Introduction to Environmental Law – Glicksman – Fall 2010
 I. General Principals and Policies
o Typical Characteristics of Environmental Law:
 Clashing Interests
 Typically Irreconcilable (Coase)
 Scientific Uncertainty as to the effects that something may have
 EG: Chemical X is beneficial, but will it turn out to be a carcinogen?
 EG: Leopold Forrest
 Landowners want no mine, while the mining company wants a mine
 Uncertainty as to the effects the mine will have on the daisies, hawks, water color and scenic
beauty of the area
o Goals of Environmental Law
 Cost Internalization
 Around 1970, NEPA was created: Goal was to make decision makers (Agencies) be more cognizant,
assessing the costs and benefits of decisions affecting the environment
 “Stop and Think” about what they were doing
 Prior to this, never had to think of the costs…
 Now, with CAA and CWA this cost internalization also applies to private entities
 Sustainable Development
 Conserve/Preserve Environmental Integrity through sustainable development
 But:
 While we want sustainable development, we do not want to impose too much on Economic
Progress or Social beliefs
 Don’t want to hinder growth, or social, but don’t want unsustainable progress either
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Environmental Law then, is Made up of 2 Parts
 1) Pollution Control
 Protects health from toxins
 Applies to private and governmental entities
 2) Natural Resource Management
 Protects Biodiversity/Ecological integrity
 Promotes sustainable development
Why is Environmental Law Controversial?
 Focuses on long term, rather than short term
 Correlation and Causality
 Science is uncertain as to if cause and effect are actual
 Therefore, maybe spending money to prevent alleged harms is worthless
 Leaves idea that Technology is the answer
 Infringes on property rights
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 Restricting what one can and cannot do with your own property
Environmental Restrictions Benefit- Tradeoffs- Who do we want to benefit?
 Benefit Animals, Slugs, Bugs or
 Benefit People with Technology
Costs Seen as Outweighing Environmental Benefits
Disproportionate Costs of Environmental Regulation
 Some have called it “Radical and redistribution”
 Look at 1980-Present Period
 II. The Foundation and History of Environmental Law
o Prior to 1960s
 Environment was typically ignoredEconomic progress favored
 Thought that Economics/Industry was always beneficial
 Why was Environment Ignored?
 1) Short term outlook rather than long term view of the effects
 2) Idea that nature had no intrinsic value
 3) Unknown benefits of environment
 EG: Wetlands actually decrease severity of hurricanes
 Nuisance, Common Law suit was typically used to remedy environmental harms
 Case-Law: Toward End of ‘60s
 Scenic Hudson v. FPC
 Citizen group successfully combated the building of a power plant on Hudson
 Provided a template for future litigation
 1) Initiated by Ad-Hoc group, citizens: common tactic used today
 2) Standing- was liberally construed
 3) There was no precedent
 4) The π’s had to create procedural theory to convince court to reverse
 5) Court did reverse administrative decision, showing potential for more scrutinizing
review
o Roots: 1968-1973- The Formative Period
 Birth
 NEPA, CAA, CWA, Pesticide Regulation, Endangered Species Act
 EPA
 Why the Birth all of a Sudden?
 1) Post WWII growth in affluence, relocating to suburbs where they witnessed first hand degradation of
what they had come to enjoy
 2) Synthetic Chemical Usage
 Silent Spring made it clear that these did have negative affects
 First hand witnessing the Santa Barbara oil spill killing animals
 3) Energy of Vietnam era protests into the environmental movement
 4) Industries recognition of this, and seeking out federal preemption which preempted more strict state
standards
 Some or combination of all birthed Environmentalism
 Becomes a National Political Agenda with Bi-partisan support
 Environmentalism: View that unrestrained modification of natural systems and unchecked application of
technology through resource exploitation and development has substantial effects on human
 3 Basic Objectives:
 1) Reduce use of Air, Soil, Water for waste disposal
 2) Protect public from long term health and ecosystem degradation associated to exposure from
harmful substances
 3) Conserve biodiversity
 Premised on Conservation and Preservation Movement
 Preservation:
 Preserve large areas of land to remain wilderness
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 EG: National Parks
 Conservation:
 Deeper than merely preserving, but working with science to make compatible with
democracy, bettering the environment with science
 Moderate rate of usage, to ensure plentiful supplies in future
 Goal of Environmental Law: Sustainability
Continuing, Refining: 1973-1980- the Environmental Decade
 Legislation continued to protect potential public health risks
 Emphasized limiting Toxicity Toxic Substances Control Act
 Resource Usage Safe Drinking Water Act
 Transporting, Treating, Storing Resource Conservation Recovery Act
 Clean Up Waste Dumps Comprehensive Environ. Response, Compensation Liability Act
 Coal Sites reclaimed, land prevented from being used Surface Mining Reclamation Act
Bipartisan Consensus Crumbles: 1980-88
 Global issues become apparent…the environment is being affected
 *But* Reagan issues executive order to not simply spend to fix environment, but do Cost benefit Analysis
 More Contested
Little Progress: 1980-Present
 1970s legislation still essential legislation…little change
 Change of House and Executive marks back and forth on environmental policy
 Judiciary tightens Standing Jurisprudence, Federalism
 States begin to take leading roles
 III. Economic Analysis and Environmental Law
o 3 Principles of Economics Can Help Analyze aspects of Environmental Law
 1) Can explain why the Environmental Harms occur
 2) Consider when the government should step in, intervene with regulation
 Rather than simply leaving to Free Market
 3) Identify what to regulate and the Optimal Methods of Preventing Harms
 Principle 1:
 Economics can explain why Environmental Harms occur
 Tragedy of Commons:
 In a free market, with everyone acting rationally…The incentive is to use all the resources before
anyone else can
 No incentive not to use them all
 Problem is that what they take is finite, scarce So all eventually lose
 The reason why environmental harms occur
 Therefore in Free Market, we need regulation to coerce
 Make it cheaper, more incentive to control environmental spill-over than to ignore the
spill over
 Through Tort liability, fines, etc…
 Principle 2:
 Economics can consider when the government should step in, and regulate
 In a perfect world, Free Market would rule
 Promotes the most efficient transfer of goods
 Realistically, there are many flaws and inefficiencies however
 Each Flaw Justifies the Government stepping in to regulate the Market
 1) Perfect Information
 If the consumer knew everything, they’d choose the best product for environment
 Harm exacerbated w/o information, which is the case- PI is lacking
 Regulation can coax this information out
 2) Transaction Costs
 Prevents free market collaboration
 Things are costly…negotiations, solutions, etc…
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EG: If factory harms 3 people, at $500 each, and to control harm $1200 cost, than the 3
should pay $400 each.
 But: Imperfect market, people disagree, think they were harmed less so should
pay less, etc… hire mediator, negotiate solution costs $ too
o Eventually the paying $400 to avoid $500 in damage becomes,
adding all transaction costs, >$500…making Cost>Environmental
Benefit
 Free-Rider: May think others will put effort in, and he will benefit
 3) Externalities
 Costs on people external to the transaction
 Negative
o Human made, unbargained for, negative element of environment
o EG: Pollution; and uncompensated harm
 Positive
o Good enjoyed by many, but creator unpaid
 EG Prob 1-2 p.4:
 Climate is changing for the world based on pumping out Fossil Fuel Waste
(Negative Externality)
 Company is making $ however, and has no incentive to stop (Problem of
Commons).
 Economic Analysis justifies the regulation of Market to prevent environmental harms
 Components of Regulation:
 1) Agencies- Apply the responsibilities they assigned
 2) Citizen Groups- Pick up any slack agencies dropped
 EG: Sierra Club, etc…
 3) Courts- Oversee compliance, administer the laws
 4) Substance is just as important as Procedure
 EG: NEPA is solely rules that need to be followed but literally has no substantive law
 Coase:
 Idea that Regulating to make Polluter Pay is flawed
 Harmful effects arise when 2 people, whose resources are incompatible want the right
to use the same one
 It isn’t A harming B, because if we stop A, he is then harmed
 All solutions have costs, but just because there are costs does not mean the government should
regulate, although sometimes it should
 Should be consensual bargaining at some points, regulation at others
Principle 3
 Identify what to regulate and the Optimal Methods of Preventing Harms
 Cost Benefit Analysis (CBA)
 Assists in determining appropriate regulation, and what to regulate
 The Formal analysis of comparing costs and benefits of Public Action (Regulation) and if it
would result in net gain, or represent unjustified subsidy
 Economists advocate CBA
 Idea that regulate only those things where C<B
 If done well, provides same action as an efficient market would have
 2 Goals
 C<B
 C as low as possible
 Process
 Agency must Figure out costs (Regulation requiring equipment, maintenance, etc), the
benefits lost of the law (costs) transaction costs of regulation v. Benefits of regulating
that thing (Cancer, Mutagen, disease, environmental degradation)
 Congress has not required it
 Criticisms of CBA
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1) Accuracy
 Cannot accurately determine all the costs and benefits in practical way
 When Identified, cannot accurately quantify in $ amount
o Industry info is inaccurate, inflated to make regulation look worse?
o Benefit Valuation
 How do you put $ amount on benefit of human?
 Some of said $7.2 M
 Are older valued less, younger more, sick less?
 Value of a species continued existence in $?
 Dehumanizes
 2) Discount Rate/Time Value of Benefit
 In Environmental law, the benefit of lives saved, environment assisted is many
times very far into future
 Skewed if not brought to compare “apples with apples”
 But what rate is appropriate discount rate?
 Concerns of Equity
 3) Distribution
 “Environmental Justice” is not evenly distributed…Why?
 Benefits are valued 2 ways:
o Willingness to pay: value the “benefit” by what someone would
pay…but in certain areas, poor, cannot pay same as a rich person
would be willing to pay
 Evidenced by Power Plants, Coal mines in poor areas?
o Willingness to Sell: How much would you sell your clean
environment for?
 Probably more even measure
 So, sometimes, the benefits in CBA are valued unjustly based on area of
regulation and what people would pay
 4) Transparency
 opponents argue it is not transparent
 If it were, people might understand the decision, protest it
 People are more likely to acquiesce if they understand how it was made
 More legitimate
 Needed to show what is considered, who (industries hiring big time
economists) is involved, and what things mean (to lay person)
Along with Principle 3 identifying what to regulate through CBA, optimal method of regulation can be
identified as well
 Complying with tenet of CBA Analysis
 Lowest Cost Possible
 Economists say:
 Performance Standards
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EPA sets out a maximum acceptable level
 EG: Pollution at 10lbs/S02 per year
 Then, up to the industry to find a way to get to that level
 Free market will be efficient
 EG: if using less bad fuel is more cost-efficient than “scrubbers,” the industry
will identify it, and make the change to comply
o May use R+D team to create new way, find cheapest
 Whatever it is, let market do it
 Not Design Standards, regulating everything they do
o Just the performance we want…let them design
 Tradable Emissions
 Not all industries should be regulated identically, as some have much cheaper costs to
comply then others
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Process:
 Make an Aggregate acceptable emission level
o EG: 10 lbs of So2/day
 Then let the industry decide, and be able to buy/sell the difference in emissions
o 1 company may do 8 lbs
o can then sell the 2lbs it has credit for
 Lets those with lower costs continue to lower, while allowing higher to
manage costs of compliance with trading credits
Overall, aggregate pollution, capped at a limit stays the same
Information:
 $144B industry in 2009, predominately in EU
 Some US regions have CAP/TRADE
 IV. Environmental Law, Science, Ethics
o Ethics:
 “Mode of Guidance”
 Historical Understanding of Environment:
 Man is the conqueror of the environment and land, which is here to serve Man and humans only”
 Can do whatever we want to it, take from it
 Some Eastern Religions based on a Leopoldian view, but still have degradation
 Aldo Leopold:
 Argued the Opposite
 Land Ethic: We are part of an enlarged community, including soil, plants, species, etc… and we are
stewards of this land, with a duty that implies respect
 Challenged fundamental understanding
 Philosophy and Ethics:
 Philosophers have used Leopolidian, and other views to ague:
 1) Ecosystem’s Rights
 We have a responsibility to respect this land
 Takes from Leopold Land Ethic View
 Moral duty to be part of it, the opposite of the current view
 Opponents argue that rights are entitlements for sentient (conscious beings)
only
 So animals maybe, not environment/ecosystem
 2) We have duty to future Generations
 Economic Justice View
 We should preserve our resources so that future generation has similar
 Opponents disagree, that future generation has no rights and we owe no duty
to the unborn
 Land Ethic’s Use:
 To Help Environmental Law:
 Public Trust doctrine is premised on the philosophy and idea that we are part of this land, and we
need to protect it for future generations
 To Hurt Environmental Law:
 May actually create stumbling block to environmental stewardship
 Land ethic may call for regulation of land, and more limited use to promote conservation and that
were part of it
 but this can trigger 5th/ 14th amendment takings claims too
 Initially, in 70s this did not happen, but has gradually occurred
o Science:
 Original Ideas
 Ecological View: Study of structure and function of nature, in grand perspective
 Initially, thought that the environment had an equilibrium and that we had to halt our interruptions to stop
changing this equilibrium
 However, this proved untrue:
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 The Environment will change naturally and with our help
Science is Fundamental to Environmental Law:
 1) It can identify resource degradation
 Silent Spring: Rachel Carsons showed the degradation caused by synthetic chemicals, and called
for action
 Helped spur pesticide laws
 2) Provide practical scientific based solutions, to solve the problem
 Science can help find threshold level, for example, to pollution which prior to is acceptable, but
after which is toxic
 Manage the harms
How do Science and Environmental Law Coincide?
 Environmental Law can be seen as a way to reduce the risk of harm to people and the environment, it is
an effort to address risk
 What is Risk?
 Probability of Activity causing Harm x Severity of the Harm which will occur
 The smaller one, and the bigger the otherstill can be equal
Comparative Risk Analysis:
 Rationale for Risk Assessment:
 Early on, in 70s, the more regulation was seen as better
 However, slowly it was seen that although there was more, it was not effective
 Misallocation of Resources
 Overregulated Some  Underregulated Others
 Wasted Resources
 Justice Breyer’s View:
 Prior to him being Supreme Court Justice, he wrote Book explaining the problems with
Federal Regulation:
 1) Lacked Rational Selection Mechanism
o Need method of assigning regulation
 2) Differing Agencies use Different Methods
 Breyer Advocated having 1 central agency with expert decisions of Risk Assessment
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What Is Risk Assessment?
 A method of assessing risks and managing them through science
 Attempts to Clear Uncertainty of:
 1) Has harm even occurred?
 2) If So, what is causing the harm
Principle 1- Science can Identify Resource Degradation
Step 1: Risk Assessment
 Choose what is worth addressing now, and what can we leave alone
 Identify what is the most Dangerous and probability
 Identify, of the most dangerous, which are most likely to occur sooner
 Determine at what exposure, levels are bad
 Characterize the risk- Serious, Not Serious
 Use Toxicology, biology, economics…
 We can’t address them all, so we need to apply our limited resources to the most serious ones first
 Assessment Serves 2 Functions:
 1) A Screening Function by determining what is serious
 2) A Prioritization Function by ranking
 9 Characteristics of Environmental Risk:
 In Assessing Risk, we must ask if “Risk is serious enough to warrant action”
 1) Ignorance of Mechanism
 Because we don’t fully understand many things we deal with, we cannot
adequately manage its risk
 2) Potential for Catastrophic Results
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Because we are ignorant of the risks, we cant specify how catastrophic the
costs of it will be
 3) Relatively modest benefit
 Most environmental risks are assymetrical to benefit
o EG: Red Dye 40 looks nice, but causes cancer
 4) Low Subjective Probability
 Take into account the probability of catastrophic results to balance the
decision out
o Yes its potential of catastrophe, but low potential
o “Zero Infinity Dilemma”
 5) Internal Transfer Benefits
 When benefits of product are internally transferred to its price
 6) External Transfer of benefits
 Adverse effects usually transferred to environment
o Market doesn’t internalize externalities
 Go’s back to need of regulation in economics
 7) Collective Risk
 Borne by many people; society is risk-averse, more so to collective than
individual risk
 8) Latency
 Environmental risks have extended delay between start and effects
 9) Irreversibility
 Risk may be effectively impossible to reverse
o Plutonium’s half life is 24,000 years
o Mutagens effecting generations of people
Criticisms To Risk Assessment:
 1) Lack of Information
 Unreliable data, and difficult to quantify risk
 Too much assuming in data, and makes #’s meaningless
 Science is Uncertain, and can’t assess risk correctly
 Getting Reliable data, from industry would delay action because they have every incentive to
delay to paralyze regulation
 2) Evidence does not support idea that resources are misallocated
 3) Environmental Justice Problems
 Like that in Cost Benefit Analysis, distribution of the risks assessed may be difficult if they are
concentrated harms
 4) Depending on Who is assessing makes big difference:
 Everyone has different perceptions
 Experts Look at expected annual mortality
 Deaths/10,000
 Public looks at more subjective things
 Outrage Factors
 Public looks at voluntarily assuming risk versus involuntary risk
 Common/Difuse among population is seen as less serious than an exotic/concentrated
one
 Dread of ailment
 Everyone hates cancer
 Public Versus Expert
 Because both disagree on what to assess, they will disagree as to what is dangerous
 This was evident in an 1987 EPA Study of what perceptions were
 Experts Said Radon Gas was Horrible, Public Had never heard of it
 Public Hated hazardous waste disposal site, but EPA experts said it was not
bad
 Should We Listen to Public?
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They don’t have expert knowledge to evaluate and technical nature of CRA discourages
it
 No Process/Procedure to hear everyone’s idea
 Perhaps, in more local harm, get more democratic view?
 Perhaps democracy is represented by voting for who you want, who then
chooses EPA people who will make decision
Policy of Scientific Risk Assessment and Management
 Scientific Uncertainty is occurring, so in assessing and managing, do we want to err on side of caution, or
on side of conserving finances
 False Positive:
 Precautionary Principle
 Spending resources on benign things, thinking they’re bad, when they turn out not to be
 Better safe then sorry
 EG: BPA’s seem to have horrible consequences, so we take precaution, and if
we’re wrong, all we’ve lost is money
 False Negative:
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Not spending resources on something that looks innocuous, but turns out deadly
 Argument: that, we don’t know enough, so we are spending unnecessarily, when we
could have spent on something beneficial
 Burden should be on those who want regulation
 Neutral Argument/Risk-Risk Approach:
 We should make sure that in our risk assessment, we don’t do more harm then good
 Regulate the risks that regulation causes/versus risks of no regulation
 EG: regulation can decrease disposable income, reducing the ability to spend on
healthcare, good food, etc…The Regulation’s negative effects counter the positive ones
 Very debated
 Very controversial
 Overall:
 Should we be rather safe then sorry, regulating and leaving open to these criticisms (of using
CBA, Risk Assessment, and regulating accordingly) or
 Conserve our resources, and hope failure to regulate is not wrong or
 Do we stay in the middle, understanding some of both may occur through Risk/Risk approach,
forcing those who want regulation to have the burden of proof
 Principle 2- Science can provide practical science based solutions
 Step 2- Risk Management
 Once the Risk has been assessed, as dangerous and in need of regulation
 What do we do about the risk
 The Policy Response if the Risk Assessed is Dangerous
The Common Law Baseline of Environmental Law
 Above, we have seen that environmental harms need to be discouraged, through an economic perspective and a scientific
perspective
o The Common Law causes of action pre-date most federal environmental laws, but can still accomplish discouragement of
environmental harms
 I. Historically:
o Before the 1960s Common Law was main use of environmental protection
o As time progressed, statutes became more common through the environmental movement and CL quieted down
 While Statutes are more common, and more complicated
 We Can’t Ignore the Common Law
 Supplement Statutes
 Largest Role of Common Law is Supplementary
 Statutes sate “utilize common law”
 “Savings Provisions”
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Preserve the remedies afforded in Common Law, because most federal statutes don’t
have compensation remedy for environmental degradation
 In fact, compliance with federal statute (CAA, CWA) is permit to pollute
 So, Common Law provides ability to compensate harms
 Authors of the federal statutes use “savings” provisions to specifically advocate the use
of CL in certain scenarios
Allows Citizen Groups to pick up the slack of Agencies
Statutes are founded on the common law, so its good to understand them
Many Statutes, if not most, have no remedy Using CL allows remedy to injured
 II. Basics:
o Largely based on tort law To Compensate and to Deter
o Common Features:
 1) Injury
 2) Causation difficult to show
 Scientific Uncertainty
 Cannot explain exactly how injury derived
 Can only say “maybe” this chemical caused it but could be other things too
 Latency Period
 Usually, time lapse between exposure to chemical, and injury is long
 Difficult to prove it was X, who caused it 40 years ago
 Could have been a lot of other things, memories fade, etc…
 3) Liability
 A reason, or policy we want to impose on the ∆ for causing injury
 Show by:
 Negligence Breach of duty
 Foreseeability
 Strict Liability No need to prove anything, as conduct is the type that is bad enough to need
compensation for
 III. Types of Common Law Causes of Action in Environmental Law:
o Negligence
 Duty, Breach, Causation, Damages
 Not the first choice, typically
 Difficult to prove “Breach of Duty”
 Most industry has state of the art technology, and equipment, and practices, so it is difficult to say they
breached standard of care
 They are at least on par with industry
 Will be used if:
 Harm arises out of a clear accident
 Remedies sought are type that negligence usually compensates for
 Insurance compensates for Negligence so $ will be available
 Insurance does not compensate for intentional torts
 SOL has run on other torts, so negligence is last choice
o Public Nuisance
 Restatement 821: An unreasonable interference with the right common to the general public
 Unreasonable = Interference with public health, safety, peace, comfort, or convenience
 Typically chosen if an aggregated injury, suffered by many π and society as a whole will benefit
 Government typically brings suit
 Issues of Standing with individuals bringing suit:
 May need to show Special injury, unique from that of public
 Special Injury = damage to property, or health different than public’s
 Injunction may be construed more liberally (Restatement 821’s view)
 Georgia v. Tennessee Copper Co
 F- Georgia brought suit, on behalf of people, to enjoin ∆ from copper production, as Sulfer Dioxide was
being discharged into their state, killing forests, orchards, and crops
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 R-Public Nuisance recognized and granted injunction
Private Nuisance
 A Non-trespassory substantial and unreasonable interference with the use and enjoyment of one’s property
 Non-Trespassory:
 No physical invasion
 While air is physical, or micro-partials in smell, these are not considered trespass
 If physical invasion, not a nuisance claim
 Two Ways to Prove:
 1) Intentional
 Intend to do the conduct (not the harm), and you knew harm would occur or it was foreseeable
that the harm would occur
 Must show Unreasonable Interference:
 Not that the conduct is unreasonable, but that the conduct unreasonably interfered 
From Petsey v. Cushman
 3 Approaches
 1) Restatement Approach 1:
 Weigh the gravity of the harm v. the utility of the conduct
 Ultimately question of reasonableness depends on whether the interference is
beyond that which the π should bear, under the circumstances without being
compensated
o Weighnature of harm, extent, duration, suitability for locality, use
enjoyed, whether ∆ took precautions to avoid
 2) Restatement Approach 2:
 After #1, restatement realized that there are scenarios where the utility of the
harm, if stopped would cause the stoppage of a highly socially useful thing, so
due to upset sense of justice, adopted new test 
 1) Either the Gravity of the harm outweighs the utility of the actors conduct
(weighing) or
 2) Harm resulting from the invasion is more severe and greater then the other
should be required to bear without compensation (justice), but only if the
financial burden on compensating party for this harm and similar harms
would not make continuing business impossible (Can ∆ pay without going
broke)
o Note:
 Nuisance typically allows damages or injunction as remedy
 Under Restatement approach 2, damages are sole remedy
available for part 2, no injunction
 This is due to the utility being so beneficial to society, we
want it to continue…but we need to compensate π
Damages is the way
o Some Courts Inherently do this
 Deciding that once harm outweighs, is damages or
injunction best to remedy society as whole and π
 3) Threshold Test Approach
 Most courts do not use the above 2 approaches
 ∆ will be liable if the harm suffered crosses some threshold level of
significance
o At that point Considered a nuisance
 No weighing of gravity or utility, in deciding whether to
shift cost to ∆
 However, the gravity of harm and utility are still utilized in the remedy phase,
to determine if damages or injunction is most appropriate
 If High social utility  damages will be awarded
o Judged by employment from activity, taxes for town
 Walsh v. Stonington
11

