Section I -- PERSPECTIVES -- HOW THIS COURSE LOOKS AT ENVIRONMENTAL LAW Limits to Growth Model There should be government involvement;

; in fact it led to government involvement Started momentum toward environmental law and the governments involvement in it Critics of LTG Argues that there should be NO government involvement whatsoever; market approach Carl Kaysen: Computer cried WOLF and government should keep its hands out of environmental issues. The climate fluctuates on its own, humans are no more than a blip. There will be no catastrophe What structure should government involvement take (assuming govt will control)? From the perspective of legislation and common law: o How would the economist draft legislation? o How would the ecologist draft legislation? Justice Douglass perspective o From Sierra Club v. Morton dissent Section 1.1 -- The Limits to Growth Theory Components and Advocates Remedy i. Population grows at an exponential rate (Means that growth is like compound interest). It grows at a constant percentage each year. It isnt like linear growth where the line is straight. With exponential growth the curve gets steeper every year. 1. Example: in year one there are 1000 people, growth rate is 10%. At end of year one there are 1100 people. Year two: 1100 x .1 - 1210. Year three: 1210 x .1 = 1331. This is exponential. ii. Some resources are FINITE, which means that there is a fixed limit, it does not change over time. Examples are arable land, fresh water, breathable air, petrol. The finite limit of the resource is its carrying capacity. After the limit is reached, the carrying capacity decreases. iii. When growth reaches the limit there is catastrophic decline -- the resource use (exponential growth) reaches the quantity of resources available (finite limit), resulting in complete resource depletion, or CATASTROPHE. Significantly, the finite limit also drops. Famine ex: arable land has been overused and damaged. It is no longer arable land. Example of overused land: Africa and desertification. Excessive #s of people graze the land excessively, soil dries up, nothing left. Today, Californias soil is becoming useless in the Central Valley because the land cannot produce crops due to the residue of salts left behind by irrigation. The lands carrying capacity is in severe decline. The carrying capacitys decline affects the future. iv. Decline in carrying capacity (finite limit) affects the future because eventually the catastrophe reaches its limit and exponential growth begins again. Unless we change something, the same problem will happen all over again. If this keeps happening well reach the absolute limit. The carrying capacity will drop to ZERO. v. ADVOCATES SAY THE REMEDY IS TIGHT GOVERNMENTAL CONTROL ON VARIABLES SUCH AS POPULATION, CONSUMPTION, POLLUTION.

Section 1.2 -- CRITICS OF LTG MODEL There will not be a catastrophic decline for two primary reasons: 1. Technology: also grows exponentially, makes finite limits illusory. Thus, the so-called limits arent actually limits -- technology innovations continually increase the limits, meaning there are, in fact, no limits. a. The issue is not the amount of arable land available. It is productivity -arable land will actually increase because we can make better use of it through, i.e., irrigation. We dont need more land, we only need more efficiently used land (i.e. GMO crops). b. Technology grows faster than everything else. Because it grows at a steeper rate than the growth parameter, paths will never diverge. Besides, even if they do diverge, its so far in the future... 2. Social Mechanisms: will ensure growth never reaches finite limit. a. Example: if a metal grows toward its limit, price will reflect that and rise. BASIC SUPPLY AND DEMAND ECONOMICS: use will taper off with either introduction of substitutes or abandoning of inefficient uses. Thus, no need for government intervention, we should just spend $$ developing technology. Section 1.3 -- What form should governmental control take? Legislation (from Commerce Clause, aka statutory law) -- to restrict growth and stop the catastrophe. vi. Economist -- proposes a balancing approach: balances the environmental harm with the economic benefits of the activity (cost/benefit) (harm of letting x happen vs. costs of stopping x). 1. Examples: CAA and tradable permits -- allows a certain amount of pollution to generate electricity. Standards set for emissions must use Best Technology while taking into account the cost of the technology. 2. NEPA -- requires a cost/benefit analysis in EIS. vii. Ecologist (Environmentalist) -- bans activities detrimental to environment regardless of economic benefit. 1. Examples: Certain chemicals (DDT, Asbestos) 2. Endangered Species Act -- bans any activity that will impact endangered species. Most environmental regulation takes a balancing approach. 2. Another perspective: Douglass dissent in Sierra Club v. Morton (STANDING): a. Not opposed to legislation / regulation, but the courts MUST also be involved. Legislation / regulation is the right way for government to get involved: agencies have expertise to administer and should be at the forefront (through regulation). Courts role: allows the public, who might not be satisfied with the level of legislation/regulation, to get involved in the process -- they might want to fight what the government is doing. b. Courts should be involved because (a) agencies face pressures for acting in a certain way and (b) federal agencies are notoriously under control of powerful interests who manipulate them (through advisory committees, sometimes the company on the advisory council that obstructs / turns down govt questionnaire is the company who is withholding the info). c. Courts should be the agencies watchdog, this can only be done if public interest groups have standing to bring claims. d. DOUGLASS TEST FOR STANDING: those who have that intimate relationship with the inanimate object about to be injured, polluted, or otherwise despoiled have the opportunity to be legitimate spokespersons. (Anyone who has frequented a place enough to know its

value and wonder can speak for the entire ecological community, anyone who hikes, fishes, hunts, camps, etc.) I am the Lorax and I speak for the trees. e. THE MAJORITY in Morton said that representing public interest does not give standing, you must prove an injury in fact. 3. Source of Federal Power to Regulate the Environment: Commerce Clause. Under Wickard, any activity that, even in the aggregate, has a substantial impact on interstate commerce can be regulated. 4. Source of State and Local Power to Regulate Environment: Police Powers.

Section II -- STANDING
Sierra Club v. Morton -- demand prompted the Forestry service to look for developers, and Disney was one of them. For the development there would need to be a road and some power-lines through the Sequoia National Park. seeks Declaratory Judgment (suing the Forestry Service) that various aspects of the proposed development contravene federal laws and regulations governing the preservation of national parks, forests and game refuges; and also seek preliminary injunction restraining the federal officials from issuing permits in connection with the Mineral King Project. attacks saying that has no standing to bring this action to court. Issue: did SC allege facts that entitle it to obtain judicial review of the challenged action? In other words, did SC have standing? (First time the Court ever considered a case on standing where the plaintiff claimed a noneconomic injury.) Standing is: a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Two Tests: 1. APA Test [5 U.S.C. 702] (AAAAA) (when relying on a specific statute) -- A person suffering legal wrong because of injury action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review. a. Courts interpretation of APA Test: When the action arises under a statute: (1) Has the agencys action caused an injury-in-fact to the plaintiff? (2) Is the injury within the scope of interests the statute intended the agency to protect or regulate? (Requires party seeking review actually be injured.) a. The legal wrong must be injury in fact and injury must be to an interest arguably within the zone of interests protected by the violated statute. b. SC said they had standing because they spoke for Mineral King. Majority disagreed, said that SC should say the agency action injured their ability to use and enjoy Mineral King (Plaintiff MUST be among the injured). Significantly, after this case BOTH economic and environmental injury to the plaintiff satisfies test for standing. Once you get standing, you can raise the public interest questions (which is what SC tried to do in order to get standing). Aesthetic, environmental, and economic well being are important ingredients to quality of life in our society. a. Interests that give standing: conservational, recreational, aesthetic, and economic. 2. TEST FOR STANDING WHEN NOT RELYING ON A SPECIFIC STATUTE: if there is no statute authorizing the judicial process, plaintiff may obtain standing if he has a personal stake in the outcome of the controversy so as to ensure that the dispute will be presented in an adversary context and in a form that is capable of judicial resolution. 3

Section III -- STANDARD OF JUDICIAL REVIEW

Courts set boundaries -- make sure administrative agencies are within their boundaries. What is the standard of review? Section 3.1 -- What is the standard of review? Citizens to Protect Overton Park v. Volpe (pp. 32-38) Statute said that DOT could only build a highway through a public park if: 1. NO feasible and prudent alternative existed; 2. Secretary plans to minimize the harm to the park. Here, DOT wanted to build a 6-lane interstate through a city park. Secretary authorized it w/o saying anything re feasible and prudent alternatives or any designs to minimize harm. P argues that Secretary MUST make these findings (his actions invalid without formal findings) AND there were alternatives (go underneath, go around, etc). May court hear this case? Well, P is entitled to judicial review UNLESS: 1. There is a statutory prohibition on review; 2. Agency action is committed to agency discretion by law. Here, the exceptions do not apply. In fact, the statute gave clear and specific directives -- it did NOT give DOT broad discretion. Preserving park was of higher value in the statute than cost and convenience of building the highway. Protecting parkland was of paramount importance. What is the standard of JUDICIAL REVIEW? 1. The agency action must be set aside if: a. It is an arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. i. If A/C, court will throw out agencys decision. If not A/C, court defers. b. It is contrary to constitutional rights, power, privilege, or immunity. c. In excess of statutory jurisdiction. d. W/o observance of procedure. e. Unsupported by substantial evidence (what P wanted Court to use): ONLY used when agency action is taken pursuant to APA or agency action based on public adjud. hearing. f. De novo: Unwarranted by facts (also what P asked for) -- when action is adjudicatory in nature and agency fact-finding was inadequate. Review starts from beginning, in depth. Court chooses arbitrary and capricious (narrow standard of review). There is a rebuttable presumption in favor of agency (i.e. agency deference), but it is not definite. 2. Courts must ask: a. Did agency act within the scope of his authority and discretion? b. Did agency properly construe its authority? c. Is agencys construction reasonable? d. Court cannot substitute its judgment for the agencys -- it must look at the record. 3. Here, the court did NOT have the record that the secretary used (post hoc rationalization insufficient, need the actual record that the secretary used when making his decision). Court remanded the case, review must be based on the full admin record available to Secretary. a. Basically, the odds are against you, the STANDARD of review is NARROW.

Section 3.2 -- In-Class Hypothetical Making assumption that federal government will legislate re petrol supply and demand. Congress wants to pass legislation that empowers an agency (Here, the DOI) to pick one of the following: 1. Increase Offshore Drilling 2. Fund R/D to Increase Supply From Existing Sources 3. Increase Imports From Other Countries Statute says that any action must be reasonably consistent with the goal of protecting the quality of the environment. Congress says DOI can choose any mechanism / combo of mechanisms it wants. DOI decides to choose Option 1 and increase offshore drilling. It will auction off sites on SC coast; places that, until now, have always been off limits. Client recently paid $8 million for beachfront property; spent millions on feasibility studies, marketing studies, soil tests, etc to maximize the profitable use of her land. She just found out that leased sites are within eyesight. She wants to know what causes of action we might bring. 1. We must show she has standing to bring a COA. Here, she has standing because she has an injury in fact. Her injury is economic. 2. We must prove that judicial review is appropriate. Make sure there is (a) no statutory prohibition on judicial review and (b) the agency action is not committed to agency discretion by law. a. Here, there is neither (a) nor (b). b. Thus, well ask for a standard of review. Options are: i. De Novo: broad review, court starts from scratch, finds its own facts. ii. Arbitrary, capricious, abuse of discretion from APA: narrow review. 1. Will want to fight for de novo, A/C is narrow, will likely uphold agency. Now, what COAs does she have? 1. Nuisance -- unreasonable interference with use and enjoyment of property. 2. Due Process -- no one should be deprived of life, liberty, property w/o DP. Youd hope to find out there was no notice to client to her, as the abutting landowner, of the auction. 3. Takings (5th Am) -- cannot have property taken w/o just compensation. 4. NEPA -- was EIS adequate, accurate, complete? a. The idea here is to draw out the litigation so that people give up. Probably wont win. 5. Other statutes (CAA, CWA)? 6. Improper delegation of power -- DOI had too much power, not enough statutory guidance? 7. DOI abused discretion under this statute. Not reasonably consistent with goal of protecting the quality of the environment. Remedy sought: INJUNCTION (must show (1) likelihood of success and (2) irreversible harm).

