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Environmental Law

ENVIRONMENTAL LAW

An amalgam of state and federal statutes, regulations, and common-law principles coveringair pollution, water pollution, hazardous waste, the wilderness, and endangered wildlife.

Almost every aspect of life in the United States is touched by environmental law. Drinking water must meet state and federal quality standards before it may be consumed by the public. Car manufacturers must comply with emissions standards to protect air quality. State and federal regulations govern the manufacture, storage, transportation, and disposal of the hazardous chemicals used to make deodorants, hair sprays, perfumes, makeup, fertilizers, herbicides, pesticides, detergents, cleansers, batteries, and myriad other common goods and products.

Common Law

Under the common law, environmental litigation revolves around six doctrines: nuisance, trespass, negligence, strict liability, prior appropriation, and riparian rights.

Nuisance Modern environmental law traces its roots back to the common-law tort of nuisance. A nuisance is created when an owner or occupier of land unreasonably uses that land in a way that substantially interferes with the rights of others in the area. A nuisance is sometimes referred to as the right thing in the wrong place, like a pig in a parlor instead of the barnyard.

Nuisances can be public or private. A public nuisance interferes with a right or interest common to the general public, such as the public's interest in healthful drinking water. A private nuisance interferes with a right or interest of a private individual, such as a homeowner's right to the quiet enjoyment of her land.

The primary practical difference between the two types of nuisance is that a government department, such as a state or federal environmental agency, traditionally brings suit to enjoin a public nuisance, whereas only private citizens and organizations may sue to stop a private nuisance. The two concepts can also overlap. A nuisance that interferes with a private use of property can simultaneously interfere with a public interest. For example, factory smoke that diminishes the value of neighboring property is a private nuisance, and it is at the same time a public nuisance if it also endangers surrounding wildlife.

Courts engage in a balancing test to determine whether a particular activity amounts to a public or private nuisance. A particular activity is declared a nuisance when its usefulness is outweighed by its harmfulness. The harmfulness of an activity is measured by the character and severity of the harm imposed, the social value of the jeopardized interest, the appropriateness of protecting the interest in a particular locality, and the burden to the community or individual in avoiding the harm. An activity's usefulness is measured by the activity's social utility, its suitability to a particular community, and the practicality or expense of preventing the harm it inflicts. Because there is no exact or universally agreed-upon value for each of the competing interests, it is often difficult for judges to apply the balancing test in a consistent fashion.

Gravity of the injury Although courts apply the balancing test for nuisance actions on a case-by-case basis, judges generally follow certain principles. The injury in question must be real and appreciable; the law does not concern itself with trifles. An occasional whiff of smoke, a temporary muddying of a well, a modest intrusion by roots or branches, and intermittent odors of sauces and stews will not rise to the level of a nuisance.

Courts also consider whether the alleged nuisance is of a continuing nature or has produced permanent or long-lasting effects. Nuisance law may excuse an isolated invasion of drifting pesticides, a single overflow of a sewer outlet, or a debris-burning incident lasting only a few days, and some courts have held that recurrence is a necessary prerequisite to a nuisance determination. For example, one court denied a prison inmate's nuisance claim that he was poisoned by pesticide delousing, because it occurred on only one occasion. In such cases, plaintiffs may have a viable claim for trespass or negligence (discussed later in this article) but not for nuisance.

In suits over pollution, courts also consider which party arrived first in the particular community, the polluter or the landowner alleging harm. The law has permitted polluters to escape liability by proving that a landowner alleging harm moved next to a preexisting nuisance with knowledge of its harmful activities. The rationale for this defense is that the landowner who "comes to the nuisance" generally pays less for the property because the nuisance has reduced its value. If such a landowner were then permitted to remove the nuisance, a windfall would inure to her or his benefit. Increasingly, however, courts place less weight on priority of arrival when evaluating a nuisance claim.

Nuisance claims have traditionally been evaluated from an objective point of view. If an "average" or "normal" person in the relevant community would be offended or annoyed by a certain intrusion, then the intrusion is considered real and appreciable. The idiosyncracies of a hypersensitive plaintiff are generally discounted. Persons with extreme personal tastes and aesthetic sensitivity are usually denied relief under this objective standard. Persons with abnormal physical vulnerabilities, such as those with heart conditions, breathing problems, and tender eardrums, are usually denied relief as well.

In recent years, however, nuisance law has offered greater protection to society's vulnerable members. People are not necessarily abnormal, courts have held, merely because they enjoy spending time outdoors, sleeping with the windows open, or cultivating crops near smoke-billowing smelters. These activities are increasingly viewed as normal activities deserving protection. Many courts are also becoming more sympathetic to plaintiffs with preexisting health conditions or genetic frailties.

Two cases illustrate this trend. In the first, Lunda v. Matthews, 46 Or. App. 701, 613 P.2d 63 (1980), a cement plant was held liable for emitting debris, dust, and fumes that encompassed a landowner's house and aggravated his bronchitis and emphysema. The court reached this determination despite arguments that the landowner's illness made him more vulnerable to debris and dust than would be persons of ordinary health. The court also held that the cement plant could not escape liability merely because it was complying with state pollution standards.

In the second case, Kellogg v. Village of Viola, 67 Wis. 2d 345, 227 N. W. 2d 55 (1975), a landowner was permitted to recover for the loss of mink kittens who were eaten by their skittish mother after being frightened by noises and odors from a nearby dump. The court was not persuaded that the mink were abnormally squeamish or that the landowner was primarily responsible for their death because he had chosen to move next to the dump with full knowledge of its activities.

Aesthetic nuisances are another area where courts have produced inconsistent results. On June 25, 1927, a Pennsylvania court wrote that "[i]n this age, persons living in a community or neighborhood must subject their personal comfort to the necessities of carrying on trade or business," and when an "individual is affected only in his tastes, his personal comfort, or pleasure, or preferences, these he must surrender for the comfort and preferences of the many" (Pennsylvania Co. for Insurance on Lives & Granting Annuities v. Sun Co., 290 Pa. 404, 138 A. 909, 55 A.L.R. 873).

This attitude was expressed more recently when a federal court denied the U.S. government's request that the court enjoin (prohibit) the construction of high-rise office buildings on the Virginia side of the Potomac River—even though the buildings would blight the Washington Monument, Lincoln Memorial, and other national landmarks (United States v. County Board, 487 F. Supp. 137 [E.D. Va. 1979]). These cases reflect judges' reluctance to hold themselves out as standard-bearers for good taste.

Yet aesthetic nuisances are still recognized by courts as viable claims when the extent of the injury is more serious. Judges distinguish between minor vibrations and bone-shaking tremors, normal barnyard smells and sickening stenches, and puffs of dust and blizzards of topsoil. An activity that overcomes extreme defensive measures taken by neighboring properties will be declared a nuisance. Nocturnal noises interfering with sleep can also sound the death knell for a particular activity, especially when there is evidence of widespread community dissatisfaction and not just a single complaint.

Utility of the activity An environmental injury will not be declared a nuisance unless it outweighs the utility of the activity. Determining the weight of a particular harm is often difficult for courts. Judges are human, and humans disagree on just about everything, including nuisance law. The easiest type of case for a judge involves an injury inflicted solely for the purpose of causing harm. A fence constructed with the intent to obstruct a neighbor's view will always be declared a nuisance. No socially redeemable value is assigned to animus and hostility.

Most cases, however, do not involve a nuisance created by adverse motivations. For instance, polluters usually produce useful products integral to a local economy, and the market value of an injured property is rarely greater than the business investments made by the polluter. But dollar figures are not always of paramount importance to judges.

Two leading cases illustrate the different results reached by courts in weighting utility. In the first, Madison v. Ducktown Sulfur, Copper, & Iron Co., 113 Tenn. 331, 83 S.W. 658 (1904), the court denied a landowner's requested relief, stating,

In order to protect by injunction several small tracts of land, aggregating in value less than $1,000, we are asked to destroy other property worth nearly $2,000,000, and wreck two great mining and manufacturing enterprises…. The result would be practically a confiscation of the [polluter's] property … for the benefit of the [landowner]—an appropriation without compensation.

In the second case, Hulbert v. California, 161 Cal. 239, 118 P. 928 (1911), the court granted the landowner's request for an injunction, over the polluter's claim of greater hardship, saying, "If the smaller interest must always yield to the larger, all small property rights, and all small and less important enterprises … would sooner or later be absorbed by the large and more powerful few."

Some environmentalists maintain that the law must protect the environment at any cost, whereas extreme advocates of the free market believe that business must be allowed to expand unhindered by governmental regulation. Certain results reached by particular judges may appear unreasonable to both extremes, but courts have attempted to strike a moderate balance over the long run.

Technology has often provided the means to moderation. Requiring businesses to shut down and relocate, or homeowners to endure a nuisance or move, are remedies not favored by the law. Courts avoid such remedies by exerting pressure on companies to develop technologies to make their operation safer for the environment. For example, one court ordered a smelting business to install specific arsenic control measures to abate a nuisance, instead of closing down the business as requested by the landowner (American Smelting & Refining Co. v. Godfrey, 158 F. 225 [8th Cir. 1907]).

Many nuisances can be remedied without state-of-the-art technology. For example, airports have been forbidden to authorize low-level flights over certain residences, and farmers have been ordered to confine foul odors to particular buildings. Other nuisances can only be abated by the best available technology. Sometimes, however, it is economically impractical or prohibitively expensive for a polluter to use such technology.

Courts disagree about what should be done when a polluter can do nothing short of ceasing operations to lessen an injury. Many courts deny injunctive relief if the polluter is already using the most modern pollution control methods available. Some courts grant an injunction ordering the polluter to shut down when state-of-the-art controls hold no further promise of relief. Other courts award damages for a nuisance that occurs despite the use of the best available technology.

Trespass and Negligence Nuisance actions deal primarily with continuing or repetitive injuries. Trespass and negligence actions provide relief even when an injury results from a single event. A polluter who spills oil, dumps chemicals, or otherwise contaminates neighboring property on one occasion might avoid liability under nuisance law but not under negligence or trespass law.

Trespass involves an intentional interference with the property interest of an owner or occupier of land. Negligence occurs when a defendant fails to exercise the amount of care that would be exercised by a reasonably prudent person under the circumstances. Whereas trespass requires the injury to result from deliberate misconduct, negligence results from the accidental and inadvertent.

Under nuisance law, liability is based on an unreasonable and substantial interference with the legal interests of a landowner's property. Conversely, trespass is proved by evidence of any tangible invasion of a landowner's property, however slight. Similarly, pollution resulting from negligence need not produce a substantial injury in order for a landowner to recover. However, a landowner who suffers only minor injuries from the negligence or trespass of a polluter will receive only nominal damages.

