of the Nation's waters"TMDL Total Maximum Daily Load Max amount of a pollutant set that "impaired" waters can contain


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NPDES

National Pollutant Discharge Elimination System "discharge of a pollutant"

o "any addition of any pollutant to navigable water from a point source" Point source

"any discernible, confined and discrete conveyance" such as pipe, ditch, channel,or tunnel"

TECHNOLOGY issues Non-point source

Run off EPA identified agricultural runoff as leading cause of problem in waters

yet it is not regulated under CWA LAND USE issues

South FL Water Management District v. Miccosukee Tribe of Indians

ISSUE:

Is the S-9 pump a point source? Whether the operation of the S-9 pump constitutes the "discharge of a pollutant"?

ANALYSIS Whether but-for the point source the pollutants would have been added to the receiving body of

water

Is this the discharge of a pollutant (if so you need a NPDES permit); i.e. is this a point source?AFTERMATH: EPA issued Water Transfers Rule

o Water transfers not subject to intervening industrial, municipal, or commercial use are notregulated under the CWA

Groundwater

Overconsumption?Water Quality Standards & TMDLs

State sets standards by:1. Identifying "designated use" of each water body2. Then protect the waters according to that use

o When water is "impaired" then states set TMDLs If state does not create a TMDL then EPA will set

Typical TMDL costs $1 million TMDL

o Bridge between NPDES and WQS


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Answers the question of what happens when a WQS for a particular water body is notmet even though all the NPDES-regulated discharges into the water body arecomplying

Friends of Pinto Creek v. EPA

Already an impaired water for coppero EPA had to set the TMDL for Pinto Creek

Mine wants to build "diversion channels" (ditch) to route stream around the mine Creek was already at its maximum load

TMDL Process (p. 283)

Pronsolino v. Nastri

Did states need to create a TMDL for water bodies that are purely polluted by non-point sources(i.e. agricultural runoff)o YES, states still need to put water bodies that are impaired by non-point source

CWA: WetlandsWednesday, October 05, 20118:59 AM

Wetlands Overview

Section 404 Permit

Wetlands permitWetland

Area that is flooded at least part of the time 2 broad categories:

o Coastal wetlandso Inland wetlands

Most controversial

For preserving wetlands Against wetlandsMechanism for cleaning water

High biological productivity

Relevant 404 Agencies

Army Corps of Engineers EPA


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Which waters are subject to Corps' authority?

Navigable waterso Waters of the U.S.

33 CFR 323.2 Swamps, marshes, bogs, and similar areas

Bayview Homes

RULE:o Lands adjacent to wetlands ARE protected

SWANCC

RULE:o Geographic limit of "wetlands" identification:

Isolated, seasonal wetlands NOT under scope od 404Rapanos

Not clearly isolated or clearly adjacento 1 mile from a lake

KENNDEDY RULEo Wetlands are those that have a significant nexus to navigable waters that are navigable in fact

or were at one time navigable in fact at some or could be made so Gives no real clarification

AFTERMATH:

Not a lot of guidanceo In practice:

If builder has work in in between area then they will consult with the Corps to do duediligence

Wetland BankingHow do you find the regulations regarding 404 permits?

Go to agency's websiteo EPA.gov

"Water"NAHB v. Corps of Engineers

ISSUE: Incidental fallback when dredging, etc. --> "any addition"

HISTORY OF RULE:

Tulloch rule Any redeposit, you need a permit

"incidental fallback" You dont need a permit unless you add material


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Tulloch II Rebuttable presumption that you need a permit

RULE:

Volume of material being handled is irrelevant:o TIMEo DISTANCEo How do time and distance help us determine whether an addition has been made (as opposed

to volume)? Helps better show intention

EX: if you hold on to fill for 6 months and then drop it back in water, youintended to pollute

______________________________

Who is exempt from 404 permitting?

Routine, ongoing farming operations_______________________

General/Nationwide Permits

For low impact activitieso Individualized, non-industrialized activities

EX: replacing dock, etc.Individual Permits

2 step analysis:1. EPA guidelines --> must have good place to put fill

Alternatives analysis2. Public Interest analysis

Economic, environmental, and social interests Mitigation

1. Avoidance2. Minimization3. Compensatory mitigation

Mitigation banking Watershed Approach

Address situations where loss cannot be avoided or minimized and thuscompensation is required

More broad approach; instead of being local, more regional/watershedapproach

What are techniques we can use to balance industry with environmentalism?