Section IV -- NEPA
Requires that the government CONSIDER the environment. It does not protect the environment. Thus, the governments policy is considering environment (SEE PAGE 45). NEPA only applies to the Federal Government and its Agencies (102(2)), it is not directed to industry or corporations (but see Silva v. Romney). Doesnt apply to indiv/corps b/c in 1969 there was almost no governing of the public. Today, we have more enviro consciousness, would be easier to pass a NEPA that included corporations. Requires an EIS for MFASAQHE (102(c)): major federal actions significantly affecting the quality of the human environment.

Section 101 is substantive, recognizing the need for legislation, sets out the means, manner, goal. Section 102 is procedural. To the fullest extent possible applies to all agencies of the federal government. 1. Systematic, interdisciplinary approach to ensure integrated use of natural and social sciences in planning and decision-making that will have an effect on mans environment. 2. Identify and develop methods and procedures with the CEQ. 3. WRITE AN EIS if a MFASAQHE. Section 4.1 -- what are ALTERNATIVES? How many do you have to discuss? To what extent do you have to discuss them or do a C/B analysis? Calvert Cliffs v. US AEC (page 43) P said: AEC rules fail to satisfy NEPA. See AEC rules on page 49. D said: NEPA was vague, leaves room for discretion and rules fell within NEPAs scope. 101: SUBSTANTIVE -- flexible, deals with basic policy, which is to avoid environmental degradation, preserve cultural and natural resources, promote beneficial use of the environment. Court says that all practical means was flexible language and leaves room for responsible exercise of discretion, might not require particular substantive results in particular problematic situations. Standard of Review under 101: arbitrary and capricious. Very limited review. 102: PROCEDURAL -- NOT FLEXIBLE. In fact, it established a strict standard of compliance. This section forces agencies to take environmental values into account. The agency must make a good faith effort when considering factors that affect mans environment. Agency must do a balancing analysis between enviro amenities and economic/technical considerations. Agency must make the detailed statement and study alternatives, aka the EIS. o Purpose of EIS is to: Provide evidence that the agency actually did it. Force the agency to consider and weigh all aspects and alternatives. Allow outsiders to voice their concerns and be informed. Ensure that the best alternative is selected. To the fullest extent possible does NOT provide an escape hatch, nor does it make NEPAs procedural processes discretionary. It makes it CLEAR that the Federal Government must comply unless an existing law expressly prohibits compliance (only when specific statutory obligations conflict with NEPA do agencies have the right, under 104 and fullest extent possible language, to not comply with NEPA). Standard of Review under 102: see if balancing test done in good faith and fully executed. Issue: did AEC sufficiently consider the environment?? Here, AEC did the EIS but said that no one was allowed to read it or consider it when making their decisions. Their rule was: if no party to the proceeding raises an environmental issue it will NOT be considered . . . and the EIS, comments, and the environmental issues will accompany the application, but will not be received in evidence, and the NEPA responsibilities will be carried out outside the hearing process. Court hated this rule, called it a crabbed interpretation of NEPA that made a mockery of the Act. Court said shall accompany means shall consider, and obviously does not mean physical presence (literally accompany). 6

Judicial Review Issue From Calvert Cliffs If under 101 (substantive) -- reviewing courts probably cannot reverse substantive decisions on the merits unless shown that the actual C/B balance was arbitrary or clearly gave insufficient weight to environmental issues. If under 102 (procedural) -- agencys decision must involve individualized consideration and balancing of environmental factors, conducted fully and in good faith. The courts must review. Agencies, also, cannot single out certain enviro issues to be dealt with later. Must deal with all issues at the same time. Further, the agency involved in the major federal action must do all the weighing, complying with other agency standards is not an excuse to neglect a weighing test. Section 104 issue: AEC says if you meet 104 you dont have to go through 102. Said that there were specific statutory obligations in the WQIA... Section 104 deals with interplay between statutes. Nothing in NEPA section 102 or 103 shall in any way affect the specific statutory obligations of any federal agency (1) to comply with criteria or standards of enviro quality, (2) to coordinate or consult with any other federal or state agency, or (3) to act, or to refrain from acting contingent upon the recommendations or certifications of any other Federal or State agency. Here, court disagreed with AECs argument. o Regarding interplay between WQIA and NEPA: Unless other statutes obligations are plainly mutually exclusive with NEPAs requirements, NEPAs specific mandate remains in force. Thus, 104 relieves agency of its NEPA duties ONLY other specific statutory obligations clearly preclude performance of those duties. If you can comply with both, you must; if you cant comply with both, you must do the other statute because the other statute sets a bare minimum. Strykers Bay v. Karlen (page 75) D wants to build low-income housing project. Court finds that NEPAs imposed duties are essentially procedural and that NEPA and courts can only make sure procedures were followed and enviro consequences considered. So long as agency follows 102, there is nothing for courts to do. ****Its up to the circuit as to whether there is substantive review. SCT said, in Strykers Bay, if the agency decision was arbitrary it MIGHT allow plenary review concerning substantive review.**** Section 4.2 -- The EA, What is Major and Significant? MFASAQHE: encompasses a very broad approach to what might be considered an enviro factor. Some things are obvious, i.e. air pollution, gallons of water consumed, noise...but there is a broad array of other things as well. The ENVIRONMENTAL ASSESSMENT (EA) -- determines what is MFASAQHE. Fact based: agency makes the decision. Agency deference (A/C). Relevant Factors: Money; # of people; Geographic area; Time; Aesthetics; Land Use consistency If the EA determines that a MFASAQHE exists, then the agency must do an EIS and discuss the impacts, consider alternatives, do a C/B analysis, etc. If the EA says there is no MFASAQHE, agency issues a FONSI (finding of no significant impact). The findings of the EA are subject to judicial review (arbitrary/capricious).

Hanley v. Mitchell (NEPAs applicability) (pg. 57) Agency was building a 9-story federal jail in Manhattan and claimed it didnt need to do an EIS because there was no MFASAQHE. Major is determined by the amount of planning, the amount of people affected, time and costs that will go into a project. Significant can be aesthetics, traffic, general health and welfare, amount of people affected. Agency eventually conceded that the activity was major, but said it didnt significantly affect mans environment. Court said that agency did not consider the environmental impacts of putting a JAIL between two apartment buildings. P said neighbors would be affected by fear, noise, prison demonstrations, drugs, waste, crime, garbage. Also, D did not consider increased traffic necessary to provide services to 360 inmates. While an EIS may not be necessary, an EA detailing that the factors/effects were at least considered was necessary. The agency must, after EA determines no MFASAQHE, issue a FONSI (which is subject to judicial review). Determining what is a MFASAQHE is a question of fact, which the agency decides. The court will only get involved if someone objects and will only use the A/C standard. Section 4.3 -- Is there a national security exemption from NEPA? Concerned About Trident v. Rumsfeld (page 62) D is a Navy nuclear submarine base necessary for national defense. P said D didnt follow the proper NEPA procedure. D did follow procedure: completed the EA, draft/final EIS, held public hearings (weighed economic, transportation, social, historical, archaeological, utilities, etc) Most importantly, D tried to argue that EIS wasnt necessary, National Security was above it. The court, however, said that ALL federal actions, except where there is a statutory conflict, must follow NEPA -- National Defense does not exempt D from NEPA. Here, D followed procedure, satisfied NEPA. (BUT SEE WEINBERGER -- no NS exemption, but NS given greater weight) Environmental Defense Fund v. Army Corps of Engineers (page 68) D wants to build a dam. P says: 1. D did not comply with NEPA because drafters of the EIS were biased (Engineers wanted the project to go through at all costs) 2. D did not consider all alternatives 3. There were errors of fact, and 4. It wanted court to review the administrative determination on the merits. (1) Agency Bias: Most agencies will have some institutional bias, but that does not mean they did not follow NEPA. NEPA requires good faith objectivity, NOT subjective impartiality. Here, the record shows that D acted in good faith. The procedural review for section 102 is good faith objectivity compliance with the EIS procedures.

Should there be judicial review on Section 101 assuming agency followed 102? ARGUMENTS FOR YES o Agency Bias: there will be some bias, judge should see if it went too far. o Courts are Objective: as neutral viewer, courts should check on whether agency properly fulfilled 101 requirements and bias did not go overboard. ARGUMENTS FOR NO o Agency Expertise: Courts shouldnt substitute their judgment, agencies are experts. o Congressional Intent: NEPA is flexible and discretionary. Congress intended agencies to deal with 101, courts should defer on 101 decisions.

Section 4.4 -- What are Alternatives? NRDC v. Morton (pg. 86) This case concerns the Outer Continental Shelf Lands Act for the oil/gas lease-sale of approximately 80 tracts of land. The purpose of the EIS is to: 1. Provide a basis for evaluation of the benefits of the proposed project in light of its environmental risks. It makes review easier and the process more transparent. Congressional funders, president, public, other agencies, courts (to make sure agency isnt A/C (101) and following procedure (102)) can all review the EIS. It allows those removed from the initial process to evaluate and balance the factors on their own. 2. Proves that the agency actually did the EIS (record that agency considered impact on enviro). 3. Teaches agencies to be more enviro conscious -- makes them do it, engrains it in them. 4. Forces agency to consider and weigh all aspects and alternatives. 5. Allows outsiders to voice their concerns and be informed. 6. Ensures the agency selects the best alternative. 7. Provides a basis for comparison of the net balance of the proposed project with the environmental risks presented by alternative courses of action. Problems with requiring an EIS: 1. Slows down environmentally and socially beneficial projects (slows progress) 2. NEPA doesnt have enough teeth to require anything more than a statement. Cant require agencies to select the best choice. 3. Makes the EIS formulaic. Agencies might just want to appease those who might view it. What the EIS requires: 1. The environmental impact of the proposed project. 2. Alternatives. What alternatives does the agency have to consider? 1. Must consider and discuss all REASONABLE alternatives. A reasonable alternative is an alternative readily identifiable by the agency. 2. Review is not limited to those alternatives that the agency can adopt. Agency must also consider alternatives outside the agencys reach because: a. Sometimes multiple agencies are involved, all must decide based on their expertise. b. Many other people read it and may be able to help. c. Considering other alternatives might convince the agency that they should not do the project because other alternatives are better even though they cant do them.