Strict Liability The doctrine of strict liability for abnormally dangerous activities provides a fourth remedy for those suffering environmental harm. To recover under this doctrine, the landowner must demonstrate that a condition or activity qualifies as abnormally dangerous and was in fact the cause of the environmental injury. Many common activities have been decreed abnormally dangerous, including collecting large quantities of water in hydraulic power mains, storing gas in large amounts, and transmitting high-powered electricity under city streets.

Courts sometimes struggle in determining when something rises to the level of abnormally dangerous, and liability generally also attaches for extraordinary, abnormal, exceptional, and nonnatural activities or conditions. Examples of such activities are oil well drilling, crop dusting, pile driving, and blasting.

Prior Appropriation and Riparian Rights A riparian proprietor is the owner of land abutting a stream of water or river and, as such, has a qualified right in the soil to divert the stream as permitted by law. Generally, a riparian owner has the right to all the useful purposes to which a stream passing through the land may be put. Specifically, the rights of riparian owners have been divided into two discrete categories.

The first category is known as prior appropriation. Under the principles of prior appropriation, the law provides that whoever first appropriates stream water for a beneficial purpose acquires a vested right to the continued diversion and use of that water against all claimants who might later do the same. Courts often describe prior appropriation as the principle "first in time is first in right."

Prior appropriation places downstream owners at a distinct disadvantage because it permits upstream owners to completely divert or contaminate stream water so long as they do so for a beneficial purpose. Early cases suggested that no beneficial purpose was served when water was diverted for reasons other than commerce or profit, such as for mere personal pleasure. Today, however, courts permit riparian owners to appropriate water for almost any aesthetic, recreational, preservational, or pollution control purpose.

Prior appropriation principles are followed in many western states where water is scarce, and efficient and economic uses for streams and rivers are necessary. In the eastern states, the doctrine of riparian rights is followed. This doctrine has two strains. The first provides that each riparian owner has an absolute right to the flow of stream water uninterrupted by any unnatural (i.e., human) causes. The second strain provides that each riparian proprietor has a right to any reasonable use of the stream water passing through his or her land, and is protected from unreasonable uses upstream. This doctrine does not encourage the economically efficient use of water, as does the doctrine of prior appropriation—but water is not scarce in the eastern states where riparian rights theory is applied.

Statutory Law

Much of the early environmental legislation at the federal level was drafted in response to the shortcomings of the common law, and the inadequate and inconsistent protection of the environment by the states. The common law was slow to respond to changes in technology, and often provided inadequate or antiquated remedies. By nature, common-law doctrines were developed only in response to lawsuits filed between the disputing parties. The initial disagreements were often protracted in nature, and litigation was usually the last resort. As a result, by the time a lawsuit was filed, a particular environmental hazard may have become so pervasive or problematic that no common-law remedy could adequately address it.

Even when an appropriate common-law remedy was available, many state courts refused to enjoin larger businesses from polluting, out of concern that the polluters might harm the local economy by laying off employees or increasing prices. Although some states enacted pollution control statutes, many did not. The states that did enact such statutes varied in the level of protection provided and in the quality of enforcement. Thus, an activity might be deemed impermissible under the environmental legislation of one state, but permissible under the legislation of another. Federal air, water, and soil pollution standards and national wilderness and wildlife preservation regulations were drafted largely in response to these problems.

The national environmental policy act (NEPA), 42 U.S.C.A. §§ 4321 et seq., is the fulcrum for these federal pollution and preservation regulations. NEPA, passed in 1969, requires the federal government to give environmental issues priority when planning major projects. It was created to establish councils and agencies that, in cooperation with state and local governments and public and private interest groups, would use all practicable means to monitor and protect the environment.

The Council on Environmental Quality (CEQ) and the environmental protection agency (EPA) were both created under the auspices of NEPA. The CEQ prepares an annual report that discloses the quality and condition of the country's environment, evaluates federal programs that may affect the environment, and recommends specific policies to foster environmental protection and improvement. The EPA administers these policies and most federal environmental statutes. Each of the fifty states has drafted environmental regulations similar to those written on the federal level, and the state and federal regulations work together to address the various environmental issues.

Air Pollution Air pollutants are divided into five main classes: carbon monoxide, particulates, sulfur oxide, nitrogen oxide, and hydrocarbons. Carbon monoxide is a colorless, odorless, and poisonous gas produced by the burning of carbon in many fuels. Motor vehicles are one source of this pollutant.

Particulates are solid or liquid particles produced largely by stationary fuel combustion and industrial processes.

Sulfur oxides are acrid, corrosive, and poisonous gases produced by burning fuel containing sulfur. Electrical utilities and industrial plants are their principal sources.

Nitrogen oxides are produced when fuel is burned at very high temperatures, as is the case with stationary combustion plants and motor vehicles. Once emitted into the air, nitrogen oxides can be chemically converted into sulfates and nitrates, which may return to earth as components of precipitation, known as acid rain.

Hydrocarbons, which are produced by cars, motorboats, and power plants, form smog when combined with nitrogen oxides in the atmosphere under the influence of sunlight.

Each of these pollutants is a threat to human health. Acute cases of air pollution have caused marked increases in illness and death, especially among older people and among those with respiratory and cardiac conditions. Such pollutants also contribute to the health problems of society's less vulnerable members, increasing the incidence of emphysema and bronchitis among the general population. For instance, smokers living in polluted cities are more likely to contract lung cancer than are smokers in rural areas.

Federal regulation of air pollution is controlled primarily by the Clean Air Act (CAA) and its amendments. Air pollution is broadly defined by the act to mean any air pollution agents or combination of agents. The act directs the EPA to establish the National Ambient Air Quality Standards (NAAQS) for air pollutants that endanger public health or welfare. The EPA may consider not the economic or technological feasibility of attaining NAAQS, but only whether the standards are set at levels necessary to protect the public.

States are not divested of the authority to regulate air pollution under the CAA. They retain "primary responsibility for assuring air quality" within their boundaries. Yet, following the promulgation of NAAQS, each state must submit for EPA approval a state implementation plan (SIP) designed to develop and maintain the air quality standards within its jurisdiction. SIPs that are found lacking may be amended by the EPA. States are also required to comply with the minimum national thresholds created by the CAA. These national thresholds permit state governments and their subdivisions to enact more stringent air pollution regulations than those enacted by the federal government, but not less stringent ones.

The CAA has three titles. Title I governs stationary sources of air pollution, including all buildings, structures, facilities, and installations emitting air pollutants. Title II governs mobile sources of air pollution, such as automobiles, trucks, and aircraft. Both titles prescribe the amount of pollution that may be emitted into the air without violating the act.

Title III outlines procedures for the enforcement of the act through legal or administrative proceedings. State and federal governments may enforce the act, as may private individuals in so-called citizen suits. The CAA provides a variety of administrative, equitable (nonmonetary), civil, and criminal penalties, ranging from informal measures such as violation notices to more formal measures such as injunctive relief (a

court order to perform or refrain from performing a particular act), money damages, and fines.

International attention has focused on three particular forms of air pollution: acid rain, global climate changes, and ozone depletion. Acid rain is created when sulfur from fossil fuels is emitted into the air and converted into a pollutant through oxidation, later mixing with rain or snow and returning to the earth as a component of precipitation. Although the CAA has commissioned a number of federally sponsored studies on the subject, scientists still disagree on the severity of the problems presented by acid rain.

Scientists also disagree about whether air pollution can influence the global climate. Some scientific studies conclude that air pollution has caused the average temperature on earth to increase during the last twenty-five years or so, resulting in a condition called global warming; some conclude that the average temperature has decreased, resulting in global cooling. Other studies indicate that the global climate remains unaffected by air pollution and will continue to do so. Because of the discord in the scientific community, the CAA has commissioned federally sponsored studies to investigate the relationship between air pollution, acid rain, and the global climate.

The CAA has also commissioned federally sponsored studies regarding the relationship between air pollution and the destruction of the ozone layer. The ozone layer shields the earth from the harmful effects of the sun's radiation, and may be depleted by the release of chlorofluorocarbons (CFCs) into the atmosphere. CFCs serve as a coolant for refrigerators and air conditioners, as a foaming agent for insulation, as a solvent for computer chips, and as a propellant for aerosol products. The CAA bans nonessential uses of CFCs, but leaves room for judicial interpretation as to what the phrase nonessential uses might mean.

Noise pollution is another form of air pollution regulated by the federal government. The rumbling sounds of eighteen-wheelers on the highway, 747s in the air, and jackhammers in the street are all familiar to the modern era. The Noise Control Act of 1972 (NCA) (42 U.S.C.A. § 4901 et seq.) was created to eliminate or reduce such noises when they pose problems to public health and welfare. Under the NCA, the EPA conducts studies on industrial areas with excessive noise, and establishes noise emissions standards. Airports, airplanes, railroads, trains, and trucks have all been required to reduce noise levels through the development of quieter motors, engines, and equipment. Any citizen may bring legal action to enforce the provisions of the NCA, but the EPA retains the right to intervene. Remedies include injunctive relief, fines, and criminal penalties.

In the late 1980s and early 1990s, the regulation of air pollution moved indoors. Studies conducted during the late 1980s and early 1990s have shown that people are exposed to higher concentrations of air pollution for longer periods of time inside buildings than outdoors. One prevalent source of indoor air pollution is cigarettes. Many states restrict or prohibit smoking in a variety of public places, including indoor stadiums, restaurants, theaters, grocery stores, buses, trains, and airplanes. The federal government, through the occupational safety and health act (OSHA), 29 U.S.C.A. § 651 et seq., protects employees from "occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors."

On February 27, 2001, the U.S. Supreme Court issued its decision in Whitman, Administrator of Environmental Protection Agency, et al. v. American Trucking Associations, Inc., et al, a case which challenged the EPA's revised National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter. The Court, in a unanimous decision, held that Section 109(b) of the Clean Air Act (CAA) prohibits the EPA from considering implementation costs when the agency sets NAAQS; that Section 109(b)(1) of the CAA does not delegate legislative powers to the EPA; therefore, the EPA did not violate the non-delegation doctrine in issuing its revised ozone and particulate matter standards pursuant to this section; and that the EPA's implementation strategy was an unreasonable agency interpretation of an ambiguous statutory scheme, and is therefore unlawful. The issue was therefore returned to the EPA so that it could develop a reasonable implementation strategy.

Water Pollution Like clean air, healthy water is indispensable to human existence. Humans depend on water for drinking, cooking, swimming, fishing, and farming. Discharges of organic wastes, heated water, nutrients, sediments, toxic chemicals, and other hazardous substances can all make water unfit for human use. Organic wastes, produced by animals and humans, decompose through the use of oxygen. If a body of water spends too much oxygen during the decomposition of organic wastes within it, certain types of fish will not survive. Aquatic life can also be harmed by the discharge of heated water into lakes and streams, because the increased temperatures accelerate biological and chemical processes that reduce the water's ability to retain oxygen.

