U.S. U.S. Environmental Environmental Law and NGOsLaw and NGOs

Amy AlbusAmy Albus

Legal StandingLegal Standing

Injury in Fact: a personal stake in a controversy

Causation: the injury is traceable to the action challenged.

Redressibility: available relief

Zone of Interests: the interest claimed is an interest the statute is intended to protect.

Storm King MountainStorm King Mountain

Storm King Mountain:Storm King Mountain:

1960s - 1960s - Consolidated Edison (Con Ed)Consolidated Edison (Con Ed) proposed the proposed the building of a hydroelectric power plant at Storm King building of a hydroelectric power plant at Storm King Mountain to provide electricity for New York City region . Mountain to provide electricity for New York City region .

Scenic Hudson Preservation ConferenceScenic Hudson Preservation Conference was formed to was formed to objectobject

1.1. Scenic Hudson intervened in the FPC licensing Scenic Hudson intervened in the FPC licensing proceedingsproceedings

2.2. March March 19651965 – FPC grants the license, refusing to accept – FPC grants the license, refusing to accept Scenic Hudson’s arguments about aesthetic damage and Scenic Hudson’s arguments about aesthetic damage and calling the evidence of harm to the fisheries “irrelevant”calling the evidence of harm to the fisheries “irrelevant”

3.3. Scenic Hudson IScenic Hudson I – Court of Appeals holds that Scenic – Court of Appeals holds that Scenic Hudson has standing to sue based on harm to non-Hudson has standing to sue based on harm to non-economic interestseconomic interests

4.4. FPC approved the Storm King project for the second FPC approved the Storm King project for the second time and Scenic Hudson sued againtime and Scenic Hudson sued again

5.5. Scenic Hudson II (1971) –Scenic Hudson II (1971) – holding: FPC followed the holding: FPC followed the required legal procedures.required legal procedures.

6.6. Scenic Hudson III (1974) – Scenic Hudson III (1974) – Scenic Hudson sues again: Scenic Hudson sues again: fisheries data was grossly incorrect. Holding: new fisheries data was grossly incorrect. Holding: new licensing hearing must be heldlicensing hearing must be held

7.7. Settlement -Settlement - The parties came to a negotiated The parties came to a negotiated agreement in December 1980 (“Hudson River Peace agreement in December 1980 (“Hudson River Peace Treaty”). Con Ed gave up its Storm King license and Treaty”). Con Ed gave up its Storm King license and donated land there to create a park.donated land there to create a park.

Storm King MountainStorm King Mountain

U.S. Statutory LawU.S. Statutory Law

NEPA - 1970NEPA - 1970 EIS or EAEIS or EA

APAAPA Sets requirements for agency Sets requirements for agency

proceduresprocedures Public participationPublic participation Rulemaking and adjudicationRulemaking and adjudication

Sets standards for judicial reviewSets standards for judicial review Clean Air Act, Clean Water Act etcClean Air Act, Clean Water Act etc

Role of the Role of the Environmental Protection Environmental Protection

AgencyAgency1. Draft and Enforce Regulations1. Draft and Enforce Regulations

2. Provide Financial Assistance to Non-2. Provide Financial Assistance to Non-Profit Organizations, State Profit Organizations, State Environmental programs and Environmental programs and Educational InstitutionsEducational Institutions

3. Conduct Environmental Research3. Conduct Environmental Research

4. Offer Environmental Education and 4. Offer Environmental Education and promote voluntary prevention and promote voluntary prevention and conservation programsconservation programs

EPA HomepageEPA Homepage

EPA Main TopicsEPA Main Topics

Methods of RegulationMethods of Regulation

Quality-BasedQuality-Based ControlsControls Focus is on Focus is on

maintaining the maintaining the overall quality of overall quality of the environment the environment

Difficult to identify Difficult to identify the cause of the the cause of the problemproblem

Behavior-BasedBehavior-Based ControlsControls Focus is on Focus is on

changing the changing the behavior of behavior of particular actorsparticular actors

Disproportional Disproportional Blame is placed on Blame is placed on easily-identifiable easily-identifiable actorsactors

PROBLEMSPROBLEMS

• Cap and TradeCap and Trade ProgramsPrograms

FACTORY

Quality Based ExampleQuality Based Example- Clean Water Act -- Clean Water Act -

1. Set a Water Quality Standard

2. If Water Quality decreases, find out who is to blame and prosecute

Behavior Based ExampleBehavior Based Example

Prohibition of Certain Behaviors: ie Buying Prohibition of Certain Behaviors: ie Buying Lead TackleLead Tackle

Lead Poisoning in

People

Use and Sale of Lead Tackle FORBIDDEN

Lead Fishing Tackle

Lead in

Fish

Cap-and-Trade ProgramsCap-and-Trade Programs

1.1. Set a Set a CAPCAP - Determine the “safe” amount of - Determine the “safe” amount of pollution that can be released into the pollution that can be released into the environment. Identify Polluters and divide environment. Identify Polluters and divide up the allowable amount of pollution among up the allowable amount of pollution among them as ‘credits.’them as ‘credits.’

