Mid-term quiz study outline Common-law foundations of environmental law Types of common-law actions traditionally relied upon to address

environmental harms . Trespass Borland v. Sanders Lead Co.: Trespass of particulate matter is a viable claim under the force and energy test from Martin v. Reynolds Metals. . Nuisance Private Elements of Nuisance: 1. Unreasonable interference with property use 2. The interference was caused by the defendants use of its land 3. The defendant acted intentionally Boomer: A New York court case in which New York's highest court considered whether permanent damages were an appropriate remedy in lieu of a permanent injunction. Cement plant caused clear detrimental impacts to neighbors, including dust, noise, and vibrations. Plaintiffs not granted injunctive relief but instead received permanent damages. The case was one of the first and most influential instances of a court applying permanent damages. Balancing of harms. Public New York v. Schenectady Chemical Co.: Action to compel chemical co to pay cleanup costs for a dumpsite. Court refused to dismiss and the parties settled.

Limitations of available remedies for plaintiffs suing under common law Permanent Injunction Temporary Injunction Permanent Damages Compensatory/Punitive Damages Nominal Damages Boomer plaintiffs remedy for smoke damage Permanent Damages No injunction issued because of perceived financial hardship Plaintiffs recovery in Kepone incident Settled out.

 catalyst for Carter prohibiting overseas sale of toxic chemicals

Nature of compensatory damages Make people whole, set things right, but dont necessarily set things right. C.f. injunction or punitive damages. Relevance of common law to modern environmental claims Common law actions still relevant C.f. American Electric Power Company v. Connecticut (U.S. 2011) Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon dioxide emissions from fossil fired power plants

Statutory environmental law Variety of approaches to statutory law, for example: Command and Control (pp. 210-213) e.g. CAA, CWA describes federal pollution regulations since the 1970s mandatory compliance aspect = command demanding performance standards = control Roadblock e.g. ESA legislative branch has put down a fixed line, a flat prohibition on environmentally damaging behavior Information and analysis Best Available Technology (BAT) requirement from CAA In re Northern Michigan University Ripley Heating Plant (p. 504) Best Available Control Technology (BACT) guidelines MDEQ did not follow EPA standards for choosing heating plant fuel sources. court remanded MDEQ fuel source plan for reevaluation and better explanation of choices Market incentives penalties and rebates cap and trade (would be relevant)

Cooperative federalism as an approach to implementation Feds delegate authority to the states, allow states to use police powers. CAA Federal standards and state implementation plans (SIPs) Federal standards set the floor, minimum common standard across all states. States submit implementation plan (SIP), have wide discretion. Federal oversight (EPA) continues

if the state implementation plan (SIP) is inadequate, then the Federal Govt can step in and create a FIP. If an area does not comply with the federal standards, it is called a nonattainment area. If an area is in attainment for any criteria pollutant, the CAA wants to avoid encouraging that areas use for more pollution. hence, the Prevention of Significant Deterioration (PSD) mandate 1990 Amendments strengthened permit requirements for new sourced in PSD areas. a region may be both in nonattainment and PSD. For different pollutants-- nonattainment in one, PSD in another. Federal govt sets standards for NEW sources, and for significant changes to old sources. CAA 111.

Judicial Review Courts have the authority to review: Agencies compliance with procedural mandates Agencies interpretation of law Arbitrary and Capricious Standard: Absence of a rational connection between the facts found and the choice made. Natural Resources. v. U.S., 966 F.2d 1292, 97, (9th Cir.'92). A clear error of judgment; an action not based upon consideration of relevant factors and so is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law or if it was taken without observance of procedure required by law. Barriers to judicial review: Justiciability (act to be reviewed) Standing (identity of plaintiff) Who is the correct plaintiff to bring the action? Prudential - Did Congress intent to protect a particular plaintiff? zone of interest Constitutional - related to separation of powers Injury in Fact causation from alleged act redress is possible from court action Lujan 1 (1990): BLM land classification case. adverse or aggrieved requirement = tight test Lujan 2 (1992): I might go back someday to see the endangered animals is not good enough for standing Laidlaw (2000): CWA enforcement over a hazardous waste incinerating plant. Violation of law = Injury to plaintiff.

Storm King: project to destroy a beautiful part of the Hudson. Held aggrieved or adversely affected party did not require a personal economic interest. Sierra club v. Morton 1972 Walt Disney Corp tries to develop ski resort on national forest public land at Mineral king mountain. Did not grant standing, but explained how a citizen might do so. Must allege member injury. Court granted standing after remand to citizens despite no economic injury or a legal interest.

Exhaustion of remedies (appeals) Ripeness & Mootness (timing) Summers (2009): Forest service plans. Broader claim mooted by settlement Jurisdiction of federal courts o Constitutional basis for authority U.S. Constitution Art. III, 2.: defines what courts are able to address Judicial review extends to all cases in law and equity Arising under the Constitution To which US shall be a party Administrative Procedures Act 5 USCA Sec. 702 5 USCA 702: persons are entitled to judicial review if suffering a legal wrong due to an agency action. a. APA 5 USCA 702: A person suffering legal wrong because of agency action Or adversely affected or aggrieved by agency action Within the meaning of a relevant statute Is entitled to judicial review thereof. Arbitrary and capricious? 1. Rationally related? 2. Contrary to law? Big Three Enviro Admin Law Decisions Citizens to Preserve Overton Park v. Volpe 1971 Mandate in Federal Hwy Act not to build interstates through parks unless reasonable and prudent Application of arbitrary and capricious standard Sec. of Transportation did not support finding R: Cannot submit post-hoc rationalization in lieu of an administrative record to justify decision. Vermont Yankee Nuclear Power Corp. v. NRDC held that a court cannot impose rulemaking procedures on a