The release of nutrients and sediments, such as detergents and fertilizers, can also harm bodies of water. Eutrophication, the natural process by which lakes evolve into swamps and eventually dry land over the course of thousands of years, is accelerated by the discharge of nutrients that make lakes more biologically productive. Discharges of toxic chemicals, heavy metals, and other hazardous material can render both the water and its aquatic life unsafe for human consumption. The three major sources of these types of water pollution are industry, municipal activity, and agriculture.

Federal regulation of water pollution begins with the Federal Water Pollution Control Act (FWPCA) (Pub. L. 87-88, July 20, 1961, 75 Stat. 204, 33 U.S.C.A. §§ 1151 et seq.; 43 U.S.C.A. § 3906). The FWPCA was designed to make waters "fishable and swimmable" and to eliminate the discharge of pollutants into navigable waters. The act delineates water quality standards, requiring many water polluters to implement the best practicable control technology or the best available technology economically achievable. Pursuant to the FWPCA, the EPA is required to maintain a list of toxic substances and to establish separate limitations for each of them based on public health rather than technological or economic feasibility. Although the primary responsibility for the enforcement of the act was left with the states, the federal government and private citizens are also authorized to pursue remedies.

In 1977, the FWPCA was amended by the Clean Water Act (CWA) (Pub. L. No. 95-217, Dec. 27, 1977, 91 Stat. 1566, 33 U.S.C.A. §§ 1251 et seq.). Under the CWA, conventional water pollutants, such as oil, grease, and fecal coliform bacteria, are to be measured by the best conventional pollutant control technology. The CWA requires the EPA to weigh "the reasonableness of the … costs of attaining a reduction in [pollution and the] benefits derived." No cost-benefit analysis was permitted for toxic substances and nonconventional pollutants such as ammonia, chlorides, and nitrates. Civil and criminal penalties, including fines of up to $25,000 a day, are authorized under the CWA.

Oil spills and ocean dumping present two troubling problems for clean-water advocates in the international arena. Section 311 of the FWPCA announces that "it is the policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States [or] adjoining shorelines." The same section later prohibits the discharge of any harmful quantity of a hazardous substance into any navigable waters of the United States.

In accordance with this provision, the EPA, on behalf of the president of the United States, has determined that discharges of harmful quantities of oil include, with some minor

exceptions, any discharge that discolors or leaves a film on the water or adjoining shorelines. Since the discharge of even a few gallons of oil can leave a film, this provision is tantamount to a no-discharge policy.

It also represents a strict liability standard. There is no escape from liability for a harmful discharge of oil that results from negligence, even if the accident could not have been prevented. By contrast, previous federal legislation prohibited only oil spills that were knowingly discharged. Courts have broadly interpreted the CWA to cover oil discharged by trucks, pipelines, vessels, drilling platforms, and both onshore and offshore facilities. A civil penalty of not more than $5,000 is prescribed for each offense, and some penalty must be imposed for every violation regardless of its severity.

Accompanying the civil penalty scheme are cleanup provisions. These include (1) preparation and publication of a national contingency plan for the removal of hazardous substances and the prevention of spills; (2) authorization for the United States to take summary action (including the removal or destruction of a vessel) whenever a marine disaster creates a substantial threat to the nation's environment, including threats to fish, wildlife, shorelines, and beaches; (3) authorization for the U.S. attorney general, under the direction of the president, to abate any "imminent or substantial" marine disaster through legal action; and (4) imposition of costs for cleanup upon the owner or operator.

The Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA) (27 U.S.C.A. § 1401 et. seq.), popularly known as the Ocean Dumping Act, is the second piece of federal legislation drafted in response to these two international water pollution problems. The MPRSA has three titles. Title I establishes a permit program, administered by the EPA, for dumping materials into and transporting them through ocean waters. Title II creates a research program, under the auspices of the secretary of commerce, to determine ways in which ocean dumping can be reduced or eliminated. Under title III, the secretary of commerce may designate certain parts of ocean water as marine sanctuaries to preserve and restore recreational, ecological, or aesthetic interests.

The MPRSA flatly prohibits any dumping of radiological, chemical, or biological warfare agents into ocean waters. The Coast Guard is responsible for surveillance under the act. Violators face civil penalties of up to $50,000 for each violation. Criminal penalties and injunctive relief may also be pursued by the government. Private citizens harmed by ocean dumping may seek relief as well.

Permits for ocean dumping may be granted in certain circumstances. Both the administrator of the EPA and the secretary of the Army have the power to dispense permits, but the administrator may veto permits issued by the secretary. The considerations in evaluating permit requests include the need for dumping material into ocean waters, other possible methods of disposal, and the appropriateness of the chosen dumping location. Generally, permits are granted when ocean dumping will not "unreasonably degrade or endanger human health, welfare, amenities or the marine environment, ecological systems or economic potentialities."

On January 9, 2001, in a 5–4 decision, the U.S. Supreme Court struck down the Migratory Bird Rule, which was the basis of jurisdictional authority for the U.S. Army Corps of Engineers over a non-navigable, isolated, intrastate water of the U.S. The Migratory Bird Rule stems from a 1986 interpretation by the U.S. Army Corps of Engineers of its regulatory definition for "navigable waters," the statutory limit to the Corps' jurisdiction under the Clean Water Act (CWA). The property at issue in the decision was a 553-acre abandoned sand and gravel mine, which contained water-filled excavation trenches that were used by approximately 121 bird species. The area did not qualify as "wetlands." The U.S. Army Corps of Engineers found the site jurisdictional based on its use by migratory birds. The Court of Appeals for the Seventh Circuit upheld the U.S. Army Corps of Engineers' jurisdiction over the site. The petitioners, a consortium of 23 suburban Chicago cities and villages who intended to fill the site as a sanitary landfill, appealed to the Supreme Court, claiming that: (1) the Migratory Bird Rule exceeded the Corps' authority under the CWA and (2) the exercise of such jurisdiction was inconsistent with the commerce clause, U.S. Constitution, Art. 1 § 8, cl. 3. The Supreme Court reversed the Court of Appeals decision by supporting petitioner's first assertion and declined to make a judicial determination on the validity of the second assertion. Specifically, the Court did not overturn its prior decision in U.S. v Riverside Bayview Homes, 474 U.S. 121 (1985), which affirmed the Corps' jurisdiction over wetlands adjacent to open water bodies. The Court distinguished between wetlands, which actually abut a navigable waterway, and an isolated, abandoned sand and gravel pit. The Court clarified that although the Riverside Bayview Homes decision established that the navigable requirement was of "limited import," the requirement has some meaning, particularly when applied to water bodies that are decidedly not wetlands.

Toxic and Hazardous Substances The federal government uses various forms of legislation to regulate the manufacture, storage, disposal, sale, and discharge of hazardous substances, which include toxic substances. States have also enacted hazardous substance laws with varying success results.

After the supertanker Torrey Canyon spilled crude oil off the coast of England in 1967, both Congress, in the Port and Waterways Safety Act of 1972 (PWSA), and the State of Washington enacted more stringent regulations for tankers and provided for more comprehensive remedies in the event of an oil spill. The ensuing question of federal preemption of the State's laws was addressed in Ray v. Atlantic Richfield Co., 435 U.S. 151. In 1989, the supertanker Exxon Valdez ran aground in Alaska, causing the largest oil spill in U.S. history. Again, both Congress and Washington responded. Congress enacted the Oil Pollution Act of 1990 (OPA). The State created a new agency and directed it to establish standards to provide the "best achievable protection" (BAP) from oil spill damages. That agency promulgated tanker design, equipment, reporting, and operating requirements, giving the state of Washington stricter standards than those required by federal law. In United States v. Locke, 120 S.Ct. 1135 (2000), the United States Supreme Court unanimously struck down a Washington State oil tanker law and held that the state's safety and environmental standards were preempted by the comprehensive federal regulatory scheme governing oil tankers.

Pesticide regulation The sale and distribution of pesticides in the United States are governed by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (Pub. L. No. 100-532, Oct. 25, 1988, 102 Stat. 2654, 7 U.S.C.A. §§ 136 et seq.). Under the FIFRA, no pesticide may be introduced into the stream of commerce without approval by the administrator of the EPA. If the administrator finds that a pesticide will "cause unreasonable adverse effects on the environment," the pesticide will not receive approval. An unreasonable adverse effect on the environment is defined as "any unreasonable risk to [humans] or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide."

Once a pesticide is approved by and registered with the EPA, registration may be suspended by the administrator upon proof that continued use would "likely result in unreasonable adverse effects on the environment." Before suspension, the registrant is entitled to an expedited administrative hearing during which the danger and usefulness of the pesticide are measured. In emergency circumstances, the administrator may suspend registration prior to a hearing on the merits.

Chemical manufacturing regulation The manufacture of chemicals is regulated on the federal level by the Toxic Substance Control Act (TSCA) (15 U.S.C.A. 2601 et seq.). The TSCA is underpinned by three policy considerations. First, industry has the primary responsibility for ascertaining the environmental effects of the chemicals it is manufacturing. Second, the government should have the authority to prevent unreasonable risks of injury to the environment, especially imminent risks. Third, the government should not exercise this authority in a manner that places unreasonable economic barriers to technological innovation. As with most of the statutory law in the environmental arena, the relative weights given to each value are balanced against each other.

The central provisions of the TSCA are sections 4, 5, and 6. Section 4 empowers the EPA to adopt rules requiring a manufacturer to test each substance that may "present an unreasonable risk" to the environment, "enter the environment in substantial quantities," or present a likelihood of "substantial human exposure." Section 5 requires manufacturers to give the EPA notice before producing new chemical substances. New chemicals covered by section 4 must then be tested. New chemicals not covered by section 4 but listed by the EPA as potentially hazardous are evaluated at a hearing provided under section 6.

Resource Conservation and Recovery Act The Resource Conservation and Recovery Act (RCRA), Pub. L. No. 94-580, Oct. 21, 1976, 90 Stat. 2795, 42 U.S.C.A. § 6901 et seq., was passed in 1976 as a response to a growing public awareness of problems relating to the disposal of hazardous waste. In 1981 the EPA estimated that 290 million tons of hazardous waste were produced in the United States annually, 90 percent of which would have been improperly disposed of before the RCRA became law. The chemical, petroleum, and metal industries were the nation's leading generators of hazardous waste during this period. In 1983 government studies indicated that as many as fifty thousand inactive disposal sites contained hazardous waste, with as many as twenty-five hundred posing a serious threat to groundwater and to public drinking supplies.

Hazardous waste was traditionally disposed of on the land of the generator. Occasionally, the generator would transport the waste to an off-site disposal area. During the twenty-year active life of a disposal site, ownership and operation frequently changed hands. Very few records were kept at the disposal sites, leaving many subsequent owners and operators without any indication of their prior use.