2.2. Allow Polluters to Allow Polluters to TRADETRADE pollution credits pollution credits 1.1. i.e. – if each polluter is given 10 credits and i.e. – if each polluter is given 10 credits and

IndustryIndustry AA does not need its 10, it can sell them does not need its 10, it can sell them to to Industry B, Industry B, which needs more than its 10.which needs more than its 10.

3.3. Monitor environmental quality AND the Monitor environmental quality AND the behavior of the Pollutersbehavior of the Polluters

20 parts40 parts

Problem – 5 Factories and 150 parts Problem – 5 Factories and 150 parts =Acid Rain=Acid Rain

Solution – Reduce Sulfur Dioxide Solution – Reduce Sulfur Dioxide EmissionsEmissions Cap: Acceptable level of Sulfur Dioxide Cap: Acceptable level of Sulfur Dioxide

= 100 parts= 100 parts

Cap-and-Trade ExampleCap-and-Trade Example

Factory A

Factory B

Factory C

Factory D

Factory E

20 parts

10 parts

30 parts

50 parts

$$$

+ 10 credits

EPA Compliance and EPA Compliance and EnforcementEnforcement

Civil EnforcementCivil Enforcement Criminal EnforcementCriminal Enforcement

Alternative Dispute ResolutionAlternative Dispute Resolution Partnerships and incentives to Partnerships and incentives to

voluntarily improve the quality of the voluntarily improve the quality of the environmentenvironment

Negotiation and Negotiation and SettlementSettlement

Agrum/Royster-Clark Agrum/Royster-Clark Manufactures Nitric AcidManufactures Nitric Acid Agram expanded the plant in the 1990’s Agram expanded the plant in the 1990’s

WITHOUT obtaining the necessary WITHOUT obtaining the necessary permitpermit

EPA sent Notice of Violation citing EPA sent Notice of Violation citing excess NOx emissionsexcess NOx emissions

Settlement requirements: Settlement requirements: Payment of a $750,000 fine; Payment of a $750,000 fine; Installation of state-of-the art controls to Installation of state-of-the art controls to

lower NOx emissionslower NOx emissions

Civil ActionCivil Action Martex FarmsMartex Farms

Grows and sells tropical fruits and plantsGrows and sells tropical fruits and plants Failed to: Failed to:

display specific pesticide application information; display specific pesticide application information; provide them with decontamination materials; provide them with decontamination materials;

andand provide handlers with personal protective provide handlers with personal protective

equipment equipment Jan 2005 – EPA filed complaint alleging Jan 2005 – EPA filed complaint alleging

violating the worker protection provisions of violating the worker protection provisions of U.S. pesticide lawsU.S. pesticide laws

Jan 2007 – Administrative Law Judge rules in Jan 2007 – Administrative Law Judge rules in EPA’s favorEPA’s favor

Ordered to pay $92,620 for the 170 violations of Ordered to pay $92,620 for the 170 violations of worker safetyworker safety

Criminal ActionCriminal Action

Atlantic States Cast Iron Pipe Co.Atlantic States Cast Iron Pipe Co. Charges:Charges:

Repeated discharge of oil into Delaware Repeated discharge of oil into Delaware RiverRiver

Concealment of worker injuries from health Concealment of worker injuries from health and safety inspectorsand safety inspectors

Maintenance of dangerous workplaceMaintenance of dangerous workplace Seven-month long jury trialSeven-month long jury trial

Company + four of five individuals were Company + four of five individuals were found guiltyfound guilty

EPA OverwhelmedEPA Overwhelmed

12 Major Environmental Statutes plus 12 Major Environmental Statutes plus several other pieces of legislationseveral other pieces of legislation Including: Clean Water Act, Endangered Including: Clean Water Act, Endangered

Species Act, Clean Air Act, and CERCLA Species Act, Clean Air Act, and CERCLA etcetc

Multiple RolesMultiple Roles ResearchResearch Drafting RegulationsDrafting Regulations Monitoring ComplianceMonitoring Compliance Negotiating Clean-up and LitigatingNegotiating Clean-up and Litigating Educating the PublicEducating the Public

Pros and Cons of Environmental Pros and Cons of Environmental Public Interest LitigationPublic Interest Litigation

Pros:Pros: Government Accountability

Enforcement AssistanceCons:Cons:

CostCost Risk of flooding the courts.Risk of flooding the courts.

Broad standing for all, including Broad standing for all, including opponents of environmental opponents of environmental

protection.protection.