3. Must consider partial alternatives IF IT WILL alleviate a significant portion of the enviro harm. Several partial alts combined might be better than one complete alternative. a. Court doesnt say what % of the problem the partial alt must solve to be considered. 4. Long-term alternatives must be included unless completely beyond the scope of the action (see Portland Cement). You dont always have to consider long-term high-tech solution to solve a short-term problem. 5. RULE OF THUMB: the larger and broader the scope of the project, the more alternatives that the agency must consider. 6. Agency must consider the NO ACTION alternative. 7. Must weigh ALL ALTERNATIVES. 8. Alternatives must be described in adequate detail for subsequent reviewers and decision makers. How far must the agency consider the alternatives? 1. Doesnt need to be exhaustive. Must be sufficient to permit a reasoned choice. 2. Only need to go far enough to show alternative is not better than the original proposal. How do you weigh alternatives? 1. Do a cost/benefit analysis. Ask whether the costs justify the benefit. NEPA requires a comparison of the proposal with the alternatives -- goal is to do it with a quantified C/B, but some things arent quantifiable. If you can quantify it, try to. If you cant quantify it, discuss it in narrative terms, CANNOT leave it out of the EIS. Here, court said that agency must consider following alternatives: elimination of oil quotas (even though that is outside the agencys authority and it would have no enviro impact and it is a partial solution); selling lots in parts (modified sale); come up with alternative energy solutions (but might not have to consider long-term solutions to short-term problem, here the problem was the embargo); withdraw from the sale; delay the sale; do nothing. AGENCY MUST ALWAYS CONSIDER: 2. A C/B OF ITS PROPOSAL. 3. A C/B OF DO NOTHING. 4. PARTIAL SOLUTIONS. 5. SOLUTIONS OUTSIDE THE SCOPE OF AGENCYS AUTHORITY. HYPO: Agency is considering building a superhighway. Should it consider a bike lane? Maybe. There are many considerations, i.e. in VT a bike lane is unusable in winter, so agency might say that is why it refused to consider it as an alternative. Court would then decide whether the agencys decision was A/C. Section 4.5 -- The Cost/Benefit Analysis See Page 80-85 Section 4.6 -- States and the EIS May a state prepare the EIS? Circuit split: CEC v. Volpe says yes. CSSC v. Sec of Trans says no. NEPA was amended, now it says yes, if... Citizens Environmental Council v. Volpe (pg. 96) (state CAN write EIS on behalf of fed govt) Case is about construction of a highway bypass. P said the EIS is inadequate because state prepared it. NEPA says the EIS must include: o The environmental impact of the proposed action; 10

o Any adverse environmental effects which cannot be avoided if proposal is implemented; o Alternatives to the proposed project; o Relationship b/w local short term uses of mans enviro and maintenance/enhancement of long-term productivity; o Any irreversible/irretrievable commitments of resources that would be involved in the proposed action should it be implemented. Re ALTERNATIVES o Discussion of enviro effects of alternatives in EIS must be sufficient to permit a reasoned choice. Here, the alternatives were outlined and explained, the fact that the state did it -and not the Federal Agency -- does not matter because the Agency approved it. Advantages of the state doing the EIS o Closer to the problem. Have more knowledge and expertise. o Will do a more economically efficient job. o NEPA 102(2)(C) only requires a responsible official to write the detailed statement. A responsible official could be a state official.

Conservation Socy of Southern Vermont, Inc. v. Secretary of Transportation (pg. 99) (state CANNOT write EIS on behalf of fed govt) There are two cases here. (1) deals with building a highway overpass. (2) deals with building a highway through three states (piecemeal). Issue One: Must the responsible federal agency prepare the EIS in order for it to be sufficient? Answer: Court says YES. The federal agency in charge of the project MUST prepare the EIS, not the state agency. The Federal Agency cannot merely adopt the state-prepared EIS. Reasoning: 1. Federal agency making the initial decision (i.e. whether to go on with the project) is in the best position to weigh all the costs and benefits and evaluate environmental issues. Nothing short of a genuine federal preparation of the EIS is satisfactory. 2. Fed-prepared EIS is MORE OBJECTIVE and COMPREHENSIVE. 3. In fact, CEQ guidelines say that in all cases, the agency should make its own evaluation of the enviro issues and take responsibility for the scope and content of EIS. 4. FEDS MAY STILL GET INFORMATION FROM THE STATES: Disadvantages of States doing the EIS: 1. Bias, they want the highway money, might not do an effective EIS. 2. Legislature told / mandated Federal government to do it. 3. They want the road. NEPA Amendment of 1975 -- states CAN write the EIS. (Fed Highway Admin halted funds to NY and CT, who then went to Congress. Issue Two: Do you need an EIS for the segment that is to be built now or for the entire planned project? Court says agency has to recognize the long-range character of enviro problems involved because there will be irreversible and irretrievable commitments of resources (which NEPA says agencies MUST account for). THUS, EIS MUST BE COMPREHENSIVE unless the segment can stand alone and is not an irreversible/irretrievable commitment of funds. TEST: does the segment have an independent utility? 11

Arguments for NO segmentation (or, covering the entire project): 1. Youre already spending $$ on the EIS, might as well do it for the whole project. a. More efficient to do it all now, whole package cheaper than buying in parts. 2. Adds pressure to finish other segments a. Leads to bias on decision maker to continue even if another segment has increased impact. 3. Irretrievable commitment of resources w/o early attempt to consider alternatives 4. Cumulative impacts greater than individual parts. Arguments for Segmentation: 1. Unwise to spend time and $ on something you might never get to. 2. New alternatives may become available one day. 3. Economic expansion from sections help w/ problems of alternatives. 4. Piecemeal increases tax base and helps pay for development and adds money for methods to avoid future enviro concerns. 5. Time lapse b/w comprehensive EIS and finishing the first part will: a. Make EIS obsolete b. Wasteful, redundant, inefficient. Section 4.7 -- NEPA Amendment of 1975 Coleman v. Conservation Society of Southern Vermont (pg. 109) This amendment, which went into 102 between (2)(C) and (2)(D), permits the state to prepare the EIS so long as: 1. The responsible Federal official guides and participates in the EIS preparation and independently evaluates the project before approving and adopting it. 2. The responsible Federal official furnishes guidance and participates in such preparation 3. The responsible Federal official independently evaluates the statement prior to approval/adoption 4. AND, responsible Federal official provides early notification to, and solicits the views of, any other State or Federal land management entity and, if there is any disagreement on such impacts, prepares a written assessment of such impacts and views for incorporation into such detailed statement. (****The reason for this amendment was because highway funds were shut down after the case above, which said that states CANNOT write the EIS****) Section 4.8 -- Private Individuals and NEPA Silva v. Romney (pg. 112) (Private individuals can be subject to NEPA if in partnership with Feds. Uses a nexus test.) Issue: Can a private developer participating in a MFASAQHE be enjoined from working until the EIS is complete? The court said that the imposition of enviro restraint on one so linked with a federal grantor is consistent with NEPAs claim that every person has a responsibility to contribute to the preservation and enhancement of the environment. Basically, if the nexus between the individual and the federal agency is extensive, court may enjoin. Private individual doesnt have to do the EIS, but can be enjoined until the Fed Agency does it. Reasoning: 1. Makes private developers think about enviro concerns before getting onboard.

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2. Causes developers to learn the process and hoops, which avoids breaches and unexpected rescinding of contracts. This helps prevent partially built projects that are (a) enviro harmful and (b) not beneficial to society. 3. Recognizes that developer has voluntarily submitted to some degree of federal regulation as an applicant for federal aid. Thus, what is affected is not purely private in nature, but is a project intended to be of public assistance. ****Before granting injunction, court must consider the injury itll cause to the developer.**** Section 4.9 -- Remedies under NEPA: Is there a right to a private COA? Noe v. Metro Atlanta Rapid Transit Authority (pg. 118) Issue: does NEPA give rise to a private COA for failure to adhere to the EIS factors (such as, i.e., noise limits)? P claimed that MARTA hurt her business and was not w/in noise limits outlined in the EIS. P wanted an injunction and monetary damages. Court said that NEPA requires an EIS, but does not require compliance with it. FOUR-PRONG TEST (from Cort) (1 and 2 are most important, but must meet all) 1. Is P a member of the class the statute was intended to protect? a. To be a member, the protection and benefit of the party must be the primary congressional goal of the statute (i.e., must be primary beneficiary of statute) 2. Is there legislative intent to create the remedy sought? a. Clearly, NEPA is a procedure. It contains no protections/prohibitions against conduct directed at private individuals. It doesnt even require protection of the environment, it only requires that, prior to constructing a project likely to affect the enviro, the agency produce an EIS. It is not a vehicle for redress of private injuries. 3. Is it consistent with the underlying statutory purposes to imply the remedy sought? 4. Is COA one that is traditionally left to the state, so that its inappropriate to infer COA based solely on federal law? ONE PRONG TEST (from Lewis): did Congress intend to create a private cause of action? Under NEPA, you can get an injunction if the agency fails to do an adequate EIS, but if the projections in EIS arent met, there is no remedy besides nuisance. EIS is only the best estimate. Does not give rise to liability. Benefit of a private COA: Holds agency to accuracy of the EIS, keeps agency from making overly optimistic estimates. Drawback of having a private COA: Would make agencies defensive, might add cushions in their EIS, estimates overly conservative. The ONLY COA AVAILABLE TO PLAINTIFF IS NUISANCE. MORE ON NATIONAL SECURITY Wisconsin v. Weinberger (pg. 124) Suit over ELF, a naval low-frequency submarine communications system. In 1981, Navy reactivated and expanded the testing after it had been shut down. Navy relied on the original EIS, which it completed in 1977. P wants D to supplement the original EIS b/c of new information of the biological effects of extremely low-frequency electro radiation, claiming old EIS was now inadequate. The DCT enjoined the Navy.

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This court said: you can only enjoin for a NEPA violation -- but you still must balance each sides competing claims of injury. Balance the conveniences and possible injuries for either granting or withholding the injunction. DCT failed to balance these factors. Even though Trident said there was no National Security exemption, this case says that national defense is extremely important and balancing test should lean in favor of national defense. The agency balances under NEPA (C/B). But, when determining whether to grant an injunction, the court does the balancing because it is an equitable remedy, National Security usually wins. Winter v. NRDC (SCT 2008) -- Deals with Injunctive Relief Navy sonar training off California coast. Navys EA determined no MFASAQHE. NRDC and Jean-Michael Cousteau sue, claiming EIS is necessary because of sonar impact on whales. Court allows training to continue with certain mitigation measures. Navy appeals. TEST FOR INJUNCTION: P must establish: 1. P likely to succeed on the merits. 2. Likely to suffer irreparable harm without preliminary relief. 3. Balancing the equities tips in Ps favor. 4. Injunction is in the publics interest. Here, lower court found a possibility of irreparable injury. Standard, however, is likelihood, it is not possibility. In balancing (prong 3), must give deference to the military determinations of what is important to national defense. Court held that the balance tips in favor of the Navy, injunction overturned.

SECTION V -- PUBLIC UTILITY REGULATION

Section 5.1 -- Aesthetic Pollution LILCO v. Huntington Zoning Board (pg. 132) Issue: does the local zoning board have the authority to order LILCO to put power lines underground (as opposed to the state PUC)? P argued that they should be able to put power lines above ground and local ZB had no authority to stop them from doing so. Ps arguments: 1. Putting lines above ground through an open parcel of land was as safe and reliable as burying them. 2. Ordering lines buried bore no substantial relation to public health, safety, morals, gen welfare. 3. Ordering line buried was not within ZBs authority. 4. Ordering line buried was not supported by substantial evidence. Court went with the ZB, which said that overhead lines would adversely affect the character of the neighborhood and it would only approve if lines were underground. Who has regulatory power when both state and local govt want to regulate? 1. Arguments for Local Government: a. Affects property values (not strongest, but should make the agmt) b. Local Expertise: locals are closer to the matter, they know the topography, geography, etc. Similar to agmt for state and EIS. c. Land Use and Zoning are local decisions. City has authority to regulate land use issues and local govts have traditionally exercised authority to regulate land use.