o
o
F- Town sewage treatment plant was sued by neighbors for odor. Jury awarded
damages, but town appealed unreasonableness of conduct
 R ∆ argued that they applied for permit, and got one so cannot be unreasonable
o Court declines argument even with permit, in full compliance, if
harm caused can still entertain private nuisance suit
 ∆ argued that the plant has so much utility, it cannot be nuisance
o Court declines argument if that was the case, socially important
activities would never be nuisance, and injured parties would never
have any recourse
 Applied weighing test, but was unclear in if it was looking at unreasonable
conduct, or interference
 Petsey v. Cushman
 Court attempted to clarify the Connecticut case law that was unclear as to private
nuisance law found in Walsh v. Town of Stonington
 Recognized that interference is the attribute focused on, not conduct
 Conduct can be very reasonable, and still cause unreasonable interference
o Plant on land is reasonable use of land
 Unreasonable conduct is focused on in negligent private nuisance action…if
negligent, the conduct is unreasonable
 Look at Is the interference the conduct caused unreasonable?
 2) Unintentional
 Show Negligent or show Reckless
 If negligence or Reckless claim is made out, unreasonableness will be proven by
definition…the conduct being negligent or reckless is unreasonable
 Proven by proving the elements
 Anticipatory Nuisance
 Anticipating an unreasonable interference with use and enjoyment pror to it occurring
 Π is saying that the ∆ is planning something that will eventually be a nuisance
 Traditionally:
 Court would not grant Too speculative
 We don’t know if it will be nuisance
 Harm might not outweigh utility
 If your right, sue then
 Modernly:
 Has been allowed intermitantley
 Requires heightened burden of proof “Harm that is practically certain to occur”
Trespass
 A physical invasion on ones property.
 Different than Nuisance, but the line has been blurred
 Court’s typically did not allow trespass with air pollution or water flow beneath land
 But, “physical presence” has been recognized in these cases in a few courts
 Treated as Strict Liability or
 Intentional Tort
 Reasons to Choose Trespass or Nusiance
 Statute of Limitations has run
 Precedent may be stronger in one, than another
Strict Liability
 Originated in England- Fletcher v. Ryland
 Activity had to be “Abnormally Dangerous Activity”
 In America
 Must show activity causing harm is unusually dangerous, abnormally dangerous, inherently dangerous in
the location its occurring, or materials used
12

o
The closer the offending activity is to a highly valued social use (EG Home water), the more likely it will
be strict liability
 Branch v. Western Petroleum
 F- ∆ purchased land, and began dumping formation water (petroleum by product) into the land.
Eventually, that water leached under, into π’s property destroying the residential and agricultural drinking
water. Water became smelly and oily.
 I- Does strict liability in this situation create liability?
 R- Yes
 Fletcher v. Ryland:
 One who uses land in an unnatural, and abnormal way, creating a dangerous condition
may be strictly liable for resulting injuries
 Is activity/condition abnormally dangerous in that place?
 Here
 Yes…formation water dumped near agricultural use is abnormally dangerous for the
location
 Fits precedent of activities that are abnormally dangerous
 Strict Liability should conform with legislature’s policy and policy of
environmental law
 Industrial polluter should assume/internalize the costs of pollution, rather than
externalizing them on consumers
 More appropriate to put costs on ∆ rather than innocent
 Jurisdictionally Dependent:
 Some J’s have broad idea of what strict liability is
 Mine blasting, oil leaching, gas leaking, toxic chemical spill, industrial waste when
injuring residence well water, or streams rivers…
 Some more restrictive on what they and their precedent have recognized
Public Trust Doctrine
 The idea that certain resources are preserved, by the state, for the publics use
 History:
 Emerged in the 1960s revivial, but founded in Roman and English common law
 The water and land held beneath it was held in trust for the public
 Recognized in Illinois C. R.R. v. Illinois (1892):
 Court rejected Illinois’ attempt to sell land beneath river to rail road
 “State cannot abdicate its trust over property for the public”
 Did not cite precedent, or reasons
 Just decided on inherent limits that states, in gaining sovereignty, had
 Light v. US
 Made clear that the land was reserved for the people, reiterating the Public Trust Doctrine, but limited the
judiciaries’ role Up to congress to determine the land use
 Post-Light:
 Very little litigation ensued to gain Public Trust doctrine claim, because the court limited its power
 Inherent Limitations
 1) The Doctrine only applies to governmental entities
 Useless against private degraders of environment
 2) Doctrine only applies to navigable water
 Has been argued, by progressives to extend to land, but has not been
 Interpretations of the Public Trust Doctrine:
 Joseph Sax:
 Trust is Procedural allows court to decide if political decision to reallocate resources was made
after considering all the facts and remand if not
 Substantive View:
 The Public Trust Doctrine is made up of substantive role of environment, with ecosystem at the
top of the hierarchy
13
o
 Ecosystem conservation requires preferential treatment of public natural resources, whenever
there is conflicting interests then
 Revitalized Movement:
 In the 1960s, with environmentalism progressing, the Public Trust Doctrine was used more often
 California was one of the states that Public Trust was revitalized in
 Nat’l Audubon Soc. V. Superior Ct. of Alpine County (MonoLake Case)
 F- City was appropriating water, and taking it from tributaries all over the place. One lake’s water
level decreased 44 feet, threatening the birds by making them more vulnerable to predators, and
killing the shrimp the birds feed on
 I- What is the use and application of the Public Trust Doctrine
 R 1) Court stated that the state is supervisor of controllable navigable water
 2) The State has the right, as a matter of need, to use water which may harm the water
supply, harming the public trust
 3) State has affirmative duty to take public trust into account in the planning and
allocating, however
 Must consider the public trust, and preserve it, as trusteee
 Note:
 The court extends PT’s reach a bit by mentioning “all water resources” and not just navigable
water
 Seems to Take the Sax theory of Public Trust
 Procedural
 Court states State must consider the environmental ramifications
 Could Argue that this is 2nd approach as well
 Substantive
 Describing the water resources
 Describing “Duty” to protect
 How Does the Court determine usage of Public Trust
 Does the state need to consider pre-human intervention, in preserving the public trust?
 By Taking the Sax, substantive approach, avoid need to focus on defining
substancejust follow the procedure of considering the environment
Constitutionally Rooted Environmental Claims
 In general, there have been claims of federal constitutional protectionShot Down
 While Constitution protects minority, environmental protection proponents are not really an isolated
minority
 Post Griswald v. CT:
 After Griswald recognized that the 9th amendment implies certain rights
 Environmentalists tried to get “implied right to environmental quality”
 5th/14th Amendment Due Process
 Court has not found “right to environmental quality”
 14th Equal Protection
 Court has not found “right to environmental quality”
 Overall
 While there is no “Right” recognized in the constitution
 Constitutional law is very relevant to Environmental Law
 1) Creates Authority for Federal Government to regulate
 2) Limits states authority
 Federalism, Dormant Commerce Clause, Supremacy Clause
 3) Constitution defines scope of Federal Court’s jurisdiction
 Diversity cases/FQ cases
 4) Constitution defines rights which environmental law cannot infringe
 5th/14th amendment takings
 There is Opportunity in Constitution that Emerges From
 1) Equal Protection Clause
14



Environmental Justice Movement: Environment may be providing different
levels of protection to different people
 If those differences are based on race, sex EP claim
2) Executive Orders
 While not binding, or judicially enforceable and only establish internal rules of
the administration, may be source of power
 Any president can undo it
 EO 12,898 (1994)
o Bill Clinton signed Executive order which said “each federal agency
shall make achieving environmental justice part of its mission”
3) Takings Clause
 While typically hurts environmental protection, could help
 EG:
o If state says that burning trash is legal, and won’t let you bring
nuisance claim
o Argue that legislature is taking your right to use and enjoy property,
by permitting this nuisance
o Property Rights infringed upon due to government authorization of
environmentally damaging activity
o
Environmental Justice Theory:
 The distributional consequences of environmental protection
 Disparaging effects on minorities, poor, at-risk groups which insufficient pollution standards are
insufficiently stringent near them cause- “Hot Spot”
 A.K.A Environmental Equity or Environmental Racism
o
Usage of Common Law in Statutory Era:
 Because so much of environmental law, modernly, is statutory, people argue that statute-full law does not leave
any room for common law
 Argument that CL doesn’t supplement
 How does it fit in/Why is this argument rejected?
 1) “Savings Clause” statutory mandate that the Common Law Remedy be used, and be available
 2) Remedy Just because an activity is allowed under statute does not mean that we should leave victims
remediless
 3) Internalize Harms Common law creates incentive to be less harmful, and to reduce externalities
(Fear of litigation)
 International Paper Co. v. Ouilette:
 F- π is paper mill, who complied with the CWA and got permit from New York. However, they
discharged waste into Lake Champlain, which went down stream into state of Vermont. Π brought suit in
Vermont state court under Vermont nuisance law.
 I- Does the Clean Water Act preempt state nuisance law, when source-state is different then applied law?
 R Statement of intention was not clear, so Court looked to text to determine intent
 CWA specifically empowered Source-State. Affected state had little if any power in
interstate pollution
 Allowing Affected state to sue in nuisance would negate the intention congress had
then. Contradict the minimal role of Affected State
 Permit under CWA is intended to allow pollution, in certain amounts
 Allowing state CL suit would negate this purpose then
 CWA, then, preempts affected state common law suit against out of state polluter
 Note:
o Under Coase, allowing one to get their desires, while dissalowing
another is economically wrong. But, Court finds that this is the intent
of Congress. That NY get their way, not VT.
o Also, the clear “Savings Clause” language seems to be unambiguous.
But, it may contradict the intention, as analyzed by the Court…so
15
o
2 Values within this Case:
 Predictability polluter shielded from liability if complies
with permit…if not, ∆ would be liable to any affected state’s
tort law…Could be countless states downstream
 Efficiency Procedural, in that all rights and issued are
contained in what permit allows


However:
 While affected state cannot apply its law, injured parties within affected state may
utilize source-states nuisance law to sue ∆
 Source-State had power to restrict permit even more, so allowing suit within
their law is coherent with Congress’s intent
 Avoids Issues of predictability:
o Decreases the number of states’ law the ∆ would need to deal with,
while still allowing them to be accountable
o within what congress intended
Overall:
 Court has recognized that Common Law is preserved in Savings Clauses, which may be read
narrowly, but do allow Common Law to supplement Statutory Law
 There is still a place for common law, then, within largely statutory law
 Still Viable
 Why So Infrequently Used?
 1) Very Expensive
 2) Statute works before harm, whereas tort is waiting for a harm to occur to utilize
 Policy of Statute: Paradigm Shift Anticipates harm and tries to prevent it,
while Tort law reacts to a harm
 3) Tort law is limited
 Exhibited by element “Ignorance of Mechanism” in that burden to prove cause
or negligence is difficult when dealing with different chemicals or scientific
uncertainty
 High Transaction Costs of Trial, etc…
The Regulatory Design of Environmental Law
 Most of the Statute we will deal with are not uniform, and each have different goals and strategies and are complicated
o This section creates a framework, to break down into commonalities
  This is not Mutual Exclusive List
 These Goals, Triggers, Strategies can be combined in different ways to come up with a statute that does
what you want it to
 Policy of Statutory/Regulatory Design:
o 1) To Protect the Environment
o 2) Does not Rely on Common Law
o 3) Allows delegation of authority to administrative agency
o 4) Designed to Avoid harm or prevent it, rather than reacting to it
 I. Common Goals:
o 1) Public Health:
 Focuses on cleaning pollution, preventing or minimizing the risks to human health
 Pesticide, CWA, CAA, Food Laws
o 2) Clean Environment/Protect Natural Resources:
 to clean the mess created, or to preserve the natural attributes
 Allows varying degrees of environmental degradation
 Endangered Species Act, CERCLA
 May overlap with Public Health
o 3) Compensation
 Very Few statutes’ goal is to compensate
 Essentially, this is the duty of Common Law, which we covered, supra
16


The Most Common Goal of Common Law
Statute focuses on reducing, preventing or avoiding risk
 Savings Clause preserves Compensation
o 4) Force Consideration of Adverse Environmental Effects
 Many statutes have the broad goal of forcing consideration of adverse effects
 This may be through savings clause, criminal punishment, economic incentives…
 II. Common Triggers:
o What’s a Trigger?
 A Trigger is a fact needed to trigger authority to act
 Justifies Action, authorizing action
 What causes the statute/regulation to activate
o Standard is not a Trigger:
 A standard is a means that the authority will use to move toward goal
 Tool an agency has
o Types of Triggers:
 No Risk Threshold:
 The agency does not have to find proof of a risk of harm
 The Legislature has already decided that there are sufficient grounds to justify agencies act
 Legislature either orders agency to regulate or impose responsibility on regulated entity
 Nothing Triggers action Trigger is the object in question
 EG:
 Food and Drug Act: bans carcinogens from food. Even though no agency has finding,
legislature has determined they are risky enough to ban them all.
 Risk-Based Threshold:
 Trigger is based on determination that risk has exceeded a statutory threshold
 Requires finding of harm
 Types:
 Any Risk Broad discretion in agency
 EG: “EPA may regulate any substance it finds risky”
 Significant Risk
 Agency only allowed to regulate “If it can find/show that without regulation there
would be significant health risk”
 Unreasonable Risk
 Similar to Cost Benefit Analysis
 If the significant risk of something exceeds its benefits it becomes unreasonable
o Use of Triggers Depends on Policy Approach of Legislature
 If the Legislature takes False Positive approach
 May utilize a No Risk or Any Risk approach
 If the Legislature takes False Negative Approach
 May utilize significant or unreasonable risk approach
o The Burden of Proof may vary to be on government or producer to show risk or no risk
 III. Common Design Strategies and Standards utilized within Regulations/Statutes
o So, we know the goal of statute, and what triggers it…but what is its effect/application?
o 1) Risk, Health, or Ambient Quality Based Regulation [CAA]:
 Agency determines a level of protection it wants to achieve (safe or clean environment) A Goal
 Once Goal given, in reverse order, they adopt emission controls and other means to reach that goal
 Goal First Then create law to reach it
o 2) Technology Based Approach [CWA]:
 Determine what level of performance (pollution reduction, energy saving, etc…) is the best that technology,
currently, can achieve/capable of
 By regulating to this standard hope is that result we reach will be a desired level
 Note:
 Opposite of Ambient Quality Based Regulation
17
o
o
o
 Here, we start at “What are we/ is technology Capable of” If we push people towards this, we will
wind up with an appropriate level
 Do the best you can, that technology will allow
 If this doesn’t work, backup is typically Ambient Quality Method
3) Constrained Balancing Standard:
 Idea is that Agencies, in regulating, should not act counter-productively
 If Statute does end pollution, does it create it elsewhere?
 Thinks of adverse consequences of legislation
 Consider the Costs, Repercussions, etc…of regulating
 EG:
 We require scrubbers for manufacturing plant, reducing pollution in air. But
that may require disposal of scrubbers, which may in and of itself cause anther
pollution
 Like Risk-Risk
 But: Here, adverse consequences considered are pollution created by regulation
4) Cost- Benefit Balancing:
 Desire is for the agency to consider the costs and benefits of legislation
 Rarely every used
 Most Statutes do use costs, but does not require balancing
 Just required to consider the costs
 Agency has discretion on balancing or not
 Here
 Would require that if costs> benefits Change must be made
 Circumscribes discretion from agency
5) Generate or Disclose Information:
 Law will require government to prepare, make public information about environmental activities, or impacts of
proposed plans or plants, etc…around citizens
 Environmental Impact Statement /Assessment
 Creates more Perfect-Information, avoiding Free Market Flaw (supra
 EG: Emergency Planning and Community Right to Know Act
 In reaction to Bopal incident, in India this law allows public to know what companies near them are using
what chemicals

Toxic Release Inventory:
 Companies report information on kinds and quantities of chemicals they use
 EPA then makes information available to public, ranking worst-best
 Effect:
 Companies don’t want to be seen at top of list Incentivizes them to reduce use of bad/toxic
stuff
 May induce citizen boycotting, inducing change as well
 Creates more Perfect Information for consumer to make choices
 IV. Other Questions we Consider in understanding a Statutory Design Choice:
o 1) Who does the statute regulate or affect?
o 2) What are the consequences of non-compliance?
 Damages
 Penalties
 Jail Time
 Depends on the goal of the statute
o 3) Does statute dictate conduct or induce conduct?
 Dictate: How you can or cannot do something. Permitted to emit X….
 Induce: Emissions trading, taxing, threat of CL liability
o 4) What are the roles of Federal Government and States in Statutory Scheme?
 Who adopts the statute and who enforces it?
 What are the constitutional concerns?
18

Citizens can bring suit to enforce
 Supplementary role
Environmental Federalism
 I. Generally:
o Now that we know we need regulation, and common law to supplement that regulation, the question becomes why should it
be the Federal Government who is responsible?
 Why the Federal Government or Why the States?
 Most Federal Statutes carve out a position for states to administer a federal law, so there is Federalism Concern
 II. Power:
o Federal Power:
 1. Commerce Power
 The most often used to regulate the environment
 2. Treaty Power
 3. Property Clause
 5. §5, 14 would have to be based on environmental justice argument
 Limits on Federal Power:
 Enumerated Powers
 10th amendment
 Bill of Rights
o State Power:
 Plenary Police Power to regulate the health, safety, welfare
 Limits on State Power:
 Dormant Commerce Clause
 Article IV Supremacy Clause Preemption
o Interests In Who Regulates:
 Industry:
 Will argue that 10th amendment limits state, hoping that state will regulate less stringently
 Commerce ClauseArgue that they cannot regulate that thing because its not within enumerated power
 May Seek preemption claim
 Environmental Groups:
 Desire broad Commerce Power to regulate all
 Narrow 10th amendment
 III. Rationales for Federal Environmental Regulation:
o 1) Interstate Externalities:
 Because there are many differing forms of pollution moving across state borders, Federal Regulation is
accepted
 Because states don’t have incentive to abate interstate pollution, they could simply dump into bordering
states…making the pollution extend from state to state
 Because of lacking incentives, it is better to have 1 regulator overseeing all
 Most Common and Least Controversial
o 2) Economies of Scale and Resource Pooling:
 1 institution doing all will help it develop expertise and experience to further progress
 Large Operations are therefore more efficient
 This is better than all 50 states individually regulating, and having overlapping efforts
 Free Rider Concern:
 If we left it to states, instead of 1 central Federal Gov, some states would rely on others to put effort in
 If all states followed this path, there would be no incentive to act
 Resource Pooling:
 The Federal Government has more resources to act…$$
o 3) The Race to the Bottom:
 Theory is based on idea that without federal government oversight, states will relax environmental standards to
attract big business, and the economic impact it has
 Creates Jobs, Tax Revenue, Land revenue
19

o
o
Because more attractive to business there than a more environmentally stringent state, states will follow suit,
cutting environmental standards until they are no more
 This cycle of deregulation results in poor environmental protection
 Opponents:
 Revesz
 Argue this is unfounded, and the free market will create environmentally and socially efficient outcome
 Proponents:
 A. Congress
 Has utilized this theory as a reason to regulate
 1977 Congressional History: “States may find themselves forced into a bidding war, squandering
resources”
 B. Kristen Engel
 Polled states about the theory, and found that most made their environmental decisions based on
industry…while those that did not cited federal standards as the reason why
 Direct proof that states are looking at industry in debating whether to regulate
environment
 C. Study of Statutes
 Some statutes specifically say that the state cannot regulate more stringently than the federal
standard
 Proves that state is showing industry they will be regulated no more
 Desire to not get more stringent, slowly ma turn to race-to-bottom
 The Race to the Bottom has Been Seen in Many Instances:
 1) Delaware Corporate law attracting business by having lax liability, tax standards
 2) Internationally
 Emerging countries will lower/end environmental standards, seeking other country’s waste for
business
 USA did it in Kyoto Protocol, as Clinton refused to sign, saying that he USA signed and China or
India did not, we’d be at a competitive disadvantage
4) Centralized v. Decentralized Argument:
 While environmental law is a hybrid of central/decentralized actions, there are arguments
 A. Centralized:
 Harms won’t be addressed unless a central authority is present
 Need Uniform Standards, rather then 50 different ones
 Reduces Costs, especially in interstate commerce, only complying with 1 standard  Seen In
Uniform Emissions Standards
 Cannot worry about 50 different emissions standards
 Industry actually seeks centralized Federal Regulation, so that they only work with 1
standard Seek preemption
 B. De-Centralized:
 States/Local Government are more familiar with local needs
 Can adapt more easily to meet local conditions, then 1 federal regulator can
 1 Regulator is non-sensitive to local concerns
 Enhances policy that states should experiment
 Citizens have greater accessmore democratic
 Some argue that states are actually taking the lead
 What incentives do States have to protect the environment:
 1) Respond to local constituency who value environment
 2) Attracts new residents who value environment
 3) Qualifies for Federal Financial Assistance, sometimes
 4) Restores Useless property to productive use
 5) Minimizes need for Federal Regulation, if many states actmay convince Fed Gov. that they
don’t need to
 6) Get Credit
5) Not In My Back Yard:
20

People in states will want to benefit from something, but not want it near them
 Close enough to gain benefit, but far enough to avoid adverse spill-over effects
 This is the opposite to the Race-To-The-Bottom argument
 Pushes away spill-over elsewhere
 Therefore, we need federal oversight and incentive
o 6) Political Process Justification:
 Should be Federal, because Federal Politics represent the national agenda…and environment is of national
significance
 Rather then fighting in state legislatures, fight in only 1 legislature
 Argues that State Government may be more likely to be influenced by special-interest groups
 IV. The Commerce Power [Article 1, §8, Cl. 3]
o Note: Most environmental laws are passed under this power
o Gibbs v. Babbitt:
 F- Endangered Species Act, §1538, disallowed the “take” of the red wolf, which extended to federal government
land, or private land. About 41/75 of the wolves strayed to private land in North Carolina. North Carolina passed
law making it lawful to kill, and π shot and killed 1. Was prosecuted.
 I- Can the Federal Government regulate with the Endangered Species Act through CC?
 R Does the Government Have the Power?
 1. There are Limits to commerce power
 Under Lopez and Morrison, activities that are not economic in nature, and intrastate cannot be
aggregated

2. The Commerce Clause Rule Lopez Framework:
 Congress may regulate:
 1) the Channels of Commerce
 2) The instrumentalities of Commerce
 3) Activities that substantially affect interstate commerce
 If the activity is economic in nature, can apply Wickard aggregation,
aggregating wholly intrastate activities that would negatively undercut
interstate market

3. Here, Substantial Effects Test Applies
 A. Endangered Species are economic in nature, and therefore can be aggregated, even if wholly
intrastate, to find substantial effect on interstate Commerce
 B. Endangered Species are Economic
 Unlike Lopez and Morrison, who’s activities’ were not economic
 1) Is Valuable Resource $29.2B in tourism in aggregate for people who travel to see
wildlife
 2) Scientific research of them creates jobs, in incalculable future value of that research
 3) This reaches to private land because species wandering onto private land need to be
continually regulated or else the tourism and scientific research would be affected if
they could be killed there.
Does this Infringe on the state/Infringe on 10th Amendment?
1. Endangered Species are not traditionally concern of sovereign state
 While states have regulated them, and have an important role, it is circumscribed by Federal
Power in this case
 Precedent of Court has held that Federal Government can regulate specieis
2. Land is traditional police power of State
 But, congress can regulate for environmental and wildlife conservation
 Has done so for long time
 Precedent has upheld this rule
3. There is Race-To-Bottom Concern
Overall





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 The regulation of endangered species is within the Congress Commerce power, and the Court is
not place to resolveDeference to Congress

o
o
Dissent:
 Argues it is not an economic activity at all
 The Judiciary, after Lopez and Morrison is a check on the commerce power, and should not be as
deferential (Pre- Lopez view), but more closely scrutinizing
Post- Gibbs:
 Gonzales v. Raich: reaffirmed the Courts use of Wickard, that purely local, intrastate activities, when in the
aggregate would have substantial affect on interstate commerce
 Only Need rational basis to conclude so
 While Pre-Lopez environmental challenges to Commerce Power failed, Post-Lopez there was idea that commerce
clause may not be able to reach environment, and many challenges followed
 Gibbs and after have shown many failures to environmental challenges
While Congress can regulate Environment through Commerce Power, Court has Found way to Limit:
 Courts haven’t struck down the use of power
 But have struck down scope of power that an agency has interpreted Congress to have intended to give, if
may raise question of its within Commerce Power
 When getting close to what may be the edge of Commerce Power, Court will construe statute so as
not to have reached that far…limiting enviro. protection
 Solid Waste Agency of N. Cook County v. Corps of Engineers (SWANCC):
 F- Court had interpreted CWA provision, which requires Corps to give permit, to extend a “navigable
water” to reach habitat of migratory bird. Group of cities wanted to build a waste disposal site , but pools
formed during construction. Corps denied a permit, and city sued.
 I- Did Congress intend this broad reach of its Commerce Power?
 R Clear Statement Rule:
 When an agency has interpreted a statute as getting to the outer limits of
Congress’s Power requires clear congressional intent
 Court Policy to not needlessly reach Constitutional Question
 Check on an Agency interpreting statute too far
o While Congress has regulated under Commerce power, if agency
takes that too far it could reach constitutional question of if Congress
could in fact regulate through Commerce Power
 This idea is enhanced when interpretation infringes on state power
 Here
 Statute did not have clear intention to reach that far, and it extended onto state
traditional power of land use planning.
 Additionally, Statute said “we recognize traditional states rights,” showing lack of
intent
 Rapanos v. US:
 F- Corps had statute which allowed regulation of Lake, but Corps interpreted it to reach farther back in
tributary system: LakeCreekDrain/DitchWetlands: Corps wanted to reach back to the wetlands
 R
 A Plurality Opinion
 Scalia: Found no clear statement, under SWANNC, and was concerned with the frustration of a
traditional state function on “land use”
 Kennedy: advocated a test, in concurrence
 That if wanted to reach back to wetlands: there must be a “significant nexus” to be able
to reach that water way in addition to those clearly under statute
 Overall:
 SWANNC and Rapanos Court establishes rule and desire to not want to address a Commerce Clause
question when close to what may be the edge. So Court says that Congress didn’t intend to reach that far,
nor intend for Court to address that question
 Clear Statement Rule and Chevron Deference:
22