The RCRA attempted to answer these problems by providing "cradle-to-grave" regulation of hazardous materials. The RCRA requires the EPA to promulgate criteria for identifying hazardous waste in light of a substance's toxicity, persistence, degradability, corrosiveness, flammability, and potential for accumulation in organic tissues. Standards are prescribed for the generators and transporters of hazardous materials as well as for storage and disposal sites.

Generators and transporters are subject to record-keeping, reporting, and labeling requirements, with transporters also being subject to the strictures of the Hazardous Materials Transportation Act. Sites for underground storage tanks containing petroleum products, pesticides, and other hazardous products are governed by RCRA provisions that enable the detection, correction, and prevention of leaks. Disposal sites are regulated by a permit system in which the EPA is given broad powers to inspect a site, issue compliance orders, institute civil actions against violators, and seek injunctive relief. Criminal penalties may also be imposed for violation of the permit system.

In 1984, Congress amended the RCRA, shifting the focus of hazardous waste management from safe land disposal to treatment alternatives. Under the 1984 amendments, land disposal is now the last alternative, and is permitted only when the waste is pretreated to meet standards issued by the EPA, or when the EPA determines "to a reasonable degree of certainty that there will be no migration of hazardous constituents from the disposal unit …for as long as the wastes remain hazardous."

When land disposal is deemed permissible, new landfills must use double liners and groundwater monitoring systems, unless the EPA finds that an alternative design or operating practice would be equally effective in preventing the migration of hazardous waste. In addition to providing for EPA regulation and enforcement actions, the RCRA authorizes private citizens to institute legal proceedings against violators of its provisions.

Comprehensive Environmental Response, Compensation, and Liability Act The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund, was passed in 1980 to clean up hazardous waste disposal sites (42 U.S.C.A. §§ 9601 et seq.). The act consists of four elements. First, CERCLA establishes a system for gathering information to enable federal and state governments to characterize chemical dump sites and develop priorities for response actions. The administrator of the EPA is required to issue regulations designating which chemicals would be hazardous to the public if released into the environment. The owners and operators of hazardous waste storage, treatment, and disposal sites are required to notify the EPA of the amount and types of hazardous substances on-site, and of any known, suspected, or likely releases into the environment. Based on this information, the EPA develops a national priorities list (NPL), which ranks the nation's hazardous waste sites in order of importance.

Second, CERCLA establishes federal authority to respond when hazardous waste has been discharged into the environment. The president is authorized to provide removal and remedial actions consistent with a national contingency plan (NCP), which establishes procedures for cleaning up such discharges. Removal actions are short-term responses to emergencies, whereas remedial actions are intended to offer long-term solutions. The federal government's response actions at sites appearing on the NPL are limited to cases in which the responsible parties cannot be found or fail to take the necessary actions.

Third, CERCLA creates a class of persons who are potentially responsible parties (PRPs), who will be held liable for cleanup and restitution costs. The act provides that all generators and transporters of hazardous materials, and every owner and operator of a disposal or treatment facility, shall be liable for all removal and remedial costs incurred by the state and federal government not inconsistent with the NCP, as well as any other necessary response costs such as consulting fees or attorney fees in certain situations. In each case, CERCLA imposes strict liability upon the responsible party, independent of traditional notions of culpability such as intent and recklessness.

Fourth, the act creates the multi-billion-dollar Hazardous Substance Trust Fund to pay for removal and remedial actions. Money for the fund is raised through federal appropriation and through taxes paid by some disposal site owners and operators. The fund cannot be used to remedy environmental injuries from hazardous waste that "occurred wholly before the enactment of this Act." Private claims may be made against the fund only if the PRPs cannot be found or are insolvent.

The stickiest legal questions arise when courts assign liability for cleanup. For example, lending institutions regularly foreclose, take title, and resell property without any knowledge or indication that the property was previously used as a hazardous waste site. Such institutions clearly fall within CERCLA's definition of a landowner, yet they assume no traditional responsibilities of land ownership.

Early CERCLA cases imposed liability upon lending institutions in these circumstances, even when the costs of cleanup exceeded the value of the property (see United States v. Maryland Bank & Trust Co., 632 F. Supp. 573 [D. Md. 1986]). Although Congress later amended CERCLA to protect such "innocent landowners," courts still impose liability if the lending institution "had reason to know" of the hazardous waste disposal or failed to make "all appropriate inquiry" into the previous ownership before acquiring the property.

Liability under CERCLA is joint and several liability, which means that once it is established among a group of defendants, any one of the defendants can be held responsible for the entire cost of cleanup. Although defendants are permitted to offer evidence that they are responsible for only part of an environmental injury, the commingling of chemicals at dump sites makes such a defense difficult to prove. Defendants may also seek reimbursement from codefendants who were primarily responsible for a hazardous discharge, but this relief proves futile when a responsible codefendant has disappeared or filed bankruptcy. Thus, wealthy landowners are often left paying the costs of the CERCLA cleanup.

Preservation of Wilderness and Wildlife NEPA requires the government to "fulfill the responsibilities of each generation as trustee for succeeding generations" to ensure "safe, healthful, productive and aesthetically pleasing surroundings" and protect "important aspects" of the "national heritage."

The federal government has three land preservation categories: the National Park System, the National Wilderness Preservation System, and the National Wildlife Refuge. National parks include forested areas, recreational areas, and places of historical importance. Wilderness preserves are not intended for use, and are primarily found in Alaska and the Florida Keys. A wildlife refuge is a sanctuary for fish and game. Federal legislation protects each of these three areas from spoliation, degradation, and misuse.

In addition to establishing sanctuaries and refuges for wilderness and wildlife, Congress has passed the endangered species act,16 U.S.C.A. §§ 1531 et seq., which charges the department of the interior with the protection of animals teetering on the brink of extinction. The U.S. Supreme Court has interpreted this act very broadly, as reflected by the snail darter case (Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d 117 [1978]).

The snail darter, a plain-looking, three-inchlong fish, was an endangered species inhabiting the rivers of Tennessee when the tennessee valley authority began the construction of a $100 million dam that would have destroyed its habitat. After noting that Congress deemed all species to have incalculable value and finding that the Endangered Species Act "admit[ted] of no exception[s]," the Supreme Court held that the dam could not be completed.

Environmental Justice

The field of Environmental Justice sprung from grassroots organizations formed to combat environmental racism. In the 1970s, groups of minorities organized to protest the disproportionate number of waste producing and polluting industries located in areas where minorities or poor people lived. These groups included African Americans, Latinos and Native Americans. This effort against environmental racism was viewed as outside the broader Environmental Movement, which had white middle to upper class backing.

In the 1980s, the environmental racism movement reorganized and became known as the Environmental Justice movement, which focused on the equitable distribution of environmental health and risk. At that time their efforts began to receive more mainstream attention and recognition. Since that time, the topic of Environmental Justice has been addressed by colleges and universities, as well as environmental and religious groups. The field has begun to move beyond issues of equitable distribution to include concerns about reducing and stopping environmental risk. This later aspect may be called ecological justice and deems that the earth and the environment have intrinsic value.

Environmental Racism Environmental racism has been defined by environmentalists as the deliberate targeting of communities of color for discriminatory treatment in governmental policy and corporate practices. Placement of toxic waste facilities in low income neighborhoods and nuclear waste dumps in indigenous territory have been cited as examples of this practice. Community activists have challenged what they believe is inherent and explicit racism in corporate strategies and discriminatory treatment in enforcement of environmental regulations.

Private Title VI Lawsuits and Environmental Racism Title VI of the civil rights act has been one of the most commonly used statutes in Environment Justice lawsuits in recent times. Some of this is due to the failures from other statutes and some of it is the uncertainty about the viability of Title VI as a remedy for environmental racism. Title VI has two main parts to it, section 601 and section 602. One of the main differences in the two sections is whether it gives a private right of action to plaintiffs. A private right of action determines whether ordinary citizens have the right to bring the case based on the statute before a court to determine the validity of the claims. Section 601 has been determined by the United States Supreme Court to hold a private right of action for lawsuits. Section 602 however has not been interpreted as to whether or not it holds a private right of action within it. The issue of intent is defined differently in the two sections. Section 601 has a model of proving intent based on the equal protection clause of the fourteenth amendment. This model is that of proving purposeful discriminatory intent by a government agency or other group who is discriminating. This very strict interpretation of the statute has served to quell any Environmental Justice lawsuits under section 601. For cases where discriminatory intent is obvious, section 601 is a good alternative since it allows for more punishment than section 602, which can only terminate funding. This allows corporate defendants to use reasons such as economic impacts and geographical situation to explain away unjust allocation of environmental burdens. Section 602, however, allows for disparate impacts to be used instead of intentional discrimination as a means of implicating defendants in the violations.

In February of 1994, President bill clinton signed an executive order which brought together several federal agencies and offices in a battle against discrimination. This order was an outline of what each agency was required to do to promote Environmental Justice in its policies and practices and what each agency needed to do to ensure the continued compliance with Title VI. The EPA has used this order as a staging point for their new wave of Environmental Justice focuses. An Environmental Justice Strategy has been formed by the EPA for the evaluation of Environmental Justice concerns brought to the EPA. The Executive Order is very limited in its scope and enforceability and has been widely criticized despite the fact that it facilitated the creation of the EPA Title VI policy.

further readings

Gerrard, Michael B., ed. 1999. The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks. Chicago: American Bar Association.

Rogers, William H., Jr. 1986. Environmental Law: Air and Water Pollution. St. Paul, Minn.: West.

——. 1977. Environmental Law Hornbook. St. Paul, Minn.: West.

Stern, Carole, John A. McKinney Jr., and David B. Graham, eds. 1996. CERCLA Enforcement: A Practitioner's Compendium of Essential EPA Guidance and Policy Documents. Chicago: American Bar Association.

cross-references

Tobacco; Water Rights.

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Environmental Law

Environmental law


Environmental law has been defined as the law of planetary housekeeping. It is concerned with protecting the planet and its people from activities that upset the earth and its life-sustaining capabilities, and it is aimed at controlling or regulating human activity toward that end.

Until the 1960s, most environmental legal issues in the United States involved efforts to protect and conserve natural resources , such as forests and water. Public debate focused on who had the right to develop and manage those resources. In the succeeding decades, lawyers, legislators and environmental activists increasingly turned their attention to the growing and pervasive problem of pollution . In both instances, environmental lawa term not coined until 1969evolved mostly from a grassroots movement that forced Congress to pass sweeping legislation, much of which contained provisions for citizen suits. As a result, the courts were thrust into a new era of judicial review of the administrative processes and of scientific uncertainty.

Initially, environmental law formed around the principles of common law, which is law created by courts and judges that rests upon a foundation of judicial precedents. However, environmental law soon moved into the arena of administrative and legislative law, which encompasses most of today's environmental law. The following discussion looks at both areas of law, reviews some of the basic issues involved in environmental law, and outlines some landmark cases.