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d. Residents will lose/lose. This is not a do nothing scenario. If lines are underground, that is better for residents. If they are above ground, residents will still pay for the lines BUT ALSO have reduced property values. i. If lines are underground, doesnt mean residents win, it simply means they wont lose. It doesnt create gain, only avoids loss. e. No statutory provision determining it is state authority. Thus, legislature must have intended local supremacy concerning joint-jurisdiction. 2. Arguments for State Agency: a. The Policy Theory i. State has expertise concerning power lines. They do this all the time. Besides, the local ZB is not composed of engineers and utility experts like the state PUC. Sure, theyre well meaning citizens, but they are NOT experts. PUC has trained experts, all they do is deal with power. ii. This decision will impact the region, shouldnt leave it to localized control. Cost of Tx line is spread over the whole state (or region if RTO). Thus, the whole state would be paying the extra $$ just to put this line underground. iii. Common Sense -- if town wants it, they pay for it. 1. Problem: some towns might want it but cant afford it. a. Uneven-handed way to buy way out of pollution. 2. Some people in town arent affected, dont want to pay for it. iv. Allowing town to dictate and pay for it makes it so that only rich towns can do it. b. The Legal Theory (from the dissent) i. Lack of expressed authority allows for preemption (implied) for state dominance (legal). If there is implied authority, the ZB was outside the scope of its authority. Just because, in NY, there is no express preemption (like there was by statute in PA and NJ) doesnt mean there isnt implied preemption (from legis intent). Section 5.2 -- Rate Setting Methodology, Resource Use (or conservation), and Pollution Those who use more will pollute more and deplete resources. What we charge them influences their use. Atlantic Seaboard Corporation (FERC) (pg. 136) This is a natural gas rate case, asks what we should do with the fixed costs... Demand Costs: the costs associated with the capacity of the facility. Includes fixed costs (i.e. rent, capital expenditures). Capacity cost -- plant was built to have sufficient capacity to serve demand. Commodity Costs: the costs associated with the volume of NG delivered. Includes variable costs -- i.e. the costs that vary with use, which is measured by volume. Cost of gas depends on the use and amount (supply and demand, NG price fluctuates). The Applicant and the FERC Staff (Staff) differed on how to set the rates. 1. Applicants Approach a. Allocate the fixed costs (except ROI and income taxes) to demand/capacity -- doesnt change in relation to output or usage. Reasoning is that the costs to build are the same whether you are putting out one gallon or a million gallons. i. Fixed costs measured as capacity. ii. Variable costs apportioned to volumetric functions. b. Do not make interruptible customers pay fixed costs b/c this plant was not built for them, it was a peaking plant (they supply their own power during peak times). 15

2. Staff Approach (Conservation Promotion Plan -- 1/2 of fixed costs treated as variable costs) a. Divide fixed costs equally b/w demand (fixed) and volume (variable). Assign variable expenses to commodity. b. This will increase the price, which, in effect, decreases demand. By pretending the fixed costs are variable, price per gallon will increase -- if you use a lot, your cost per gallon increases. Thus, interruptible customers would pay some share of the cost of the NG facility. This is contrary to Applicant Approach, where interruptible paid NONE of the fixed costs. c. Staff reasoned that if you dont charge interruptibles for fixed costs, they wont pay any of the fixed costs even though they arent really ever interrupted (like 5 days a year). They were rarely interrupted, so it wasnt fair for everyone else to pay all the fixed costs. Atlantic Seaboard and the Environment: Staffs approach would increase the price. Applicants approach decreased the price. Enviro effect: higher price per gallon = reduced use, which means less pollution and slower resource depletion. Using applicants approach, however, is better for other reasons. For example, staff approach reduces the incentive to be an interruptible, so more industrials would use during peak hours, meaning wed need more peak plants to serve that increased demand. o Utility cares about the cost too. They want to show that they use the plant efficiently, not wasting the plant. Plus, if theyre efficient the dont have to build more capacity, which means they dont have to go through permitting process and can avoid controversy. The utility wants more interruptibles so they dont have to build more capacity. Section 5.3 -- Rates: Who Pays For Abatement Costs? Computing Rates... Pennsylvania PUC v. Philadelphia Electric Co. (pg. 139) Deals with rate setting at the STATE LEVEL. If you pay more, there is a greater incentive to conserve. Air Quality Fuel Charge (AQFC) -- utility required to burn low-sulfur fuel, which was more expensive than high-sulfur fuel. Util wanted to collect a higher rate because it cost more to burn that fuel... Utility posed a two-step rate structure: 1. Everyone pays the same up to 1000 kWh per month. 2. High volume users (industry) pay 2/3 of original rate for all kWh over 1000. Issue: who should pay higher cost for using low sulfur oil; who should pay for increased enviro protection? Three methods for rate setting: 1. Discount Method: higher volume users get the discount. a. First 1000 kWh is one rate. Each kWh after that is a lower rate. 2. Incentive Method: larger users pay more, there is incentive for large users to become more efficient or to conserve. a. First 1000 kWh is one rate. Each kWh after that is a higher rate. i. High volume users should pay more because: 1. They use more 2. They can afford it 3. They create high demand 3. Flat Rate Method: a uniform approach. a. Every kWh charged one rate, all users pay the same thing. This is the easiest method. 16

Utility chose the DISCOUNT METHOD. Argument is that it is more efficient to deliver power to industrials. There is less line loss because they can use DC lines, no need to step up or down at a transformer (only 3% line loss). Conversely, there is 10-12% line loss to residential. Lower line loss saves the utility money. This case and the environment: who should pay for abatement? More power wasted on low users, which means more power must be generated. Less power wasted on industry. Because it is more efficient to transmit power to high volume users, they should pay less. Section 5.4 -- Encouraging Alternative Energy American Paper Institute, Inc. v. FERC (pg. 142) (PURPA case) Issue: does the FERC have the authority, pursuant to PURPA, to require utility to pay the QF the full avoided costs for their generated electricity? Does FERC have the authority to require utilities to make interconnections with SPPs and QFs? PURPA gave SPPs and QFs access to the grid, made utilities buy power at FAC. Congress wanted to develop competitive alternative and co-generated energy by incentivizing. PURPAs Purposes: 1. Decrease fossil fuel demand a. By encouraging alternative and cogenerated electricity (QFs <80 MW from renewable source) 2. How? a. Required utilities to connect and purchase electricity from Cogens and QFs i. Guarantees Cogens and QFs have a customer: they have an automatic market. If they call the utility and say I have power, the utility has to buy it. ii. Purchase price = FAC = utility has to pay QF what it wouldve paid itself. Even if FAC is 6 cents/kWh and QF can produce at 2 cents/kWh, utility pays 6 cents. Thus, QF profit is 4 cents/kWh. This encourages QFs to innovate: better technology = lower cost = higher profit. 3. Why it works a. Venture Capitalists -- possibility of getting rich quick if generating at cost substantially lower than FAC. See (ii) just above. b. Rewards incentive for investing in new technology. See (ii) just above under (2). Utility said paying FAC produced costs to consumers that were not just and reasonable. This argument failed, however, because: 1. There were no extra costs. Ratepayers would pay the same thing if utility produced the power. 2. Ratepayers and everyone else benefits from a reduced reliance on fossil fuels. 3. Regulations were NOT UNREASONABLE, which meant they were NOT ARBITRARY OR CAPRICIOUS. 4. This was in line with the statutory purpose, which was to encourage alternative energy. 5. FAC is negotiable through long term PPAs.

Section VI -- Pollution
Section 6.1 -- What is Pollution? Pollution: when humans introduce something into the environment in a way that is unnatural to the location where it was introduced.

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1. Clean Water Act definition: man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of water. (Any alteration, good OR bad.) 2. Water Commissions definition: water is polluted if it is not of sufficiently high quality to be suitable for the highest uses people wish to make of it at present or in the future. 3. Clean Air Act, 108: Adverse effects on human health or welfare. 4. Whatever no one wants Definitions of Pollution Vary in Regards To: 1. The origin of the pollution: it can come from (i) humans or (ii) nature. 2. Types of change a. Any change from the natural state, positive OR negative b. Or, only degrading or detrimental changes 3. What is impacted a. Only humans count (like NEPA -- MFASAQHE) b. Or, the environment (maybe including humans as part of the environment) 4. The degree of the harm a. Substantially affects b. Significantly affects c. Affects d. Unreasonably affects 5. The remedy a. Ban the activity (i.e. injunction) b. Balance the activity with the harm (C/B) Different people have different definitions of pollution. When participating in the political process, you can either stick to your guns or compromise. ALWAYS REMEMBER, however, that you do what is in your clients best interest -- he will tell you the outcome hes looking for, youre supposed to get that or something damn close to it. When compromising, determine where youre willing to budge and how far youll budge. Section 6.2 -- Economics and the Environment Economics and the Environment (pg. 154) by Kneese All production has byproducts. Inputs, i.e. fuels, foods, raw materials, are converted into intermediate goods and final goods. In that production process you get residuals (waste, exhaust, scraps, etc) and the final goods also eventually turn into residuals. Residuals must be: 1. Transformed 2. Reduced 3. Reused 4. Disposed 5. Recycled Cradle to Grave theory of internalization of the costs of Residuals: 1. Production 2. Raw materials 3. Extraction, production of raw materials 4. Transport to sale 5. Waste 6. Etc.

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Private Transportation Flow-Chart: Raw Materials Production

Consumption

ResidualsGo into the earth as pollution, both the ones we capture and the ones we dont capture.

Reduce

Re-use

Recycle

Disposal

Is recycling environmentally sound? Note that there are still residuals... 1. The chemicals used to prepare the material for recycling 2. The residuals produced by the truck that picked it up 3. The residuals created by cleaning it out 4. Bins for recycling 5. Space to put those bins -- space is finite resource (especially in, i.e., NYC) Section 6.3 -- Private (Common Law) Pollution Controls 1. Nuisance: unreasonable interference with the use and enjoyment of PROPERTY. a. Used when there is a continuing harm. 2. Trespass: an invasion of property. No need for substantial harm. a. Best COA because you only have to show something entered land, nothing more. 3. Negligence: duty of reasonable care, breach of that duty, caused harm -- both cause in fact and proximate cause (foreseeability) -- no defenses (assumption of risk, contributory negligence) a. Ex.: carelessly left a chemical in the wrong place. Primarily used in pesticide cases. 4. Strict Liability: if you cause the harm, youre liable. Only have to prove but for cause in fact. Boomer v. Atlantic Cement Company (pg. 161) Issue: should (a) the court resolve the litigation in an equitable manner or (b) consider the broad public objectives at stake (here, preventing pollution). Court decides that tackling the pollution issue is not the role of the court. Neighbors of a cement plant brought an action against the plant for damages and an injunction. The court said the plant was a nuisance and allowed damages, but did NOT grant the injunction because of disparity in economic consequences of the nuisance and the injunction (BALANCING TEST) (injunction would result in closing a $45 million plant that employs 300 people). Enjoining Ds operation would cause more damage to D than D did to P. BENEFIT OF INJUNCTION: stops dust from falling on Ps property. We can quantify it: value of Ps property with no dust minus value of Ps property with dust = $185,000. HARM OF INJUNCTION: closing a cement plant that is worth $45 million and employs 300 people. 19

Would also harm SOCIETYS INTEREST: the multiplier effect -- the plant was a pillar of the community. 300 jobs lost would be hundreds of unemployed families, w/o jobs they arent going to spend $$....