The CS rule is a cannon of construction—the relationship between these 2 tests could be:
 1. Avoiding the federalism question, by using Clear Statement displaces, and bypasses Chevron
entirely
 2. Or, Chevron step 1 applies
 Using Clear Statement Rule as Cannon of construction, which is what happens in Step
1, and Congress was clear, and did not intend it to go this far (because didn’t clearly say
it)
 3. Or, Even if it is a step 2 question, the interpretation is unreasonable because it raises federalism
questions under the Clear Statement Rule
th
 V. 10 Amendment Concerns and Federalism:
o Generally:
 Because the Federal Government has limited Resources, it enlists the help of states
 There may be a point that Constitution limits Federal Government’s power to enlist this help in pursuing
environmental goals, however
o 2 Models of 10th Amendment Analysis:
 1. Determine the Constitutionality of Statute, by inquiring if it is within delegated power
 If Yes:
 Constitutional No issue of 10th amendment
 Deference to Legislature: Idea is that legislature is made up of different states, who would not
have voted for something if they disagreed
 If No:
 Unconstitutional
 2. Determine the Constitutionality of Statute, by inquiring if it is within delegated power
 If Yes:
 Does the statute infringe on traditional state sovereignty, and 10 th amendment?
 If Yes Unconstitutional
 Court has more exacting scrutiny, and is not as deferential
o New York v. United States
 F- Dealing with a shortage of low-level radioactive waste disposal sites, Congress enacted LL Radioactive Waste
Policy Act. It had 3 provisions. 1, a monetary incentive for states that met standards and charged others more to
use; 2, a denial of access to certain states from continuing to dump elsewhere, and 3, a take-title provision which
gave state choice of regulating it themselves, or taking title.
 I- Is this an infringement on the 10th amendment?
 R 1. This was within Commerce Power, so did it infringe on 10 th amendment?
 2. Rule:
 Congress cannot Commandeer the State’s legislative process to enact a federal program
 Makes state officials accountable to the people, while they didn’t have a choice in the
matter, but Federal regulators remain immune
 2 Exceptions:
 1) Spending Power
 Can attach conditions to get state to act, and this is ok
 South Dakota v. Dole:
o 1) Spending must be for general welfare
o 2) Conditions must be unambiguous
o 3) Conditions must be reasonably related to the purpose of expense
o 4) Cannot violate constitutional prohibition (like 10 th)
 2) Cooperative Federalism:
 give state the choice of:
 A. State can regulate according to federal standards or
 B. Be preempted, and federal law will apply
o This does not force the state to do anything…but merely gives them a
choice to act if they want, and if not they don’t have to do
anythingremain accountable
23


o
o
3. Provision 1 and 2 were under the first model of 10th Amendment Interpretation
 Provision 1
 is an authorization under the Commerce power for state to discriminate on interstate
commerce
 is a Tax and, adequate under the spending power
 Because was within enumerated power, not any 10th amendment concern
 Provision 2
 Is an authorization under the Commerce power for state to discriminate on interstate
commerce…perfectly ok
 Is use of Cooperative Federalism:
 If they chose not to regulate, they didn’t have to do anything, the other state
was responsible because they couldn’t access (Preempted by federal law
applying)
 Because was within enumerated power, not any 10th amendment concern
4. Provision 3 “Take Title” was under second model of 10 th amendment Interpretation
 Provision 3 Required state to Regulate according to Federal standard or take title to the waste
created within its state
 This was not acceptable use of Cooperative Federalism
 In CF, state can regulate or be preempted (doing nothing)
 Here, state had to regulate or take title
o Had no choice in the matter Commandeering
o Cannot force State to serve federal regulatory purpose
o State cannot decline to act in this situation (unlike cooperative fed.)
o Unconstitutional
Post New York:
 Accorn v. Edwards, 81 F.3d 1387 (5th Cir. 1996) (where unconstitutional to force states to clean lead from
drinking water, or face penalties for not doing so).
 Printz v. US:
 Extended New York, to disallow commandeering of state officials
 Reno v. Condon:
 Banning state from doing something is not a commandeering…not forcing state to do anything
 Has consistently been allowed throughout jurisprudence
 Overall 10th amendment has not played a large role in environmental law
Problem P. 84, 2-1:
 Congress probably has the power under Commerce Clause
 But, under 10th amendment:
 Commandeers state government
 If there is penalty for not researching unconstitutional
 But, if no penalty, and they don’t have to choose anything
 Could argue that silence as to alternative might mean state does not have to act
 But will implicate Commandeering doctrine
 If Preempted adequate under Cooperative Federalism model
 VI. 11th Amendment and State Sovereign Immunity:
o Can people seek remedy from State for environmental harm?
 * No, not under 11th amendment sovereign immunity
 States are immune from citizens of their and other states, in federal and state court
 Kennedy: “11th amendment stands for inherent design of constitution, althought sovereignty is not within
the text”
 But there are ways around it:
 1) Government could enforce environmental standards
 2) State can Waive Sovereign Immunity
 Must be clear and explicit….not constructive
 3) Congress can Waive it under §5, 14th amendment
24

But can only use enforcement power to remedy or prevent constitutional violation
under 14th amendment.
 Would implicate environmental justice
 Very few environmental cases under 14th amendment
 4) Spending Power
 Congress could attach conditions to funds to ask state to waive right to sovereign
immunity (Subject to South Dakota v. Dole limitations)
 5) Suit against municipal government
 11th amendment does not apply
 6) Suit against state officers Ex Parte Young:
 Can Only Get Injunction
o Overall, it is clear that States have a reduced chance of liability for violating federal environmental law
 VII. Savings Clause, Delegated Programs, and Preemption:
o General:
 Assuming that Congress is within the Commerce Power, and has not violated 10 th amendment or it is not being
used as a limit Congress can determine what role the states play
 When Congress wants state to work with them:
 Savings Clause: Federal law, specifically stating It retains common law causes of action
 Broad Policy Objectives to “preserve states’ rights and responsibilities”
 Seen in the Clean Water Act
 May state that federal standard is floor, but states may ratchet it up
 *most common application
 Seen in the Clean Water Act
 Delegated Programs:
 A Function of Cooperative Federalism
 Typically Make use of Conditional Spending Power
 The state or subdivision can retain or assume responsibility for implementing and
enforcing a federal program if it wants to
 “Delegated”  Federal Regulation is delegated to state to do
 Examples:
 Clean Water Act: The Permitting system is originally in the Federal Agencies’ hands,
but states may pass laws and make commitments to establish that they are qualified to
assume the permitting system role
 Their system doesn’t have to be exact same
 State can lose the role if deemed inadequate
 Clean Air Act: Opposite of the CWA, this sets forth the power in the states originally
 Only if Federal regulator determines state is failing does state lose power
o Preemption:
 Emerges from Article VI, Supremacy Clause
 Policy:
 While Congress does want state assistance, it doesn’t always
 1. Centralized System
 Desirous of uniformity in regulation
 2. Avoids subjecting regulated entity to multiple conflicting mandates (theoretically, up to 50
different state ones)
 Centralized, Preempted system usually applies to:
 Products in interstate commerce
 When 1 nationwide distribution standard is optimal
 Economies of Scale Argument More Efficiency with 1 standard
 Basics:
 Express Preemption
 A clear expression from Congress that they intend to preempt state law
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

But not always clear Must determine the scope of the intended express preemption,
and then determine if state activity is within that scope
 Implied Preemption
 A. Field Preemption:
 When Federal legislation is very comprehensive in a particular area that congress could
not have intended to permit supplemental state regulation
 A floor and ceiling
o No more regulation because no room left
 Method:
o Define the Field Congress occupies, and determine if state law is
within that field
 B. Conflict Preemption:
 Congress hasn’t chosen to occupy the field, but state or local regulation conflicts with
the federal law
 2 Ways to Conflict:
 1. When state regulation frustrates/is an obstacle to the purpose of Federal
Law
o When Congress makes a ceiling, and state makes a lower ceiling
 2. When Federal and State law are impossible to both comply with
o Either law you choose to comply with violates the other
o Rare
 Method:
o Define the purpose of the Federal Law Does state law interfere
with that federal purpose?
Engine Mfr’s Ass’n v. S. Coast Air Quality Mgmt:
 F: Respondent, local California branch responsible for air pollution enacted 6 fleet rules prohibiting the
purchase of a vehicle that does not comply with their local stringent emissions standards. The Federal
Clean Air Act stated in §209 that “no state may adopt any standard relating to control of emissions from
new motor vehicles or engines”
 I: Is local statute expressly preempted by the Clean Air Act?
 R:
 District Court: focusing on the word “standard,” read local statute to deal with purchase while
Clean Air Act dealt with sale of new engines
 Supreme Court:
 1. Determine the Scope of the express Preemption:
 Respondents argue the CAA only applies to manufacturers, not purchaser so
state law is not within the scope of CAA
 This portion of CAA §209 (a) is a standard that applies to the vehicle, not the
manufacturer or the purchaser
o The view that the standard applies to manufacturer only, confuses the
standard, with how to enforce it
 So Vehicles are within the scope of this preemption
o Not manufacturer rather then purchaser
 The Fleet restriction was an attempt to enforce its own emissions standard on
the car Congress Already did this
 2. Does not Make Sense to differentiate Seller and Buyer:
 Scalia says, forcing a producer to sell according to federal approved law, but
allowing purchaser to buy a different level makes no sense
 When you prohibit a buyer then to buy the federal level emissions, it prohibits
the sale
 3. Congress’s intention was to create 1 uniform law for car emissions Therefore, the
car is within the scope of preemption and you cannot differentiate between buyer and
seller laws…Expressly preempted
 Clean Air Act thus preempted state standards that were more stringent then the CAA,
because the scope of the CAA covered vehicles
26

Pacific Gas & Electric v. California Energy:
 F- State law was adopted putting a moratorium on nuclear facility building until findings emerged that
there was adequate waste disposal sites. Π wanted to build one, and argued that Congress had occupied
this field with Atomic Energy Act.
 I- Is the State law In Field with or Conflict with, and therefore preempted by Federal Law?
 R Field Preemption Claim:
 Supreme Court determined the field Congress intended to solely occupy was “safety” of
atomic energy
 Not all of Nuclear energy
 So State law dealing with economic concerns of increasing taxes to find new waste
disposal sites was not within the field of “safety”
 Π’s argument that Congress promoted Atomic Energy was snubbed, because Court
determined it was not a promotion at all expenses
 Conflict Preemption Claim:
 Supreme Court defined the purpose of state law as “Economic Concern” of having
higher taxes and electricity prices (Based on legislative findings)
 Congress, however, was concerned with “Safety”
 Therefore Objective of Congress was not frustrated by state law
 VIII. Dormant Commerce Clause Limitations on State:
o Idea that State may not infringe on Interstate Commerce
 Reciprocal of the Commerce Clause
 Inferred that States may not infringe on interstate commerce
 General idea:
 States will utilize protectionist economic action to protect their own state interest,
 Out-of-staters don’t vote, and thus do not matter
o SDDS, Inc. v. South Dakota:
 F: SDDS filed permit to construct waste disposal site—Lonetree, which was extremely large and would almost
exclusively be used to import other states waste for disposal. It was issued a 1 year permit, but then Supreme Court
voided the permit. New law then required state legislature approval of all facilities that were large and to be
environmentally safe and in publics’ interest. Law then required referendum of people to vote for or against it too.
The pamphlet sent to the South Dakota Population was extremely against Lonetree.
 I: By prohibiting the building of this Waste Disposal site, was DCC violated?

R:


Dormant Commerce Clause Framework:
 1. Is Challenged action Discriminatory to Interstate Commerce?
 Facially Discriminatory
 Facially Neutral, with discriminatory Purpose
 Facially Neutral, with discriminatory effect
 2. If yes:
 Strict Scrutiny, with virtual per se rule of invalidity
 Must show the local benefits and unavailability of nondiscriminatory
alternative
o A. Can be No other means available
 Economic Protectionism is unconstitutional
 1 exception: Quarantine for emergency/safety (Maine v. Taylor)
 3. If no:
 Pike v. Bruce Church balancing test
 If not discriminatory, allow the law unless the burden on interstate commerce
outweighs local putative benefits
Here:
 Discriminatory Purpose:
 New law of dual approval only applied to Lonetree
 Designed to hinder importation of waste
27
o
o
 Legislative history showed protectionist rhetoric “We’re not dumping ground”
 Pamphlet sent to referendum voters was extremely 1 sided
 Discriminatory Effect:
 Facility was huge, and prohibiting its use denied states to export trash here, increasing
huge costs
 Did not meet Strict Scrutiny:
 While legitimate purpose of protecting environment and local benefits, they already had
a way to do that with legislative review
 Was no emergency
 The dual review was no additional benefit
 There were other means not necessarily related
 Already had review of legislature
 Send out more neutral pamphlet
 Discussing the environmental issues, rather then restriction of trade is another
method
Some have argued the Unintended effects of Dormant Commerce Clause:
 1. While avoids interstate commerce discrimination, has environmental justice issues
 a. Allows flow of waste from rich states to poor states
 b. Allocates the burden of waster to a lesser population with lesser financial resources
 2. Thus, because poorer states get waste, it undercuts that state’s ability to distribute environmental justice there
 Gets passed into poorer state to poorest residents
 3. Environmental Justice Theorists say that, unless facial discrimination should be allowed
Other Cases in Dormant Commerce Clause Environmental:
 1. Philadelphia v. New Jersey:
 Creating the virtually per se rule of invalidity in a facial discrimination of accepting Philadelphia’s waste
 2. Waste Management v. Gimore:
 Court disallowed a cap on the trash accepted by Virginia from other states
 3. Oregon Waste v. Dep’t of Enviro. Quality:
 The Law applied a differing fee on the disposal of or treatment of out of state waste
 Court, in dicta, said it would allow a compensatory cost to alleviate the elevated cost, but no
more!
 Here, the charge on out of state waste was much more, so discriminatory
Administrative Law
 Basics 
 I. Concerned with 2 Broad Issues:
o 1. What is the role of the 3 branches of government that is established by the Constitution that is proper
o 2. What procedure should agencies, executive, and independent agencies follow in adopting standards that govern private
conduct
 II. Why are we dealing with administrative law?
o 1. Most environmental law is administrative law
o 2. Sets the rules with how these agencies interact with the 3 branches of government
 III. How Agencies Interact with the 3 Branches:
o 1. Agencies and Congress
 A. Agencies implement the programs that congress adopts
 Congress gives them authority Agencies have no inherent authority
 This is done through a statute:
 Statute creates procedures to promote legitimacy and consistency
 1. Organic/Substantive Act:
 The act that empowers that agency
 EG: the ESA gives procedures to Fish and Game Service
 2. If Substantive Act is silent:
 APA is the default gap filler
 3. If APA and organic/substantive agency act conflict:
28
 Organic/Substantive statute will prevail
Scope of Authority may come into question
 “Ultra Vires” or “Outside Scope” is commonly argued
 See Rapanos and SWANNC
 B. Congress Also Limits Agencies
 1. Can threaten to cut their appropriations
 2. Have Hearings
 3. Amend Statutes to reduce the agency’s authority
 Amend By:
 1. Requiring more procedure
 Deadlines, specific criteria that must be used, to decrease agency discretion as
to how it can act
 2. Substantive
 may require further actions, or reassurance by agency
 Information Quality Act (p.213)
o Required agencies to prove ‘policy and procedural guidance for
ensuring maximum quality, objectivity, utility and integrity of
information disseminated by agencies.
o This gave regulated entities a new means of challenging agency
decisions
o The affect Ossifies regulation by agencies, as they reassure their
information is adequate
 EG: 1984 Amendments to RCRA reduced the scope by explicitly instructing what agency would
due, and creating deadlines to do it in
2. Agencies and Executive Branch
 A. Once Congress creates, it becomes part of the executive branch
 B. President can Limit Agencies
 Appointment Power
 Who is the official
 Executive Order
 Requires that certain things be considered, or procedural requirements
 12,866:
 Delegated authority to scrutinize agency rules to make sure Costs/Benefits were utilized
 Raises Separation of Powers Issues (210-217):
 1. If an EO is inconsistent with an organic agency statute
 typically provides “to extent permitted by law”
 If organic statute regulates, it trumps
 2. Does Executive even have power to regulate discretion of Agency?
 If Congress gives agency discretion, but EO constrains it this may infringe on
Congressional power and intent
 Clearance
 Can require an agency to clear a decision with the president, or a subordinate he designates,
before they go into effect
3. Agencies and the Judiciary
 Congress has the ability to empower the Courts with the responsibility to review agency decisions
 Court Can:
 1. Unconstitutional
 2. Excessive: Doctrine of “Ultra Vires” to say that an agency action was beyond the scope of the
power congress intended
 3. Lack of Explanation: Court may require an explanation for a decision based on the statutory
authority
 Typically reverses decision, and remands it for further consideration
 4. Lack of Following Procedure: If court finds that agency did not specifically follow procedure
prescribed, it may invalidate

o
o
29

Generally:
 Courts defer to agency expertise, especially on technical/factual matters
 However:
 Courts are empowered to review agency action
 Ensure it does not deviate from the mandate
 Depending on the Issue of dispute
 Court may defer or may more intrusively scrutinize…but depends
 IV. How Agencies Act:
o §551 APA
 Each agency statute will authorize which of the follow two can be done:
 Rule Making: formulating, amending, or appealing, a rule which can implement, interpret or prescribe law and
policy of an agency
 Analogous to legislation, except regulation is from the Agency and not Congress
 Informal Rule Making (Notice and Comment Rule Making)
 1. Notice is issued
 Publish in the federal register what it is doing, and why
 2. Solicit Public Comment
 Collects comments from public and considers them
 3. Publishes the final rule in the Federal Register
 Concise rule with explanation of
 Where authority to do this is from
 Why agency decided to do this
 Adjudication: is very particular enforcement of a rule
 Similar to a trial
 V Judicial Control of Administrative Environmental Decision Making:
o General: To utilize the court’s role that congress has empowered them for, litigants must be able to argue in front of court
 If Litigants cannot access the court, the court cannot fulfill its function
 Public Interest Groups are Typical Litigants:
 1. They sue regulated entities under Congressionally authorized statutes
 Allege that Regulated Entity is in violating of obligation
 2. They sue Agencies
 Claim that agency did not comply with their mandate in correct way
 Sue to make agency act in appropriate time fashion
 3. Access the Court to allow enforcement of statute
 if they couldn’t sue, the law would lose accountability
 In certain scenarios, agencies do not want to comply with an environmental law because it
negatively impacts their purpose
 4. Sue EPA
 Make sure it fulfills its potential
 Without Access, Court would never be able to see if EPA fulfilled duties
 Vi. Environmental Standing under APA and Article III
o With these ideas in mind, above, standing is an obvious key issue in Public Interest litigation and to utilize the Court’s basic
function of “check” on agencies activities
o Basic Understanding of Framework:
 All Litigants must meet the Modern Article III standing Requirements (Post Lujan 2 test)
 Then All litigants must meet the APA or organic statute standing created by Congress:
 APA has requirements in §702:
 Additional Requirements specified such as “Final” and “Agency Action”
 Zone of Interest Test
 Impose additional or different standing regulations in an Organic Statue
 Can eliminate non-constitutional standing hurdles
o Historical Evolution:
 Pre-1960s:
 Standard “Proof of Harm” also known as Legal Rights Test
30

 Had to show that your legal right was infringed on
 Favored Regulated Entity More then Environmental Groups/Regulated beneficiaries
 The Regulated Entities actually had “legal right” that could be infringed on
 Environmental groups, as we have seen, didn’t have any specified legal rights
Circa. 1972: Standing becomes Pro-Environmental
 Around 1972, the Injury in Fact standard emerged, and moved away from the “Proof of Harm”
standard the result was much more environmental litigant friendly
 Standard
 Under Both the APA and Article III requirements:
 Injury in fact and
 Under SCRAP injury can be very attenuated to alleged cause
 Injury is “arguably within the zone of interests to be protected or regulated by
statute that was allegedly violated
 Under Morton non-economic, aesthetic harms are within zone
 Sierra Club v. Morton:
 F: The US Forrest Service and Dep’t of Interior began accepting bids for a Game Refuge to turn
it into a ski resort. Walt Disney eventually bid for it and was going to turn it into ski resort,
cutting road and power lines through Sequoia National Park. Sierra Club filed suit, seeking
declaratory and injunctive relief, even though there was no specific statuteso they brought
under §702 APA: “person adversely affected or aggrieved by agency action is entitled to review.”
 I: Did π have standing to bring suit?
 R:
 1. What must be alleged under §10 (702) APA to meet standing?
 Need Injury in Fact:
o To be “person adversely affected or aggrieved”
o Not just a “mere interest” in the problem, but need a personal stake in
the controversy- an injury to you
o Here:
 Π alleged “development would destroy, affect scenery and
wildlife” but didn’t say its members used the land…need
more then just a “mere interest in problem”
 More Specified Injury needs to be alleged
 Needs to be within Zone of Interest/Cognizable Interest
o Congress intended to get review of regulatory actions to those injured
by agency action
o So here Because didn’t allege injury in fact, was not within zone of
interest congress intended to regulate
 2. Court Specified 2 key successes for environmental groups:
 1. A Non-Economic, aesthetic interest is a cognizable interest within the
zone of interest to cause injury in fact
o Did away with legally protected interest standard
 2. Injury to the general public can be used in allegations after they have
met the injury in fact standard
 3. Effect:
 This evened the playing field between Public Interest Groups and Regulated
Entities
 Post Morton: environmental standing was not very difficult
 US v. Students Challenging Regulatory Agency Procedures (SCRAP)
 F: Students argued that increase in rates of transporting recycled goods would discourage use of
recycled material, which would lead to discarding it instead of recycling, which would lead to
litter in Shenandoah National Park which we personally use on the weekends.
 I: Did π’s have standing?
 R:
 Court recognized the non-economic aesthetic injury that they were personally injured in
fact
31



Attenuated Connection between alleged causers of harm and injury
 Here, the facts were extremely attenuated, but the court accepted it
 Injury to the public is acceptable if you have been injured in fact
 While General Public Injury is not acceptable, an injury to the public which
you are in fact injured is acceptable
o Just because many people harmed does not deny recovery
Post Morton and SCRAP:
 Very expansive standing for environmental litigants
 Not a very difficult requirement to meet
 Combined, Morton and SCRAP signaled from the Court to lower courts that they were to allow
standing to environmental litigants, and that there should be no special barriers…
 For 17 years, environmental π’s were not thrown out…. until Lujan cases
Circa 1990 Standing takes a distinct turn to the more difficult for environmental litigants
 Lujan v. National Wildlife Fed’n [Lujan 1]:
 F: The respondents sued the Department of Interior, alleging that the agency violated Federal
Land Policy Act by revoking land withdrawals—allowing the department to market and develop
land that was previously withdrawn from market. Respondent alleged recreational harm and
aesthetic harm (Seeming ok under Morton and SCRAP) and sued under §10 APA.
 I: Did Respondents have standing under §10 APA as “persons adversely affected or aggrieved?”
 R:
 1. Congress can add additional standing requirements, Here APA §10
requirements are “Final” and “Agency action”
 Here, Court said that revoking a Land Withdrawal was not an “agency action”
but instead was a “continuing and constantly changing operation” so it
couldn’t be final
o There were 1250 lands being revoked and reclassified…
 Court also restricted its jurisdiction of “programmatic agency action” as this
was for Congress
o The program here, although alleged violations, was deemed not an
agency action—instead Scalia considered it a program that needed
improvements which is normally left to congress
o Would not allow the Courts to be used to modify or improve an
agency program –wasn’t an agency action within meaning of ‘agency
action’ in §551 APA.
o Separation of Powers invoked
 2. Court Differentiated between standing at 12 (b) motion and Summary
Judgment
 12 (b) only requires general allegations, while Summary Judgment is
heightened Although standing doesn’t change, the facts needed in affidavits
at Summary Judgment need to be more specific
 3. Needs to be Geographic Nexus or proximity to have Injury in Fact
 While under SRAP and Morton, it would be ok to allege aesthetic and
recreational harm to area…standing evolved
 Π must show that he actually used the affected area, not area “roughly in the
vicinity of it”
 Must show what land it was, and how you were affected by agency decision
with “geographic particularity”
 Here:
o Π’s did not have particularity in their affidavits
 4. SCRAP was overly expansive Cannot be very attenuated now
 That an industry may use land or that you use land in the vicinity of that which
will be harmed is too attenuated
 Post Lujan 1 Standard for Article III and APA §702
 Injury in fact to the π
32