Generally speaking, common law is based on the notion that one party has done harm to another, in legal terms called a tort. There are three broad types of torts, all of which have been applied in environmental law with varying degrees of success. Trespass is the physical invasion of one's property, which has been interpreted to include situations such as air pollution , runoff of liquid wastes, or contamination of groundwater .

Closely associated with trespass are the torts of private and public nuisance. Private nuisance is interference with the use of one's property. Environmental examples include noise pollution , odors and other air pollution, and water pollution . The operation of a hazardous waste site fits the bill for private nuisance, where the threat of personal discomfort or disease interferes with the enjoyment of one's home. A public nuisance adversely affects the safety or health of the public or causes substantial annoyance or inconvenience to the public. In these situations, the courts tend to balance the plaintiff's interest against the social and economic need for the defendant's activity.

Lastly, negligence involves the defendant's conduct. To prove negligence it must be shown that the defendant was obligated to exercise due care, that the defendant breached that duty, that the plaintiff suffered actual loss or damages, and that there is a reasonable connection between the defen dant's conduct and the plaintiff's injury.

These common law remedies have not been very effective in protecting the overall quality of our environment . The lawsuits and resulting decisions were fragmented and site specific as opposed to issue oriented. Further, they rely heavily on a level of hard scientific evidence that is elusive in environmental issues. For instance, a trespass action must be based on a somehow visible or tangible invasion, which is difficult if not impossible to prove in pollution cases. Common law presents other barriers to action. Plaintiffs must prove actual physical injury (so-called "aesthetic in juries" don't count) and a causal relationship to the plaintiff's activity, which again, is a difficult task in environmental issues.

In the early 1970s, environmental groups, aided by the media, focused public attention on the broad scope of the environmental crisis, and Congress reacted. It passed a host of comprehensive laws, including amendments to the Clean Air Act (CAA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), and others. These laws, or statutes, are implemented by federal agencies, who gain their authority through "organic acts" passed by Congress or by executive order.

As environmental problems grew more complicated, legislators and judges increasingly deferred to the agencies' expertise on issues such as the health risk from airborne lead , the threshold at which a species should be considered endangered, or the engineering aspects of a hazardous waste incinerator. Environmental and legal activists then shifted their focus toward administrative lawchallenging agency discretion and procedure as opposed to specific regulationsin order to be heard. Hence, most environmental law today falls into the administrative category.

Most environmental statutes provide for administrative appeals by which interest groups may challenge agency decisions through the agency hierarchy. If no solution is reached, the federal Administrative Procedures Act provides that any person aggrieved by an agency decision is entitled to judicial review.

The court must first grant the plaintiff "standing," the right to be a party to legal action against an agency. Under this doctrine, plaintiffs must show they have been injured or harmed in some way. The court must then decide the level of judicial review based on one of three issuesinterpretation of applicable statutes, factual basis of agency action, and agency procedureand apply a different level of scrutiny in each instance.

Generally, courts are faced with five basic questions when reviewing agency action: Is the action or decision constitutional? Did the agency exceed its statutory authority or jurisdiction? Did if follow legal procedure? Is the decision supported by substantial evidence in the record? Is the decision arbitrary or capricious? Depending on the answers, the court may uphold the decision, modify it, remand or send it back to the agency to redo or reverse it.

By far the most important statute that cracked open the administrative process to judicial review is NEPA. Passed in 1969, the law requires all agencies to prepare an Environmental Impact Statement (EIS) for all major federal actions, including construction projects and issuing permits. Environmental groups have used this law repeatedly to force agencies to consider the environmental consequences of their actions, attacking various procedural aspects of EIS preparation. For example, they often claim that a given agency failed to consider alternative actions to the proposed one, which might reduce environmental impact.

In filing a lawsuit, plaintiffs might seek an injunction against a certain action, say, to stop an industry from dumping toxic waste into a river, or stop work on a public project such as a dam or a timber sale that they claim causes environmental damage. They might seek compensatory damages to make up for a loss of property or for health costs, for instance, and punitive damages, money awards above and beyond repayment of actual losses.

Boomer v. Atlantic Cement Co. (1970) is a classic common law nuisance case. The neighbors of a large cement plant claimed they had incurred property damage from dirt, smoke and vibrations. They sued for compensatory damages and to enjoin or stop the polluting activities, which would have meant shutting down the plant, a mainstay of the local economy. The New York court rejected a long-standing practice and denied the injunction. Further, in an unusual move, the court ordered the company to pay the plaintiffs for present and future economic loss to their properties. A dissenting judge said the rule was a virtual license for the company to continue the nuisance so long as it paid for it.

Sierra Club v. Morton (1972) opened the way for environmental groups to act on behalf of the public interest, and of nature , in the courtroom. The Sierra Club challenged the U.S. Forest Service's approval of Walt Disney Enter prises' plan to build a $35 million complex of motels, restaurants, swimming pools and ski facilities that would accommodate up to 14,000 visitors daily in Mineral King Valley, a remote, relatively undeveloped national game refuge in the Sierra Nevada Mountains of California. The case posed the now-famous question: Do trees have standing? The Supreme Court held that the Sierra Club was not "injured in fact" by the development and therefore did not have standing. The Sierra Club reworded its petition, gained standing and stopped the development.

Citizens to Preserve Overton Park v. Volpe (1971) established the so-called "hard look" test to which agencies must adhere even during informal rule making. It opened the way for more intense judicial review of the administrative record to determine if an agency had made a "clear error of judgment." The plaintiffs, local residents and conservationists, sued to stop the U.S. Department of Transportation from approving a six-lane interstate through a public park in Memphis, Tennessee. The court found that Secretary Volpe had not carefully reviewed the facts on record before making his decision and had not examined possible alternative routes around the park. The case was sent back to the agency, and the road was never built.

Tennessee Valley Authority v. Hill (1978) was the first major test of the Endangered Species Act and gained the tiny snail darter fish fame throughout the land. The Supreme Court authorized an injunction against completion of a multi-million dollar dam in Tennessee because it threatened the snail darter, an endangered species. The court balanced the act against the money that had already been spent and ruled that Congress's intent in protecting endangered species was paramount.

Just v. Marinette County (1972) involved wetlands , the public trust doctrine and private property rights. The plaintiffs claimed that the county's ordinance against filling in wetlands on their land was unconstitutional, and that the restrictions amounted to taking their property without compensation. The county argued it was exercising its normal police powers to protect the health, safety and welfare of citizens by protecting its water resources through zoning measures. The Wisconsin appellate court ruled in favor of the defendant, holding that the highest and best use of land does not always equate to monetary value, but includes the natural value. The opinion reads, "...we think it is not an unreasonable exercise of that [police] power to prevent harm to public rights by limiting the use of private property to its natural uses."

Although some progress was made in curbing environmental degradation through environmental law in the 1970s, environmental legislation was significantly weakened by the Supreme Court in the 1980s.

[Cathryn McCue ]


RESOURCES

BOOKS

Anderson, F., D. R. Mandelker, and A. D. Tarlock. Environmental Protection: Law and Policy. New York: Little, Brown, 1984.

Findley, R., and D. Farber. Environmental Law in a Nutshell. St. Paul, MN: West Publishing Co., 1988.

Plater, Z., R. Abrams, and W. Goldfarb. Environmental Law and Policy: Nature, Law and Society. St. Paul, MN: West Publishing Co., 1992.

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Environmental Law

Environmental Law

An amalgam of state and federal statutes, regulations, and common-law principles covering air pollution, water pollution, hazardous waste, the wilderness, and endangered wildlife.

States of California, New Mexico, and Oregon Sue Bush Administration for Dismantling Environmental Restrictions

In September 2005, the people of the states of California, New Mexico, and Oregon filed suit against the U.S. Department of Agriculture, represented by Secretary of the Department of Agriculture Mike Johanns and Under Secretary for Natural Resources and Environment of the Department of Agriculture Mark Rey, and the U.S. Forest Service, represented by Chief Dale Bosworth. California Attorney General Bill Lockyer, New Mexico Attorney General Patricia A. Madrid, and Oregon Governor Theodore Kulongoski filed the complaint through the U.S. District Court for the Northern District of California, challenging the Forest Service's May 2005 decision to rescind a nationwide resources-protection rule as a violation of the National Environmental Policy Act (NEPA) procedures and the Administrative Procedure Act (APA) prohibition on arbitrary and capricious action. The policy change dismantles road-building and logging restrictions in the United State's nearly 60 million acres of backcountry and undeveloped forests, a decision that allegedly constitutes an abuse of agency discretion.

The Forest Service conducted a comprehensive survey of roadless areas in the 1970s, cataloging areas larger than 5000 acres within the National Forest System. Approximately 2.8 million acres of these Inventoried Roadless Areas (IRAs) have since been developed by the Forest Service. Under the Clinton Administration, the agency announced an 18-month suspension of road construction or reconstruction in National Forest IRAs beginning in February 1999, pending investigation and potential policy revision designed to protect remaining roadless areas from degradation.

A draft Environmental Impact Statement (EIS) for a nationwide policy—titled "Forest Service Roadless Area Conservation"—was released in May 2000, detailing various conservation alternatives, including restrictions on road construction, road reconstruction, and timber harvesting, for the roadless areas in question. The Final Environmental Impact Statement (FEIS), released in November 2000, identified the Roadless Rule as the agency's preferred method of conservation. Its stated purpose was to halt all activities that posed great risk to the social and ecological values of the inventoried areas. The FEIS affected an identified 58.5 million acres nationwide.

The Forest Service issued the final Roadless Rule in January 2001, prohibiting road construction, reconstruction, and timber harvesting in the IRAs in order to guard against altering and fragmenting the landscapes. The study concluded that additional development of the acreage would be unwise in light of the size of the existing road system and budget constraints that would hamper appropriate management to maintain safety and environmental standards. The two-volume document analyzed alternatives and provided the Forest Service's rationale for selecting the Roadless Rule under the NEPA. Nine lawsuits relating to the Roadless Rule were filed in federal district courts in Idaho, Utah, North Dakota, Wyoming, Alaska, and the District of Columbia. However, more than 95 percent of 1.2 million public com-menters in the public involvement process supported the rule.

On July 16, 2004, the Forest Service published "Special Areas: State Petitions for Inventoried Roadless Area Management", which proposed revoking the Roadless Rule in favor of a petition process that would give state governors an 18-month window to seek or decline to seek changes in the disposition of roadless areas in National Forests within their states. Such petitions would be reviewed by a National Advisory Committee, yet to be established, and the Secretary of Agriculture was given responsibility to accept, reject, or revise petitions, in effect having the authority to determine the disposition of the roadless lands.