What are the alternatives to an immediate injunction? 1. Grant the injunction but postpone it to a specified future date so that D has time to update the plant to eliminate the nuisance. a. Court does NOT choose this option because: i. There is no way to assure that significant improvements will occur. ii. No way to achieve such mitigation techniques in a short period of time. Plus, mitigation technology is an industry-wide undertaking, cant pin it all on this one plant. This research is beyond Ds power and ability. 2. Grant the injunction conditioned on the payment of permanent damages to P, which would compensate them for the total economic loss to property in both present and future. a. Court chooses this alternative because: i. P will be reimbursed for the damage to his property. ii. Public health and other agencies can still do something to abate nuisance iii. It still works as an incentive to develop new abatement technology. What was the traditional remedy for nuisance? An INJUNCTION: when court finds a nuisance, it grants injunction to stop the activity. BOOMER breaks from tradition because of the DISPARITY mentioned above. New rule: When the imbalance caused by injunction would result in far greater harm to defendant than nuisance harm to neighbor, may substitute $$ for injunction. Court decided to do one lump sum payment because it was compensatory. There is no net loss, it pays for past, present, and future damages. It basically created an easement for plant to keep dumping cement dust onto Ps property. This was sufficient because more Ps can sue in the future. MUST WEIGH: 1. Total damage to Ps property 2. Value of Ds operation 3. Consequences (see, e.g., multiplier effect) of the injunction. DISSENT: the nuisance came to the town -- pollution was done for Ds own benefit, not benefit of the public -- Inverse condemnation only permitted when public is primarily served by nuisance -- This was unconstitutional, it was a taking for private use -- licensed a continuing harm... Spur Industries v. Del Webb Co. (pg. 166) Injunction was granted, but court said P had to pay for removal of nuisance. Issue One: may industry be enjoined when the affected party comes to the nuisance? Private nuisance: affects only small # of people in use/enjoyment of land. Public nuisance: affects rights enjoyed by citizens as part of the public. REMEDY depends on BALANCING of conveniences: if injury is slight, remedy is small. Weigh the injury against the utility of the nuisance. 20

Public Nuisance (state statute) dangerous to public health when: it is in a populous area and it constitutes a breeding place for anything capable of transmitting or carrying disease to humans.

Issue Two: MUST DEL WEBB (P) INDEMNIFY SPUR (D)? YES. Because P came to the nuisance, it was not Ds fault. Court didnt enjoin D because it did something wrong, it enjoined D because it has to protect the public health and welfare and injunction was the only way to do it. P had to indemnify D because: o P brought people to the nuisance (into a previously rural/agricultural area) o Ps actions were foreseeably bad for D o An injunction was the only solution o D was a lawful business o D has no other relief. HYPO FROM CLASS: Using Boomers reasoning, what should the Spur court have done? 1. Del Webb would have said that: a. This case is distinguishable from Boomer. i. The public interest is very different here, issuing injunction in Boomer would hurt the public interest (multiplier effect). ii. Injunction is not unreasonable, D can move the cows and its not worth $45M. iii. Not enjoining means property values will plummet. iv. This injury is major: 1. It is a public nuisance, whereas Boomer was a private nuisance. 2. There is a statute that says this is a public nuisance dangerous to the public health. 3. Damage is greater because more money lost here than in Boomer. 4. This is a public health issue, Boomer was a property damage issue. 2. Spur would argue that: a. Del Webb came to the nuisance. Spur didnt do anything wrong. b. Spur is an old, well-established family-owned agricultural company. c. Land Use: location is a rural area that has traditionally been used for agriculture. Besides, DW is a land spectator who took advantage of the cheap land, land that was cheap, significantly, BECAUSE Spur was there. DW knew about this when it bought the land. d. This is NOT a public nuisance, only DW is economically injured. In fact, no one lives on these lots because DW hasnt been able to sell them. Section 6.4 -- Statutory Pollution Control Why do we need statutory controls? 1. Common law deals with specific cases -- too small, doesnt address broad public good. Statutory law focuses on the big picture. 2. Some people cant afford to go to court -- CL discriminates against the poor who cant afford counsel. Statutes make sure government keeps things fair. 3. Common law is reactive, harm has to happen before the claim -- STATUTE IS PROACTIVE, CAN PREVENT THE HARM FROM HAPPENING. Why do we not need statutory controls? 21

1. There is already a CL system set up to deal with the issues. 2. It just adds bureaucracy. 3. Courts would deal with statutory interpretation anyway and check the agencies to make sure they arent acting A/C.

Section 6.5 -- Transferable Discharge Permits Council on Law Related Studies, Effluent Charges on Air and Water Pollution (pg. 171) -- aka the Jacoby-Shaumberg Plan Deals with the Transferable Discharge Permits, which use economic mechanisms as opposed to Command and Control. This laid out the idea of a cap and trade. What was the JS plans methodology? 1. To set up the TDP, first must answer: a. How clean does the lake need to be? What quality do you want it to be? b. What are you using the lake for? Class hypo assumed that the use was potable rather than swimmable, drinkable, or commercial. i. Input Standard: how much X can be there before use is inhibited? What about the combination of pollutants? Total X coming in allowable. c. What pollutants are currently affecting the water? How much can do in there without violating quality standards? Affected by things like: i. Assimilation ii. Flush Rate iii. Evaporation d. Distribution of permits (Implementation) -- Who gets to put X in and how much? To whom do we distribute the 800 permits? 2. Methods of Distribution a. Lottery i. Use existing dischargers and give it to them in a lottery ii. Or, let anyone who applies join the lottery iii. Or, any residents who apply can join -- this is the only one that would work because: 1. People who have a stake in the resource would get the permits and could sell them to polluters. b. Distribute To the Existing Dischargers i. Allow for a % of existing or prior discharge. ii. Most fair option: it protects the existing entities in the community and provides continuity while disrupting less. c. Distribute to all users on an equal basis, not dependent on prior discharge i. d. Pro Rata -- based on the amount of the existing discharge i. Advantages: protects the things that people have been doing legally. It would disrupt society if dischargers could no longer operate. Not fair to change the rules, should give them the chance to do what theyve been doing if they just tighten their belts a little. 1. BUT, it makes it harder for new businesses to come to town. If someone wants to compete, they have to buy permits from the existing, favoring the existing businesses over new businesses, favors a business with old technology over one with new technology. Why should the problem get all the permits?? Dont reward the bad guys / let them control the market. 22

ii. Disadvantages: all other people will claim they have rights on this body of water. Thus, giving permits to existing dischargers will only step on everyone elses rights. Think about the public trust doctrine: public has a right in the body of water. Taking publics rights without just compensation. e. Auction -- largest bidder gets the permits. (The ECONOMISTS CHOICE) (SHOULD BE THE ENVIRONMENTALISTS CHOICE) i. Advantages: permits find their way to the hands of those who need them most. Most significantly, it internalizes costs for those who cant reduce pollution -will only buy the permit if it costs less than cleaning up your act. (This is the primary reason for TDPs and why economists (efficient) and environmentalists (forces cleaning up) would choose this option. 1. If it costs A $9 to clean up and it costs B $17 to clean up: a. A will bid up to $9 in an auction. Once bidding goes over that A will just clean up, it will be cheaper. B will buy the permit as long as it stays below $17. b. Thus, there is an initial reduction in pollution because cleaning up is cheaper than permits. ii. Disadvantages: Existing dischargers will complain. If they have no cash flow and cant auction theyre out of luck. Theyve been there legally for years, this is a taking. 1. Those who cant afford the auction -- i.e. schools, hospitals, non-profits -will lose. 2. Those who end up with permits are those who can afford them. They will pass the costs on. f. Agency Approval: THIS IS THE CHOSEN METHOD FOR THE HYPO i. Agency has the data and the expertise ii. Point system based on set criteria iii. Can give preference to those who are cleaning up 1. Existing polluters 2. Those who have access to technology 3. Or, those who cannot upgrade iv. Gives the lawyers jobs (if agency denies you a permit, you litigate). v. Allows for judicial review vi. Gives the community some control Now, how do we set up the system so that we dont upset existing dischargers too much? The dischargers potential COA would be a TAKINGS action. Responses to the Takings claim: 1. It was not a private property right to discharge; 2. It is a police power regulation, which the local government can do. ADVANTAGES AND DISADVANTAGES OF CAP AND TRADE SYSTEM 1. Advantages: a. Conservation groups can purchase and remove them from circulation (RETIRE them) b. It is efficient, i.e. lower administrative costs -- a nonprofit cant sue on the transfer i. It is a market-based, self-executing system ii. There is no review process iii. No investigation re permitting iv. If you want a permit, go buy it c. It establishes guaranteed CAPS i. There is now a limited amount of discharge based on # of permits 23

ii. The medium will not get worse iii. It is a self-limiting market structure iv. But will things get better? Maybe, set time limits on permits or roll back value d. INDUSTRY LIKES IT i. It is immediate -- flexible -- certain -- no lawsuits, just buy the permit and go e. NATURAL ECONOMIC COMPETITION (which is why enviros and economists like) i. Inefficient users will not be able to acquire enough permits. ii. Then they will go out of business. iii. Which will reduce the number of polluters. f. There is an incentive to develop new technology to reduce pollution i. Which frees up permits for sale ii. If the cost to develop the technology is less than price of permits g. Everyone wins economically i. Two companies, W and Q 1. Will cost W 7 to clean up 2. Will cost Q 14 to clean up 3. W has a permit 4. W can clean up and sell to Q for 9 5. W makes a profit of 2 6. Q saves 5 by buying permit rather than spending 14 to clean up 2. Disadvantages a. Hot Spots -- increased concentration of pollution in one area i. JS Plan proposed regional areas set up with limited number of permits in each region to avoid this problem. b. Monopolization -- one polluter can corner the market i. Creates a permits market, speculators can buy them all up c. Environmental Justice -- only the rich can afford it d. Doesnt decrease pollution -- The Cap doesnt provide incentive to decrease pollution. Doesnt really eliminate effluent or emission UNLESS: i. Reduce the # of permits ii. Or devalue permits over time or upon sale (NH does this -- when you transfer a 100 gal permit it will be worth 10% less -- so then its worth 90 gallons, then 80, etc etc) iii. Or set up limits to transferability Cap and Trade is popular because: 1. For Economists and Politicians -- it is efficient. Government sets up the system and then the system runs itself. Keeps government out of the picture. 2. For Environmentalists -- the Cap ensures pollution wont get worse. It is the quantity of pollution that can go into the air, water, whatever based on the quality we decided that we want. a. Also, it is an incentive for developing better technology that might further reduce poll... 3. Economists / Business -- it creates a market, there will be $$ involved. Ways to make $$, etc.

Section VII -- The Clean Air Act

Section 108 -- Air quality criteria and control techniques 1. Congress sets criteria for determining air pollutants -- if a pollutants emissions cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. If the effect is significant, the EPA must set standards under Section 109. 2. Primary standards are for public health. 24

3. Secondary standards are for public welfare (definition on p. 209 includes EVERYTHING) 4. If you can argue that an emission has adverse effects, must be included/controlled (or else A/C). 5. Requires EPA admin to issue air quality criteria and provide info on control techniques.