In Environmental case, must be a geographic nexus or proximity between the
resources that are allegedly injured by the agency’s decision and the areas used by the π
or members
 Cannot be as attenuated between injury and cause and
 Injury must be within the zone of interest the statute intended
Lujan v. Defenders of Wildlife [Lujan 2]:
 F: §1536 (a) (2) of ESA required that each federal agency should consult with secretary of
interior to insure that any action…funded by an agency is not likely to jeopardize any endangered
species in foreign country. When this was amended to solely apply to US and high Seas, ∆’s
brought suit seeking declaratory judgment under the ESA citizen suit provision.
 I: Did π’s have standing?
 R:
 Depending on how you are affected, standing may be heightened:
 Directly Impacted:
o Meaning, if you are personally harmed by the agency decision
o If you are directly impacted by the agency decision, standing will not
be any more difficult
 Peripheral Impact:
o Bringing suit over something that affects an agency versus you (You
are not part of governments objective to regulate)
o If you are bringing suit to show agency is not doing their job
 “Standing is Substantially more difficult to show”
 Injury in Fact requires a Temporal Proximity
 A proximity between the alleged adverse consequence of agency action and
members’ imminent use of resources effect
 “Some Day” Intentions not enough
o Cannot just say I have used it, or I will use it again in the future
 Here, members said they would go back to Africa at some
point in future
o Need specified imminent harm to show injury in fact
 Lack of Redressability:
 Scalia said, even if court ordered secretary of interior to apply old standard, it
wouldn’t reach the agencies who were not funded by the secretary because he
had no authority to bind them
 Also, because foreign agencies only provide fraction of foreign funding for
projects, ending their funding of a project which may kill endangered species
could still kill it
 Procedural Harm:
 If there is Procedural Harm, Redresability and Cause Mitigated:
 Because Procedural Environmental statutes merely require
agency to listen inputs of various parties, it would be
impossible to show that their ultimate decision would be
redressable by court forcing them to hear more
opinions…wouldn’t change decision
 To show a procedural harm, you must still show you had injury in fact
o “A separate Concrete Interest” other then public injury
 Harm to the public, without injury in fact is not a “case or
controversy” under article 3 and not by itself justiciable
 Injury in Fact is a minimum constitutional requirement
o Π must show their injury in fact from the procedural harm
o Here Citizen Suit provision saying “all people” does not eliminate
injury in fact requirement
 Standing is a function of Separation of Powers
o “Case or Controversy” requirement, which has been interpreted as
needing Injury in fact without this, judicial branch would go
33


beyond constitutional limit of Article III power, usurping congress
and executive power
 If No Injury in Fact is a General harm, and for legislature:
o General harms are for congress to address, not the court
o Standing and injury in fact prong of standing keep a threshold
between courts power and congress’s power
Article 3 Environmental standing after Lujan 2:
 1. Injury in Fact
 Concrete and Particular
 Geographic Proximity (Lujan 1): between resources allegedly injured by
agency and areas used by the π or members
 Actual or Imminent (Not Hypothetical)
 Temporal proximity (Lujan 2): between the alleged adverse consequences of
agency’s action and members’ imminent use of the resources adversely affect
 Procedural harm may be relied upon only if it impairs a “Separate Concrete
Interest” (meaning you have a particular injury separate from public harm)
 2. Causation
 Fairly traceable to ∆’s action
 If procedural Harm
o Mitigated Causation
 3. Redressability:
 Court’s action will redress the situation
 If procedural Harm
o Mitigated redressability
Post Lujan 2 Standing and Historical Overview:
 Historically: function of standing was to ensure litigants were truly adverse parties, likely to
present an effective case because of their concern with and investment in the result
 This investment ensures the truth will be found
 Circa 1970: Court specifically stated: “it is not just about separation of powers, but
instead related to case or controversy.”
 Modernly:


Court has done a 180。, stating that standing is understood through separation of
powers
 Post Lujan 2, it is difficult to see that standing is used to accomplish the Historical Goal
of letting those parties with interest litigate
 Standing is Function of Separation of Powers Now:
 Used to halt the expansion of Judicial power, allowing court to take hold of
some cases and defer to congress with others
 Evidenced by Scalia even argues that if Congress makes a public harm
recoverable, it takes away from Executive’s right to manage agencies,
violating the “Full Faith and Credit” clause.
Circa 2000 Environmental Standing
 General:
 With the following two cases, the Article 3 standing doctrine begins to be less strict on
environmental litigants…
 Friends of the Earth v. Laidlaw:
 F: South Carolina granted permitted based on §402 of CWA. It issued permit to Laidlaw to
discharge into river. ∆’s discharges exceeded mercury allowed by permit, and π brought citizen
suit action alleging non-compliance seeking injunctive relief and civil penalties
 I: Does π have standing?
 R:
 Injury In Fact:
34



Court applied the modern Article 3 Test, looking for concrete/particular and
actual/imminent with geographic and temporal proximity
 Look at Harm to the π not harm to Environment
o Fear of Harm/Risk of Harm is sufficient
o Recreational and Aesthetic Harm sufficient
 Π lived ½ miles from river alleged he had used the river
previously and stopped using it because it looked and
smelled polluted so he stopped using it out of fear
 This satisfied Lujan 1 Geographic proximity and Lujan 2
temporal proximity according to Court
 Redressability:
 ∆ argued that there was no standing to seek civil penalty because it was paid to
government—so not redressable ever
 The Deterrence of future conduct supports redressability
o Abdicating future conduct, preventing future breach does redress, as
it reduces chance of illegal discharge in future
 Π’s had standing
 Mootness:
 A case may be moot if subsequent events make it absolutely clear that the
allegedly wrongful behavior could not be reasonably expected to recur
o Heavy burden on moving party to demonstrate
 Here:
o The ∆ offending factory following suit began complying with statute,
and eventually shut the plant down
o Not Moot they still had the permit to operate, so it was not
absolutely clear that it was not reasonably expected to recur
o Still possibility
 Scalia Dissent:
 No Standing because was not concrete, or particular  was vague, contradictory, and
unsubstantiated to meet the injury particularity requirement
 Was not within geographic scope
 Redressability was too speculative
 Separation of Powers Argument:
 Said that expanding standing beyond “traditional scope” exceeds the Court’s
article 3 jurisdiction, therefore infringing on seperation of powers
Impact of Laidlaw:
 Lower courts immediately responded, lessening standing threshold…
 Expands Injury in Fact, and Redressability
 Not being able to utilize recreational/aesthetic satisfaction for fear of harm is
sufficiently concrete and particular under Laidlaw
Massachusetts v. EPA:
 F: State filed rule-making petition to EPA to regulate greenhouse gas under §202 of CAA. EPA
denied the rulemaking petition because it said 1) it didn’t have the authority to do so under the act
and 2) it was unwise. Π sought review of EPA’s decision under CAA §307 (b), Citizen Suit
provision which allowed review of EPA’s petition denial procedural review
 R:
 Injury in Fact:
 Massachusetts argued that their coast line was receding due to the greenhouse
gas emissions, about 10-20 cm.
o Although was a public harm all people suffer, π showed a concrete
harm, that was sufficient interest to bypass the bar of general harm
o Follows SCRAP idea of a general harm to all is not a bar to all if one
has a concrete harm from it
35


Π as state gets “special solicitude” because it, as sovereign entity has given
power to federal government who is in charge of EPA, so state gets special
treatment
 Procedural Harm:
 Because state is bring suit under “CAA citizen suit provision” which allowed
suit for procedural harm (the denial of petition)
o Do not have to meet all normal standing requirements
 Mitigated Causality and Redressability (Lujan 2)
 All that is needed for procedural standing is to show the
possibility that requested relief will prompt cause of
injury to reconsider the decision…not alter it…
 Causality:
 Just because EPA refusing to act only partially contributes to harm does not
mean no cause
o Contributing to the harm, even though it is small cause show
causality
o
 Redressability:
 EPA argued that many other countries contribute to greenhouse gas, so
judgment will not redress
 Court held: Incremental steps, although not redressing whole problem are
redressing it
o Only have to show harm will be reduced, not eliminated
 Robert’s Dissent:
 No Injury in Fact: here is global injury, so it is not concrete and particular
 Not actual or imminent because won’t occur for 100 years
 Causality as contribution to cause is oversimplifying a complex problem
 Redressability is purely conjecture
 Overall, says this is a return to SCRAP and lack of judicial restraint in what the court
can and cannot hear
 Argues Standing is form of Separation of Powers, versus historical view of
adversarial interests
Modern Article 3 Standing:
 General Idea:
 Standing is modernly, through Court’s jurisprudence a form of “case or controversy requirement”
 Seems to have gone back to the idea of historical standing use as function of standing
was to ensure litigants were truly adverse parties, likely to present an effective case
because of their concern with and investment in the result
 This investment ensures the truth will be found
 Argument Remains:
 Whether Standing is used as a “separation of powers” limit on the Court’s reach into
other branches’ powers, usurping power and therefore unconstitutionally extending
jurisdiction or
 Whether standing is a function of the “case or Controversy requirement”
Modern Test Article 3 Standing Test:
_______________________________________________________________________
 1. Injury in Fact:
 Concrete and Particular and
 Fear or Risk of harm ceasing use of recreational/aesthics will suffice
(Laidlaw)
 Allege concrete harm you have been dealt that is particular to you look at
precedent above to see how particular needed
36

Harm to General Population does not bar you, if you have a concrete and
particular harm (Lujan 2, SCRAP)
 Actual or Imminent (Not hypothetical)
 Geographic proximity between resources alleged injured and area of land
used (Lujan 1)
 Temporal proximity between adverse consequences of agency action and
member’s imminent use of resources adversely effected (Lujan 2)
 Concrete, separate interest must be asserted if relying on procedural
requirement
o Meaning, must show your particular concrete harm
 2. Causation:
 A causal link that is fairly traceable between the ∆’s conduct and π’s injury in fact
 ∆ being a contributing factor, rather then whole cause is enough (Mass. v. EPA)
 If Procedural harm: only need to show mitigated causation
 3. Redressability:
 Likelihood that relief requested will redress alleged injury
 Incremental Improvement to the harm is enough (Mass. v. EPA)
 Deterrence of Future Conduct of harm is enough (Laidlaw)
_____________________________________________________________________
o
In Addition to meeting Article 3 standing requirements: 2 additional sets of standing that must be met:
 Must Meet:
 1. Article 3
 Is the floor, and Congress may not waive this
 2. Statutory Standing Requirements
 3. Prudential Standing Requirements
 1. Statutory Standing Requirements:
 Created by Congress
 General:
 The statute under which the π is bring suit may provide standing above, and beyond Article 3
 Congress may waive statutory requirements
 May not waive Article 3 standing Floor
 Zone of Interest Test:
 Under APA §702:
 This test emerges from §702 APA: “person adversely affect….within meaning of
relevant statute”
 Court has interpreted this to mean: To meet statutory standing, π must show that he is
within “zone of interest” Congress intended to protect with the statute that the ∆
allegedly violated
 Bennet v. Spear Test
o To determine what zone of interest is of substantive statute while
bringing suit under §10 APA, “evaluate by referencing the particular
provision whose violation forms basis of complaint”
 If non-APA, Organic Statute Suit Provision:
 Look to the statute’s provision to see if it requires its own “zone of interest” statement
 Or:
 The organic statute may have its own specific standing requirements
 Bennet v. Spear:
 F: Agency was involved in irrigation project, and notified FWS that there were 2 species of fish
that might be adversely affected. FWS gave two alternatives, which Agency complied with. 2
districts which were to receive the water, and ranchers in those districts sued, arguing that there
was not enough evidence to have to protect the fish. Π’s argued that FWS violated §7 ESA
(violating mandate that FWS had to ensure that each agency wasn’t jeopardizing species” and
brought suit under citizen suit provision.
37
 I: Was suit to bar protection of species within “Zone of Interest”
 R:
 1. Congress waived “Zone of Interest” under ESA (Organic Provision)
 While government argued ESA was designed to protect species, not allow
people to sue for overprotection…
 Scalia said Congress waived “Zone of Interest” because citizen suit
provision says “any person”
o Any person means actions to protect environment and actions to
assert overprotection
 So, ESA had no additional statutory mandate other then article 3
 2. They also brought Suit under §10 of APA (Apply APA Zone of Interest)
 were people adversely affect…within meaning of statute (ESA)?
 Look to substantive statutory provisions allegedly violated
o Evaluate “Zone” by referencing particular provision whose
violation forms basis of complaint
 Here:
o Because statute says “use best scientific and economic data,” that
means the purpose was to ensure ESA wasn’t applied without correct
data, and to protect from “needless economic [spending] by
overzealous officials unintelligently pursuing environmental
objective”
o Zone of Interest of ESA included those wishing to sue to hurt
environment too
 2. Prudential Standing Requirements
 Court Created, but waiveable by Congress
 2 Requirements:
 1. Plaintiff must assert his own legal rights—not those of 3rd parties
 This seems to go back to the historical understanding of wanting those who are most
invested in the litigation
 Those who assert their own right will be most invested
 Plaintiff may not assert a Generalized Grievance
 1. Seems to Overlap with Article 3 “particularity requirement”
 This prudential requirement (Which is supposed to be above and beyond
Article 3) can be seen to coincide with Article 3 Injury in Fact as not being
very different
 You may need to argue Article 3 particularity and Prudential Standing
“Generalized Grievance”
o Covington Case:
 To Show Injury in Fact, perhaps passing “Generalized
Grievance” argue that not only is harm particular to you, it is
concrete (Show facts…allege under Laidlaw Fear/Risk)
 2. If Understood in “Separation of Powers” idea of Standing
 Generalized Grievances are for Congress to legislate
 Problem of all is a political issue left to congress Not to Court
 See Lujan 1…and Dissent in Laidlaw and Mass v. EPA and above
o Partisan (Conservative) Justices seem to follow the idea that
Standing is a separation of powers doctrine, used to not usurp other
Branch powers.
o They limit the Court to “case or controversy” thus limiting its
jurisdiction and Separating power from infringing on other branches,
and want to exhibit judicial restraint
 How to Argue Around:
 1. Show your particularized injury
 2. Narrow the range of π’s, so that it is not a “generalized grievance”
 VII. Other Threshold Justiciability Issues (Other then Standing)
38
o
o
o
o
Generally:
 Depends on delineation between Legal question and Factual Question
 Interpreting what congress meant when wrote statute Purely Legal Question
 What statute means May be mixed question of law and fact
1. Finality:
 If ∆ can show that the agency decision was not final  Throw out case
 From §704 APA
 Actions Reviewable: “Actions made reviewable by statute and final agency action…”
 Lujan 1:
 This is where Scalia argued it was not reviewable because it was not final and was not an agency
action
 Abbot Laboratories: “Crystallization of pre-enforcement” decision may apply to finality too
2. Ripeness (More Justiciability based then based on APA, unlike “Finality” above):
 Court should defer ruling on issue if it has been brought prematurely
 also deals with finality of decision
 2 Issues:
 1. Is the issue fit for judicial resolution?
 If Issues are purely legal, may be more likely to review and resolve, if factual maybe not
 2. Would the π suffer hardship if the court did refuse to hear case?
 The more serious the injury π is waiting to redress, the more likely to hear case now rather then
there being an issue of Ripeness
 Nat’l Assn. of Home Builders v. US Army Corps of Engnr’s:
 Court held that judicial review of EPA’s defining of when CWA permit requirement
applied was ripe because issues were purely legal and industry was facing hardship that
it was forced to apply for permit
 Statement in Preamble of Regulation of Federal Register:
 C. and S.W. Serv. V. EPA: an EPA declaration in preamble to a final ruling qualifies as reviewable
regulation…is ripe
 Example of Not-Ripe:
 Ohio Forestry Ass’n v. Sierra Club:
 Land use plan of Forrest Service to log 126,000 acres of Ohio National Forrest was not ripe for
review
 Not really “hardship” on π because the exact location of those acres being logged had
not been determined
 Review would hinder an agency action, but there wasn’t’ “hardship”
 More Factual question, then legal
 “Crystallization” of Agency policy or position that is Pre-Enforcement
 If the agency has taken a final position on something, but has not enforced its position…
 Overall Pre-Enforcement Review may be ok if 1. Fully Crystallized and 2. Purely Legal Issues
 Abbot Laboratories v. Gardner:
 If final agency position is “crystallized” decision
 Will be Ripe, because it is final
 If not crystallized Argue that it is not ripe
 See:
 Gen. Motors Corp v. EPA:
 Letter confirming hazardous waste regulations did apply to industrial process while
discussing the possibility of enforcement actions
 Not Ripe
 Independent Equipment Dealers Ass’n v. EPA:
 An EPA letter that didn’t announce a new interpretation or change, imposing no
obligations
 Not Final agency action
3. Exhaustion of Administrative Remedies
39

o
o
Allows the court to dismiss the claim on lack of jurisdiction…that π has not pursued all remedies available in
administrative process
 Affords the agency the first opportunity to perform the review function
 Effect:
 Promotes Administrative Autonomy and Efficiency
 Promotes Agency performing its function within its Fact-Finding and Technical competence
 EG: If there is an administrative process for appeal, and you sue prior to appealing  Exhaustion
 If Under Organic Statute (Non-APA):
 Court has discretion to allow the remedy
 If Under APA
 Court has limited authority to use exhaustion
 Derived from §704 APA
 “agency action is otherwise final…unless the agency otherwise requires by rule…for appeal to
superior agency authority”
 Court may not dismiss a claim for relief under the APA unless the organic statute involved
specifically mandates exhaustion is allowed
 Darby v. Cisneros
 So bring suit according to APA, suing under an organic statute, if that
Organic statute does not allow exhaustion as a remedy, it cannot be raised as a
defense
 When Court will not apply Exhaustion:
 1. When agency exceeds delegated power
 2. When administrative remedies are deemed inadequate
 3. When it would be futile to pursue them or
 4. When the question is purely a legal one
4. Primary Jurisdiction
 Arises when court has original jurisdiction of a claim requiring resolution of issue by agency
 When Concurrently before agency and Court Court suspends judicial process
 Once Agency decides, can be brought back to court
 The Court is less likely to invoke defense if purely legal issue
 If the issue is more technical determination, may be more likely to apply
Overall
 These defenses are all issues of timing…when should the suit arrive in court?
 Many times they overlap, being used in the same case
 Reflect:
 Balance of 1. Court being concerned with making a decision that’s better made by agency with
more technical knowledge of subject and expertise and 2. Not subjecting π to too much hardship (If
legal issue, rather then technical, more likely to hear, prohibiting use of defense)
 Problem 3-2 (Based on Mulberry Hills v. US, 772 F. Supp 1583 (D. Md. 1991))
 1. Finality:
 This is not a final decision because, even though letter was issued, they could still issue a permit
 If Pre-enforcement of cease and desist they have “crystallized their position to decline permit”
then may be final
 If they decline permit Then it may be final, and this defense wouldn’t work
 2. Exhaustion:
 If they sue under APA must check organic statute that it mandates “exhaustion”
 CWA requires exhaustion, so BHD should challenge Corp’s determination in agency
proceeding first
 Exhaustion can be argued as a defense
 3. Ripeness:
 This seems to be a question of law and fact, so it is arguably for and not for judicial resolution
 If crystallized decision prior to enforcement, can argue
 Most likely not a good argument for not being ripe
 4. Primary Jurisdiction:
40
 This is a technical and factual situation of what wetlands are…not legal
 So, court should afford defense of primary jurisdiction and suspend judicial action
 VIII. Reviewability of Agency Action:
o We Know:
 1. §702 Standing:
 gives the “Right to Review” to “A person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action…”
 2. §704 tells what is “Reviewable:
 “Agency action made reviewable by statute and final agency action”
 §551 (13) tells “Agency action” includes “Failure to Act”
 4. §706(1) “Scope of Review” What Can the Court do?
 Allows federal courts to “compel agency action unlawfully withheld or unreasonably delayed”
 Overall:
 Seems as though APA allows broad access to court for act or failure to act
o 1. §706 (2) (a) Agency Inaction:
 Heckler v. Chaney:
 While the presumption is that agency action is reviewable
 There are exceptions
 §701 (a) 2: If agency does not act, not reviewable if
 Statutorily prohibited or

“Committed to agency discretion”
 Norton v. South Utah Wilderness Alliance (SUWA):
 F: Bureau of Land Management was given authority my FLPMA to manage public lands. FLPMA
required BLM to manage land use. Wilderness Act of 1964 designated some land as wilderness. When
applied for to congress, in the interim, BLM was given duty by FLPMA to 1. “Not impair suitability for
wilderness.” Respondent argued that because Off Road Vehicles were using land, destroying it, BLM
failed to act Brought suit under §706 (1) a.
 I: What limits does the APA place on judicial review of agency inaction?
 Rule
 §706 (a) 1: “Court may compel agency action unlawfully withheld or unreasonably delayed”
 §706 (a) 1 can proceed only when π asserts agency
 1. Failed to take a discrete action that
 B. Discrete means individualized, distinct action, specific
o Cannot be broad programmatic issue…or general mandate
 2. It was legally required to take
 A. Court can only compel agency to perform non-discretionary §706 (a) 1
o If Discretionary, cannot compel §701 (a) 2
 B. If legally required can compel agency to act
o This may in turn compel a ministerial act
o But cannot direct how it shall act
o If there is a time frame on action, court can compel but cannot tell
how to act (This would mean it’s required)…
 Claim 1: BLM was required to “manage Wilderness area so as not to impair it…”
 This is not Required
 Mandatory objective to achieve with great discretion in how to do so is not
legally required agency action (and no time frame)
 Not Discrete
 This was only a general mandate to protect wilderness area
 Not discrete (individualized) General compliance without specific action
isn’t discrete
 Court cannot compel general orders would mean court is supervising rather
then agency
 Compelling non-discrete act is court interfering with agency discretion
 Claim 2: BLM Failed to comply with land use plans
41

o
Plan that agency created for itself is not requirement
 Statute said “manage in accordance with land use plan”
o This isn’t requirement:
 Plan is statement of priority, but does not prescribe agency
action
 The plan could be set aside by agency…so is not required
 “Will do” plans, at some point in future are not “required” and cannot be compelled
 They cannot be required because congress hasn’t appropriated funds for
agency in future yet…so makes no sense to compel
 Claim 3: Failure to Fulfill NEPA
 NEPA requires environmental impact statement
 Sometimes, “supplemental impact statement” is required
 Only when “there is remaining Major federal agency action” left
 If agency is in continued action, with remaining action left Supplement
 Here court said that, the Plan is a proposed action
 Not an action yet…so no need to supplement
2. Judicial Review of Statutory Interpretation Chevron Test
 Assuming a court will hear the case, how closely will the Court review it?
 What “Scope of Review”
 Historically:
 During the 1960s, Court was extremely deferential to Agency interpretation and interpretation of their
own statute
 1970s, Courts, during the environmental movement were more exacting and rigorous in their review
 Modern:
 In 1980s, new deferential review was ushered in
 While it would seem that Court would interpret statute, as that is what they do all day, they defer
to agencies interpretation of their own organic statute
 Chevron v. Nat’l Resource Defense Council:
 F: The EPA interpreted a “stationary source” as something causing an increase in emissions. In
this case, one was closed and one was opened. A Modification occurs when “a physical
change…of stationary source…which causes increase in amount of air pollutant. But here, the 1
opened and 1 closed netted out—so EPA determined it was not a modified stationary source
under Clean Air Act. It would seem, however, that expanding a smoke stack is modifying
stationary source
 I: Will Court Defer to EPA, or accept the NRDC’s interpretation of statute?
 Rule
 Chevron Deference Test:
 1. If Congress has directly spoken on the issue, and clear unambiguous intent
of congress
o Effect:
 Court must give Congress’s intent effect
 Agency’s construction is rejected…The End
o To Determine:
 Employ traditional tools of statutory construction to
ascertain congress intent
 Legislative History
 Wording
 A de novo review (Low or no deference)
 2. If not clear intention, defer to Agencies reasonable interpretation… prevails
o If Congress has explicitly or implicitly left gap- delegated to agency
o Effect:
 Defer to Agency’s reasonable interpretation
 It will stand
 The court does not jump in an interpret
o To Determine:
42