Called the Roadless Repeal, this proposal was finalized in May 2005. The complaint filed by California, New Mexico, and Oregon contends that the defendant agencies failed to conduct a new environmental analysis, a public involvement process, offer an explanation for reversing policy, or an explanation for their lack of concern about the inability to finance the maintenance of National Forest roads. This failure allegedly violates the NEPA and the APA, harming the procedural interests of the plaintiff states and the broader public. Lockyer et al. argue that the Roadless Repeal will compromise their states' proprietary interests in protecting natural resources on state lands adjacent to or affected by policies on National Forest roadless areas; protection of state public trust wildlife, including rare and endangered species; and protection of state waterways, water quality and quantity.

The defendant agencies have stated that the Roadless Repeal is procedural rather than a NEPA document, therefore it is not necessary to pass it through the NEPA process. They also maintain that the original FEIS analysis that established the Roadless Rule as the preferred method adequately describes the effect of the repeal, so a new analysis would be redundant. The agencies call the repeal environmentally neutral, claiming it will have no identifiable resource outcomes.

The plaintiffs contest this, listing some of the species potentially effected by the policy change, including state and federally protected animals and plants. California currently has 2.5 million roadless acres and such rare and endangered species as the California condor and the Coho salmon. The latter has habitat designated under the Endangered Species Act as critical to species survival and recovery within or affected by the roadless areas of California.

New Mexico's 1.6 million roadless acres of National Forest are home to American bald eagles and the Mexican spotted owl, both of which are federally threatened species, as well as gray wolves and other species to whom the habitat is considered critical.

Approximately one quarter of Oregon's land mass, or 15.6 million acres, consists of National Forest land. Nearly 2 million are IRAs, and 1.2 million of those would be vulnerable to road-building under the Roadless Repeal. The American bald eagle, brown pelican, northern spotted owl, and Coho and Chinook salmon are among the potentially effected species. The viability of salmon in Oregon would be affected by habitat changes within Oregon, as well as in the surrounding states, including California. The Forest Service in Oregon has already begun taking action, such as moving to approve timber sales, that would have been impermissible under the Roadless Rule.

The complaint also indicates that the Roadless Repeal would affect water quality and quantity, specifically in California and Oregon. In California, concerns about water tie into issues of erosion, while Oregon's state-owned waterways are the stated concern.

The plaintiff states are asking the court to declare the repeal in violation of NEPA and the APA, vacate the repeal, and require the defendants to create a NEPA-compliant Roadless Repeal or withdraw the rule. They also are seeking cost and expense compensation, along with whatever relief the court deems appropriate.

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Environmental Law

Environmental Law

An amalgam of state and federal statutes, regulations, and common-law principles covering air pollution, water pollution, hazardous waste, the wilderness, and endangered wildlife.

United States v. Atlantic Research Corporation

Following the 1970s, when Americans started getting serious about environmental cleanup, Congress passed the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA). The Act was intended to encourage private citizens to report environmentally-contaminated dump sites, to encourage corporations to clean up sites, and to allow the recovery of expenses associated with cleaning up contaminated sites.

At issue in United States v. Atlantic Research Corporation, No. 06-562, 551 U.S. ___ (2007) were two specific sections of the Act that relate to the right to seek recovery for expenses and costs of cleanup. Section §107(a) of the Act provides that potentially responsible parties (PRPs) are liable for all costs of removal or remedial action undertaken by the federal or a state government or an Indian tribe in cleaning up the site, that are not inconsistent with the national contingency plan. It further states that PRPs are liable for "any other necessary costs of response incurred by any other person consistent with [such] plan."

Some courts initially interpreted §107(a) to provide a cause of action for private parties to recover clean-up costs and/or seek contribution if they were sued. (Under the principle of contribution, one who is found liable for damages is entitled to recover a proportional share of the damages from other joint tortfeasors whose negligence or wrongful conduct also contributed to the damage.)

However, Congress later added §113(f) to CERCLA as part of the Superfund Amendments and Reauthorization Act of 1986. This new section expressly authorized one PRP to sue another for contribution. Many courts then found this section to be the exclusive remedy for contribution. Then in Cooper Industries v. Aviall Services, Inc., 543 U.S. 157 (2004), the Supreme Court held that a private party could seek contribution under §113(f) only after being sued under §106 or §107(a).

Atlantic Research Corporation leased property held by the Department of Defense after being awarded a government contract to build rocket motors. In the course of its work, Atlantic Research contaminated the site with runoff and/or burnt rocket fuel. It voluntarily cleaned up the toxic material, then sought contribution from the government for the clean-up costs, filing suit under both §§107(a) and 113(f).

§113(f) states in relevant part,

"Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) [§107(a)] of this title, during or following any civil action under section 9606[§106] or under section 9607(a) of this title…. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title."

The district court dismissed the case. First, it found that §113(f) was inapplicable, as a party can only bring a claim under that section if it is already the subject of an action under §107(a) (or under §106). Since Atlantic had not been sued by anyone, and voluntarily cleaned up the site, it was not entitled to seek contribution under §113(f).

The district court also found no cause of action under §107(a), the cost recovery section. The court held that §107(a) did not create a cause of action entitling one PRP to sue another for voluntary clean-ups. Atlantic Research appealed.

The Eighth Circuit Court of Appeals agreed that Atlantic Research had no cause of action for contribution under §113(f). However, it reversed the dismissal of the §107(a) claim, holding that this section indeed provided a cause of action to PRPs, i.e., "potentially liable parties" against other PRPs. This time, the government appealed.

A unanimous Supreme Court upheld the Eighth Circuit's interpretation of the relevant sections. Justice Thomas, writing for the Court, quite simply held that because the plain language of §107(a)(4)(B) allows a PRP to recover costs from other PRPs, the statute provides a pre-lawsuit cause of action, in this case, for Atlantic Research.

The Court recognized two separate and legitimate causes of action to recover cleanup expenses: a §107(a) claim prior to civil action for voluntary cleanups of contaminated sites; and a §113(f) contribution claim during or following a lawsuit or enforcement action under §§106 and 107(a).

The Court briefly addressed the government's concern that PRPs could avoid the shorter three-year statute of limitations under §113(f) by filing §107(a) actions instead (with a six-year statute of limitation). The Court reiterated that each section created its own distinct remedy. A PRP cannot seek contribution under §107(a) and can only recover the costs actually "incurred" in cleaning up the site.

Conversely, the Court noted that:

"… a PRP that pays money to satisfy a settlement agreement or a court judgment may pursue §113(f) contribution. But by reimbursing response costs paid by other parties, the PRP has not incurred its own costs of response and therefore cannot recover under §107(a). As a result, though eligible to seek contribution under §113(f)(1), the PRP cannot simultaneously seek to recover the same expenses under §107(a)."

EPA Issues New Rules to Cut Toxic Emissions

During the Clinton Administration, Congress, under provisions of the Clean Air Act,), had required the Environmental Protection Agency (EPA) to issue regulations (in the form of rules or standards) controlling toxic emissions from "mobile sources" by 1995. This primarily affected the motor vehicle industry, and nothing much happened for the next ten years. In 2005, environmental groups Sierra Club and U.S. Public Interest Research Group, represented by environmental law firm Earth-source, won a federal court order (in the form of a consent decree) compelling EPA to issue a preliminary proposal for new regulations no later than 2006, with a final rule by early February 2007.

On February 26, 2007, the EPA published its final rule for the regulation of benzene, a naturally-occurring but highly toxic and cancer-causing substance found in crude oil, gasoline, and exhaust fumes emitted from vehicles. The rule, published as Control of Hazardous Air Pollutants from Mobile Sources, (72 FR 8428) requires sequential implementation between 2009 and 2011, and is estimated to reduce toxic emissions of benzene and other pollutants by up to 80 percent over the next two decades. The new requirements were expected to reduce total emissions of mobile source air toxics by 330,000 tons, and VOC emissions (precursors to ozone and "PM2.5") by more than one million tons.

The new rule was designed to meet the court order's requirement that EPA force oil refineries to meet an average 0.62 percent limit of benzene in all fuel produced for consumption by 2011. The current content of benzene in gasoline is just under one percent, averaging 0.97 percent.

The rule also regulates evaporation of fuel, and sets standards for evaporation limits for all fuel containers starting in 2009. Finally, by 2010, passenger vehicle engines started up at cold temperatures (the time when vehicles emit the most toxic fumes) must emit fewer benzene and other pollutants.

The new standards were expected to cost consumers about $400 million, mostly attached to the price of new vehicles. However, the extra cost would average out to less than $1 per vehicle, an EPA spokesperson reported to the Associated Press.

Environmentalists and others were infuriated over another less publicized provision in the new rule, which would allow some refineries to purchase emissions credits to meet the new regional standards. Essentially, by adopting regional standards, EPA would allow several gasoline refineries, particularly in the Northwest, to avoid the limits by "trading" pollution credits with other refineries elsewhere in the country that were below the regional standard.

But EPA defended the credit-trading program as more fair. It adopted regional benzene standards ranging from 0.52 percent along the East Coast to 0.9 percent in the Rocky Mountains. The credit-trade program would mostly affect the Pacific Northwest, where benzene emissions run nearly twice the national average. This is because much of the region's gasoline comes from Alaska's benzene-rich oil. For this Northwest region, the new regulations require that benzene fuel limits drop from the current level of 1.8 percent to 0.69 by 2011 (just above the national level of 0.62).

In parts of the country where reformulated gasoline (RFG) products are required, benzene levels have been reduced by 50 percent or more. In areas that have not adopted RFG, average benzene levels remain about twice the national average, while in the Pacific Northwest, levels have run nearly three times as high.

In addition to the reduction of benzene, EPA issued new regulations to control pollutants such as hydrocarbons, particulate matter, and nitrogen oxides. Other regulations addressed emissions from highway and off-road vehicles, and new programs were under development to address standards for small non-road gasoline engines (such as used in lawn mowers and tractors), diesel locomotives, and marine engines. Other related EPA program initiatives included its "Clean School Bus USA," "The Volunteer Diesel Retrofit Program," and "Best Workplaces for Computers." By 2010, EPA's existing programs are expected to reduce all mobile source air toxics by over one million tons from 1999 levels.

At the same time that EPA published its new benzene rule, the United States Senate Committee on Environment and Public Works, chaired by Senator Barbara Boxer (D-CA) planned to conduct an oversight hearing on recent decisions of the EPA, including the credit-purchasing program of the Mobile Source rule, which would essentially allow several industries and refineries to increase rather than decrease their toxic emissions. As of early 2007, other pollutants such as mercury (mostly from cement kilns), dioxins, and PCBs continued to be emitted without restriction from many unregulated industries across the country.

National Association of Home Builders v. Defenders of Wildlife

In June 2007, the U.S. Supreme Court resolved a case involving the interrelationship between two federal environmental statutes. In National Association of Home Builders v. Defenders of Wildlife, the Court determined that the Environmental Protection Agency (EPA) was not required by the Endangered Species Act (ESA) to consider whether the agency's transfer of authority regarding water pollution to a state agency may jeopardize endangered species. The Court's decision reversed an opinion by the Ninth Circuit Court of Appeals, which had held that the EPA's transfer power under the Clean Water Act was limited by the ESA.

