Environmental Law

Know the examples that are given and be able to talk about them.
Study the acts
Know
preservationalism-
conservationism.- limited use.
The western united states is heavily owned by the federal government compared to the eastern United
states.
FLIPMA- federal land policy act.
National Forrest management act. -
Know all the acronyms
Common law example- trespass, and nuisance.
NEPA – Nixon signed the NEPA into law.
Clean water act
ESA- endangered species act.
RICRA- How to handle hazardous waste.
CIRCLA
FIFRA
Excel program
CFR- Code of Federal Regulations
History of E law
• two threads
◦ protect the environment in its natural state
◦ protect the health of humans, animals and plants from polluting effects of humans.
• Debate between using government regulation and common law.
◦ Author of the book clearly is for regulation.
Types of regulation
• command and control
◦ direct or prohibit people from doing specific things.
▪ Pollution limit.
▪ First generation stratagey
• Technology-based or Feasibility- limited
◦ regulation set on what industry or a subset of industry can achieve in light of the present
state of technology or the financial state of the industry.
• Balance benefits vs cost
◦ prohibits unreasonable risk to the health or environment
• design standard or a performance standard
◦ Ex: an agency might specify a particular kind of equipment in a regulation because the
agency has determined that type of equipment will achieve the performance required. This
is a design standard.
◦ Performance standard: agency specifies in the regulation only the outcome required.
• Second generation strategy
◦ giving incentives for non-pollutants
◦ Cap and trade program would be an example.
◦ Publicizing the top polluters
• States have greater access to environmental law
• cooperative federalism- Look it up.
• Public goods – centrally owned public areas owned by the public.
• Risk analysis- determine was risk exist, and second what should be done about the risk.
• Polluter pays principal- who ever is responsible for the pollution, then they should pay for it.
• Precautionary principle- to err on the side of caution.
• Environmental justice- Environmental harm is mostly in poorer areas.
• Clinton executive order for environmental justice.
• Commerce clause, protection clause, necessary and proper clause, spending clause, treaty clause
and compensation clause.
• South Carolina v. Dole
• Missouri v Holland
◦ Surface Mining Control and Reclamation Act- protect against the adverse affects of surface
mining coal mining.
• Hodel v. Virginia Surface Mining and Reclamation Association Inc.
◦ Facts: Association of coal producers brought per-enforcement challenge to the
constitutionality of the Surface Mining Control and Reclamation Act. Lower court said it
did not violate the commerce clause but did violate the 10th amendments compensation
clause.
◦ Holding: (1) the Act did not violate the commerce clause; (2) the provisions of the Act
prescribing performance standards on “steep-slopes,” did not violate the Tenth Amendment;
(3) the Act's “steep-slope” provisions and the provision prohibiting mining in certain
locations, did not, on their face, violate the just compensation clause; (4) the provisions of
the Act pertaining to the Secretary of Interior's issuance of orders for immediate cessation of
the surface mining operations determined to be in violation of the Act did not violate due
process; and (5) the challenge to the Act's provisions for the imposition of civil penalties
were premature.
• Hodel v. Indiana
◦ Facts: Action was brought challenging the constitutionality of the “prime farmland”
provisions and certain general provisions of the Surface Mining and Reclamation Control
Act of 1977. Lower court found the act unconstitutional. Secretary of interior's appealed.
◦ Held: (1) the provisions in question did not violate the commerce clause or the Tenth
Amendment; (2) the approximate original contour provisions did not violate the equal
protection or due process guarantees of the Fifth Amendment; (3) the Act did not effect an
unconstitutional taking of private property; and (4) a challenge to the civil penalty
provisions of the Act was premature where the mine operators had not shown that they were
ever assessed civil penalties, much less that the statutory prepayment requirement was ever
applied to them or caused them any injury.
• Constitutional limitations on Environmental laws
◦ 10th amendment
▪ reserves those powers not delegated to the United States to the states and to the people.
• Issues
◦ where the federal law interferes with the way a state would like to regulate
something, and the claim is that interference with a traditional state prerogative
violates the 10th.
◦ Where the federal law directly regulates a state or an entity of the state.
◦ State doesn't get a pass when it is acting like everyone else.
• 11th amendment.
◦ Prohibits private suits against states in federal court.
 ◦ However does not prevent the EPA or Dep. or justice from suing the states.
◦ Also a person can sue a state official who is in charge of the agency causing the
polluting.
th
• 5 Amendments Taking clause
◦ The government can not take private property without adequate compensation.
◦ Holmes, “When a government goes to far it will constitute a taking”
◦ two test
▪ One: does the regulation authorize the physical possession or permanent
physical invasion of a persons property?
▪ Two: when a regulation does not just restrict the use of property but also
imposes a condition on its use, this test is used on the condition.
• Two conditions must be met to avoid a taking
◦ one there must be an essential nexus between the legitimate state
interest justifying the restriction and the effects of the condition.
◦ Two: there must be a rough proportionality between the impacts of
the condition on the private property owner and the furtherance of the
legitimate state interest.
• Constitutional limitation on state laws.
◦ Supremacy clause
▪ the federal laws are the supreme law of the land.
• Feds can preempt states from protecting their environment the ways they see fit.
• Three different types of preemption.
◦ Express preemption where statute expressly prevents states from regulating
◦ Implied preemption where statute implies states cannot regulate.
◦ Conflict preemption: Where a state law stands as an obstacle to the fulfillment of
the federal law.
◦ The Dormant Commerce clause
▪ precludes states from discriminating against interstate commerce in favor of their own
commerce or from discriminating against out of state interest in commerce.
• Discriminating is permissible only if there is no other way of achieving a legitimate
state purpose.
• Know the test that is given in the Philadelphia case.
• Administrative Law Issue
• Rules are in the code of federal regulations
◦ Rule making- the process in which regulations are adopted. The procedures required are:
▪ An agency must provide the public notice in the Federal register of its intent to engage
in rule-making.
▪ The agency must provide the public an opportunity to comment on the agency's
proposed rule making.
▪ The agency must provide the public with adequate info about the proposed rule-making
to allow for the public comment to be meaningful.
▪ The agency must consider the public comments and when it issues its final rule it must
respond to the significant comments made.
▪ Failure to follow these rules can lead to the rule being set aside.
• Adjudication
◦ the agency equivalent of a judicial trial.
 ◦ Judicial review- some statutes have a provision regarding judicial review. If there is not
there are five reasons for judicial review.
▪
▪
▪
If the act precludes the review or the statute proceeds discretion.
Zone of interest.
Bennett v. Spear.
Doctrine of finality
Norton v. Seward- focuses on the discretion review.
The two part test.
Practical and legal affect.
Acker v. EPA