 The more technical, the more deferential…
 Look at ambiguity, silence, and lack of clear intent
 Reasons why Deference:
 1. Separation of Powers:
o Congress intentionally left a gap explicitly or implicitly to allow
agency to interpret the scope of the statute
o Stepping in would negate Congress’s intention then
o Sometimes, Congress does this explicitly because it is easier to pass a
broadly worded statute
o Avoids infringing on Executive Branch
 2. Give Authority to Expertise:
o Agency works with statute everyday, with those wordings, and has
the ability to balance all conflicting interests involved
o Technical expertise
 3. Give it to People more responsible to Voters:
o Better to defer to the executive branch The voters vote them in, and
that democratic effect does trickle down to agency appointments
o At least indirectly accountable to the executive, while Federal Judges
are appointed for life
 Threshold Question for Chevron Deference:
 Does it even apply?
 Chevron “Step 0” Question
 United States v. Meade Corp:
 Chevron Deference Test applies to Agency if it appears Congress gave agency authority
to:
 “Make rules carrying the force of law”
 Examples:
o Internal agency documents Not ‘force of law’
o General Rule making power Is ‘force of law’
 If so Apply Chevron Deference Test
 If Not
o Skidmore v. Swift & Co. Deference:
 Defer to agency actions that have the “power to persuade”
 Evaluate by looking at if the agency is consistent with what
its said in the past, relative expertness
 Largely Seen as less deferential then Chevron
 Agency will Argue That
 1. Chevron Test does apply
 Avoiding Skidmore
 2. The Case is a Chevron Step 2 Case
 arguing that it is not clear what congress’s intention was on meaning
 Step 1 Cases are more searching and exacting for Congressional Intention
 Is this True? Does it Really Matter What Step?
 Step 1 Cases EPA will lose about 60 % of the time
 Court will find statute was clear, and EPA mis-interpreted it
 Step 2 Cases EPA will win about 94 % of time
 Court is much much more deferential to Agency’s interpretation if Congress not clear
 Challenger has almost no chance
 Example and Application:
 1. When Agency issues its own internal manual about how to govern its own conduct
 Not subject to Chevron Deference Does not carry force of law
 2. Christensen v. Harris County
 Interpretation contained in an opinion letter did not warrant Chevron Deference
 Skidmore
Modern Process:
43
o
 1. Chevron Step 0 Question
 2. Either Chevron or Skidmore Apply
 3. Chevron Step 1 or Step 2
3. Judicial Review of Statutory Implementation:
 Citizens to preserve Overton Park v. Volpe:
 Addresses 2 Questions:
 1. An additional threshold Justiciability Question
 Does the case belong in court, or is it committed to agency discretion and therefore
prohibited from review according to §701 (a) (2)
 2. How careful should court review an agency decision?
 Chevron applies to the Agency’s own interpretation
 Overton Park applies to Agency’s implementation of the statute
 F: Park was 342 acres, Tennessee wanted to build highway through it. Secretary announced final
approval and it would destroy 26 acres. DOT statute required secretary use “feasable and prudent
alternatives” but he approved, giving no reason as to why. Π’s sue arguing that there were ‘feasable and
prudent alternatives’ and that there were possible methods to reduce harm.
 R:
 Threshold Justiciability of §701:
 APA applies unless
 1. Statute precludes judicial review
o Only applicable
 Congress must “show clear and convincing evidence of
legislative intent to restrict judicial review” Abbot Labs
 2. “When agency action is committed to agency discretion by law
o Only Applicable

“When statute is drawn so broadly that there is no law
to apply”
 Only applies then, to the broadest statute
 However: Mere existence of agency discretion does not
shield it from review, and is not enough because that would
negate §701 (a) 2 a: “arbitrary and capricious, an abuse of
discretion
 So its not merely agency discretion in the matter, but ‘no law
to apply’
 Here:
 There was law to apply the statute creates hierarchy of values…and says
“feasible alternatives”…showing there is law to apply here
 Does not have complete discretion over the matter, because statute says this
 So, it is reviewable
 What Scope of Review should court Use, then?
 Separation of Powers:
 1. If scrutinize agency decision too much, may infringe on Congress or
Executive
o Infringe on Congress’s prerogative to choose which branch to allow
agency reviewability
o Infringes on Agency’s authority
 2. If scrutinizes too little, becoming rubber stamp
o Infringes on Congress’s intent to allow court to review, contrary to
Congressional Intent
 So, all of these are balanced in the scope of review…balancing the check on
agency with infringing on separation of powers
 §706 (2) F: De Novo: Set aside agency action if, unwarranted by facts
 Non-Deferential
 Π’s will always seek this, but rarely applied if ever
 2 circumstances where applicable:
44
o
1. Where agency action is adjudicatory, and fact finding was
inadequate
o 2. Issues not before an agency are raised later in proceeding to
enforce non-adjudicatory action
 §706 (2) E: “Substantial Evidence Test”
 Generally:
o A deferential standard of review by courts
 Statute:
o “unsupported by substantial evidence in a case subject to sections
§556, 557 of APA
 Only applicable when:
o 1. Agency action is taken pursuant to rule making provision of APA
 §553
o 2. Or, when agency action is based on public adjudicatory hearing
 §556, §557
 Here:
o This was not formal rule-making as these statutes refer
 §706 (2) A:
 “Reviewing Court shall hold unlawful and set aside agency act found to be…arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law”
 General:
o A deferential standard that presumes validity, although seems nondeferential
o Court may not substitute its judgment for the agency’s
 Rule:
 1. Did the agency base its decision on relevant statutory factors?
 2. Did agency make any clear error in judgment?
 Modified by Motor Vehicle Ass’n v. State Farm:
o 1. Did agency rely on factors congress didn’t intend it to consider?
o 2. Failed to consider an important aspect of the problem?
 Fails to address factors statute made relevant
o 3. Offered an explanation that ran counter to evidence before it
o 4. If agency decision is so implausible that it could not be ascribed to
simply a ‘difference of view or product of expertise’
 Essentially Ask:
 Did the agency act rationally, providing reasons?
 Did it provide a cogent explanation for its action?
 Here:
 Court looked at the record, and it was lacking so couldn’t tell if it was arbitrary
and capricious
 Remanded for factual finding, testimony, records
 Secretary couldn’t explain, found arbitrary and capricious Blocked
 Overall Effect of Overton Park:
 Agencies have better records
 Have cogent explanation, so agencies’ had better records
 While these leaves them open to arguments on inconsistencies in the records,
they still have very elaborate descriptions of why they did what they did
___________________________________________________________________________________________________________________
The National Environmental Policy Act [NEPA: 42 USC §4321-4370]
 History and Basics:
o January 1, 1970
o The simplest of the statutes
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o
o
The most important
Goal and Purpose:
 §4321:
 “to declare a national policy…encouraging productive and enjoyable harmony between man and
environment”…
 very broadly, and perhaps most broadly stated environmental goals on record
 But Court has only recognized 2 goals and purposes
 1. “Think”
 To force government decision makers to incorporate and consider their environmental effects
 Consider the adverse impacts your decisions will have prior to implementing them
 Done through “Action Forcing” provision  The Environmental Impact Statement
 2. “Disclose”
 Disclose the internal deliberation process, considerations, so public can assess if agency acted
appropriately
o The Council on Environmental Quality [CEQ]
 NEPA created the CEQ
 Housed in the executive branch
 Primary overseer of NEPA
 Issues regulations on how to comply with NEPA
o How NEPA achieves Goals:
 §4332/ NEPA §102:
 Specifies 10 mandates all governmental agencies must comply with
 102 (c) Environmental Impact Statement
 The most important
 “Every agency must include in every recommendation…for legislation, or any other major
federal action significantly affecting the human environment a detailed statement on
‘environmental impact….’
 However, NEPA never specifies if it is judicially reviewable or enforceable
o NEPA is judicially reviewable  Calvert Cliffs Decision:
 F: Court considered a challenge to the Atomic Energy Commission that did not prodide and EIS
 R:
 1. NEPA compels agencies, and is judicially enforceable
 2. NEPA 102 (2) C must be complied with ‘to the fullest extent possible’
 difficult, delay or cost are unacceptable excuses
 3. Complying with NEPA is not APA §701 (a) 2 ‘agency discretion’
 4. Court may order agency to comply
 Exemptions:
o The First Question
o Generally:
 While NEPA creates a mandate for Environmental Impact statement, there are certain things that don’t apply
o 1. Categorical Exclusion or CATX:
 CFR §1508.4: “category of actions which do not individually or cumulatively have a significant effect on the
human environment no environmental assessment or impact statement is required”
 Created by CEQ
 Agency must:
 1. Properly create the categorical exclusion in question
 2. Does the action in question fit within the scope of the CATX?
 3. Even if it does, are there extraordinary circumstances that preclude reliance on CATX?
 What Counts?
 Replacing a Road
 Replacing a Bridge
 Routine administrative action
o 2. Judicial Interpretation of §102 Exemptions:
 §102: “Congress authorizes, to the fullest extent possible…”
46

o
Effect:
 Courts have interpreted this section of NEPA, to effect it as subordinate to an organic statute in some
circumstances
 1. When unavoidable, direct conflict between NEPA and organic statute
 Compliance is impossible as both are mutually exclusive
 Flint Ridge:
 F: Full disclosure act required statement on developments effect in 30 days, while
NEPA requires an Environmental Impact Statement
 R:
 Court held, it was impossible to create an EIS in 30 days, so there was a
‘fundamental conflict of statutory duty’
 2. When NEPA and organic statute are ‘functional equivalents’ and would be duplicative
 Catron County Bd. V. US FWS:
 F: Secretary of Interior proposed listing 2 species as endangered, creating critical
habitat for them. 74 miles of river—secretary said he was not required to comply with
NEPA, because the ESA was exempt. He finalized regulations and County filed suit
 I: Whether US FWS was required to create EIS?
 R:
 While the ESA has similar NEPA provisions, it is closely parallel
 Partial overlap, or fulfillment is not ‘functional equivalent’
o NEPA has things ESA does not
 Look at alternatives
o Responsibilities of the two are different
 NEPA looks at consequences while ESA deals with
economic and other impacts…they are not functionally
equivalent to make them duplicative
 Designating a critical habitat may affect local economy, roads, ranches, flood
control…compliance with NEPA considers these, while ESA does not
3. Other Exemptions:
 1. Emergency (§1506.11)
 If there is an emergency, and significant environmental impact from necessary action to occur, and it
really isn’t possible to complete an EIS
 CEQ will negotiate with agency to resolve
 Rare
 2. National Security:
 If an agency action will affect the environment, but is in the name of national security
 Courts often wont get involved at all
 Will simply accept the argument and will not scrutinize at all
 Weinberger v. Catholic Action:
 F: Navy claimed exempt from EIS for new storage facility of weapons. Π argued it would store
nuclear weapons so it had to provide EIS.
 R: Supreme Court allowed exemption, holding that making public through an EIS, classified
national security matters is exempt
 Winter v. NRDC:
 F: Nav was engaging in sonar training in water, which π argued would have damaging effect on
whales
 R: National security trumped, and no injunction had to be ordered
 Court did not even get into argument of restricted space
 They do not want to be responsible, or get involved for effect national security
 3. Enforcement Decisions:
 An agency refusing to enforce action against private party
 Court will not use NEPA to force Agency to explain how decision will affect environment
 4. Inaction:
 Failure to Act does not qualify for NEPA if:
47
 1. No statute requires agency to act
 If agency has discretion in choosing to act, no EIS will need to be prepared under
NEPA because they failed to act
 Failure to Act does qualify for NEPA if:
 1. If statutory duty to act and not acting violated this duty
 Defenders of Wildlife v. Andrus:
 F: Alaska was having wolf hunt on Federal land—π requested Dep’t of Interior to intervene, and
they refused to act
 Held:
 NEPA does not apply when no statutory duty to act
 Ramsey v. Kantor, 96 F. 3d 434 (9th)
 Reason:
 CEQ stated in §1508.18: states “Action includes failure to act…that is reviewable under APA”
 So, we go back to SUWA case and the rule under which an agency action can be
compelled under §706 (a) 1
 Only actions that are legally required can be…
 So agency inaction under NEPA simply a function of if required or not to be reviewable
 5. Non-Discretionary Act:
 NEPA does not apply when an agency action is required, and non-discretionary
 Rationale:
 Because it will occur either way, the EIS will make no difference
 But: If EIS is prepared, and public outcry, wouldn’t that reach legislature, who wrote
the laws forcing agency to act…possibly changing them?
 DOT v. Public Citizen:
 F: President ended moratorium on Mexican cars in America. DOT didn’t prepare EIS, and were
sued.
 R: This was non-discretionary act, as DOT simply had to issue a permit if cars complied with
requirements…they had no discretion on cars being there or not
 5. Congressional Exemptions:
 Congress frequently passes legislation that specifically exempts certain agency projects from NEPA
 EG: Alaskan Pipline
 Congress, sometimes, makes NEPA specifically applicable to an Agency or Project
 May occur in new appropriations
 Appropriation Rider, exempting some Agency from NEPA
 Is an Environmental Impact Statement Required:
o The Second Question
o Process:
 Assuming there are no exemptions, 3 elements must be met to mandate an EIS, that emerge from NEPA
 §4332 (2) (c):
 “Major Federal action significantly affecting the quality of the human environment…”
 If 1 or more of these 3 elements are missing, no Environmental Impact Statement is required
 Prepare an Environmental Assessment [§1508.9]:
 “A concise public document…that serves to briefly provide sufficient evidence and analysis for
determining whether to prepare an environmental impact statement or Finding of No Significant Impact
 A Mini-ESI
 Requirements:
 1. Analyze evidence to determine if significant
 2. Brief discussion of need for proposal
 3. Alternatives (same as in EIS)
 4. Environmental impacts of proposed action and alternatives
 5.
 If EA decides an EIS is not needed because lack of element
  FONSI: Finding of No Significant Impact
 §1508.13:
48
o
A statement which briefly presents reasons why no significant impact
will occur, and no EIS is prepared
Includes the Environmental Assessment
o
Effect:
o Bypasses entire EIS process
o FONSI is much quicker
 If EA decides an EIS is needed because all elements are evident
  Prepare an EIS

o

Element 1: Federal
 Generally:
 NEPA only applies to Federal Government Agencies, or Federal action
 §1508 (a):
 Action that potentially subject to federal control and responsibility
 §1508.18 (b):
 1. The adoption of official polices, such as rules, regulations, and interpretations pursuant to APA
 2. The adoption of treaties and international conventions or agreements
 3. Adoption of formal plans…which guide or prescribe alternative uses of federal resources, which future
agency actions will be based
 4. The adoption of ‘programs, such as a group of concerted actions to implement a specific policy or plan
or allocating agency resources to implement a statutory program or executive directive
 5. Approval of specific projects such as “permit, or other regulatory decision as well as federal and
federally assisted activities”
 Agency approvals of private projects
 Projects funded by Federal Assistance:
 State and local government may fall under NEPA “federal” action if funded by federal assistance, or
federal control or supervision
 Small Handle Problem:
 In these cases, there may be a link between the private/state project and the Federal government, but my
be so insignificant, or not of significant magnitude to bring it to be ‘federal’
 Split of Authority
 “The But For Test” Contra Colorado River Tribe v. Marsh:
 F: 156 acres of development project, but only federal permit required was for a sole
river bank stabilizer
 I: Is this significantly Federal, to require NEPA?
 R:
 Court utilized the “But For Test” stating, But for the permit being granted, the
project would not have occurred
 It was sufficiently Federal to Require NEPA to apply, because but for the
federal permit, no adverse effects would occur
 Winnebago Tribe v. Ray:
 F: Power company project was 67 miles long, laying transmission cable. A permit was
required for a 1.25 mile section that crossed the Missouri River.
 I: Was this sufficiently Federal to Require NEPA?
 R:
 Court rejected the but for test, saying that NEPA did not apply to the entire
transmission line
 That portion of the line had no adverse effects
 To Solve the ‘Small Handle’ problem of if it is sufficiently Federal, Test has been proposed:
 SW Williamson County v. Slater:
 “The Federal agency must be able to influence the outcome of a project
through sufficient control and responsibility”
o Not Seen as Helpful:
 Could argue they cannot control where project done
49
o
o
 Could argue that, but for the permit, no project could occur
Element 2: Action:
 Generally:
 Typically an obvious question
 §1508.18:
 Include new and continuing activities, projects, programs, new or revised agency rules,
regulations, plans, policies
 EG:
 Issuing a regulation
 Building something
 Remember:
 Agency inaction is no ‘action’ if not required by statute
 Inaction is an action and judicially enforceable only if it was statutorily required to act
 Inaction does not qualify for NEPA if it is not statutorily required to act
 See Infra Exemptions
 See Kleppe MUST BE PROPOSAL! 40 CFR §1508.23
Element 3: Significant:
 Generally:
 The Federal action must ‘significantly’ affect the quality of the human environment
 While §4332 (2) c, states “major” the CEQ has specified it reinforces, but does not have meaning
independent of significantly -§1508.18
 This is the most contested issue, and the threshold question for if an environmental impact statement is
needed, or if a Finding of no Significance is issued
 Framework:
 See EP Info. Center v. USFS For example on application of factors
 CEQ in §1508.27 specifies factors that must be evaluated to determine ‘significance’
 Context Factors:
 Looks at the Scope of the Action
 The significance must be analyzed in context of the action
 A smaller action evaluated in smaller locality
 If setting is larger, may need to consider significance to whole world
 Short and long term effects are relevant in context
 Intensity Factors:
 The severity of the impact, should evaluate:
 1. Beneficial and Adverse effects
 2. Degree to which proposed action affects public health & safety
 3. Unique characteristics to georgraphy, proximity to historic, cultural
resources…park lands
 4. Degree to which effects the quality of the human environment…
o If there is a physical impact to environment, consider the economic
and social impact
 Deals with urban environment, noise, traffic, etc…
 Must be causally related to physical impact
o Does not include ‘psychological harm’
 Metropolitan Edison v. People against Nuclear Energy: the
court rejected the use od psychological impact as significant,
thus needing and EIS
 Fear of risk, did not qualify as effect on human environment,
because the connection from physical impact to the impact
on people psychological harm was too tenuous and not
causally related enough
 5. Degree to which effects on human environment will be highly uncertain
o Uncertainty is significant, because we want to force agencies to think
of potential consequences
50
o



If it is uncertain, the potential is that it is significant, and forcing them
to consider it allows reduction of uncertainty and potential significant
impact
o Nat’l Parks v. Babbitt:
 Agency was uncertain about environmental impact of
increase in ships in bay. Court held that an EIS is mandated
whenever uncertainty may be resolved by further collection
of data
 Uncertainty is a reason to prepare an EIS, not avoid it
6. Degree to which action may adversely affect Endangered or threatened
species or habitat
o EP Info Center v. USFS:
 Look to the effect on the species, not individual members of
the species
 If the species deemed unaffected, even though 1 or 2 may
be, this seems to suffice as non-significant
7. Mitigation measures
o During an EA, agencies will include the mitigation measures of their
action
 This may reduce a significant effect, into simply an effect
o CEQ has allowed but:
 Only if mitigation techniques are legally enforceable
 Some Courts:
 Have accepted mitigated findings, even though they are not,
under NEPA, enforceable
 Other Courts:
 Have invalidated decision to FONSI, because mitigated
FONSI mitigation efforts were simply too general
o Cannot merely list…must be specificity
Standard of Review:
 §706 (2) a: Arbitrary and Capricious Review
 Courts may utilize this standard if factual question of ‘if significant’ and findings displayed
 Marsh v. Oregon nat. resources: established that Arbitrary and Capricious was the correct
standard of review, because it was factual question, searching, but narrowly applied
 While deferential to agency, experts and technicalities, still need to review the
administrative record under Overton Park…not simply a rubber stamp
 Evaluate what the agency has done to assess the significance of effect…
 If more of Question of Law:
 Some courts evaluate under ‘reasonableness test’
 Goos v. ICC:
 Court held that reasonableness standard of judicial review applied to determine whether
the elements of NEPA apply
 The Environmental Impact Statement:
o Purpose (§1502.1):
 The Purpose of an EIS is to serve as an action forcing device…It shall provide full and fair discussion of
significant environmental impacts, and shall inform decisionmakers and the public …
o Generally:
 Assuming that no exemptions apply, an Environmental Assessment has determined it is federal, action and
significantly effects environment
 When Environmental Impact Statement is Needed:
 1. Provide Notice of intent
 2. Scope of the Process
 3. Draft the EIS
 4. Agency and Public review and comment
51
o
o
 5. Final EIS
 6. Record Decision
 Question becomes Is the environmental assessment adequate?
Required Parts of EIS:
 §1502.13: Purpose and Need Statement
 §4332 (2) C:
 1. The environmental impact of the proposed action
 Adequacy of description of this is the most often challenged
 2. Any adverse environmental effects which cannot be avoided should the proposal be implemented
 3. Alternatives to proposed action
 Agency’s failure to address potential alternatives is often challenged
 4. Relationship between local short term uses of man’s environment and long term
 5. Any irreversible and irretrievable commitments of resources involved if action implemented
Adequacy of The EIS: Description of environmental impacts and Alternatives:
 Adequacy is a question that addresses the adequacy of the scope of the alternatives discussion and adequacy of the
scope of the environmental effects discussion
 1. The Overall Scope of an EIS that needs to be discussed §1508.25:
 Scope of an EIS consists of the range of actions, alternatives, and impacts to be considered
 Scope of Effects of Proposed Action (1508.25 (a) and (c))
 1. Look at the action
 Connected, closely related which should be discussed in same impact
statement (Segmentation issue)
o See Florida Keys Case, infra
 2. Look at cumulative actions—which when viewed with other proposed actions have
cumulatively significant impacts, and should be discussed together
 §1508.7: Cumulative impact results from the incremental impact of the action
added to other past, present, and reasonably foreseeable future actions
regardless of what agency or person undertakes them
o Can result from individually minor, but collectively significant
actions over period of time
 See Grand Canyon Case, infra
 3. Look at Similar Actions:
 when viewed with other reasonably foreseeable agency actions, have
similarities that provide basis for evaluating them together
 3. Impacts:
 §1508.8:
o Direct Effect: caused by action, occur at same time and place
o Indirect Effects: caused by the action, later in time or removed in
distance, population density, growth rate, ecosystem
o “effects and impacts” are synonymous.
 Look at 1508.27:
 These intensity factors need to be discussed in the ‘effects of an EIS’
 See supra discussion within the EA portion
 Significant environmental effects shall be discussed
 Must Discuss Mitigation measures
 See Robertson v. Methow Valley Case, infra
 Scope of Alternatives that must be discussed:
 No Action Alternative
 Reasonable Courses of action
 Mitigation measures

2. Issues arising with Element #1 Description of Effects:
 Generally:
 If an agency does not want to prepare an EIS, or minimize how ‘significant’ something is:
52



1. May break down a large project into many smaller projects so that little projects are
not significant or
 In an Environmental Assessment
 2. Show that, even if smaller projects are significant, each little piece seems not that
significant
 Each of these versions thwarts NEPA
 With these methods, objectors argue that it is an inadequate description or evaluation of the
environmental impact required in EIS requirement and wrongly limits scope 1, §4332 (c) 2; CFR
1508.25
1. Segmentation Approach:
 Florida Keys v. US Army Corps of Engineers:
 F: Safety improvements to a road were being made, in addition to fixing a bridge. Π’s
argued that these two projects were improperly segmented to avoid showing that project
is extremely significant. Wanted to minimize the effects of an EIS
 R:
 Does the project have independent Utility?
o “Will the project serve a significant purpose, even if the second
related project is not built?”
 If not may be improperly segmented, requiring 1
cumulative impact statement
 Does project commit decision makers to future action?
o If project stands on its own, may consider the effects of it individually
o If commits to a future action, strong argument that joint evaluation
needed
 EIS only applies to proposed actions, not hypothetical / theoretical
possibilities
o Pre-proposalProposalAction
 Here:
o Bridge was separate, distinct and had independent utility from safety
of road. There was no commitment to future action. Could be
segmented
 Segmentation:
 Typically occurs with Highways
 And, typically it is approved
2. Regional / Program Impact Statement:
 Generally:
 If an agency is performing a large program, which has a significant environmental
impact, Agency may try to treat the large program as individual projects.
 Either accomplishes
o # 1: Avoid an EIS all together
 by covering only additional impacts not covered in EIS of
program, making the FONSI
o #2: Make a site specific EIS, so scope is much narrower and seems
less significant
 Kleppe v. Sierra Club:
 F: π’s sought a comprehensive EIS of a region of Northern Great Plains. The Dep’t of
Coal Leases did a study, and already issued a Nationwide Program EIS on Coal and a
study on the Region. However, π’s wanted an EIS for the program within the Region.
 PH: Lower court overturned, saying that because the Dep’t had contemplated the
program, it had to make EIS for it
 R:
 1. §4332 (2) C says “EIS required when agency makes proposal for
federal action”
o Does not need to make an EIS when contemplated, or hypothetical
actions
53
o
Here, no proposal was made for coal mining in the Great Plains so an
EIS was not required

general background of location…for subsequent projects
potentially
 Judicial creation of 4 part test is illegitimate
 2. When is a Program/Regional EIS required?
o 1 comprehensive statement should be made when several proposals
that have cumulative or synergistic environmental impact upon a
region are pending concurrently before an agency…Their
environmental consequences must be considered together
 3. Suit brought under “arbitrary and capricious review”
o Technical nature of determining if proposals are interrelated, or
synergistic is also highly expertise dependent
 Defer to agencies
 Mere study in one region does not require 1 EIS
 It is a prelude to, and background to further action
o Therefore, deference to agency on if should be 1 or more EIS
 3. Effect of Kleppe:
o Agency may not need to perform an EIS until agency formally
announces proposal
 As long as they don’t say it, No EIS required
 Deference to agency
o CEQ did come out with regulation 1508.23, which creates test of
when proposal occurs
 Under this test, Kleppe would have bee decided opposite
 But, must consider whether Kleppe controlling or CEQ has
power to amend law to reverse court decision
 So far, no case has addressed if agency has this power, like
Congress’s power to do so
 Example of when Program EIS Required:
 NRDC v. Hodel:
 Plan for construction of more thermal power plants. The program contained
specific plans for regional development, and there was 1 plan. So, specific
projects within that program are interrelated according to an integrated plan
 Tiering:
 The opposite of the above, agency trying to get out of making 1…here agency wants
only 1 so it does not have to re-do
 §1508.28:
 “The coverage of general matters in a broad EIS (Such as national program or
policy statement) with subsequent narrower statement (Regional/Site Specific
program) incorporating by reference the general EIS. It is appropriate
when:
o 1. Statement is from program, plan or policy EIS of lesser scope or
site-specific statement
o 2. From an EIS on specific action at early stage to supplement or
subsequent statement or analysis at later stage
 Sometimes, if a program impact statement is created, it eliminates the need for sitespecific EIS within the program
 Decision is fact specific, depending on the courts evaluation of if sufficient
detail of site-specific impacts were covered in the more broad Program EIS
 2 Issues:
o 1. The Site specific inquiry is very specific, while Program EIS was
too broad
o 2. New subsequent environmental conditions have changed
54