Congress enacted the Clean Water Act of 1972 (CWA), 33 U.S.C. §1251, to prevent pollution of the nation's waters through the National Pollution Discharge Elimination System (NPDES). It allows the EPA to issue permits for discharging pollutants into water. Where a state has met certain requirements under the statute, the state may request that EPA transfer permitting authority to state officials. If the EPA determines that the state has met nine criteria set forth in the CWA, then it is required to transfer permitting authority to the state. Once this authority has been transferred, the state then has the primary authority to review and approve NPDES permits, though the EPA retains oversight.

The Endangered Species Act, 16 U.S.C. §1531, which is a completely separate environmental statute, protects and conserves endangered species and their habitats. Section 7 of this statute establishes steps that all federal agencies must take to ensure that their actions do not jeopardize endangered species. More specifically, the statute requires that "[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary [of Commerce or the Interior], insure that any action authorized, funded, or carried out" by such an agency "is not likely to jeopardize the continued existence of any endangered species." The ESA does not specifically refer to the CWA, and state agencies are not bound to follow the directives established in Section 7 of the ESA.

In 2002, officials in the State of Arizona submitted an application to administer the NPDES program in that state. The EPA consulted with the Fish and Wildlife Service (FWS) to determine whether the transfer of permitting authority to the State of Arizona would have an impact on water quality that would, in turn, have an adverse effect on endangered species. The FWS decided that the transfer of authority would not have an adverse impact on a listed species, but the agency expressed concern that the transfer could have an indirect adverse impact. The primary reason for this conclusion was that because section 7 of the ESA does not apply to state agencies, that Arizona officials could issue permits without considering the impact on endangered species. The EPA later determined that the CWA did not allow it to disapprove a transfer of authority based on considerations other than those found in the CWA itself. The national office of the FWS later issued an opinion concluding that the transfer of permitting authority would not have an adverse effect on listed species under the ESA.

Defenders of Wildlife filed a petition with the Ninth Circuit Court of Appeals pursuant to 33 U.S.C. §1369, which permits private parties to seek direct review of the EPA's decisions regarding the transfer of permitting authority. The National Association of Home Builders intervened in the case. Defenders of Wildlife also brought suit against the FWS for its opinion, which the Defenders of Wildlife said failed to comply with standards set forth in the ESA. The Ninth Circuit subsequently consolidated the case with the other case pending before the appellate court.

A split panel of the Ninth Circuit ruled that the EPA had acted in an arbitrarily and capriciously because the agency had "relied during the administrative proceedings on legally contradictory positions regarding its section 7 obligations." Defenders of Wildlife v. U.S. EPA, 420 F.3d 946 (9th Cir. 2005). According to the opinion by circuit judge Marsha Berzon, the EPA did not "understand its own authority" under section 7 in the agency's failure to act on behalf of endangered species. More specifically, the court noted that the EPA's decision contradicted itself because the agency had first acknowledged that it was required to consider the impact of transferring authority on endangered species (when it submitted the decision to FWS) and then later determined that the agency could not consider ESA concerns when it made the decision about transferring the permitting authority.

The majority panel reviewed the statutes in question and determined that the ESA not only gave the EPA power to determine the impact of the transfer on endangered species but also required the EPA to make this determination. This decision effectively added a tenth criterion to the nine that are set forth in the CWA itself. According to the dissent by Judge David R. Thompson, the panel's decision was incorrect because the language in the CWA clearly states that if the nine listed criteria are met, "the EPA administrator 'shall approve' the program." Nevertheless, the Ninth Circuit sitting en banc ruled denied a request to rehear the case.

The Supreme Court agreed to review the case, and in a 5-4 decision, reversed the Ninth Circuit. Nat'l Ass'n of Home Builders v. Defenders of Wildlife, Nos. 06-340, 06-549, 2007 WL 1801745 (June 25, 2007). In an opinion by Justice Samuel Alito, the majority noted that the Ninth Circuit had erroneously considered statements made during the EPA's review process when it should have only reviewed the agency's final action. The fact that officials at a higher level had overruled a prior decision made at the local agency level did not render the decision of the agency arbitrary and capricious. The Court also determined that the language of the CWA was such that the decision as to whether to grant a transfer of permitting authority was not a discretionary one on the part of the EPA. Based on the language of the statutes, the Court concluded that the EPA did not have to consider the provisions of the ESA when determining whether to transfer permitting authority and that once the EPA determined that the nine criteria in the CWA were met, the agency was required to transfer that authority.

Justice John Paul Stevens, joined by three other justices, dissented. He argued that because the EPA was faced with competing statutory mandates, the Court should have found a way to give full effect to both.

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Environmental Law

ENVIRONMENTAL LAW

An amalgam of state and federal statutes, regulations, and common-law principles covering air

All Things Green

H istorically speaking, when economies sagged, creative projects and creative thinking about environmental issues tended to slump as well. This was due to the fact that any available funds or discretionary income needed to be channeled toward supporting only the bare essentials. But all that may have changed with the realization that global warming and $100/barrel oil prices could effectively be contained, if only more creative and environmental-friendly laws and policies were to be introduced. Suddenly, it seemed, the figurative Green Express was traveling across America, and some of its more prominent passengers were state and local governmental entities, major corporations, educational, and scientific entities. No longer was it Senator Al Gore's (D-TN) little pet project to raise the environmental awareness of young, bright university students. Now it was a Nobel-prize-winning presentation on global warming, along with heightened concern by everyday citizens that seemed to hasten the movement toward the Greening of America. As Dan Esty, a professor of environmental law and policy at Yale University, predicted, corporate America's “green” campaign would survive a tight economy. He told interviewers for the Christian Science Monitor in late 2007, “There could be stress in the next year or two, but I'm confident that investment in the environment will be higher.”

To be sure, U.S. companies from General Electric to Wal-Mart have increased their announcements of initiatives intended to enhance the environment, from more efficient buildings to alternative energy to employee bonuses for carpooling or walking to work. Had it not been for the shortage in availability of hybrid vehicles, New York's formidable taxicab population would already have converted to all-green taxis. The massive Internet search engine Google dimmed its online screen lighting in recognition and celebration of Earth Day—something that, at least to the baby-boomer generation, sounded like a throwback to the 1970s. Even the slump in the housing market did not deter creativity; if anything, it created an opening. Several major mortgage lenders, including Bank of America, Citigroup, and JP Morgan Chase began rewarding homeowners with $1,000 off closing costs if they made energy-efficient improvements to their houses. Several states created programs to encourage energy efficient improvements for homes. Kansas, Pennsylvania, and New York all offered low- or reduced-interest loans for green home improvements.

In true capitalistic fashion, the quest for green became competitive. Companies called press conferences to announce new initiatives, while other companies plotted to make money off the movement. For example, as Sara Munoz reported in The Wall Street Journal, banks offering environmentalfriendly mortgage loans had figured out that the annual estimated savings in utility bills could be added to borrowers' projected yearly incomes, thus making them eligible to borrow an extra $10,000 in a 30-year mortgage. All in all, even talking the Green seemed to enhance stature among fellow-Americans, as many Green Party candidates discovered in the 2007–2008 election season.

Global warming played a key role in Green efforts worldwide. The United Nations' (UN) Intergovernmental Panel on Climate Change had announced in 2007 that greenhouse-gas emissions from human activity, particularly the burning of fossil fuels such as oil and coal, was “very likely” the main cause of global warming and issued a warning of dire consequences to the world if such intensified global action to curb emissions was not undertaken

One of the biggest and more controversial aspects of Green efforts involved the Voluntary Carbon Market, a global initiative that ran parallel with the Kyoto Protocol, the international global warming treaty. Signatories to the treaty, including both countries and companies, made commitments to curb their carbon dioxide emissions.

The United States rejected the Kyoto Protocol and instead opted for voluntary controls. Companies and individual entities in the United States made commitments to reduce their pollutants and carbon emissions incrementally over the next several years, in return for a voluntary rather than mandatory program. As Congress grappled with debates over whether the United States should instead impose mandatory caps on greenhouse-gas emissions or continue to rely on voluntary activity, another (and more controversial) alternative surfaced: carbon offsets. The voluntary offset market ultimately emerged as a way for companies or individuals not bound by the Kyoto agreement to still show that they were addressing global warming and thus respond to public or shareholder pressure.

Carbon offsets are essentially environmental passes. They represent cuts in global-warming emissions that have been made somewhere in the world. The idea behind them is that money raised from the offsets would fund projects to reduce emissions. Each carbon offset roughly represents the value of offsetting (avoiding) one ton of CO2 or equivalent greenhouse gas pollution. Companies or individuals earning these credits may use them to qualify for governmental funds, grants, and special projects designed to develop new ways to reduce emissions.

The controversy surrounding these offsets centered around the fact that they could be bought and trades as commodities between companies and countries. As offset credits were earned by environmentally-friendly companies who did more than their share, they discovered they could sell their excess credits to a polluting company or individual. Overall, the objective of meeting decreased emissions would still be met; it was just that some entities continued to excessively pollute but could compensate by still claiming possession of carbon offsets. Projects began popping up from Texas to China, said The Wall Street Journal. They ranged from planting trees, which absorb high amounts of ambient carbon dioxide, to capturing methane, another harmful greenhouse gas that is emitted by rotting animal waste on farms.

The voluntary offsets differ from pollution permits traded under the Kyoto Protocol. The Kyoto-based pollution credit market, worth billions of dollars, is overseen by UN-sanctioned officials who must approve projects before credits could be sold. But the voluntary offsets lack regulation, raising doubts about whether claimed cuts in emissions are really taking place.

Critics claim that both systems are rife with abuse. In early 2008, Ecosystem Marketplace and New Carbon Finance released a report, State of the Voluntary Carbon Markets: Forging the Frontier, showing that the average price to offset one ton of CO2 or equivalent gas rose 49 percent in 2007. Moreover, volume in the over-the counter market for offset trading nearly tripled in 2007, from $97 million in 2006 to $331 million in 2007.

In November 2007, three groups representing some of the biggest sellers and buyers of carbon offsets announced the Voluntary Carbon Standard in an attempt to offer uniformity and credibility to the offset trade market. Although participation and compliance with the proposed standard remained voluntary, the drafters were hoping that public pressure would push many entities to participate. Since there still was no independent panel to approve or reject projects to earn offsets, critics believed the standard was too lax.

For example, forestry markets account for a large share of the voluntary offset market. Trees consume large amounts of carbon dioxide as they grow, a positive factor. But they emit as much if not more carbon dioxide when burned. The sale and/or trade of excess offsets between the two sectors of the industry may look good on paper, but result in zero advances in emissions reduction. To address this snag, under the new voluntary standards, offset sellers must have their forest projects vetted by trained entities to verify that the projects are accomplishing as much as claimed.