The CAA has five control mechanisms: Control Mechanism #1 -- Section 109 -- Ambient Air Quality Standard (AAQS) -- Deals with the medium (AIR) a. (b)(1) Primary Standards -- designed to provide an adequate margin of safety to protect public HEALTH. Stricter standards when protecting public health. b. (b)(2) Secondary Standards -- designed to protect public welfare from known or anticipated adverse effects. This category is BROADER b/c protecting public welfare, includes a lot more than public health, including: i. Effects on: climate; crops; wildlife; weather; visibility; soil; water; vegetation; animals; property; transportation; economic values; personal comfort; well-being (SEE PAGE 209, section 302 defines welfare). ii. So, applies to everything that affects welfare, even if it doesnt affect health. Applies to ambient air, NOT THE SPECIFIC SOURCE. c. Ambient Air Quality -- measured in the ambient, i.e. not measuring emissions yet (that comes in Section 111). Location and type of ambient meters determined in CFR. Section 110 -- State Implementation Plan (SIP) 1. States decide how the want to reach AAQS (in other words, how to achieve ATTAINMENT). State submits to the Administrator (subject to EPA approval). a. If state is in a non-attainment area, it must decide how it will reach the AAQS. b. If state is in an attainment area -- must specify how it will stay in attainment. 2. Feds set standards. States implement. Then feds must approve or disapprove SIP. 3. A FIP supersedes the SIP if: a. EPA rejected SIP and state didnt fix within 2 years. b. State fails to submit within 2 years c. But, FIP must use emissions limitations found in 111 first. Control Mechanism #2 -- Section 111 -- Emission Limitation: NEW STATIONARY SOURCES (pg. 193) 1. (a)(1) Based on what is ACHIEVABLE through application of the best system of emission reduction, taking into account the cost of achieving the reduction and any nonair quality health and enviro impact that the Administrator determines has been adequately demonstrated. 2. MEASURES EMISSIONS (whats coming out of the pipe) a. Discharge of pollution from specific source b. Factors in COST when evaluating reduction 3. (d) EXISTING SOURCE STANDARDS -- take into account remaining useful life 4. (f) -- NEW SOURCE STANDARDS a. More stringent than (d), sets a timeline b. Issue is how to tell the difference between modifying or maintaining the existing source. A significant modification makes you a new source. If modification is not significant, most likely not a new source. i. Argument in favor of calling it a new source: eventually all existing sources would disappear and would be governed under the new standards. 25

c. New Source Review -- if you improve by more than 20% of the value of the plant in one year, you become a new source and are subject to the stricter standards. 5. COST -- MUST USE BEST TECHNOLOGY BALANCED AGAINST THE COST

Control Mechanism #3 -- Section 112 -- Hazardous Air Pollutants (Worst of the worst) (pg. 197) 1. (b) lists the HAPs. a. HAP is any pollutant listed in this section (in 1990 amendment, EPA took its time so Congress stepped in) 2. (d)(1) -- Standards and Methods a. If you are a source of a listed chemical: i. Requirement is MAXIMUM DEGREE OF REDUCTION ACHIEVABLE, as determined by the market and competitors. If EPA wants to be stricter they must show that it is more cost effective. ii. Takes cost into consideration. b. (d)(3) -- Maximum degree of reduction of emissions 1. New Sources -- more stringent a. AT LEAST EQUAL TO THAT ACHIEVED IN PRACTICE BY THE BEST-CONTROLLED SIMILAR SOURCE. b. Thus, at least as clean as the cleanest in the industry. c. Economic Incentive: if you are the best, no one who is not the best can come in after you. You are the best competitor. i. If not implementing new technology, have to buy someone elses ii. So why not just develop your own, youre going to spend the $$ anyway. Develop and then can sell to new sources... 2. Existing Sources -- less stringent a. Average emission limitation achieved by best performing 12% of existing sources when category has >30 sources b. Average emission limitation achieved by 5 best if < 30 sources 3. Allows for market to set its own upgrade schedule. 4. Market based incentive: a. If you and other improve over competitor, competitor either keeps up or goes out of business. 3. RE COST: must use the best technology available. If EPA wants to make standard more stringent, it must take cost into account. Control Mechanism #4 -- Subchapter IV, Acid Deposition, based on SO2 (pg. 209) 1. This made it in because Canada was pissed about acid rain caused by US factories a. US NE states had been complaining about acid rain from Midwest utilities but Congress didnt do anything. When Canada spoke up, Congress acted. 2. Congress regulating all TRANSFERABLE ALLOWANCES. 3. Specificity: Congress gave allowances, by generator, in each state. 4. Allowances: amounts of emissions that the plant is allowed to have. a. If you plan on exceeding the allowance, you need to buy more of them. If youre under the allowance, you could sell them (see page 215). 5. Economic Incentive: if you limit your emissions you can sell them and make $$. 6. Sulfur Dioxide -- SO2 + H20 = H2SO4

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Control Mechanism #5 -- Stratospheric Ozone Protection (Phase Out) (pg. 240) 1. O3 is ozone. We regulate it at ground level. It is good in the stratosphere, limits UV rays. 2. This section regulates CFCs and Halons because theyre bad for ozone layer. They turn O3 into O2, which doesnt guard against UV rays. 3. We tackled this issue because UV rays cause cancer. Cancer scares more people than climate change. Thus, Congress responded to Montreal protocol and phased out CFCs. a. International Issues -- Developing countries have a harder time phasing out CFCs. b. US Exception -- for methyl bromide, strawberry producers say no substitute 4. CONTROL MECHANISM IS A PHASE OUT on consumption and production. Congress set out a very specific phase out schedule. 5. There is, however, a clandestine CFC market.

CAA can work with CO2 if we do it: If EPA shows that CO2 adversely affects health or welfare under Section 108 Welfare by definition includes climate (section 302 on page 209) Now, CO2 is classified as a Criteria Pollutant, that trips: Section 109 AAQS, which, States have 2 years to submit and gain approval for their SIP, or FIP kicks in. EU added environmental protection to their constitution.

Section VIII -- Statutory Interpretation

Portland Cement v. Rucklehaus (pg. 254) Deals with: Costs Achievability NEPA EIS Section 111 of CAA Cement manufacturers sought review of action of the Administrator of Environmental Protection Agency in promulgating stationary source standards for new or modified portland cement plants, pursuant to the Clean Air Act. P claims: 1. EPA didnt do an EIS. P said EPA is an agency and this is a MFASAQHE. a. Here, court said that no EIS was required, made a narrow exception for EPA. When promulgating standards under section 111, no EIS is necessary. THERE WAS SPECIFIC STATUTORY LANGUAGE to this effect. i. Page 257: Congress only gave EPA 90 days to come up with standards in CAA 111(b)(1)(A) (Mutual Exclusivity). There was not enough time to do an EIS. Thus, EPA couldnt comply with both statutes: CAA only gives 90 days. EIS takes more than 90 days. ii. This is a specific over general situation. EPA has to do the specific statute, which was the CAA. Also, court said Congress must have exempted EPA from EIS here. b. Section 111 already contains the functional equivalent of the EIS. See page 261.

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i. But is it really functionally equivalent? EIS would include a C/B, but CAA does not. So if you have to do C/B under NEPA but not under CAA how is it the functional equivalent? c. Also, i. Congressional record shows that NEPA was not designed to result in an change to the way environmental agencies do their work. ii. Federal Water Pollution Control Act said that NEPA did not apply to EPA in certain actions dealing with H20 pollution control activities. iii. Environmental protection should not be slowed down by NEPA. 2. Economic Costs were not adequately taken into account and the standards unfairly discriminated against Portlands Plants (when compared to standards in other industries). D said they did take costs into account but didnt do a CB because statute didnt require it. a. TWO ASPECTS OF COSTS b. FIRST: Do you need a C/B analysis? (pg. 264) i. Portland wanted a quantified CB, said that EPA had to show the benefit to ambient air conditions measured against the cost of the pollution devices. EPA said that if Portland complies with Section 111 itll cost 12% of entire facility plus 7% per annum for maintenance. ii. THUS, NO COST/BENEFIT SO LONG AS EPA HAS EVALUATED WHAT THE COSTS ARE. REQUIRING C/B WOULD CONFLICT WITH THE SPECIFIC TIME CONSTRAINTS IMPOSED ON EPA. c. SECOND: unfair discrimination against Cement Plants? (page 266) i. Portland says that the section 111 standards are too heavy on cement plants and more lenient on other industries (such as power plants). On page 266, court says that, most of the time, you cant compare inter-industry. ii. In addition, EPA said that superior technology was available for cement, not for incinerators. Since all cement companies have the same standards, there is no unfair competition. 1. EXCEPT when creating substitutes or alternatives (i.e. asphalt as a sub for cement). Thus, sometimes inter-industry comparisons are necessary and applicable. a. SUCH AS WHEN the alternative and competitive product has less strict standards -- when this is the case, inter-industry standards should be considered because the alternative might gain a competitive edge over the industry. b. Cement vs. Asphalt -- one is regulated, one isnt. The regulated industry has to pass costs onto consumer. Unregulated industry can keep costs lower, gain market. Therefore, must equally regulate industries so the statute doesnt favor one over the other. i. The argument against this is that industry will not spend $$ on innovation until mandated by law. If you say to industry, you must do the best you can given best available technology, industry wont develop technology on its own because theyll get hit with the higher standard. 3. The Achievability of the emissions standards was not adequately demonstrated a. Section 111 requires the degree of emission limitation achievable [which] the Administrator determines has been adequately demonstrated. b. EPA loses this argument -- the Act requires the degree of emission limitation achievable, which the Administrator said was adequately demonstrated.

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i. BUT -- EPA did not follow CAA procedure. It only proved to itself that the levels were achievable. EPA must give notice, give industry time to comment and collaborate, and did not interact with the industry. ii. There must be an interactive procedure so that all members can share info and inform each other. W/o that interaction, there is not an adequate demonstration of achievability. EPA has to, in good faith, consider what the industry says.

New York v. EPA Agency interpretation, using the Chevron standard. Dealt with Section 111 of CAA, specifically the words any physical change. So long as the agency gives a reasonable and rational determination, the court will defer to it. Court will not defer if it is a humpty dumpty interpretation, where the agency ignores words it doesnt like (such as, any in this case). (1) First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, 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. If the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute . . . RATHER, (2) If the statute is silent or ambiguous with respect to specific question, the issue for the court is whether the agencys answer is based on a permissible construction of the statute.

Sierra Club v. Ruckelshaus (pg. 280) Deals with the PREVENTION OF SIGNIFICANT DETERIORATION (PSD) and 109-110. We are in an ATTAINMENT AREA. Can the SIP let clean air degrade as long as it doesnt violate the secondary standard? (Answer is no.) The SIP wanted the EPA to approve a degradation of cleaner ambient air up to secondary standards. SC wants to enjoin EPA from approving SIPs that propose degrading air from better than secondary standard down to the secondary standard. To decide this question, court looks at: 1. The stated purpose (statutory language) of the CAA of 1970 a. And finds: i. Section 101(b) -- the purpose of the act is to PROTECT AND ENHANCE, which seems to declare that Congress intended to improve the quality of the nations air. SC argued that: 1. Enhance means make better or improve 2. Protect means dont let it get worse 2. The legislative history of the CAA and its predecessor a. And finds: i. The CAAs predecessor had guidelines dealing with the same enhance and protect language, which said that significant deterioration would conflict with the express purpose of the Law. In other words, old statute said that deterioration is not allowed.