CHAPTER 2 NEPA
• National Environmental Policies act
◦ est by Nixon in the 1969
◦ addresses environmental problems legislatively.
◦ Focuses on the environmental degradation that can result as a byproduct of the actions of
gederal agencies and those private activities which they control or permit.
◦ also created the CEQ council on environmental Quality
▪ They coordinate the nepa activities of other federal agencies
▪ and promulgate regulations for NEPA implementation
◦ sec 102(2) C a procedural provision that requires all agencies to list environmental impacts
of any federal action that significantly affects the quality of the human environment in an
environmental impact statement.
◦ PROCESS of determining if an EIS is required
▪ A statute can exempt a project from the NEPA process
▪ Also if the application is made impossible by other circumstances such as in situations
in which the relevant agency lacks discretion to consider the environmental impact.
▪ Additionally a court can recognize a functional equivalence doctrine. If the court
determines that if compliance with a different statute would be the same as NEPA
review then a separate process is not required.
▪ Catagorical exclusions- if the act will not affect human environment then it is a
catagorical exclusion. 40 CFR sec 1508.4
▪ An Environmental assessment or an EA will help determine if a EIS is necessary
▪ if an EIS isnt necessary the EA will issue a finding of no significant impact. FONSI
▪ EIS Process
• agency issues a notice of intent and determines the proper scope of impact. AKA
scoping
• then agency issues a Draft environmental impact statement (DEIS). This is published
in the federal register, and the agency considers any comments made, and
incorporate them into a final Environmental impact statement (FEIS).
• These EIS are filed with the EPA and the CEQ
• Kleppe v. Sierra club American electric power system v. Sirra club.
◦ Facts: Environmental groups brought action against Department of Interior and other federal
agencies responsible for developing coal reserves on federally owned or controlled land in the
 Northern Great Plains region seeking declaration that defendants were required to prepare a
regionwide, comprehensive environmental impact statement, as well as related injunctive relief.
The United States District Court for the District of Columbia, granted defendants' motions for
summary judgment and plaintiffs appealed. The Court of Appeals, 169 U.S.App.D.C. 20, 514
F.2d 856, reversed and remanded, and certiorari issued.
◦ Holding: The Supreme Court, Mr. Justice Powell, held that a regionwide environmental impact
statement was not required absent an existing proposal for regionwide action, that Court of
Appeals had no authority to promulgate a balancing test for purpose of determining a point
during the germination process of a potential proposal at which an impact statement should be
prepared and that contentions as to relationships between all proposed coal-related projects in the
region did not require preparation of a regionwide impact statement.