federal government agency. 1978 Nuclear Regulatory Commission Rulemaking procedure challenged DC Circuit advocated imposing more stringent requirements SC disagreed Set the limit for what courts can require agencies to do Noted that agencies can still go above and beyond the APAs requirements, but courts cannot force an agency to go beyond requirements Chevron USA v. NRDC CAA rulemaking ***Two-step test*** 1. Did Congress speak directly to statutory question? 2. If not, was the agencys interpretation permissible? [I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Limited jurisdiction: grounds for federal court to hear a claim Standards of review applied to agency actions (why it matters) Judicial scrutiny of plaintiffs standing to sue in environmental cases (Remedies available: Injunction, Remand, Enforcement actions) Citizen suit provisions in federal statutes (generally, how they work) Authorize judicial review of a particular agency

Administrative law Types of agency procedures covered by the APA - formal rulemaking - informal rulemaking - agency adjudication APA generally applies to all agencies intended to give structure to agency actions-- tells agencies how to do their work. agencies only have powers delegated by Congress as per enabling legislation; APA guides how agencies exercise their powers for statutes (e.g. NEPA) that do not have a citizen suit provision, citizens are able to litigate NEPA decisions and procedures through the Administrative Procedures Act (APA), the handle

Clean Air Act National Ambient Air Quality Standards o EPAs responsibility for promulgating NAAQSs Congress: attainment / maintenance as judged by EPA administrator based on criteria and allowing an adequate margin of safety as requisite to protect public health o Pollutants covered by NAAQS: lead carbon monoxide nitrogen dioxide ozone particle polution sulphur dioxide Nonattainment areas If area is in nonattainment for any criteria pollutant Fed technology standards for existing and new sources Emission offsets for new sources EPA may sanction states for noncompliance Prevention of Significant Deterioration Stage 2 1977 Amendment-- EPA prohibited from approving SIPs in relatively clean areas that would allow such areas to pollute the air to the level of the NAAQs. Impose a lower ceiling for allowable pollutant, superseding national standards.

Major amendments to CAA in 1977 and 1990. Whitman v. American Trucking (2001) Basically, this case established that, in order to conform to the Nondelegation Doctrine, when conferring decision making authority upon agencies, Congress must lay down an intelligible principle to which the person or body authorized to act is directed to conform. I.e. for congress to delegate authority to the CAA, Congress must be sufficiently clear about what the hell it wants them to do.

Massachussets v. EPA Does EPA have authority to regulate greenhouse gases? Yes. To refuse to do so was arbitrary and capricious.

National Environmental Policy Act Statutory model represented by NEPA Disclosure-- guarantee public access to governmental decision-making Procedural Act- Tells an agency how to make decisions, but doesnt require agency to reach any certain standard or reach a good result. Requires analysis of range of alternatives, including no action alternative.

Procedural explains a process to get to an end result applies to all federal agencies, pertaining to major federal actions requries preparation of EIS etc. as per Sec. 102

Substantive says much more about what that end result should be Sunshine law Look before you leap Ventilation of issues Roles and responsibilities of the Council on Environmental Quality Established by NEPA Title II Tells agencies how to implement NEPA Gather information and conduct studies on environmental trends and conditions Review federal government programs in light of NEPAs substantive goals Recommends national policies for environmental improvement CEQ Guidelines: have taken on the power of regulationsnot permissive like most guidelines Litigation challenging NEPA compliance NRDC v. Grant most litigation challenges the 102(2)(c) requirement for a detailed statement Bases for challenge inadequate EIS no EIS at all Scope of review Remedies for violations injunction remind for supplemental EIS or revised EA

Endangered Species Act Section 4 listing criteria Only applies to species that have been listed as endangered Criticized because its administered late in a species decline

ESA as an Emergency Room Admission Listing is warranted in all or part of the range Discharge Listing is not warranted Waiting room Listing is warranted but precluded EndangeredDanger of extinction through all or a significant portion of its range. ThreatenedLikely to become an endangered species within the foreseeable future. Determined using best scientific and commercial data available... not an economic calculation Informal rule-making subject to the provisions of the APA

Section 7 consultation/no jeopardy mandate (as applied in TVA v. Hill) Fed agency projects and programs shall not jeopardize endangered species Federal Agency must consult with Fish and Wildlife Service if species may be implicated in project Section 9 no-take mandate No one may take an endangered species or wildlife take harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect harm defined in 50 CFR 17.3 o To whom does it apply? Subsequent softening provisions in ESA amendments God Squad (p. 448) Pay compensation for restrictions on private land Protect species earlier, before theyre close to extinction Protect a diversity of ecosystems, aiming for biodiversity rather than individual species recovery 10: Incidental take allowed with approved conservation plan Babbitt v. Sweet Home applied chevron test to conclude that harm is to be construed broadly Facial challenge to some regulations passed by FWS Supreme Court said it had to uphold regulations interpreting the word harm, since they were within the discretion of the agency harm meansan act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by

significantly impairing essential behavior patterns, including breeding, feeding, or sheltering.

"Trees have standing" In his dissenting opinion in the landmark environmental law case, Sierra Club v. Morton, 405 U.S. 727 (1972), Justice Douglas argued that "inanimate objects" should have standing to sue in court: The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. This suit would therefore be more properly labeled as Mineral King v. Morton.[16] He continued: Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole a creature of ecclesiastical law is an acceptable adversary and large fortunes ride on its cases.... So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it.[16]