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ii. Re-Enactment Theory -- where there is an old statute, which was interpreted by courts, and Congress kept the same language, Congress intends to keep the same interpretation. iii. Secretaries testimony before Congress said that the Act would not allow EPA to allow air quality to be degraded. Senate report said that if pollution levels are better than air quality goals, Secretary shall NOT approve any SIP that does not provide for the preservation of that air quality. 3. The administrative interpretation of the CAA. a. And finds: i. While courts usually defer to administrative interpretation, the interpretation was SELF-CONTRADICTORY because: 1. 50 CFR 50.2 said there should be no significant deterioration 2. 50 CFR 51.12 said you cannot exceed Secondary Standards 4. HELD: No, cannot degrade air down to secondary standards because this is contrary to the policy of the Act. (Opposing Argument: Underdeveloped Midwestern states -- similarly to underdeveloped nations -argue that the East Coast got to industrialize when they did not have these strict standards. Now, Midwest cannot industrialize with new, stricter standards, and will be forced to remain as they are. Besides, the Secondary Standards are still just fine, being at them doesnt really hurt anyone. But keeping states at attainment -- which is higher than the secondary standard -- hurts the poor, underdeveloped states economies. Developing nations make the same argument concerning capping CO2 emissions -- they ought to be able to develop just like everyone else did. COUNTER ARGUMENT TO THIS: you can develop, you just have to do it the right way. Just because Eastern states did it wrong doesnt mean that you should do it wrong. Also, while the secondary standard is good, it is not the best because there are special circumstances where cleaner than Secondary is needed (Precautionary Principle suggests that cleaner is better: if its at 1, dont let it get to 3 or else youll never get back to 1 once you figure out that 3 is no good. Just like when they paved paradise and put up a parking lot. Well never get paradise back.) CAA Amendments of 1977 -- PREVENTION OF SIGNIFICANT DETERIORATION (PSD) Now, we can degrade air that is better than the ambient, but you can only decrease by numbers set forth on page 286. We cannot allow any significant deterioration, which would usually be an agency determination with administrative discretion. Here, however, Congress set forth very specific standards for what is significant deterioration with their maximum allowable increase. NOW, SIP WILL BE APPROVED AS LONG AS: 1. It doesnt go beyond Secondary or Primary standards 2. Depending on the Class a. Class I -- Federal Lands, etc. b. Class II -- Includes everything else c. Class III -- Nothing ever been re-designated. 3. Depending on the increments and ceilings: (see page 286) a. Depends on the baseline: the level when the standards were put forth b. Type of pollution and the measuring tool (the annual geometric mean) i. Particulate Matter -- measured in Micrograms/cubic meter 1. If Baseline is 42 mg/m2 and it is a class II particulate matter and you are using the:

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a. Annual Geometric Mean (yearly average) -- may only increase by 19 mg/m2, for a grand total of 61 mg/m2, may not exceed the 24hour maximum increase of 37 mg/m2. ii. Sulfur Dioxide 1. Annual Arithmetic Mean 2. 24 hour max 3. 3 hour max 4. If SO2 baseline is 17, youre in a Class II area, and looking at Annual Geometric Mean, the maximum concentration is 37 (17 + 20 = 37). Unless that pushes you over the 24 hour maximum.

NRDC v. EPA (pg. 289) This is the tall stack technique case. Deals with the fact that Georgias SIP (110) (109 AAQS) made particulate and SO2 emission dependant on the height of the smoke stack (So, GAs solution to pollution was dilution). EPA approved, NRDC sued EPA. NRDC said that, in the CAA, the language other methods necessary means that you can only use the other methods as a last resort. Thus, you have to exhaust all other available controls capable of achieving the maximum limitations. Basically, emissions limitations are not the only way to reach attainment. You can also use such other measures as may be necessary. But, NRDC argues that you can only use the other measures to assure attainment. Court takes a BROAD approach, which follows the entire text of the CAA. Because the CAA prefers emissions limitations, the court prefers limitations over all other measures (here, other measure was dilution through the tall stacks...). o If you can limit emissions, you must do that. If you cant limit emissions, then you can use other measures. The court took the broad approach because it was consistent with the CAAs intent of improving air quality using emissions limitations. Congresss intent was to require maximum use of emissions standards. The broad approach ONLY allows dispersion techniques to be used if there is a demonstration that they are necessary to meet national emission reduction standard.

Massachusetts v. EPA Involves the motor vehicles sections of the CAA. The CAA requires that EPA either make a finding on endangerment or give the reasons why it isnt going to do so. It is A/C to NOT make a finding on endangerment AND not tell us why they did so. EPA must ground its reasons for action or inaction in the statute. EPA can avoid taking regulatory action with respect to GHG emissions from new motor vehicles ONLY if it determines that GHGs do not contribute to climate change OR if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.

Section IX -- Clean Water Act (pg. 295)

Section 9.1 -- The Act Section 1311 -- Effluent Limitations: Pollutant Discharges (same as 111 in CAA) Effluent limitations for point sources shall require: 31

1. For non-publicly owned application of the best practicable control technology currently available (See definition in section 1314(b)) 2. For publicly owned treatment facilities effluent limitations based on a secondary treatment (definition 1314(d)(1)) 3. For pollutants defined in C, D, F -- shall require application of the best available technology economically achievable for such category or class 4. Toward furthering a national goal of eliminating discharge of all pollutants Section 1313 -- Water Quality Standards and Implementation Plans (like 109 of CAA) 1. Existing Water quality standards: any water quality standard applicable for interstate waters, which was previously adopted by the State and approved by the Administrator, shall remain in effect unless determined that the standard is not consistent with the requirements of this Act. 2. Proposed Regulations: administrator shall prepare and publish state standards if: a. The state fails to submit the WQS in time OR b. WQS submitted by state are inconsistent with this Act i. Federal backup, just like the FIP in the CAA. In CAA, feds set standards but under 1313 states set standards. Same focus on the medium. 3. Review / Revised Standards a. Governor or state water pollution control agency shall review the water quality standards b. If state reviews/adopts new standards, state shall submit them to the administrator and must include: i. Designated uses of the navigable waters ii. WQ criteria based on such uses c. Standards shall be such as to protect the health and welfare and to enhance the quality of water. d. Must consider these things when reviewing / revising standards: i. Use and value for public water supplies; ii. Propogation of fish and wildlife; iii. Recreational purposes; iv. Agricultural; v. Industrial; vi. Taking into consideration use and value for navigation 4. ID of areas with insufficient controls; maximum daily load a. State shall prepare the priority list i. Including severity of pollution and ii. Uses of such water b. Identify areas w/o stringent enough controls to allow protection and propogation of fish and wildlife c. Both lists above must include total max daily load for pollutants identified under 1314(a)(2) i. Must consider WQS with seasonal variations ii. Must include margin of safety and take into account any lack of knowledge. a. For areas without stringent enough controls, the state shall estimate the total maximum thermal load i. Taking into consideration 1. Flow rates 2. Normal Temperatures 3. Seasonal variations 4. Existing heat sources 5. Dissipative capacity of the identified waters 32

ii. Must include maximum heat input that can be made and include a margin of safety for lack of knowledge b. State shall ID all waters within its boundaries and estimate the total maximum daily load for all 2. Continuing Planning Process a. Must be approved by administrator b. Must include certain aspects, but are not limited to the following: i. Effluent limitations and schedules, area-wide management plans, total maximum daily load, procedures for revision, adequate authority for intergovernmental cooperation, adequate implementation, controls over the disposition of all residual waste, inventory and ranking of needs for construction of waste treatement works.

1316 National Standards of Performance 1. Federal Standards of Performance for NEW Sources a. Administrator shall publish a list of sources b. Administrator shall propose regulations establishing Federal Standards of performance for new sources within each category c. Must consider the i. Cost of achieving effluent reduction AND ii. Any non-water quality environmental impacts AND iii. Energy requirements 2. State May Develop Standards of Performance a. Must be at least as stringent as those provided by Federal Agency b. State authorized to enforce these standards (except with respect to New Sources owned or operated by US) 1317 Toxic & Pretreatment Effluent Standards same as 112 in CAA- the bad of the bad. 1. Administrator shall list toxic pollutants (and revise periodically) 2. Must take into account a. Toxicity b. Persistence c. Degradability d. Potential presence of affected organisms i. Importance of these organisms ii. Nature and extent of effect on these organisms 3. Judicial Review: arbitrary & capricious a. Any decision made by Administrator will be final except if determined to be arbitrary and capricious 4. Toxic pollutants are subject to effluent limitations with the application of the best available technology economically achievable Comparison Chart: CAA Section 109 111

Equivalent CWA Section 1313 1311 33

112

1317

Section 9.2 -- Clean Water Act and the Commerce Clause United States v. Holland, 1974, p. 315 Case concerns illegal land-filling w/o a permit. D wants to fill in some mosquito canals and mangrove swamps. is saying that to require a permit from him is unconstitutional. Issue#1: Congress can't force them to get a permit under the Constitution? The court says that congress can act under the CC to require a permit if the activity, in the aggregate (Wickard), has a significant effect on interstate commerce and whether Congress intended to regulate it. Gibbons first case in commerce clause/regulating navigable waters Today congress may regulate anything that affects interstate commerce (Court may be rolling back power of Commerce Clause see Lopez and Morrison) Rapanos v. United States, 547 U.S. ___ (2006) Rapanos was filling a wetland, more than 20 miles away from a navigable waterway, without a permit. Issue #1 does congress have the power to regulate wetlands? Assuming yes (see above) Issue #2 did congress exert its authority? o Statutory interpretation question did CWA aim to protect wetlands? o Split Court: Plurality test: 1. do the ditches or drains near each wetland are waters in the ordinary sense of containing a relatively permanent flow; and if they are, 2. are the wetlands in question adjacent to these waters in the sense of possessing a continuous surface connection that creates the boundary-drawing problem in Riverside (pg. 326.20) Dissent defer to Corp. Corp deemed wetlands as navigable waters, therefore they may regulate. Kennedy Concurrence Significant Nexus Test (pg. 326.21) To constitute navigable waters under the CWA, a water or wetland must possess a significant nexus to waters that are or were navigable in fact or that could reasonably be so made.