Courts will not allow tiering to avoid site specific effects or
if new environmental information has come to light, that is
relevant to new project, since the broad program EIS was
created
Cumulative Impacts:
 General:
 §1508.25 requires discussion of the cumulative impacts
 1508.7:
o Cumulative impact is the impact on the environment resulting from
incremental impact of action added to other past, present, and
reasonably foreseeable future actions…regardless of what agency
takes them
 2 Effects:
 1. Agency may fail to consider adequately, the cumulative effects, so that the
description of them is inadequate
 2. Agency may fail to consider cumulative impacts such that it found FONSI,
so that its not significant
 Grand Canyon Trust v. FAA:
 F: FAA worked with local airport to determine if constructing a new one made sense. It
examined 3 alternative sites and no action alternative. In creating their EA ( remember,
cumulative impact is within EA and EIS) they concluded FONSI on Zion National
Park. Π argues that FAA only considered the incremental increase in impact of new
airport over the old one, rather then ‘addition of reasonably foreseeable future impact’
from the new airport.
 I: Was the FAA arbitrary and capricious, in failing to consider the cumulative noise
impact on the park, rather then additional noise impact from old airport to new one?
 R:
 1. §1508.7 says that you must consider the incremental impact added to..
o Here—they did consider incremental impact from new proposal
compared to old one
o May Not Isolate a proposed action in a vacuum…statute doesn’t
allow
 The old airport and new airport would have the same amount
of noise
o But you must add to that consideration, the future effects…additional
flights from a new airport
 Here there were many more flights added in future
 Future effect of each flight would be up to 23 times louder in
park…
 FAA did not consider this…only considered existing noise
impacts
o For baseline past and present actions…Must consider the current
cumulative impacts…of airport and
o Must also consider other present proposed actions
 Of noise from all other sources effecting this park
 Then, compare this to the new noise from the new airport
 Once have cumulative impact now, in light of all other effects on park, then
you can compare cumulative impact of new project’s effects on park
 Coal. On Sensible Transport v. Dole: p. 309
o Consider effects of other projects in baseline
o What if another agency considering that project?
 Could make an argument that statute says ‘regardless of
other agency…” 1507.8
 Issues with Cumulative Impact Question:
 Are future plans ‘sufficiently concrete’ to be considered within cumulative impact?
55



See Florida Keys: Future cumulative impacts of non-proposal was ‘pure
speculation and not required.’
 Proposal may occur, but future plans may not be concrete…
What is Reasonably Foreseeable?
 Agencies will argue, it is not a proposal under Kleppe
 Or, future cumulative impacts are not ‘concrete’ enough
Mitigation:
 NEPA requires discussion of mitigation measures
 Inherent in §4332 (2) C ii
 Inherent in idea that you discuss what cannot be avoided, is that you discuss
what can be avoided Mitigation Robertson
 Clearly in:
 1508.25(b)
o Mitigation measures Scope of discussion
 1502.14(f)
o Mitigation measures discussed in alternatives section
 1502.16 (h)
o means to mitigate adverse environmental impacts
 1505.2 (c)
o Requires EIS to state that all practicable means to avoid or minimize
Environmental harm be adopted, and if not, explain why
 Robertson v. Methow Valley Citizens Council:
 F: USFS granted permit to create a ski resort in a pristine meadow. EIS was prepared,
and had 5 alternatives. Some of the mitigation measures it proposed did not exist yet,
and others stated that unless taken, a significant impact would occur. It discussed direct
and indirect mitigation measures
 PH: π’s appealed the granting of permit. 9th Circuit said that the agency had an
affirmative, substantive duty to develop the mitigation measures, because the EIS had
found a significant impact would occur unless they were created
 R:
 NEPA is only procedural; it is not substantive
o It only requires that an agency discuss the requirements, not that they
have a duty to enact them
o Once identified, and discussed, NEPA is complied with
 Only prohibits uninformed not unwise action
o Mitigation is inherent in 4332 2 (c) ii
o But, while NEPA does mandate discussion it does not mandate that
agency actually take that action
 To Argue Mitigation:
 Post Metho Valley, Mitigation must merely be discussed
 General Courts uphold a discussion as adequate…but fact specific inquiry
 To argue it was inadequate:
 1. Vague
 2. Non-descriptive
 Cuddy Mtn. V. USFS (9th):
o USFS admitted timber sale would negatively effect an endangered
species, but proposed only a general description of the mitigation
measures
o “Broad generalizations and vague references to mitigate….does not
satisfy ‘arbitrary and capricious’ review under NEPA”
 Under Metho Valley: Courts may uphold mitigation measures discussed that
may not be successful:
o Laguna Greenbelt v. US DOT (9th)(p.319).
56
o
Requirement 2: Alternatives:
 Note:
 Alternatives applies to an Environmental Assessment also  §1508.9
 Strykers Bay P.291: (Court can only force consideration of alternatives)
 Defined:
 CEQ §1502.14:
 The Heart of the environmental impact statement
 Should provide environmental impacts of the proposal, and the alternatives in
comparative form, sharply defining the issues providing a clear basis for choice…
 2 Types:
 Primary:
 An action that is a whole substitute for agency’s proposed action
 Vermont Yankee Example of rejection of primary alternative
 Secondary:
 Retain the proposed action, but secondary alternative modifies it
 Makes changes that mitigate harmful environmental impacts
 Courts are more likely to accept that agency failed to consider secondary alternative
 Requirements:
 1. Environmental impacts of alternatives
 2. Consideration of a no action alternative
 The EIS/EA must consider ‘no action,’ remaining at status quo
 Helps create a baseline of where we are now
 Determines what effects avoided by staying or going forward with new project
 Overall, §1502.14 (2) / §1508.25 (b) requires it be considered as an alternative
 3. In an EIS, 1508.25 (b), mitigation measures of alternatives
 4. CEQ regulation §1502. 13 Purpose and Need Statement:
 Related to alternatives, an EIS requires a statement of purpose and need of action
 “Briefly specify the underlying purpose and need to which agency is responding in
proposing the alternatives including proposed action
 Effect:
 Narrows the range of alternatives of proposed project to what the purpose and needs are
 EG: if agency proposes to widen a bridge, and that is the purpose, don’t need
to consider alternatives that have no effect on congestion
 Possible Manipulation:
 An agency could narrow a statement so much that few, if any, alternatives exist
 Shrink purpose and need effectively there may be 0 alternatives
 Citizens against Burlington v. Busey:
 F: π’s argued that an alternative should have been considering the expansion
of a nearby airport. Not the one proposed. Same purpose, with less
environmental cost
 R:
o Purpose and need statement only stated that particular airports needs,
so other airports didn’t need to be considered
o Courts deferred to agency
 How many Alternatives dependent on:
 “Rule of Reason, as to how many alternatives”
 Vermont Yankee:
 Don’t need to consider everything possible
 Did interested Parties suggest alternatives in Comment Portion?
 Vermont Yankee
 Purpose and Impact Statement
 Vermont Yankee Nuclear Power Corp. v. Nat’l Resource Defense Council:
 F: π filed for 2 permits for nuclear reactors. 2 groups opposed application. Hearings ensued, draft EIS
issued and 2 groups disagreed in comment. CEQ revised alternatives in 1972 to consider energy
57
o
conservation, 1 year after final EIS. Groups filed suit, saying that EIS didn’t consider the energy
conservation alternative
 I: Whether agency must consider all alternatives, or a specified number of them?
 R:
 1. NEPA requires consideration of alternatives, but does not require it to consider
everything possible:
 Don’t have time or resources to ferret out unknown alternatives
 Alternatives evolve over time:
 Range of alternatives expands or contracts based on information acquired,
understood, or known
 Here:
 Energy conservation was brand new
 No information was known on the subject
 Not even CEQ had it at the time
 The burden is on the intervener to let the agency know of an alternative
 Must participate meaningfully to alert agency of an unknown alternative
 Cannot spring a new one on an agency in court
 2. The judiciaries role in determination of alternatives is limited:
 Court should not substitute its judgment for that of the agency’s Kleppe
 Note:
 Courts generally defer to an agency’s decision on the range of alternatives considered if it appears
sufficiently comprehensive and there is no attempt to eliminate alternatives that could be viable
 But:
 California v. Block:
o Court held that alternatives considered were inadequate…should have
considered that artificial water storage was alternative to using pond’s
water…which would be environmentally devastating
 Statutory Modification to Alternatives Requirement:
 Congress has responded by modifying this requirement as it applies to transportation projects…
 Gives agencies the ability to determine what alternatives are needed and should be considered
Is NEPA Procedural or Substantive
 Robertson:
 NEPA has no substantive component
 It is solely a procedural statute
 EG: Agency identifies a proposal as severly damaging and an alternative as no impact…If it
chooses the severerly damaging option NEPA has been satisfied…merely requires procedure
of discussing its requirements
 Courts cannot prescribe a remedy under NEPA if agency merely chooses unwisely
 Only if chooses uninformed, from not following procedures
 What Possible Causes of Action:
 1. Argue an EA/EIS is inadequate
 Procedural Argument:
 A. EIS was inadequate
 B. You prepared an EA, when should have prepared EIS
  Remand
 C. You did not include enough information to reach the conclusion you reached (Court
may remand to enforce 2 overarching goals of NEPA):
 Lack of Information to make informed “Think” decision
 Lack of Information to make available to public
 D. You had a Federal, Action, ‘proposal’ and therefore must have a NEPA—not
covered by exemption
 2. Argue the decision is arbitrary and capricious
 If adequate, wont find Arbitrary and capricious under NEPA, but:
58
 Could make an argument that, while NEPA has been met, the Agency decision is still arbitrary
and capricious under the organic agency statute
 Overton Park and State Farm
 If Factors not considered, that were required under Organic Statute, may be
able to make Arbitrary and Capricious Argument
o But, many organic statutes don’t have factors
 Will be difficult then



Remedies:
 1. Remand for compliance
 2. Injunction of project, pending NEPA compliance
 Test:
 Balancing of Equities:
 Compare harms of issuing an injunction to failure to issue in addition to
probable success on merits
 Mootness: If one not issued, mootness will become issue
 By the time agency finishes, NEPA will be irrelevant because case is moot
 If Injunction granted Become Permanent?
 Winter v. NRDC & Monsanto v. Geerstein Seed
 Make it much more difficult to gain a permanent injunction
o Test:
 Must show that π’s would suffer irreparable harm that
outweighs the harm that would result from failing to issue
the injunction
Success of Agencies:
 Agencies fare very well
 Most cases do not get to injunction question
 Makes the most sense for the agency to simply comply with NEPA, create an EIS and then make
whatever decision they want
 If they realized this, they would do so
 USFS repeat offender, has not gotten the point
Overall:
 NEPA is common suit
 The mere threat of a potential injunction is enough to force agencies to comply, because they do not want
their plans derailed
___________________________________________________________________________________________________________________
 The Endangered Species Act [ESA]:
o Case Cross-Reference:
 Gibbs; Catron County; Lujan II; TVA v. Hill; Cape Hatteras; Babbitt v. Sweet Home; Defenders of Wildlife v.
Andrus
o Policy:
 Species are extincting at highest rate in 65 million years do to unlawful taking of them, degradation of habitat due
to development, timbering, mining, damming, pollution, etc…
 Reasons:
 Utilitarian:
 1. Species are useful to us
 The benefit us in prescription drugs (25% come from plant), crops, etc…
 2. Invaluable
 There are inherent hidden values that we simply don’t know about
 These uses, if lost, will be lose to humanity of potentially unquantifiable amount
 3.The healthiest ecosystems are richest in biodiversity
 4. “Canary in Coal Mine”
 Death of species may alert us to issues, as a species may be more susceptible then us to
an adverse effect
59

Their extinction shows something is extremely wrong
 EG:
o Coral death in water alerted scientists, which identified a harmful
bacteria to humans

o
o
Ethical:
 We have duty to future generations to conserve these resources
 Arrogant to kill
 We have just as much a right to continue on as they do
 Leopold Land Ethic and Ecological Conscience
 Esthetic:
 Beauty
 Valuable:
 Study has shown Nature is worth $5T a year
 Deforestation costs 4.5T/year
 Wetlands contribute $3.5T
 Millions travel to see nature
 Beneficial to our economics
 Congress was cognizant of all of these reasons and decided to create the ESA
 Criticisms:
 Congress voted for different Picture:
 Thought of Big Animals:
 Cranes, Eagles, Grizzly Bears, Big Cats
 Did not think of:
 Flies, Owls, and fishes
 Protecting smaller ‘insignificant’ animals constrains land
 Environmental Policy has improperly constrained economic management
 Species protected are not as important
 The most hated statute
Our Focus:
 §4 [1533] Determination of Endangered Species and Threatened Species
 Listing
 Designation of Critical Habitat
 §9 [1538] Prohibited Acts
 Prohibits taking, and applies to Federal Government and Individuals
 §7 [1536] Interagency Cooperation
 Obligates agencies to comply
 Analogous to NEPA §4332 2 (c)
 Both only apply to Fedeeral Agency and not Private Sector
 Difference:
 ESA has substantive component  Not entirely procedural, like NEPA
Generally:
 1973
 Administered By:
 Fish and Wildlife Service
 Department of Interior
 Marine Fisheries Service
 §2 [1531] Purpose:
 “To provide a means whereby ecosystems upon which endangered species and threatened species depend
may be conserved, to provide for a program to conserve them and to take steps to achieve this”

§3 [1532] Definitions:
 Conserve:
 “Mean to use all methods, procedures…to bring any listed species to the point where measures
provided pursuant to this chapter are no longer necessary”
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
o
o
Endangered Species:
 Any species in danger of extinction throughout all or a significant portion of its range other then
certain bugs…
An Overview of the Act:
 Tennessee Valley Authority v. Hill:
 F: TVA was constructing a dam. During the construction, it was discovered that a 3 inch fish, the snail
darter, was found in waters—and would be killed if the dam was built. The secretary listed the fish as an
ES, and fish would be adversely affected. However, appropriations continued for dam. Citizens filed suit
 I: Does result violate ESA – What is the appropriate Remedy?
 R:
 1. Result would violate § 7 (a) 2
 This requires that federal agencies insure their actions not jeopardize the existence of a
species or result in destroy/adversely modify its critical habitat
 Court held This language is clear
o “Admits of no exceptions”
 Here Building would jeopardize species
 TVA Argues:
 1. Grandfathered out, because dam construction began prior to ESA birth
o No: The Dam is not finished, and therefore must comply with the
ESA’s clear mandate
 2. Exempt because congress continued to fund money
o “Implicit repeal by Congress is disfavored”
 If merely funding a project could repeal substantive
legislation, almost every appropriations measure would be
questioned about repealing some substantive legislation
 2. Congressional Intentions are Clear that Endangered Species get Highest Priority
 Language, structure show
 Legislative History shows desire to devote whatever needed to accomplish this
 Purpose Statement in 1531 is broad
 No Ambiguity—“Conserve means to bring to where ESA not needed”
 §7 specifically prohibits Federal Agency Action that jeopardizes
 It is clear, that Congress intended to end these actions at all costs
 Therefore, mid project, whenever…Congress foresaw the §7 would
sometimes require agencies to alter/halt ongoing projects because of
priority granted to Endangered Species
 Final version of Act, omitted any reservations in Senate discussion
 3. Remedy:
 The Court may not balance the equities to determine an injunction
 Congress has ‘already struck the balance’ in favor of Endangered Species
 They have the highest priority
 Congress’s Clear intention
 Separation of Powers:
 Congress clearly intended that any jeopardizing be halted
 Court may not then balance the equities…legislature has
 Not Function of Court
o ES are Technical
o Court cannot simply redo congress’s intent
§ 4: Listing of Species and Critical Habitat:
 The Listing Process:
 §3 (6): Endangered Species: species which is in danger of extinction throughout all or a significant
portion of its range other then certain bugs
 §3 (20): Threatened Species: Species which is likely to become endangered within the foreseeable future
throughout all or a significant part of its range
 Difference:
61


Degree of immediacy of extinction
Listing is critical, because under TVA v. Hill, government has mandate to protect


1. §4 (a) 1:
 Secretary determines what species are endangered or threatened
 Look at Factors:
 Present or threatened destruction, modification, of its habitat or range
 Overutilization
 Disease or predation
 Other natural or manmade factors
 § 3(16): Species:
 Subspecies of fish, wildlife, or plant, vertebrate fish, interbreeds…
 §4(b) 1 (A) To determine Listing of Species:
 2. Only use the best scientific data available to him after reviewing status
 May not consider economic impact of listing!
 Reviewability of Listing:
 Courts may defer due to technicality, unless agency departed from mandate of statute
The Critical Habitat Process:
 Generally:
 Does not always occur, only does in about 18% of listings
 §3 (5): Critical Habitat:
 specific areas within geographic area occupied by the species, at the time it is listed, which is
essential to the conservation of the species and
 Geographical areas outside are occupied, if secretary determines that area is essential to
conservation
 Except when Secretary determines, critical habitat does not include entire geographic area
occupied
 1. § 4(a) 3(A):
 Secretary shall determine to maximum extent prudent and determinable
 Concurrently with listing, designate a ‘critical habitat’
 §4 (b) To determine critical habitat:
 1. Look at the Best scientific data available and
 2. Economic impact of designation
 3. Impact on National Security and any other relevant impact
 The Secretary may exclude an area from critical habitat if he determines the
benefits of excluding outweigh the designation as critical habitat
o Reason:
 If FWS proposes rule to designate critical habitat, owners of
land may rush to develop that land, rendering it useless for
designation as critical habitat
 Defeats purpose of ‘designation’
 Here then, Secretary may exclude…
o Courts are Split on excluding:
o NRDC v. US Dep’t of Interior:
 F: FWS failed to designate a critical habitat, arguing that the
designation would risk threat that public would enable
people to develop quickly and that designation wouldn’t
appreciably benefit species
 R: 1. Court disagreed with ‘increased threat rationale’ as
inconsistent with duty to balance the listed factors
 Cape Hatteras Access Preservation Alliance v. US Dep’t of Interior:
 F: FWS listed the Piping Plover as endangered. The designation of a critical habitat requires that
the ‘economic impact’ be considered in deciding. Here, the designation did occur. Π business
corporation sued arguing that the designation adversely effected tourism, and economics.
 I: To what extent does economic impact play in designation?
62
 R:






1. There is a Circuit split of which ‘analysis framework’ to utilize 10th Circuit
Functional Equivalence or D.C. Circuit ‘Baseline Approach’
 Here The Court denounces the “Functional Equivalence Approach”
“Functional Equivalence Approach”
 The FWS had a long standing policy that the listing of species and the
designation of critical habitat were cumulative, and redundant
o Thus, a project that won’t jeopardize a species won’t degrade a
critical habitat
o This effected ‘Economic Analysis’ and § 7 Consultation
“Baseline Approach”
 Evaluate the world before the critical habitat designation with the world after
DC/5th/9th View of Functional Equivalence on § 7 Consultation:
 1. FWS had Policy that designation was redundant and duplicative to listing
 2. § 7 requires a ‘consultation’ when agency ‘jeopardizes’ species or
‘adversely modifies a critical habitat’
 3. FWS defined ‘jeopardize’ and ‘adversely modify’ the same: “action that
reasonably expected to reduce… both survival and recovery”
o defined the same due to their policy
 4. This means, because of ‘and recovery’ that the consultation would
occur only when ‘survival’ was at risk, and not only ‘recovery’
 Reasoning:
o Therefore, consultation won’t occur when an agency ‘adversely
effects’ a critical habitat, which in § 3 is for ‘conservation’ which is
designed for the recovery of the species, so that ESA is no longer
necessary
 So the functional equivalence doctrine frustrates the purpose of ESA:
o Underprotects species recovery by essentially prohibiting a
‘consultation’ when ‘conservation’/recovery is effected, limiting it
only to survival
o This is contrary to the ESA’s Purpose to ‘conserve’ or recover
 Statute requires consultation when species is ‘jeopardized’
or for actions adversely effecting ‘conservation’ efforts. And
functional equivalence undoes the latter…contrary to statute
 Overall:
o Under protects species
 Does not require the consultation of affected critical habitats,
which would have led to RPAs to promote
conservation/recovery, pursuant to goal of ESA
 This hampers recovery, that would have been benefited by
the §7 consultation
Effect on Economic Factor in Designation of Critical Habitat:
 Functional Equivalence treats the listing and designation of critical habitat as
essentially the same
o So, because listing and designation treated the same, there will be no
economic impacts of designation above those at listing
o But using the functional equivalence test means that there will always
be no economic impacts at listing… so never consider them
o But ESA mandates they be considered in §4 (b) So Functional
equivalence cannot be right
 Designation can have economic impact above and beyond listing
DC/5th/9th View of Baseline Approach:
 A reasonable method for assessing the actual economic impact of designation
 The world with designation must be compared to world without it
 World Without designation (Baseline):
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Includes the listing…but the economic impact of lising cannot be
used to designate or not…that would then be looking at economic
impact of species listing, which ESA says you cannot do
§ 7 Interagency Cooperation and Not-Jeopardizing Species
 General:
 Only applies to federal government
 §7 Process:
 1.§ 7 (a) 2
 Each Agency shall consult with the Secretary to insure that any action it takes is not likely to
jeopardize the continued existence of endangered species or threatened species or destroy or
adversely modify its critical habitat
 2. § 7(c) Biological Opinion:
 Secretary shall determine if Species is located in that area and
 If Jeopardy or adverse modification will occur
 If Not  Over
 If Yes
 Give Reasonable and Prudent Alternatives (RPAs)
 The secretary will give changes to be made to agency action to avoid jeopardizing or
adversely modifying crticial habitat
 3. Judicial Review:
 If Agency follows RPAs  Likely OK
 If agency does not follow RPAs:
 While not required to, it is more likely to be held to violate the no jeopardy provision
 “Aribtrary and Capricious Standard”
 Idaho Dep’t of Fish & Game v. National Marine Fish Service:
 F: The biological assessment issued focused on the years an endangered fish
stayed alive
 R:
o Baseline life expetency to determine if jeopardized was low
compared to other numbers that had been used in the past
o It could have resulted in higher protection…but didn’t
o Arbitrary and Capriciosu
 Gifford Pinchot Task Force v. US FWS:
 F: Biological assessment used a ‘population proxy’ calculation
 R:
o Court held this was acceptable and not arbitrary and capricious
o Had detailed account of how to use calculations, which were accurate
o ESA did not specify…so not arbitrary and capricious
 4. § 7 (e) Exemptions:
 In certain circumstances, “The Endangered Species Committee” may exempt an agency from
following §7 a (2)
 National Ass’n v. Defenders of Wildlife:
 F: Under the Clean Air act, states may apply for ability to grant permit. 9 criteria are set out, which EPA
must grant permit to state if met. However, § 7 of the ESA ‘no jeopardy’ provision provides that each
agency shall insure action doesn’t jeopardize endangered species. Concern was that if ESA gave permit to
Arizona, they would not have to abide by ESA, because §7 ESA only applies to federal government.
So then, Arizona could simply grant permit without considering ESA. EPA approved permit program
grant to Arizona.
 I: CWA has only 9 elements to consider, while ESA has 1. Does ESA become another element to
consider under the CWA?
 R:
 1. The FWS interpreted its own statute:
 §420.03
 “§7 only applies to discretionary federal involvement”
o
o
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o
o