Meanwhile, the main thrust of green legislation around the country tended to focus on alternative energy. From local grassroots initiatives to state-funded programs, goals and objectives were incorporated into comprehensive plans that would reduce energy use and/or pollution by stated percentages over a stated number of years. For example, U.S. businesses spent approximately $3.5 billion on renewable energy in 2005, compared to about $132 billion in conventional oil and gas during the same year. Yale's Professor Esty projected the renewable energy investment to increase to over $100 billion by 2008. This would represent a conscious shift of interest and investment from one sector of the energy market to another.

Title IX of the much-touted House energy bill passed by the U.S. Congress in December 2007 included provisions for loan guarantees for renovation projects meeting articulated green building certification requirements. Other sections of the bill mandated, the Secretary of Energy to issue regulations prohibiting the sale of 100-watt incandescent light bulbs after January 1, 2012 (Sections 9021–9030); the raising of required energy efficiency for washing machines, dishwashers, refrigerators, etc. (Sections 9001-9020); the updating of state building codes to be more energy efficient (Section 9031); and additional financial assistance to consumers for home weatherization projects (Section 9034). In early 2008, House Democrats, led by Speaker Nancy Pelosi, pledged to back clean-energy rhetoric with real change, starting with the Capitol Dome, scheduled to get its electricity from wind power and heat from natural gas in the foreseeable future.

pollution, water pollution, hazardous waste, the wilderness, and endangered wildlife.

California Sues the EPA for Waiver on Car Emissions

In an effort to reduce the amount of greenhouse gas emissions, the state of California has sought to adopt tough emission standards for new cars. The proposed standards would force auto manufacturers to cut emissions by 25 percent from cars and light trucks, and 18 percent for SUVs, beginning with the 2009 model year. However, before California can enforce these standards it must obtain a waiver from the Environmental Protection Agency (EPA) because federal environmental law preempts state environmental laws. California submitted its regulatory standards to the EPA in December 2005, but by November 2007 the state had not received a ruling. California filed suit in November against

the EPA, asking a court to order the EPA to rule on the standards. Then, in December, the EPA finally ruled, denying the state request. The state filed suit in January 2008, seeking to appeal the EPA decision in a federal court. Sixteen other states joined California in the lawsuit, which drew congressional attention. A Congressional committee began a probe of the EPA decision to decide whether political pressures forced the agency to rule against the waiver request.

The California Air Resources Board (ARB) developed the regulations based on a 2002 law that required California to establish new standards for motor vehicle greenhouse gas emissions beginning in model year 2009. The 25 percent reduction on cars would, by 2016, increase to a 30 percent reduction. California claimed that these standards would eliminate greenhouse gases equivalent to taking 6.5 million cars off the road by the year 2020. If all 50 states with similar plans did the same, greenhouse gases equivalent to removing nearly 22 million vehicles off the road. California officials noted that 16 states, comprising about 45 percent of all U.S. auto sales, had adopted or were in the process of adopting, California's standards.

Governor Arnold Schwarzenegger became a strong advocate of the new standards, even though they conflicted with the approach taken by fellow Republican, President George W. Bush. Schwarzenegger tried to prod President Bush to take action on the waiver, writing him letters in April and October 2006. In April 2007 the governor wrote EPA administrator Peter L. Johnson a stern letter, noting that 16 months had passed since the waiver application and warning him that the state would file a lawsuit within 180 days if no decision had been made in that time. Under the Clean Air Act and the Administrative Procedure Act, states have the right to seek a court order compelling agency action. The state proceeded to file a federal lawsuit against the EPA in November 2007 in the U.S. District Court for the District of Columbia, arguing that Congress intended the EPA to rule on such waivers in weeks or months, but not years. Arizona, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington intervened in the lawsuit on behalf of California. The EPA replied that it had always planned to make a decision by the end of 2007 but that several factors had come into play that delayed its decision. It noted that it was a party to a lawsuit that was not resolved until the U.S. Supreme Court ruled in April 2007. In that case the Court ruled against the agency and found that the EPA did have the authority to regulate greenhouse gas emissions, which it had denied. Moreover, the EPA said it had received a large volume of public comments that needed to be reviewed.

On December 19, 2007, the EPA finally ruled, denying California's waiver application. Johnson explained to the press that the Bush Administration preferred a single, unified national standard to a state-by-state scheme of regulations. Johnson also referred to the Energy Independence and Security Act of 2007 that had been signed that same day. The law requires automakers to reach industry-wide fuel efficiency for cars, SUVs, and small tracks of 35 miles per gallon by 2020. Governor Schwarzenegger quickly announced that the state would appeal the ruling in federal court and an appeal was filed in early January 2008. At the same time Rep. Henry Waxman, Democrat of New York and Chair of the House Oversight and Government Reform Committee, announced that his committee would investigate whether the decision was politically motivated. He asked that the EPA turn over all documents related to the decision.

Controversy erupted in late February 2008, when internal EPA documents were disclosed by California Senator Barbara Boxer, a Democrat, which showed that EPA agents had urged Johnson to approve the waiver. Agents said denying the waiver would compromise the integrity of EPA and another memo stated there was no “legal or technical justification” for denying the waiver application. At a Senate hearing, Johnson refused to say whether the White House has pressured the agency to deny the request. Several days later he issued a notice that provided an official explanation for his decision. In the notice, Johnson stated, “In my judgment, the impacts of global climate change in California, compared to the nation as a whole, are not sufficiently different to be considered ‘compelling and extraordinary conditions’ that merit separate state GHG [greenhouse gas] standards for new motor vehicles.”

In March 2008 bills were introduced in the House and Senate that seek to overturn the EPA waiver denial and give the states the right to enact or implement higher greenhouse gas emission standards. A Senate committee approved the bill in late May, while Rep. Waxman's House committee issued a report that same week which concluded that the White House had played a “significant role” in the EPA decision. Though the waiver had unanimous support of EPA career staff, the waiver was rejected after Johnson met with unnamed White House officials.

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Environmental Law

ENVIRONMENTAL LAW

An amalgam of state and federal statutes, regulations, and common-law principles covering air pollution, water pollution, hazardous waste, the wilderness, and endangered wildlife.

Cooper Industries, Inc. v. Aviall Services, Inc.

Congress has enacted numerous laws that seek to protect the environment, including statutes that require polluters to perform cleanups on their worksites. If the polluter refuses to clean up the hazardous substances, the federal government or a state government is empowered to perform the cleanup and then bill the polluter for the costs of the operation. Often, the pollution has occurred over a long period of time and several companies have operated the property. Under federal law, the current owner of the property who must pay for the cleanup can sue prior owners for contribution, a legal doctrine that permits the recovery of the costs tied to the prior wrongdoer. However, the federal law in question, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 92 Stat. 2767, did not make clear whether a property owner could sue for contribution when the owner voluntarily cleaned up the site. CERCLA's §113(f)(1) contained language stating that contribution could be pursued "during or following" a civil action brought by either state or federal government agencies. The Supreme Court, in Cooper Industries, Inc. v. Aviall Services, Inc., __ U.S. __, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), resolved the issue by holding that a polluter who voluntarily complied with a government cleanup demand cannot seek contribution from prior polluters of the property.

In 1981, Cooper Industries, Inc. sold to Aviall Services, Inc. four aircraft-engine-maintenance sites in Texas. Within a short time, Aviall discovered that Cooper and its own company had allowed petroleum and other hazard substances to leak into the ground and ground water through underground storage tanks and spills. Aviall notified the Texas Natural Resources Conservation Commission about the contamination that directed the company to cleanup the four sites or face an enforcement action. Neither the commission nor the Federal Environmental Protection Agency filed administrative or judicial actions against Aviall to compel cleanup, as Aviall voluntarily complied, beginning in 1984. By 1996, the cleanup costs for Aviall amounted to $5 million, and the company believed they could go higher. In 1997, it filed a federal lawsuit against Cooper, seeking the recovery of cleanup costs. Aviall alleged that under CERCLA, Cooper was a "potentially responsible person" (PRP) and therefore liable for much of the cleanup effort. The federal district court dismissed Aviall's lawsuit, ruling that CERCLA's §113(f)(1) relief was unavailable because Aviall had not been sued under CERCLA to clean up the sites. The U.S. Court of Appeals for the Fifth Circuit reversed this ruling, finding that §113(f)(1) allows a PRP to obtain contribution from other PRPs whether or not the PRP had been sued under CERCLA. The appeals court pointed to a clause in the statute that said that nothing in the section should diminish any party's right to bring a contribution action in the absence of a CERCLA lawsuit.

The U.S. Supreme Court, in a 7-2 decision, reversed the Fifth Circuit's decision, finding that the plain meaning of §113(f)(1) barred Aviall from suing Cooper for contribution. Justice Clarence Thomas, in his majority opinion, reviewed the history of CERCLA, noting that the original law made no mention of contribution. The federal courts began to read such a right to contribution into the law, but Congress clarified matters in 1986 when it provided an express cause of action for contribution in §113(f)(1). This section stated that a PRP could bring an action for contribution from another PRP "during or following any civil action" brought under CERCLA. Moreover, a PRP could bring an action for the "cost of recovery" under §107(a) of CERCLA. In this case, Aviall had originally sued under both §113(f)(1) and §107(a), but it later dropped the §107(a) cause of action. Therefore, Justice Thomas only considered the issue of contribution in the Court's decision.

Justice Thomas found that the enabling language of §113(f)(1) was clear and unambiguous as to when a PRP could sue for contribution. A "natural meaning" of the sentence was that contribution could only be pursued "during or following" a specified civil action. Aviall and the Fifth Circuit had focused on the first of the sentence, which stated that "Any person may seek contribution… during or following any civil action" under CERCLA. Aviall contended that "may" should be read permissively so that a civil action during or following a civil action would not be exclusive. Justice Thomas rejected this reading, concluding that the natural meaning of the word "may" in "the context of the enabling clause" authorized certain contribution actions and no others. Such a reading made sense because Congress would not have needed to include the "during or following" condition if it had meant to authorize contribution lawsuits with a prior CERCLA action. One bedrock rule of statutory interpretation is that courts will not read a law to "render part of the statute entirely superfluous." Because the plain meaning of the statute was so clear, Justice Thomas declined to examine the legislative intent or purpose behind CERCLA. The Court remanded the case to determine whether Aviall could prevail under a §107(a) cause of action.

Justice Ruth Bader Ginsburg, in a dissenting opinion joined by Justice John Paul Stevens, argued that Aviall should have prevailed under a §107(a) cause of action. Aviall had dropped this cause of action because the Fifth Circuit had a rule that required plaintiffs to combine §107(a) and §113(f)(1) into a joint claim. However, the Fifth Circuit had made clear that a PRP like Aviall could prevail under §107(a), which did not require a CERCLA action by the government. In Justice Ginsburg's view, the Fifth Circuit would award contribution damages to Aviall on remand.

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