• Any action potentially subject to federal control or responsibility is considered a federal action for the purposes of
the NEPA.
• Winnebago tribe of Nebraska v. Ray
◦ Facts: Indian tribe appealed from an order of the United States District Court for the District of Nebraska,
Albert G. Schatz, J., denying its request for a permanent injunction to bar construction of a proposed power
line.
◦ held that: (1) in determining whether to prepare an environmental impact statement in connection with the
issuance of a permit to allow the construction of a power line across a navigable river, the Corps of Engineers
was not required to consider the environmental impact posed by the entire transmission line, but only the
impact on areas in and affecting navigable waters, and (2) the evidence sustained the district court's
determination that the tribe failed to establish a significant possible environmental impact on bald eagles.
• Grand Canyon Trust v. Federal aviation administration.
◦ Facts: Environmental organization sought judicial review of Federal Aviation Authority's (FAA's)
determination that preparation of environmental impact statement was not necessary prior to construction of
replacement airport near national park.
◦ held that environmental assessment (EA) should have considered cumulative impact of new airport, and not
merely incremental difference between noise associated with new airport and noise associated with existing
airport.
• Is a EIS adequate?
◦ Robertson v. Methow Vally Citizen Council.
▪ Facts Citizens groups brought action challenging Forest Service's issuance of special use permit for
development and operation of ski resort on national forest land. The United States District Court for the
District of Oregon, William M. Dale, United States Magistrate, upheld Forest Service's decision, and
plaintiffs appealed. The Court of Appeals, 833 F.2d 810, reversed and remanded.
▪ held that: (1) National Environmental Policy Act did not require Forest Service to include fully developed
mitigation plan in its environmental impact statement; (2) Act did not require Service to make “worst case
analysis” in its environmental impact statement; and (3) Service's failure to develop complete mitigation
plan did not violate its own regulations.
Reversed and remanded.
• An EIS must also contain info on how the environmental impact can be mitigated

Chapter 3 The Clean Water Act

NPDES Program.
▪ Federal water Polution Act.
▪ Arkansas v. oklahoma.
▪ Consolidated appeals were taken from the Environmental Protection Agency's (EPA)
issuance to Arkansas city of discharge permit pursuant to National Pollutant Discharge
Elimination System (NPDES) of the Clean Water Act. The Court of Appeals for the Tenth
Circuit, 908 F.2d 595, found that the Clean Water Act did not allow permit to be issued.
Certiorari was granted. The Supreme Court, Justice Stevens, held that: (1) the Clean Water Act
authorized the EPA's issuance of an NPDES permit to allow an Arkansas sewage treatment plant
to discharge effluent into Illinois River which ultimately reached Oklahoma, and (2) EPA's
 interpretation of Oklahoma's water quality standards was entitled to substantial deference.