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Public LandsWednesday, October 12, 20119:01 AM

Overview

4 governing agencing:o (Dept. of Interior)

1. BLM2. NPS3. FWS

o (Dept. of Agriculture)4. Forest Service

Roughly 28% of US land is owned by USo Half in Alaska

3 different land policies:o Multiple use

Bundle of prescribed useso Dominant use

Primary use specified, but may accommodate secondary so long as primary is satisfiedo Single us

One prescribed use

National Parks

Dominant uses Created by the Organic Acts

o Act creating federal agencies to manage federal land Organic Act of 1916 --> created NPS

o Purpose: Conservation Enjoyment

National Parks & Conservation Assoc. v. Babbitt

Glacier Bay National Park 1978

o Max cruise ships per season limited to 89 per day 1992

o Want to increase by 72%


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1996o 30% initially then to 72% over 2 yearso Also increased amount for pleasure craft

Standard?o Arbitrary & capricious

AFTERMATH:o Congress passed legislation allowed them to increase by 30% "pending EIS"

Wilderness Areas

Purpose:o In their natural condition and thus secure for present and future generations the benefits of

wildernesso An area where the earth and its community of life are untrammeled by man , where man

himself is a visitor who does not remain

Norton v. Southern Utah Wilderness Alliance (SUWA)

Managed by BLM w/ 2 goals:1. Multiple-use management2. Sustained yield

Wilderness Study Areaso Designated by DoI

Until designated by Congress as a Wilderness Areao BLM has a Non-impairment Standard to comply therewith

do no harm to area while under this designation CLAIM:

o BLM failed to act STANDARD to compel agency to act:

1. Discrete agency action Discrete = single (not broad) action Ex: issuance of a permit

2. Required action

-- NO

Land-use plan Not a discrete agency action --> Just guidelines

General mandates:o Left to agency

Discrete decisions


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o Can be overruled by courts

Cultural Heritage Preservation361-375; 380-382; 384-387; 388-392

Monday, October 17, 20118:52 AM

National Historic Preservation Act

Purposeo Preserve history

National Register of Historic Placeso Administered by NPSo Criteria

1.Significant event in history2.Significant person3.Distinctive work4.Yield information

o Why list? Tax incentives --> federal grants Protection from government agencies

Section 106o Federal agencies must take historic places into consideration before using federal funds on

any undertaking Does not prohibit action--just need to take it into account

1. Establish "Undertaking" Anything federal government gives funding for or gives permits for

2. Coordinate with other reviews (i.e. NEPA)3. ID appropriate SHPO

SHPO main job is to work with federal agencies

RCRAWednesday, October 19, 20118:59 AM

CERCLA, cont.Monday, October 24, 20118:59 AM


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Overview

U.S. v. E.I. du Pont

Two actions:

Removalo Short-term --> immediate threat

Remedialo Long-termo Most work done here

Clean-up process:1. Site identification2. Preliminary Assessment3. Hazard-ranking system

o Site score of 28.5 or higher = eligible for placement on National Priorities List Scorer worse (higher) when worse impacts to people4. Enforcement Option

o See short/long above5. Proposed Action Plan + Feasibility Study6. Choose plan or alternative7. ROD

o Public comments before RODo Includes:

Comparative analysis Performance standards Explanation of Significant Differenced (ESD)

Plan is flexible8. Remedial Designo Nuts and bolts of how things get done

o "Consent Decree" Private party, etc has consented to take upon self process of cleaning up a site

National Priorities List

Purpose:

To id sites that warrant attentionB&B Tritech

About the HRS scoring systemo B&B didnt agree with being ranked on NPL

HELD:o Ct declined to opine on EPA's decision but strongly recommended that EPA remove B&B

from NPL

________________________________________________________


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Who Pays??

107(a) Potential Responsible Parties, p. 406:

1. Current owners or operators2. Past owner or operator3. Generator or arranger4. Transporters

NY v. Shore Reality Corp.

If there are parties identifiable, EPA will issue ordero Otherwise, will do on own

Strict Liabilityo For current owners --> causation does not matter

___________________________

Burlington Northern, part 1

Category 107(a)(3): Arranger/Generator

RULE:

ARRANGERo Only when a party takes intentional steps to dispose of a hazardous substance

Here, Shell was not intending to dispose, only arranging for transportation --> ShellNOT a PRP

o Even though Strict Liability, must intend to dispose (mere knowledge that leaks occur doesnot make you a PRP)

Burlington Northern, part 2

Divisibility & Apportionment

Specific facts here considered (NOT USED BY ANY OTHER COURTS):1. Size of parcel2. Time3. Volume

TAKE AWAY for this company? Keep better records

MID-TERM REVIEWWednesday, October 26, 20118:57 AM


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Important to answer the question, and nothing extraneouso 3 questions:

1.Identify federalpermissions

Likely arguments opponentswill raise + WHY

Strategies to overcome theseobjections + WHY

404--Wetlands Permit(CWA) --> Navigablewater

--improper permit (mitigation;alternative/research; publicinvolvement)

--best available tech;worked with the city councilextensively; low "arbitrary& capricious standard"