Section X -- NOISE CONTROL ACT (pg. 327)

1. Directs the EPA Administrator to establish levels of environmental noise, the attainment and maintenance of which are requisite to protect the public health & welfare 2. Comparison Chart b/w NCA and CAA: CAA Dealing w/ Medium: 108 (criteria Ambiant)) 109 (Prim/Sec. Air Standards) 110 (SIPs)

NCA Equivalent is 5(a)(1) Equivalent is 5(a)(2) Has no equivalent b/c congress did not feel that SIPs would be necessary (Clean Air is much more important than

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Dealing w/ Sources 111 (Standards of Performance for New Stationary Sources)

Equivalent is 6- Instead of focusing on Stationary sources, they focus on products distributed in commerce. Equivalent is 7 (aircrafts), 17 (trains) and 18 (motor carriers)

Dealing w/ Pollution 112 (Hazardous Air Pollutants)

5 Identification of Major Noise Sources; Noise Control Criteria and Control Technology o 5(a)(1) - Administrator to publish criteria with respect to noise o 5(a)(2) Administrator to public information on levels of environmental noise, the attainment and maintenance of is requisite to protect public health and welfare with an adequate margin of safety 6 Noise Emission Standards for Products Distributed in Commerce o (a)(1)(A) proposed regulations for product that is identified as a major source of noise o (a)(1)(B) Nose emission standards are feasible o (a)(1)(C) falls into categories of: construction, transportation, motor or engine, electrical/electronic equipment 40 C.F.R. Part 202 Motor Carriers Engaged in Interstate Commerce o Sets maximum noise levels for motor vehicles for moving and stationary vehicles o Exhaust system regulations o Vehicle regulations

3. Ambient Noise Levels: seeks to address the pollution without regard to its source 4. There is NO mandatory implementation of the noise levels which were found to be requisite to protect public health & welfare a. "Noise levels are not bad enough to require mandatory implementation" 5. Products Distributed in Commerce a. Construction Equipment, Motors, Engines b. Administrator must publish noise emission standards taking into account magnitude and conditions of use 6. Enforcement of noise emissions standards may take place through citizen suits 7. Willful & knowing violation of the emissions stds regulations may result in criminal penalties 8. Promulgated by BALANCE (similar to New Stationary Source -CAA) a. Standard to be set with a goal of protecting health and welfare b. Attaining a degree of noise reduction achievable c. Best available technology, ALSO d. Taking into account cost of compliance e. Substantial amount of administrative discretion in creating the standards 9. Notice to Consumer a. Labels are required to state the product's ability to i. Emit noise capable of adversely affecting public health or welfare OR its effectiveness at reducing noise 10. Congress encourages development of "low noise emissions products" with financial Economic Incentives 15 (just like those in CAA) 35

1. Products eligible to be certified as Low Noise Emission create a competitive edge in the market 2. 15(c)(1) Statute requires Fed to purchase a certified Low Noise Emission product in preference to other products of its type so long as retail price is no more than 125% of the least expensive product for which it is a substitute 3. Creates access to large volume buyer (fed) 4. However, nobody has ever taken advantage of this Economic Incentive

Section XI -- SUPREMACY CLAUSE ISSUES:

Section 11.1 -- Preemption for Municipal Airports? City of Burbank v. Lockheed Air Terminal Inc., 1973, p. 345 The city of Burbank put time restraints on takeoffs and landings (curfew). The Issue is whether the FAA has preempted the field. 1. If Mutual Exclusion- If you cant do both, you must do the federal. But the situation in this case is NOT conflict. Like Feds say only red lights on planes and the state says only blue lights on planes, there is conflict, so the Feds win. 2. Field Preemption- Has no conflict. An example is if the Fed say that noise should not exceed 90 and the state said that noise should not exceed 88, you can do both. Preemption can be: a. Express Preemptioni. Express preemption NCA 6(e)(1) no State can adopt any limits on noise emissions for new products that are not the same as the federal. 6(e)(1) deals w/ the product itself. ii. Express non-preemption NCA 6(e)(2) or 8(c) the state is not precluded from establishing and enforcing controls on environmental noise through licensing and regulations to control the use, movement and operation of products. 6(e)(2) deals w/ curfews on the use of products. b. Implied Preemption- relies on INTENT. Preemption is implied when Congress intends to control the field, which is evident if there is pervasive nature of federal aircraft noise control law. The pervasive nature of the scheme of federal regulation leaves no room for local controls or curfews. Section 11.2 -- Preemption for Proprietors? British Airways v. Port Authority, 1977, p. 363 Port Authority wants to be more restrictive than the federal government. The Port Authority is a private proprietor, so it is not pre-empted. The court, based on Congresss Legislative history, finds that Congress did not pre-empt the field of noise regulation for airport proprietors. The Port Authority, although a local government, can avoid pre-emption when it is acting as a proprietor (when they own the Airport) when they are setting regulations. In Burbank it was Lockheed who owned the Airport, not the city. The reason for the difference in treatment is that proprietors are subject to LIABILITY. As a proprietor you are liable for an injunction and damages. A proprietor regulates in order to protect himself from liability. As an aside, almost all airports are owned by the local governments, so the exception swallows the rule. 36

However, the proprietors action must still be reasonable, not arbitrary and non-discriminatory. Port Authority was never able to say that its action was reasonable b/c although it was a different airplane, the only noise was made outside the jurisdiction of the Port Authority. Basically: 1. If you want to get preempted, regulate w/ your municipal hat on. 2. If you dont want to get preempted, regulate w/ your proprietor hat on.

CAA

CWA 1313 - Water Quality Standards

NCA 5(a)(1) criteria 5(a)(2) ambient noise standards No 110 equivalent * Congress never thought noise was as big a deal as air quality... 6 Emission standards from sources (products in interstate commerce) 7 aircraft 17 trains 18 motor carriers 15 requires Fed to purchase certified Low Noise Emission products **

Medium

108 Criteria for a pollutant 109 Ambient Air Quality Standards 110 State Implementation Plan (SIP) 111 Emission limits

Sources 112 Hazardous Air Pollutants Transferable Discharge Permits Economic Incentives

Pollutants

1311 Effluent limitations 1312,1316 1317 Toxic Water pollutants

* NCA specific noise pollutants are regulated (7,17,18) but there are no mandatory ambient standards, therefore no SIP section ** Never used why? Not advertised No market Industry doesnt want to start competing with each other

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MORE SPECIFIC STANDARDS DEALING WITH CERTAIN TYPES OF CHEMICALS: PESTICIDES AND TOXIC SUBSTANCES AND COSMETICS Federal Insecticide, Fungicide and Rodenticide Act a. Amended to eliminate the indemnity requirement and to include special regs for special populations. Indemnification can only occur when a specific line item appropriation of funds in advance of the payment (pg. 408). i. Line item appropriation.... this means the indemnification section doesnt apply unless Congress passes a line item appropriation to buy the unused pesticide from the affected manufacturer. Prior to this, for the statute to work, EPA had to send a check to the manufacturer. This innocuous looking section made it possible for NGOs, etc to convince EPA to terminate registration of a pesticide. b. Registration i. Legal Test for Registration (pg. 394): 1. Unreasonable Adverse Effect on the Environment? a. If NO, then approve for general use b. If YES, then either i. DENY or ii. Allow restricted use (8(d)) by certified applicator (8(d)(1)(c)). c. Use (pg. 396) i. General Use 1. Will not generally cause adverse effects on the environment 2. Anybody can use it. Youll find them at, i.e., a feed store. ii. Restricted Use (pg. 397): 1. If the pesticide will, w/o regulatory restrictions, have unreasonable adverse effects on the environment. 2. Only a Certified Applicator or Certified Private Applicator (C)(i) & (ii) can use these!! a. To become Certified Applicator: apply and take test i. State can do certification if they want to (must submit plan to EPA for approval), or Feds can do certification if States arent doing it. b. To become Private Applicatori. Go and buy it unless the STATE requires a test (the feds cannot require a test). ii. Who can be private applicator? 1. ANYBODY using it on his own farm or employers land. One idea is that youre going to be careful because youre using it on your own property. Plus, do farmers really need to take tests to use a pesticide? But what about, i.e., migrant workers? The definition for private applicator says you can put on employers land, so perhaps a test is necessary. This is a loophole big enough to drive a tractor through... iii. DENIAL- If the pesticide, even w/ additional regulatory restrictions, will generally cause unreasonably adverse effects on the environment. d. Termination of Registration (p. 399) i. If not renewed every 5 yrs. 38

ii. To get something off the market you must show imminent hazard a. Results are i. Cancellation- slowest 1. If will cause unreasonable adverse effects on the environment ii. Suspension- second fastest 1. No emergency required, must show imminent hazard, i.e. if the continued use of a pesticide during the time require for cancellation would result in unreasonable adverse effects on the environment or will involve unreasonable hazard to the survival of an endangered species. iii. Or Emergency Order- fastest process 1. Can be done w/o notification or hearing if you can show that there is not enough time for notice and hearing; it must be an EMERGENCY. Must get this stuff off the shelf immediately 2. Youd need to demonstrate the pesticide is an imminent hazard. 3. Imminent hazard is in definition section. e. Control Mechanism: Registration (see USC136(a) aka FIFRA 3)(compare to TSCA Control Mechanism) i. Registration w/ EPA prior to distribution or sale 1. Registrationstronger b/c it requires certification 2. Prior to distributionweaker b/c chemicals can still get manufactured. ii. Industry would prefer notice b/f distribution b/c1. Once the product is manufactured, it is harder to stop (inertia argument). 2. If it is denied by the EPA they can still export it (safety valve). 3. First to Market; Industry wants to get name recognition, so if they can get their product out b/f the others, then people will know your name. You can put it out immediately after it gets approved, so the competitor will not have time to get in the market. iii. Environmentalists would prefer registration b/f manufacture, so that the product doesnt even get produced. f. Most of the stuff that gets exported is: i. What doesnt get approved or registered. ii. What doesnt get renewed. iii. What expiresd on the shelf. iv. Older technology products

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Toxic Substances Control Act (TSCA): 426 a. Control Mechanism (see 5 (1)(a) and (b), compare to FIFRA Control Mechs) i. Notice to EPA prior to manufacture (Pre Manufacture Notice (PMN)) 1. Notice--weaker b/c no certification 2. Prior to manufacturestronger b/c can still stop manufacture. b. TSCA doesnt apply to anything covered by FIFRA because of the fact that FIFRA exists. When a separate Act deals w/ it congress takes it out of TSCA. FIFRA Industry Environmentalists Advantage prior to sale Advantage registration TSCA Advantage only notice Advantage pre-manufacture

Food, Drug, and Cosmetic Act (FDCA): a. Control Mechanism is Tolerance Levels (see 408) pg. 421 i. Tolerances are the amount of residue of a Pesticide that can remain on a product 1. If more than the tolerance level, the product is labeled adulterated food and you cannot sell it. ii. Too find out how much, see 40 CFR on p. 424 1. Parts Per Million depend on the population who traditionally consumes the food (children like Cherries and not Alfalfa).

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THE WASTE DISPOSAL ACT: RESOURCE CONSERVATION, AND RECOVERY ACT (RCRA) a. Solid Waste Disposal i. Control Mechanisms- Landfills as opposed to Dumps 1. Under state authority 2. Phase out open dumps 3. Replace w/ sanitary landfills ii. Funded by Congress financial incentive (money) to states to get rid of open dumps and replace them w/ sanitary landfills. iii. Solid Waste is defined on 439. Solid waste can be liquid or a gas; it can only be so because Congress said so. iv. It is not a federal Requirement, but there is federal money to get it done. b. Hazardous Waste Disposal i. Control Mechanism- Manifest System: 1. Tracking system from Cradle-to-Grave paperwork trail a. Generators must have bill of lading certifying what materials it is generating; how much it is generating; where it is sending the materials; etc. It makes sure we know what it is and it doesnt get lost. b. Transporterc. Disposal Facility (must have a permit: before you ever start you have to get a permit to build it) i. Must show Financial Responsibility (so you can pay for insurance to cover liability) 1. Insurance is method of proving, but very hard to get now because of Superfund litigation 2. CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) - $ Money for cleanup if RCRA doesnt work ii. Geographic Location Interestingly, the statute does not include spent nuclear waste in the definition for hazardous waste. See definition of hazardous waste on page 437, hazardous waste is a solid waste, which has its own definition on page 439. Because nuclear waste is covered under Atomic Energy Act, RCRA doesnt include it. 2. State Controls- interstate commerce and supremacy issues

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