If action is not discretionary, §7 does not apply
If discretionary, §7 applies
 2. Court Disfavors “Repeal by implication”
 Argument that one bill came after, so repealed reject
 Court disfavors repealing by implication
 Will not assume the ESA repealed the CWA, unless “clear statutory evidence”
o Later statute must explicitly contradict
o Implied Repeal must be absolutely necessary to afford statute
meaning
 If this approach it used, it creates precedent to simply overturn older statute based on
newer one that seems to be in contest…Bad precedential value
 2. Chevron Test:
 The statute is very ambiguous
 This signals that Congress’s intent was not clear
 Step 2 “Reasonable interpretation”
 Based on Statute this is reasonable
 Harmonizes the 2 statutes
 Avoids ‘Implied Repeal’
 § 7 says ‘insure’
o You can only insure something when it is discretionary…if not, you
cannot insure anything
 3. This is in line with TVA v. Hill:
 Although there, the Court said there were no exemptions, that action was
discretionary…so §7 applying made sense and is in line with decision today
Stevens Dissent:
 1. TVA v. Hill said ‘§7 admits of no exception’
 This decision subordinates the ESA, which is contrary to the purpose
 2. The statute simply states that §7 applies to ‘discretionary’ action, but not only
discretionary action
 Majority—there is no reason to have superfluous statute
 3. Even if §7 limited to discretion EPA Has discretion in applying 9 factors
 So, because its discretionary §7 should apply
 EPA has discretion in many areas
 Majority—some discretion is not enough…statute does not clearly grant discretion, but
instead, seems to limit discretion to those elements
National Homebuilders Effect:
 The issue becomes whether agency authority, under many statutes, is discretionary or not
 If the Court interprets no discretion, then §7 simply does not apply
 Then, there is not much of §7 left
 Counter Argument:
o If §7 begins to erode and erode, one could argue that it begins to
seem as though Congress placed it there superfluously…which
cannot be correct
 Arbitrary and Capricious Review:
 What if agency makes a decision, but then changes its mind?
 Arbitrary and Capricious Inconsistent application to regulated entities
 Not Arbitrary and Capricious If better policy, and good reason they should
change it
 What if agency changes mind because of change of administration of government and
new appointment?
 Not Arbitrary and Capricious
o New presidents have the right to do so
65
o
Could argue that factors are being considered that are not in
substantive act…Political issues…?
 §9 What is Prohibited under the ESA
o General:
 Unlike the remainder of ESA, § 9 applies to ‘any person’
 §3 (13):
 Person means an individual, corporation, partnership…other entity
 1. § 9 (a) Takings Prohibited
 It is unlawful for any person to
 Import an endangered species
 Take any endangered species within the US or in territorial sea of US
 §3(19) Take:
 Take means ‘harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or attempt to do any of those…
 Possess, sell, deliver, carry, transport…any endangered species
 Does not include plants
 Applies to threatened species as well:
 While not on its face, §4 (d) allows the secretary to make protective regulations for ‘threatened
species’ whenever he deems it necessary to conservation of that species
 Has extended §9 to threatened species as well
 2. §10 (a) 1 b Incidental Take Exemption
 Secretary may permit…
 An act otherwise prohibited, for scientific purposes or to enhance propagation or survival of
species
 Any taking otherwise prohibited by §9, if such taking is incidental to and not the purpose of
carrying out an activity
 3. Violation of §9 §11:
 A. Civil Penalties
 B. Criminal Violation
 Up to $50,000 and 1 year in prison
o Babbit v. Sweet Home Chapter of Communites:
 F: §9 makes it unlawful to take an Endangered Species. But, the act does not define ‘take’ beyond what §3 (19)
says. Take is defined as ‘harass, harm…’ any species. The FWS has interpreted ‘Harm’ as meaning ‘act which
‘significantly modifies that habitat or degrades it’. The Logging companies argued that this is beyond what the
definition means.
 PH: District Court said that ‘take’ means directly killing an animal, but not doing something that has the effect of
killing an animal. So, §9 cannot be read as the definition FWS created.
 R:
 1. FWS interpreted its own statute defining ‘Harm’:
 An act which actually kills or injures wildlife. This includes significant habitat modification or
degradation, where it actually kills or injures wildlife be impairing essential behoivor patterns
 2. Π’s argue:
 Only §5, §7 are other methods to protect species
 Senate had more extensive language, and then erased it—showing its intent
 ‘Harm’ was added on floor without debate, so it could not be given significant weight
 No In ESA Secretary has broad discretion act/ Congress delegated authority
 This is a Chevron Step 2 Question
 1. The Broad purpose of ESA is to protect species and its habitat
 FWS definition then is reasonable
 2. Complies with TVA v. Hill broad protection of species
 3. §10 allows ‘incidental take’ permit, but not purposeful permit
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


o
Congress specifically prohibits purposeful killing, but you need a permit to
incidentally kill
 So killing other than direct was within Congress’s intention
 Therefore D.C. circuit is wrong…Take cannot only mean purposeful, if
congress thought of incidental If they were right §10 would be meaningless,
which is not right
 Reasonable
Limits on Take including ‘significant habitat modification and degradation’
 Proximate Cause and Foreseeability
 There must be a proximate cause between the habitat modification and the actual
death, harm
 There is a limit…
Effect:
 Had FWS not won, their sole recourse to assist the habitat would have been §5
 §5: Secretary may use the land acquisition, to acquire…purchase…lands and waters
Issues:
 1. If new administration comes in, and amends the agency interpretation of ‘Harm’
 Chevron deference? Or Arbitrary and Capricious?
 It greatly depends on what the Court decides
 2. Does Death Actually have to occur?
 Harm:
 in the definition of "take" in the Act means an act which actually kills or injures wildlife. Such act
may include significant habitat modification or degradation where it actually kills or injures
wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or
sheltering.
 May be difficult if death or injury does not ‘actually occur’
 Harass:
 Also part of ‘Take’ was defined by the FWS
 “in the definition of "take" in the Act means an intentional or negligent act or omission which
creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly
disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or
sheltering”
 This could justify that only need to be ‘likelihood’ of injury…
 Cases:
 American Bald Eagle case:
 When argument ensued that ‘harm’ included potential injury, court declined
 •NWF v. Burlington Northern R.R., (9th Cir. 1994):
 “a definitive threat of future harm to protected species,” can violate § 9 but “mere speculation”
cannot.
 •Forest Conservation Council v. Rosboro Lumber, (9th Cir. 1995):
 “harm” included proposed logging that was reasonably certain to injure the owls by significantly
impairing their behavioral patterns.
 Marbled Murrelet v. Babbit:
 ‘Reasonably certain’ threat of imminent harm to protected species was sufficient to get injunction
 Included harm to breeding
 3. Failure to Act and Inaction
 May failure to act create a “Taking” under §9?
 Scalia (dissent in Babbit v. Sweet Home)
 Says No
 Harm:
 “an act”
 It would be difficult to argue that ‘inaction’ was a taking under ‘harm
 Harrass:
 §7 (a) 1:
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
“All other Federal agencies…shall carry[] out programs for conservation of endangered
species”
This may create a duty to act

 Harass:
 Says “Act or omission”
 Therefore, an argument could be made under §706 of APA to compel agency action, which §7 (a)
1 gives them (Inaction led to taking). Could also argue that their inaction was a taking because it
‘harassed’ and ‘created likelihood of injury to wildlife…
 But:
 You would still not reach as far as “harm” does…which extends beyond the animal to
its habitat
 You would have to argue that ‘behavior patterns’ were affected by affecting its
habitat…
___________________________________________________________________________________________________
THE POLLUTION HALF OF THE STATUTES
 Risk Management of Pollution is our concentration:
o Ambient/Risk/Harmed Based Approach:
 Clean Air Act is representative of this
o Technology Based Approach:
 Determine what the best available technology is capable of, and mandate that level
 Essentially ‘do the best possible,’ with the goal that the end result will be acceptable
 Clean Water Act is representative of this
o Market Based Approach
 The belief that the above 2 approaches are too costly for their results
 Use the free market to achieve environmental sustainability at the lowest cost capable
 EG: Tradable Emissions, straight tax on emitters
o Liability Based Approach:
 Essentially, Common Law incarnate in statute—Superfund Statute
 1. It is fair to be held liable for compensation if you harm someone
 2. Deterrent Effect
o Other—Outright Ban or Prohibition
 Some substances are strictly banned, with no amount of emissions available
 Largely disfavored due to draconian consequences
o Each statute we focus on will have a mix of the above…not merely one
 Some statutes have changed over time
 CAA has moved from ambient/risk based to technologically based
 CWA has moved from technologically based to risk/ambient based
The Clean Air Act
 Case Cross-References:
o Mass v. EPA; Engine Mfrs. Ass’n v. S. Coast Air Quality; NRDC v. Train; Lead Indus Ass’n v. EPA, Va. v. EPA, Sierra
Club v. EPA
 History:
o Created in 1970, it was a result of terrible air pollution
o Denore Story
 Smog, made up of So2 and CL, from a Zink plant near Pittsburgh, settled over the town and killed people
 While many years after Denore, stories like this led to the creation of air pollution laws
o Has Been Effective:
 The reason we don’t really have this anymore, is the CAA  But other countries still suffer
o Original Vote:
 Was 374:1 In the House
 Today This would be impossible!!!
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
Why:




In 1970s, (infra) urgency of Environment was national agenda…now it has subsided
Possibly due to these laws being passed
Not as immediate threat and ‘out of sight out of mind’/ NIMBY still seems employed
Industry is strong—especially in a weak economy with people suffering—last thing they want is
spend money on environment, when they don’t have a job
Pollution’s Effects:
 Smog (O3) has been shown to cause lung disease, and death in US—thought to be responsible for 400,000/year
 Used Risk Assessment to determine what the probability of effects were, and to determine what the most harmful
chemicals were—Regulate those
 However Gets into issues of environmental justice, and distribution due to wind effects
 Someone is paying for permit, but locals don’t get effects….someone thousands of miles away may
Different programs under the Clean Air Act
o 1. NAAQS
 There are currently 6 chemicals
o 2. Emissions Standards
 Technology Based: EPA must mandate, and revise, standards to best technology available
 National Uniform New Source Standards: For all new sources, Technology standard applies
 Uniform National Emissions for Hazardous Pollutants:
 §112
 A function of the 1990 amendments, giving Congress place to establish which pollutants it deems
hazardous
 There are currently 189 chemicals listed
 Technology Based Standards for Vehicle:
 §202 (a)
 EPA shall create a list, and revise it, to create standards from any class or classes of new motor
vehicles, which in his judgment (1) cause or contribute to air pollution and (2) which may
reasonably be anticipated to endanger public health or welfare
 Case Cross Reference:
 Engine Mfr’s Ass’n v. South Coast Air Quality Mgmt (infra)
Clean Air Act Purpose:
o §101 (b): The purpose is to protect and enhance the quality of the Nation’s air resources so as to promote the public health
and welfare
Method of Regulation
o The Clean Air Act is an Ambient/Risk based approach to regulating pollution
 It sets an ultimate goal, by using scientific assessment, and then requires we reach that goal by a certain date
 However, through amendment, it has certain technologically based risk management approaches also
Process of the NAAQS Program:
o 1. Determine the maximum possible concentration of pollution allowed into air to achieve goal (NAAQS)
o 2. Calculate the maximum aggregate emissions level in an area that will not go above that concentration (SIP)
o 3. Divide up the aggregate number among polluters, allotting an amount to each (Permit Programs)
o Quick Synopsis of Process:
 1. §108: Make a list of air pollutants it deems meet the §108 criteria
 This list is based on scientific data that they are harmful
 Create “air quality criteria” for that substance
 Becomes “Criteria Pollutant”
 2. §109: Create a National Ambient Air Quality standard [NAAQS] for each criteria pollutant
 b (1): Primary NAAQS Standards: purpose is to protect people/public health with adequate margin of
safety
 b (2): Secondary NAAQS Standards: purpose to protect public welfare
 §302 (h): effects on soils, water, crops, vegetation, manmade materials, animals, climate…
 Anything that isn’t public health is welfare
 Rarely used or issued separately
 Some Pollutants:
o




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


o
o
 Have 2 NAAQS for short and long term
 Designed to avoid acute contact and chronic contact
 We are unsure of what exactly the effect is, so this avoids short and long term to make sure
3. Informal Rule Making:
 Issue Proposed NAAQS
 Solicit Comment
 Receive Comment and Consider
 Adopt Final Version
4. §110: State Implementation Program
 How state will attain the NAAQS level
 States have primary responsibility for designing and implementing plans to achieve NAAQS §107 (a),
§110
 If Dirty Non-Attainment area (varying in degree)
 If Clean Prevention of Significant Deterioration (PSD)
 There are sanctions if not complied with
5. Enforcement:
 §113: civil and criminal penalties for statute and regulatory violations
 §304: Citizen suit provision
 §307: Judicial Review
6. Non-attainment and Prevention of Significant Deterioration Permit Programs

Overall:
 The EPA has only adopted 6 criteria pollutants with NAAQS over the last 40 years
 Ozone—Lead—Sulfur Dioxide—Nitrogen Oxide—Carbon Monoxide—Promethium
 Reason:
 1. Because the Clean Air Act has other programs within it, NAAQS being one, there are other means to
regulate other pollutants
 The Hazardous Air Pollutants §112 method there are 189 listed in that program
 Also Acid Rain program and Stratospheric Ozone program…while our concern is the NAAQS
program
 Regulating these pollutants does not mean the regulation only effects these 6…regulation has
effects on other pollutants, limiting them as well
 2. There have only been 6 because, at that level, EPA has had a difficult enough time, and does not want
to infringe on States too much
Step 1. §108: What substances get Air Quality Criteria, and NAAQS:
 §108 (a) 1:
 To create NAAQS for primary and secondary, the EPA Administrator shall make a list, and periodically
revise it, for each pollutant:
 a. The emissions of which, in his judgment, cause or contribute to air pollution which may
reasonably be anticipated to endanger public health or welfare and
 b. The presence of which in ambient air results from numerous or diverse mobile (car) or
stationary sources (plant).

§108 (a) 2:
 Within a year of substance being on the list, EPA Administrator must issue “air quality criteria”
 Air Quality Criteria accurately reflect latest scientific knowledge useful in indicating the kind and extent
of effects on public health and welfare from presence in ambient air
 Air Quality Criteria: Is simply scientific data, that tells about the effects of exposure at various
levels we are exposed to it
 Risk Assessment

NRDC v. Train:
 F: Citizen suit brought to compel EPA to place lead on the list of air pollutants under §108 (a) 1. EPA
Argues that 108 (a) 1 a, and b are met…but says it must also meet c, which says “which are planned” and
70
o
that it had no plans to list lead. Furthermore, it argues that already is limiting lead under §7545 emissions
program.
 R:
 1. The EPA has a mandatory duty to list a pollutant, if 108 A 1 a and b are met
 C, was not meant to be part of the test, but to deal with past issue has no substantive
effect
 A & B are only test
 EPA has no discretion, once A & B are met
 2. If this duty was discretionary, it would be Contrary to Congress’s Intent:
 Congress intended 109 and 110, which automatically turn on if 108 met, to regulate the
NAAQS, because states were dragging their feet originally
 If EPA had discretion, it could delay regulating forever
 Even if EPA is regulating under §7545 Fuel Program, regulating lead, that will make it
easier for states to comply with their State implementation programs then
Step 2. §109 National Ambient Air Quality Standard:
 §109 a (a): The administrator shall publish an NAAQS for each listed criteria pollutant in §108
 §109 (b) 1:
 After a reasonable time for Notice and Comment
 NAAQS shall be standards, in the judgment of the administrator, based on criteria allowing an adequate
margin of safety, and a level to protect the public health
 While EPA is supposed to, under §109, issue both for primary and secondary standards, it does not
typically
 Consider Uncertainty of Harm, Size of effected population, Severity of effect
 Risk Assessment used to manage
 Lead Industries Association v. EPA:
 F: the Petitioners contest the listing and NAAQS created for lead. They argue that 1. the EPA should
consider the economic and technological impacts when setting ‘adequate margin of safety’ 2. The adverse
effects must be clearly harmful to avoid adverse economic effects more protective standard would apply
3. That EPA didn’t have enough evidence to set the level they chose, and 4. That they can only set 1
margin of safety.
 R:
 1. Economic and Technologic effects in setting NAAQS play no part in EPA Consideration
 In other portions of statute, it specifically states these 2 factors
 So Congress clearly intended where to put it and leave it out of.
 The legislative history shows that the concern was health, and subordinated all other
concerns
 But, specifically left out because they should not be considered
 109 considers only 2 factors Public Health and Welfare
 2. Adequate Margin of Safety Consideration is EPA’s discretion
 The Goal of NAAQS is to protect from adverse health effects
 It is preventative in nature, and precautionary—preventing before occurs
 Because of scientific uncertainty, Congress intended to err on the side of caution, in a
false positive approach, to prevent…that’s the point of the Margin of Safety
 Without certainty then, Congress wanted to regulate and gave EPA discretion
 The EPA, in §109 (b) 1 has “judgment of administrator” to determine what level is ok
 Pursuant to §109, EPA has authority to regulate risk of adverse health effects
of pollution
 It performs a Scientific Assessment, looking at severity and probability
 Protect most vulnerable
 So harm does not have to be ‘clear’ and EPA has discretion to set the level and
margin of safety
 If EPA waited until something was clearly harmful…would negate congress’s
preventative intention
 Here EPA looked to children when dealing with led…was acceptable
 “Margin of Safety” is a buffer…that EPA, has discretion to tack on
71

o
a cushion to attempt to be as precautionary as possible…lower then standard
you already thought was acceptable
 3. Courts are Deferential to EPA’s evaluation of Evidence
 “all that is required is evidence on record which substantiates conclusion about health
effects on which decision made”
 Subclinical effects (Those seen in laboratory, but not in a face to face doctor visit,
which are clinical) are indicative of health effects, and can be used—even CDC uses
 While there may be disagreement, and uncertainty at a certain level of
NAAQS, EPA has authority and Courts should defer
o Technicality of question, and congressional intent to give EPA
authority to decide require deference
 EPA:
 1. Determines level of Safety
 2. Adds Margin of Safety
 4. Congress delegated authority to determine how to create Margin of Safety as long as not
abused
 While the statute seems to elude to 1 Margin of safety, the complexity of determining a
level may allow EPA to adopt margin of safety on many different factors, in addition to
the final number
 This also coincides with Congress’s intent to set a precautionary level
 Note:
 Scientists have argued the a margin of safety is erroneous—the only real way
to assure, due to the uncertainty contained in science, is to prohibit or ban a
substance—level of 0
 Post-Lead Industries Case:
 The EPA, in 2008, lowered the level from that case to 10x less—due to findings that it was still
decreasing children’s IQ
 Associated Battery Recycles Ass’n v. EPA, 604 F.3d 613 (D.C. Cir. 2010) (deferred to EPA’s
determination of a level 10x less and use of evidence)
 Proponents still argue that should be another 10x less
 Overall:
 The margin of safety is a great idea, but, is not a fail safe—as exemplified above, even at the
margin of safety level, EPA was still 10x too high…even with margin of safety, may not be even
close to what is necessary to protect
 Here, regulating at children’s level…seems to overprotect other people
 This coincides with the idea of scientific uncertainty…and is exemplified by the idea that
although we are overprotecting some, with an adequate margin of safety, as time goes on, it may
become clear that the level set was in fact not overprotecting…but underprotecting all
 §109 (d)
 EPA is supposed to revise NAAQS for criteria pollutants every 5 years…
 But has had its hands full with just these 6 anyway, and hasn’t met that interval
Step 3. §110: The State Implementation Plan:
 Generally:
 Once an NAAQS has been determined by EPA (§108, 109), States have the primary responsibility for
designing and implementing plans to achieve that NAAQS, a function of Cooperative Federalism
 Once approved by the EPA, state SIPs are enforceable by the state or Federal authorities
 A separate SIP must be created for each Criteria Pollutant (6)
 §107 (a) “Each state shall have primary responsibility for assuring air quality…by submitting an
implementation plan for State, that species the manner in which primary and secondary NAAQS will
be achieved and maintained”
 Cooperative Federalism:
 Pursuant to the 10th amendment, the court has allowed the federal government to give
state choice 1. Preemption of state standards or 2. To follow federal standards
 Here, Government has lead Role but state has role too…too much to do for just the
federal government, so enlists aid of states
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
 However—CAA is not completely Cooperative Federalism
 1977/1990 Amendments:
 These sets of amendments significantly reduced the discretion states had in
how they could control emissions in their SIP—primarily because the NAAQS
had not been met by the deadline
 States had been dragging their feet, due to the fact that implementing these
standards may infringe on valuable industry to the State
o This competition between states could have led to a “Race to the
Bottom” type approach
 Also, Congress Always Retained ability to Control:
 In the following programs, Congress retained control, vicariously through
EPA, and did not enlist the efforts of the states
 §111: New Source Emissions Standards
o EPA may set its own national uniform emissions standards for new
stationary sources
 §112: Hazardous Pollutant Standards
o A different Regulatory Program
o Congress may list pollutants
o Uses technology based approach
 §202 (7521) Emissions Standards for new Motor Vehicles
o EPA has authority to adopt new emissions standards
§110: The State Implementation Plan:
 Generally:
 While EPA, pursuant to §108 and 109 lists and sets the Ambient Goal, large discretion is given to
states to come up with a plan that largely works for them and their local needs
 Basics:
 In Total There will be 6: one for each NAAQS (And there are 6)
 1. §110 a (1) ‘Each State, after NAAQS created, and after notice and public hearing (procedure),
must adopt an SIP for primary and secondary standards”
 Deadline: within 3 years of NAAQS creation (or shorter)
 To avoid states dragging their feet
 They do not want to issue an SIP that restricts industry in their state…so
pressure on them is needed to gain compliance (Pressure also exerted through
sanctions infra)
 2. §110 a (2) §A-M The substantive requirements
 There are about 13 substantive requirements
 A: Enforceable emissions limits, permits, etc…
 C: Regulate of modification of existing, and construction of new stationary source to
assure that NAAQS are achieved
 H: “Provide for the revision” of the plan
 L: Owner/Operator of source must pay for permit…
 ….
 EPA’s Role:
 The EPA may either approve the SIP, deny it or seek revision
 §110 (k) 3 Full and Partial Approval:
 “EPA shall approve if it meets all the applicable requirements”
 Once the state has complied with §110 (a) 2 A-M, EPA must approve the plan
 §110 (k) 4: Conditional Approval
 §110 (k) 5: Call for SIP Revision
 When EPA finds SIP is substantially inadequate, the EPA requires it to revise plan ‘as
necessary to correct such inadequacies”
 Virginia v. EPA (infra)
 Sanctions:
 §7413:
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
a) When EPA finds that any person has violated applicable SIP, and 30 days after
notice given—EPA May:
 If a state fails to submit an SIP, or adequately revise it
 1. Prohibited from Federal funds for highway, if non-attainment--§110 (m), §176 (c)
(example of spending power limit within allowable scope of 10th amendment)
 2. §110 (c) 1: Federal Implementation Plan
 The EPA will create a Federal Implementation plan
o If the state failed to make a submission of an SIP or
o The submitted SIP, with revision does not satisfy the minimum
criteria of §110 (a) 2 A-M (Gets chance to revise)
 State’s Point of View in creating its own program:
 In determining how to divide up the aggregated level of NAAQS, how does a state go about
doing so How does it divide up among polluters?
 Historical Use:
 For a particular source, choose a baseline year, measure off of that
 Depending on meeting NAAQS, adjust the level up or down
 Economic View:
 Based on the economic benefits of some industries, allow more or less pollution
 For instance, if 1 industry is particularly beneficial, let them pollute more, while a less
economically beneficial industry must pollute far less
 Technological Feasibility:
 Mandate according to a Technological Approach
 What technology is capable of, force industry to use it
 Industry with best technologyFor use, to pollute least
 Auction:
 Auction off the right to pollute
 Those with biggest need, and ability to use will pay the highest—those who don’t need
it, will not buy it and wont pollute
 Allocation between Stationary Source and Mobile Source:
 Congress has been much less inclined to regulate mobile sources (cars) then stationary sources
 While the 1990 amendments regulated, and banned Lead as Fuel additive~~
 People get mad about their cars Congress has shied away from
o For instance, for a brief period of time EPA set regulations for nonattainment areas like LA (Used an FIP)
 You may not drive on certain days of the week, if your
license plate is XYZ, in an attempt to limit emissions
 People did not like it, and were getting angry—EPA ended it
o Other instance
 EPA wanted a centralized, state run emissions program that
States would have to run—would avoid people getting
around it by being friendly with gas station attendants, or
bribing them
 State wanted de-centralized system, because less of a hassle
for people to run to their local gas station, State didn’t want
to have to deal with it, and businesses had already invested
in that equipment
 While EPA won, State brought 10 th amendment suit…and
EPA quickly ended their regulation, essentially giving State
the option
Virginia v. EPA:
 F: EPA adopted a rule, requiring States who were in non-attainment to meet California’s standards—Low
Emission Vehicle. States had submitted SIP to EPA, who rejected it, requiring the LEV standard,
pursuant to §110 (k) 5 SIP Call. LEV cuts back on Ozone—a combination of nitrogen and other
chemicals that forms when in contact with sun light.
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o
 State argues that it has the ability to determine how it will deal with SIP substance, and the EPA
cannot force how to met NAAQS
 EPA argues it has this authority
 I: Can EPA mandate how a state will create its own SIP, or merely approve or reject?
 R:
 1. EPA has authority to seek revision pursuant to § 110 (k) 5
 If state SIP deemed inadequate, EPA can tell them, and get it revised
 EPA may only tell them if adequate or inadequate (If meets A-M, must approve)
 2. EPA May implement a Federal Implementation Plan §110 (c)
 In Cooperative Federalism—this is preemption
 State does not have to do anything
 State may even choose from the beginning to simply not comply with CAA, in
which case FIP would preempt them
 Not commandeering
 EPA, may in FIP set standards it believes will meet NAAQS
 However:
 States generally don’t want to do this
 It may harm their industry, in a way they could have avoided
 May also end spending on certain things…with sanctions
 3. But EPA Has No Authority to determine how a State will create its own SIP
 EPA may merely tell state to revise, or implement an FIP
 1977:
 NRDC v.Train: interpreted that Congress intended to give states “significant
responsibility” and the primary, initial chance to determine manner in which
NAAQS would be achieved
 EPA may only tell them if inadequate, or if adequate
 As long as the end (NAAQS) will be met, up to the state to adopt whatever
means it believes the mix of which is best (SIP)
 1990 Amendments
 Telling them method in which SIP should work implicates 10th amendment
 EPA read “as necessary to correct” to give them the authority to do so
 1990 amendments changed Train “Division of Responsibilities” slightly
o Because states had been so slow to reach, or most had not reached
NAAQS…State discretion was reduced
o If they were creating an SIP They had more of ‘checklist’ to go
through ~§110 (a) 2 (A-M)
 Clear Statement Rule:
 When an agency interprets authority to reach the outer limits of
constitutionality, Court will not interpret it that far unless Congress clearly
stated it was their intention to do so
o Here Adding 2 words, in amendment, was not enough to show
congress intended 10th amendment question
o Instead, read 110 (k) 5 to mean, EPA was limited to tell state how to
fix SIP, only to what was necessary to meet NAAQS
 See Clear Statement Rule with Chevron Deference, infra § Rapanos
o Most Likely, Chevron is displaced by clear statement rule
When NAAQS not met §7501 Non-Attainment Provisions:
 In this scenario, the NAAQS has been created (Goal, with margin of safety), and States have created their SIP to
meet that goal However, we have not met NAAQS yet
 Note:
 You can be in attainment or PSD for one criteria pollutant, and in non-attainment for another
 1977/1990 Amendments The Birth and Evolution:
 First created in 1977 due to the fact that many States had failed to meet the deadline of NAAQS set in the
original Clean Air Act
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§171 (7501) Created New Label for Non-Compliance “Non-Attainment”
 “Nonattainment area means for any air pollutant, an area not meeting §107 (d) (7407 (d))— “an
area that does not meet, or that contributes to ambient air quality in nearby area that does not
meet, the NAAQS for primary or secondary standards of a pollutant”
 1990:
 Subsequent to the 1977 amendments, States still had not met their non-attainment goals
 So, the 1990 amendments further circumscribed the state discretion
 So, states in nonattainment had far less discretion then in an SIP, to determine how
emissions would be controlled
 The Further out of compliance a state is
  The Longer you have to get into compliance
  **But** You have less discretion, and many more steps to meet
o More strict requirements
o EG: §181 (7511a) is just for Ozone non-attainment
Sanctions:
 §113 (§7413)
 Spending Power threat Reduction in highway spending if not in attainment
 §110 Federal Implementation Plan
§172 (7502) Non-Attainment Process:
 Generally:
 State SIP must be amended to begin to come into compliance towards NAAQS
 More strict requirements set forth in §172
 §172: For Existing Sources (Plants):
 c) 1: Plan will implement all reasonably available control technology for existing sources
 Note:
 Congress, in creating the Non-attainment provisions, moved from Ambient
risk management approach to a technology based approach
 c) 6: Plan must have enforceable limits and schedules and timetables to comply
 Note:
 Again, the use of deadlines that are enforceable to avoid state feet dragging
 c) 2: Plan must require reasonably further progress
 §7501:
 Reasonably Further Progress means an annual, incremental reduction in
the emissions of pollutant, as may be set by the EPA
 The Goal, being, to annually decrease the emissions to move towards an
NAAQS
 Congress may mandate more specific reduction:
 In §7511 (c) 2 B, for instance, congress requires a specific annual percentage
be met—they set the increment for the state for Ozone
 c) 9: Contingency Measures
 SIP must provide for ‘specific measures to be undertaken if plan fails’ to make
reasonably further progress to attain NAAQS
 Sierra Club v. EPA:
 F: In Non-attainment, a state must submit an SIP, pursuant to the requirements of §172
(c) 1,2, and 9. EPA granted a §110 (k) 4 Conditional approval—without meeting any of
these 3 requirements in the Non-attainment SIP. EPA argued that §110 (k) 4 only needs
a state ‘to commit to adopt a specific measure’ even if they don’t know what it is, or if
they know it, or if they even tell it to EPA
 R:
 1. The Interpretation of §110 (k) 4 is Incorrect:
o The statutory language is unambiguous
 §172 (c) 9 says the plan has to comply with “specific
measures” within certain time frame
o Agency allowed completely unspecified
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 This is not in line with statutes meaning
The Non-attainment SIP conditional approval provision is meant to
give EPA opportunity to see what back up plan is there if SIP fails…
 To do so, they must be specific
o EPA’s interpretation is contrary to specific language
For New Sources (Plants) New Source Review
 What if industry wants to make a new plant, or modify plant that emits the same criteria pollutant
already putting location in non-attainment?
 1. Who does it apply to: § 172 (c) 5: A non-attainment SIP, must require that every new or
modified major stationary source must have a permit (complying with §173)
 Major Stationary Source (§302 J):
 Any stationary facility or source, which emits or has the potential to emit 100
tons/year of any air pollutant
 Modified (§111 (4))
 “any physical change in, or change in the method of operation of a stationary
source, which increases the amount of any air pollutant emitted by that source
or permits emission of air pollutant not previously emitted (See Chevron)
 Stationary Source (§111 (3)):
 Any building, structure, facility, or installation, which emits or may emit any
air pollutant.
 2. Permit (§7503 a, b (2)):
 If someone wants to build a non-attainment area stationary source
 “By the time the source is to start operation” it must comply with the Lowest
Achievable emissions rate
 §7501 (3): “Lowest Achievable Emissions Rate” is
o Emissions that are the most stringent limitation in the SIP of any state
in country for that source or
o The most stringent emission limit achieved in practice by that type of
source
o Note:
 The permit program uses a technology based risk
management approach to achieve the NAAQS level
 Once a permit is granted to a new, or modified source:
 You are now allowing further pollution to be emitted into a non-attainment area, which
is by definition above the NAAQS allowed
 In a non-attainment area, we must have reasonably further progress, which is an
annual incremental reduction in emissions to reach NAAQS (§172 (c) 2)
 §173:
 a) By the time the source starts, it must be offset by emissions reductions so
that the total allowable emissions from existing sources added to proposed
source will be sufficiently less then total emission from existing sources prior
to the application for a permit
 b) Any emissions reductions must be federally enforceable before permit
granted
o Must show that new plant, or its modification will be more then offset
by a decrease in emissions elsewhere in the nonattainment area
 You must close one of your other plants
o Or
 You must convince another industrial party to close theirs
 And have them agree to be legally enforced against if they
fail to meet
 Do so by paying the other party
 $ received for him must be > cost to decrease emissions and
any loss in production due to it
 Policy:
o