NPDES (pointsource?) permits (tellIF you do this, thenyou need this permit)

--SAME as above

Ind. Take Permit(ESA)--Trout isthreatened

--No take (harass, hunt, shoot,harm [no habitat modification] --

NEPA (any federalgrants of permits willneed NEPA)--is it a major or minoraction? [minor=changeof federal personnel,dock at house]-----is it whole resortor segmenting

(Independent UtilityTest)

STRUCTURE

1. Outline like above first2. You know you have 4 sections (4 different permits)

o Intro Tell what you will talk about (I will go through each permit individually)

o Each section should have a heading (not just new paragraph) EX: Intro sentence --> "you need" Give statutes/authority next "" with footnote to USC Tell why these authorities relate to the facts -- LAYMAN terms

Under each heading have 3 paragraphs (what is the permit, objections, overcome) Dont have to be long

Climate ChangeMonday, October 31, 20119:01 AM


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What do our industrial processes add to the cause of global warming?

Greenhouse gases?

CO2 Methane Chlorofluorocarbons

"Global Warming Potentials" (GWPs)

Quantifies warming potential of gases EPA looks at this to determine this potential

IPCC

Detrimental effects:

Rising sea level Extreme weather Diseases--range is expanding Loss of biodiversity Migration

Clean Air Act: Mass. v. EPA

Regulation of auto emissions Section 202(a)(1)

o "shall" Compulsory

o "any air pollutant" discretion

o "in his judgment"o "cause or contribute"

STANDING:o Injury

Rising sea levels in Masso Causation

US cars attribute 6% of worldwide CO2 emissionso Redressability

You dont have to redress completely -- it can be incremental HELD:

o EPA must do an Endangerment Finding, then if exists, you must regulate Internal political-related issues going on within administrative agencies DISSENT:

o No standingo This is a political issue --> courts should not solve this issue


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NEPA

How would you use NEPA to prohibit climate change?

ESA Increase in temperature will harm the animal

International Responses

Kyoto Protocolo

Compliance CounselingWednesday, November 02, 20119:07 AM

Planning

What questions would you like answered?o What kind?o Where exactly?o How used?o Plans/specs?o Land?o Staff-internal?o Timeline?o Political capital?o Goals?o Risk tolerance?o EMS?o Financing?o Permits?o Our role? --business? Legal? Scientific?

NEPA ESA CWA? Agencies:

o FAA (if taller than 200 feet)o BLM

Monitoring


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Environmental Compliance Auditso Checklistso Self-monitoring

Non-compliance

Self-disclosureo EPA

You get 100% mitigation of civil punitive components Also will not likely recommend criminal prosecution

Compliance Strategies

Environmental Management Systems (EMS)o

Plan-Do-Check-Act1. Environmental policy2. Planning3. Implementation4. Checking / corrective action5. Management review

o Systematic and ongoingo Helps insulate you from some liabilityo Helps promote good public relations

Environmental LitigationMonday, November 07, 20119:01 AM

Common Law

1. Nuisance2. Toxic torts (Negligence)3. Fraud4. Product liability

Lockheed Martin Corp. v. Carrillo[Toxic Tort]

Sought class certification:o People who drank water


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2. Causation3. Redressability

____________________

4. Prudential -- Zone of InterestFriends of the Earth v. Laidlaw Environmental Services

60 day notice of intent to sue Letter RULE:

o Standing for ongoing violations Depend on case facts

Mootness

Case might become moot if subsequent events make the continuance of the suit would not cause thebad act to be less likely to occur

EnforcementWednesday, November 09, 20119:01 AM

Overview

Nobody is in 100% compliance all the time

Specific deterrence General deterrence

2% chance of being inspected by EPA

Self-reporting

What's the incentive?o Worse penalties if dont self-report

Players

Fedso DOJo EPA

10 regional offices Program-specific Divisions

Divided by medium (air, water, wildlife, etc.)o States

Smaller facilitiesMonitoring


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Self-reporting Neighbors, etc. Referral from states Random inspections

Civil PenaltiesFactors for whether to prosecute/fine:

Good faith? Severity Internal procedures Repeat offender Economic benefit Ongoing Degree of cooperation

Administrative Proceeding

1. Initial decision from Admin Law Judge2. Environmental Appeal Board (EAB)o Panel of 3 ALJs

3. Federal District Court ALJ opinions are not legally binding but are good guidance with the individual agency

Civil Remedies:

1. Monetary fines2. Injunctions3. Supplemental environmental projects

Weinberger v. Romero-Barcelo

No NPDES permit ISSUE:

o Does the court have discretion to impose an injunction or is it mandatory?To grant a federal injunction:

1. Irreparable injury2. Inadequacy of legal remedies

Criminal

U.S. v. Ahmad

INTENT

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Rowberry Fall 2011--Enviro Law Notes

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