Reversed.

Opinion on remand

Pud no 1.
City and local utility district appealed Washington State Department of Ecology's imposition of minimum stream
flow rates as part of certification requirements under Federal Clean Water Act for building hydroelectric power
plant. The Pollution Control Hearings Board reversed flow rate set by Department, and parties cross-appealed. The
Superior Court, Thurston County, Carol A. Fuller, J., ruled that Department was not preempted from setting
minimum stream flows. City moved for direct review. The Supreme Court, 121 Wash.2d 179, 849 P.2d 646,
affirmed. On petition for certiorari, the Supreme Court of the United States, Justice O'Connor, held that: (1) states
could condition certification of project on any limitations necessary to ensure compliance with state water quality
standards or other appropriate requirements of state law; (2) minimum flow condition was appropriate requirement
of state law; and (3) state's authority to impose minimum flow requirements would not be limited on theory that it
interfered with Federal Energy Regulatory Commission's authority to license hydroelectric projects.

Affirmed.

Landowners brought action against Environmental Protection Agency (EPA), challenging authority
of EPA to determine total maximum daily load (TMDL) for river. The United States District Court for
the Northern District of California, 91 F.Supp.2d 1337, William H. Alsup, J., granted summary
judgment in favor of EPA. Landowners appealed. The Court of Appeals, Berzon, Circuit Judge, held
that Clean Water Act (CWA) authorized EPA to determine TMDL for river polluted only by logging
runoff and other nonpoint sources of pollution after state failed timely to establish TMDL for river.

Affirmed
Deference- when a word is ambiguous the EPA has the deference to determine what that word should mean.

Chevron- two part test- Congress has directly spoken to the precise question at issue....that is the end of the matter for the
court as well as the agency must give effect to the unambiguously expressed intent of congress.

Modification- Any physical change in or change in the method of operation of a stationary source which increases the
amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously
emitted.

ERP- Equipment Replacement Provisions

RMRR- Routine Maintenance Repair and Replacement Exclusions

Non-attainment New Source Review- requires a source to meet five requirements in order to receive the desired permit:
must obtain offsetting emission reductions from other sources either in the same air quality control region or under limited
circumstances, in one that is nearby

SIP- State Implementation Plan.

LAER- Lowest Achievable Emission Rate.(Does not take Cost into Account).
A) The most stringent emission limitation which is contained in the implementation plan of any state for such class or
category of source unless the owner or operator of the proposed source demonstrates that such limitation are not achievable
or
B) The most stringent emission limitation which is achieved in prative by such class or category of sources whichever is
more stringent.

PSD- Prevention of Significant Deterioration (Takes cost into account)

First each source subject to this program must implement the BACT.
Second it must demonstrate that its emission will neither cause nor contribute to the violations of any increment under the
PSD program

Three classes of CAA pollutant areas.

Class one – State parks and such
Class two- All attainment areas or unclassifiable
Class three- Through petition a non-attainment area can become a class three

1990 CAA amendment imposing a technology based regime with both strict requirements and short timelines for
compliance

CAIR- Clean Air Interstate Rule- Requires reduction in emission of sulfur dioxide and nitrogen oxide in 28 eastern states
and the district of Columbia.

PSD- BACT will usually apply.

Template for case brief

parties

facts

P argument

D- argument

courts- view of the argument.

Clean air act – mobile sources.

Automobiles are not the only thing that can be considered a mobile source

Make up class ALC 103 July 16 5:45

RCRA
Resource Conservation and Recovery Act.
Statutory shape in 1976

Code = statute

Subject to narrow exceptions, the terms hazardous waste includes any discarded material that poses a substantial threat to
human health or the environment when improperly managed.

EPA's definition of discarded focuses on the term discarded.

Discarded means abandoned or recycled in environmentally problematic ways. Additionally includes inherently waste-like
materials.

Cradle to grave- Under this regulations the RCRA will cover the product from the inception to its grave.

Industry specific= K series wastes

Industrial process= F series waste
off