Environmental Public Environmental Public Interest Interest

Law FirmsLaw Firms

Env. Defense Fund - 1967Env. Defense Fund - 1967 Citizens seek to ban use of DDT by the Citizens seek to ban use of DDT by the

Suffolk County Mosquito Control Suffolk County Mosquito Control CommissionCommission

NRDC -1970NRDC -1970 Partnership between a group of Yale Law Partnership between a group of Yale Law

School students and the Scenic Hudson School students and the Scenic Hudson Preservation ConferencePreservation Conference

Assistance from NGOs Assistance from NGOs

Education CampaignsEducation Campaigns Partnerships for bettering the Partnerships for bettering the

environmentenvironment Formulation of Policies and Formulation of Policies and

RegulationsRegulations Enforcement assistanceEnforcement assistance

EIS must include:EIS must include:

Purpose Purpose of the proposed actionof the proposed action Environmental impactsEnvironmental impacts of the proposed of the proposed

action; action; Range of alternatives;Range of alternatives; Analysis of the affects of the alternatives.Analysis of the affects of the alternatives.

the relationship between short term uses of the the relationship between short term uses of the environment and maintenance of long-term environment and maintenance of long-term ecological productivity; ecological productivity;

required resources; and required resources; and cumulative effects of implementing the proposed cumulative effects of implementing the proposed

action.action.

EIS ProcedureEIS Procedure

1.1. Announce Project Plan (1Announce Project Plan (1stst Notice Notice and Comment Period)and Comment Period)

2.2. Draft EISDraft EIS

3.3. 22ndnd Notice and Comment Period Notice and Comment Period

4.4. Final EIS and Proposed ActionFinal EIS and Proposed Action

5.5. Record of DecisionRecord of Decision

Concerned Citizens Concerned Citizens Coalition of Stockton vs. Coalition of Stockton vs.

City of StocktonCity of Stockton

Concerned Citizens Coalition

City of Stockton

Operations Management Intl, Inc & Thames Water

• City decides that this contract is categorically exempt from the (state) requirements for preparing an EIS• Several groups get together to file a lawsuit to overturn the water privatization contract• Judge rules that the city abused its discretion in failing to consider the environmental impact such a contract may have

• City must reestablish control over the utility and do an EIR (EIS) before approving the project

Sierra Club vs. JohnsonSierra Club vs. Johnson April 2006 – Sierra Club petitions EPA April 2006 – Sierra Club petitions EPA

and the Consumer Product Safety and the Consumer Product Safety Commission (CPSC) to regulate use of Commission (CPSC) to regulate use of lead in toy jewelrylead in toy jewelry

July 2006 – EPA denies petitionJuly 2006 – EPA denies petition September 2006 – Sierra Club files suit September 2006 – Sierra Club files suit

against EPA to compel rulemakingagainst EPA to compel rulemaking December 2006 – CPSC votes to invoke December 2006 – CPSC votes to invoke

a nationwide ban on toy jewelry a nationwide ban on toy jewelry containing more than 0.06% leadcontaining more than 0.06% lead

January 2007 – CPSC publishes notice January 2007 – CPSC publishes notice of the regulationof the regulation

Sierra Club vs. RumsfeldSierra Club vs. Rumsfeld

Congress enacted DoD Authorization Act Congress enacted DoD Authorization Act compelling study of the effect of wind energy on compelling study of the effect of wind energy on military readiness (radar operations)military readiness (radar operations)

January2006

May2006

July2006

August2006

September2006

Report dueReport due

Sierra Club files suitSierra Club files suit

DoD fails to respond to lawsuitDoD fails to respond to lawsuit

Sept 12Sept 12 - 36 - 36 Representatives send Representatives send letter to President Bushletter to President Bush Sept 28Sept 28 - - Study Study releasedreleased

NGOs Partner upNGOs Partner up

GovernmentsGovernments Crow Wing County Recycling ProgramCrow Wing County Recycling Program

Other OrganizationsOther Organizations Habitat for Humanity and MEIHabitat for Humanity and MEI

BusinessesBusinesses Environmental Defense and Fed ExEnvironmental Defense and Fed Ex

Fed ExFed Ex August 2000August 2000 - FedEx Express and - FedEx Express and

Environmental Defense team up to create fuel-Environmental Defense team up to create fuel-efficient delivery trucks.efficient delivery trucks.

May 2003May 2003 - FedEx Express agrees to purchase - FedEx Express agrees to purchase 20 hybrid electric diesel delivery trucks using 20 hybrid electric diesel delivery trucks using Eaton's innovative hybrid electric technology.Eaton's innovative hybrid electric technology.

March 2004March 2004 - The first two vehicles are used - The first two vehicles are used in Sacramento, CA.in Sacramento, CA.

October 2004October 2004 - 10 hybrid delivery trucks - 10 hybrid delivery trucks introduced in New York City; 4 in Tampa, FL; 2 introduced in New York City; 4 in Tampa, FL; 2 in Washington DCin Washington DC

2005 – 2005 – 75 additional vehicles to be purchased75 additional vehicles to be purchased