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
o
New Source Review is expensive and time consuming
Lowest Achievable Emissions Rate is extremely expensive and difficult to comply with
EPA has been requested to lessen standards
 Chevron:
o An Example of EPA interpreting what ‘modification is’ to avoid the
nonattainment permit applying to 1 source
o “Bubbling Concept”
 Modification requires that an increase in pollution occur
 But, EPA has interpreted the modification definition to net
out the change in pollution
 Although 1 source might increase in pollution, if another
offsets it—a bubble is put over both and the net change is 0
 So No modification has occurred and no need to meet
“Lowest achievable emissions Rate”
 Non-Attainment and Mobile Sources:
 1990 amendments created a ‘transportation control’
 Mandatory Car-pooling
 Increased bridge and highway tolls to deter driving
 Centralized Vehicle Maintenance (see infra)
 But, get tough policy lasted only 2 years
When NAAQS Met: Prevention of Significant Deterioration:
 Birthed in 1977 amendments, in this scenario, an area has reached NAAQS and is doing better, and is designed to
continue the clean area’s NAAQS attainment rather then having it regress
 PSD Plan:
 1. The PSD Purpose: §160 (7470)
 “To protect public health and welfare from any actual or adverse effects, even though the area is
in attainment”
 2. PSD Plan Requirements: §161 (7471)
 PSD plans must contain emissions limits and other measures that may be needed to prevent
significant deterioration of air quality
 3. Areas Classified in 3 Areas: §162 (7472)
 Class 1:
 All national wildenerss areas > 5,000 acres
 National memorial parks > 5,000 acres
 National parks > 6,000 acres
 Class II:
 All ares in a State that are not Class 1 or III
 Somewhere in the middle
 Class III
 4. Incremental Degradation: §163 (7473)
 The idea is that class 1 areas are highly regarded, and pristine…even though they are in
attainment, we don’t want to allow degradation to the point that they lose their class status
 Depending on the Class then, incremental degradation allowed is less or more
 Look at the allowed degradation increment
 Accomplish PSD Goal New Source Review:
 Generally:
 New Source Review is broken down into 2 parts—1 part being used in nonattainment (infra), and
the other part being used in Prevention of Significant Deterioration
 Process: §165 (7475)
 1. Permit Required for all new major stationary sources or modified sources
 Definitions:
 §169 (1):
o “Major emitting facility” is any stationary source capable of emitting
100 tons of pollutant per year
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


o
a) 1:

a) 3:

§111 (a) 4:
o “Modification” means any physical change in or change in the
method of operation of a stationary source which increases the
amount of any air pollutant emitted…
A permit must be issued for a major proposed emitting facility
The owner or operator of the proposed facility must show that emissions from
proposed facility will not cause or contribute to air pollution in excess of:
o 1. Maximum allowable increase in increment allowed
 Depending on what Class area is
o 2. NAAQS
 In This scenario, a new source permit being issued, with
the allowable increment based on the class may not take
it above the NAAQS…into non-attainment
 So, if allowable increment would take you above NAAQS,
permit will not allow you to have all of the increment, but
will stop your allowed emissions prior to NAAQS
o 3. Any other emission or performance standard
a) 4:

Proposed facility uses “Best Available Control Technology”
o §169:
 Taking into account energy, economic impacts and costs,
and environmental factors, it is the emissions limit that is
determined achievable, through available methods
o Note:
 Another use of technology based risk management technique
 A Performance Standard, not a design standard—so level
of emissions set, but industry is free to choose its own
method/ type of technology, so long as this level is met!
 LAER is seen as > BACT, and this makes sense in that the
more strict emissions technology is used in non-attainment
areas
EPA’s Attempt to Alter “New Source Review”
 Generally:
 New Source Review in the non-attainment program and PSD program only kick in when there is a
construction of a new source, or modification of an existing stationary source
 The Most litigated component, however, is not the construction of a new source That’s typically clear
 “Modification”
 §111 (a) 4: “any physical change in, or method of operation change, which increases the amount of any
air pollutant emitted by the source
 Chevron: Allowed the bubble Concept The netting out of 2 sources was not ‘increase’
 There have been 3 cases recently, where EPA has attempted to circumscribe ‘modification’
 1. 2000 EPA Regulation:
 EPA ruled what a modification was:
 “Determine whether a physical change would result in an increase in
emissions over the current baseline pre-permit scenario”
o Baseline = Measured by the industry, by 12 month period proior or,
by any 2 consecutive year period in past 10 years
o Effect:
 This allows industry to pick the highest 2 year emissions
level, so that changes wont be modifications….as they wont
be increase over the baseline!
 Decreased number of permit applicants
 2. New York v. EPA:
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
Allowed the Rule as a reasonable interpretation
EPA was Arbitrary and Capricious, however, in not requiring industry to keep records
 Without having records, EPA had to accept industry word that no change had
occurred…there was no way to prove or enforce
 Need some way to prove accuracy
 3. New York v. EPA (2003):
 F: EPA issued a new regulation to further reduce scope of ‘modification’
 An existing rule was that ‘routine repairs and maintenance’ were not
modifications
 2003 EPA altered: Routine Maintenance now was broadened to “any physical
change, even if emissions were increased, as long as increase was not greater
then 20% of total emissions”
 R:
 Completely Contrary to §111 (a) 4: which says ‘any physical change’ and
‘increase’…Those are factors…not economics
 4. Enviro. Defenders v. Duke Eneregy Corp.
 F: New Rule changed an old rule that measured ‘annual emissions’ of past 12 months,
or any 2 consecutive year period in last 10 years. Now, EPA looked at “Average hourly
emissions” before permit
 R:
 This is inconsistent with permit program as statute is traditionally interpreted
 It allows a polluter to pollute less per hour, but run infinitely more
hours…increasing the pollution!!! Contrary to the entire purpose of permit
programs
 §111—EPA’s Authority to set Standards of Performance for New Stationary Sources:
o Generally:
 §111, gives EPA the authority to create technological controls on new stationary sources
 May Determine the emissions level from new sources
o Step 1: §111 (b) 1 (A):
 “EPA shall make a list of stationary sources, which in his judgment cause, or contribute to air pollution which
may reasonably be anticipated to endanger public health or welfare
o Step 2: §111 (b) 1 (B)
 Once listed, EPA must issue standards of performance
 §111 (a) 1 “Standard of Performance”
 Is a standard for emissions of air pollutants which reflects the degree of emissions limits that are
achievable through the “best system of emissions reduction” that has been adequately
demonstrated
 Factors:
 Cost of achievement, impact on environment, energy requirements
o New York v. Reilly:
 F: §111 requires that once listed, EPA set standard of performance that is ‘best demonstrated.’ Here, EPA allowed
the continued burning of lead batteries. However, in Comment Portion, a recommendation was made to ban
battery burning as the best demonstrated technology
 R:
 1. EPA must explain why one is better then the other, considering factors set forth
 Does not require 100% efficacy…that’s not what it says…
 Must prove one is better then another
o Reasons for §111:
 The authority for EPA to set Standards of Performance for New Stationary Sources was given to EPA to avoid the
Race to the Bottom
 Strong interest in avoiding Forum Shopping of Industry
 The Natural incentive for states is to regulate leniently, to gain economic benefit of attracting industry
 Seen in:
 Hodel (Where court stated preventing Race to Bottom was concern, and sufficient to
satisfy commerce clause)
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
Ranchio Viejo v. Norton (impact on interstate commerce by removing incentive of race
to the bottom)
While States may not go below the §111 floor set
 §116
 Preserves states rights, except that under §111, a state may not go below that level…but may
enact more stringent controls on New Stationary Sources
The Clean Water Act:
 Generally:
o Has been rather successful but there are defects
 Only about 60% of waters and 55% of Lakes are performing the uses desired of them
 Inventory of Waters is lacking too
 Many water systems are simply unknown, as to their pollution effect and level
o Pollution Types:
 Silt, Bacteria, Metals, etc…
o Cost to Clean our Water:
 From 1972 – 1996  $700B
 For the next 20 years, we need to invest $277B, to update our water infrastructure
o Implications:
 While mainly has dealt with point sources, non-point sources are also a large portion of our pollution
 National Security is also at issue, as the threat to drinking water from attack is viable
 A Technology Based Statute:
o Approach:
 The clean water act is a Technology risk based management approach
 Reason:
 No actual reason
 Ambient based had been sole approach tried, and in 1972, when CWA created, tried this approach…as
Ambient approach hadn’t been a successful
o History:
 A political compromise occurred also, in that the Senate pushed for a Technology Based Approach following the
failure of the 1948 Federal Water Pollution Control Act
 Reason for 1948 FWPCA Failure:
 1. Required incredible amount of procedure
 Required that Federal Government gain consent of state that pollution occurred
 With “Race to Bottom” No way State would ever consent!
 2. Tracing
 The 1948 version required that you must show the polluter had cause the pollution, and
it was his pollution in the water
 With many polluters, how can you?
 Technology wasn’t capable, and Federal Government lacked capacity to do so—
impossible
o Arguments For and against Technology Based Statute:
 Proponents:
 1. Avoids Cause and Effect Problem
 Simply set a standard based on what is currently achievable,
 Violation is shown if particular source exceeded their permit…don’t need to show cause
 2. Promotes Investment in Technology
 Efficiency is cost effective…so promotes search for more efficient means
 **Is a Performance Standard—Not a design standard
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 Many people create technology, other then industry, in search for something Industry will have to
use—encourages R&D
 There is an incentive to create new technology because of regulation being a performance
standard…it allows any way possible as long as that level is reached

Opponents:
 1. Lacks Cause and Effect knowledge
 2. Technology relied in is not good
 Water is still poor quality
 3. Even if Technology is adequate, there are so many polluters complying with it, that water quality is
still overpolluted
 4. More Capable Waterways
 If a certain Water can eat up more pollution then another, there is no reason to regulate
 “Treatment for Treatments Sake”- there is no adverse effect, so wasting resource
 We Should regulate those areas that need regulation, are actually harmed
 5. Inconsistent Regulation
 Because some waters are more proficient in cleaning themselves, some waters are overregulated,
while others are underegulated
 6. Discourages Technology Investment and Improvement:
 Because a technology based approach focuses on the best technology, whenever a better one is
created, all have to comply—Solution: Do not come up with any more, and stay stagnant
 Basics:
o Purpose and Goal:
 §101 (a): “The objective is to restore and maintain the chemical, physical, and biological integrity of the Nation’s
Waters
 (a) 1 Broad Goal: “Eliminate discharge of pollutants into Navigable Waters”
 (a) 2 Interim Goal: “To provide water quality which protects the propagation of fish, shellfish, and
wildlife, and provides for recreation in and on the water”
 The Fishable Swimmable Goal
o Regulation of Point Sources:
 Generally:
 The CWA focused its efforts on Point Sources
 Non-Point Sources (generally run-off areas, or something not defined as a point source) are not regulated
 Why:
 Limited Resources must be effectively used
 Technologically and Economically, easier to limit point source
 Politically, easier to point to a pipe dumping water
 Non-point sources, such as Agriculture, are politically strong
 Congress is reluctant to regulate
 Regulating non-point source gets into Land use Planning
 10th amendment Federalism Issues
 1. Regulated Through National Pollutant Discharge Elimination Program [NPDES]
 2 Types of point sources regulated
 §1362 (14) “Point Source”
 Any discernible, confined and discrete conveyance, including pipes, ditches, channel,
tunnel, well…from which pollutants may be discharged
 A. Industrial
 Requires NPDES permit
 “Direct Discharger”
 Dumps directly into the water
 “Indirect Discharger”
 Sends waste to POTP First, which then dumps
 B. Publically Owned Treatment Plant (POTP)
 Gets waste from Households, and industry
 Note:
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
Based on Direct, Indirect, Industrial or POTPs, CWA applies different technology
based controls to each
 New and Existing Point Sources:
 Both have technological based control, but New Point source more strict
 EPA Effectuates technology through the permit program
 By creating a technology standard, the regulatory limits are placed into the
permit
 Creates “Permit Sheild” §402 (k)
o Discharge in excess of your NPDES permit is violation of CWA
o *But* If you comply with your NPDES permit, you’re shielded
through citizen suits
 for pollutants not in permit but you comply with their limits
they now have
 also permitted to discharge un-listed pollutant that’s been
disclosed to EPA, but hasn’t been listed
2. Water Quality Standards:
 A Backup, Ambient Based/Harm based risk management approach
 Protects the water quality when many dischargers are complying with technology, but due to so many
polluters—water still becomes polluted
Federalism Issues:
 The NPDES permit program is in the hands of EPA initially
 Unlike CAA, which gives permitting authority to states initially
 However, State may apply, and gain authority to be permit
 §402 (b) States May Submit an application to be the Permitting Authority:
 State Governor desiring to admit its own permit program may submit a full and complete
description of the program
 Administrator of EPA shall approve each submission, unless he determines it does not meet
§402 (b) 1-9
 National Ass’n of Homebuilders v. Defenders of Wildlife:
 If the 9 criteria are met, EPA must issue the authority to permit to the States
 “By its terms, statute is mandatory and list exclusive…if the 9 criteria are met,
EPA (may) not deny transfer application”
 EPA may exercise some judgment in determining the §402 (b) criteria
 Transfer of Permitting Authority to states does not trigger §7 (ESA)!!!

§1370: Retention of State Authority
 Retains all state’s rights, except that a state may not go below what is mandated
 May exceed, or require more stringent limitations however
 §1313: Water Quality Standards
 States are required to adopt water quality standards
 EPA may adopt its own standards, for State standards that are inadequate
 EPA may enforce its own issued permits and state issued permits
 §1251 (b)
 Police of CWA and Congress to recognize preserve and protect primary responsibilities of
States….
 The National Pollution Discharge Elimination Program:
o 1. The Entire CWA surrounds 1 Statute:
 §1311 (a):
 “Except as in compliance with…1342 (NPEDS Program) and 1344 (Dredge and Fill Program)…,
the discharge of any pollutant by any person is unlawful”
 This is the building block of the entire CWA—to even apply under CWA
 §1362 (12):
 A “Discharge of a Pollutant is” (4 elements)
 1. Any Addition
83

 2. Of any Pollutant
 §1362 (6)
 An extremely broad statute in definition of just what may be pollutant
 3. Into Navigable Waters
 §1362 (7)
 “means the waters of the United States…”
 4. From any Point Source
 §1362 (14)
 “means any discernible, confined and discrete conveyance…from which
pollutants are discharged
“Point Source” and “Addition”
 South Florida Management District v. Miccosukee Tribe:
 F: C-11 Canal collects ground water, from 104 mile basin. It pumps through an S-9 pipe pump,
into undeveloped everglades; WCA-3. 2 levees prevent return flow; L-33, and 37. Phosphorous,
from Agriculture in C-11, runs off into C-11…is pumped over the WCA-3, where unnatural algae
grows. Respondent brought suit arguing a NPEDS Permit was required.
 I: Was Pump a Point Source and Was pollution “added”
 R:
 1. A Point Source Is a Conveyance, and need not Add any pollution
 The Pump was a “Point Source” by definition
 Point source does not need to add any pollution, and pollution does not have to
start there
 Only needs to ‘convey’ it, or transfer pollution
 Clear that in §1362 (14) the examples listed don’t add any pollution either
 POTP does not add anything, and is a Point Source…only transfers/conveys
 2. Unitary Waters Argument
 Argument that the CWA intends that all waters in the United States are 1 body
of water. So, nothing is being added to the water here, but instead, Pollution is
being picked up from one portion of everglades, and conveyed to another
 Only addition occurs on initial entry into the Unitary Water
 Because it is the same body of Water, as All USA Water is…nothing is being
“added” but instead moved, as it was already there
 Court Remanded:
o Court was unsure about this theory…as there was some evidence
o However, Congress also has specific regulations pertaining to specific
bodies of water…So, if all USA waters were 1 body, why would it do
this?
o Alleged EPA regulation on this didn’t exist
 3. Bodies of Water involved are the same
 Even if the Unitary Waters approach is not accepted, an argument can be
constructed that the conveyance from one water to another is really all the
same body of water
 Again, rather then “adding” anything, It is merely shifting pollution from one
area of the water to another area of the same body of water.
 Therefore There is no addition
 Remand:
o Evidence was that these 2 waters were “Hydrologically connected”
such that moving pollution from one portion to another isn’t addition,
after all
o Factual Inquiry of if this is all 1 everglades body of water
o “Putting Ladle in One Soup bowl, lifting up, and pouring soup back
into the bowl”
 Note:
 Friends of Everglades v. S. Fla. Water Mgmt, 570 F.3d 1210 (11th Cir 2010)
84
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

On remand, the Government Won
 Why?
o EPA came out with a regulation saying that transfer of water from
one body to another was not an addition, without an intervening
industrial addition (basically accepting Unitary Waters)
o Deferred to under Chevron
 Cert. Petition is waiting
Prior to EPA Regulation
 Most Circuits Rejected the Unitary Waters Approach
Catskill Mntn. Chapter of Trout v. NY:
 2nd circuit did not buy EPA interpretation holding that the transfer of water
from 1 body to another was an addition



Dams:
 Dams change temperature, specieis action, add silt, and chemical balance
 However, they have not been understood to “Add”
 National Wildlife v. Gorsuch
“Pollutant”
 §1362 (6) Definition is extremely Broad
 Sierra Club v. Cedar Point Oil:
 Held that the list was not exclusive
 Court may find a particular substance is in fact a pollutant
 Weinberger v. Romero-Burcelo:
 Unexploded military bombs were pollutants
 Ass’n to Protect Hammersley v. Taylor:
 Muscle Shells, that were added to water, were not pollutant because they were naturally
occurring and no the “waste product of transforming human process”
 Fairhurst v. Hagener:
 Using pesticide that complied with FIFRA, to rid river of a non-native trout species was
not a pollutant
 No NPEDS Permit required
 EPA subsequently excluded pesticide use from NPDES permit
“Navigable Water”
 Generally:
 For the 1342 NPEDS permit program to apply, the addition of a pollutant by a point source must
be into ‘navigable water’ or a water of the united states as defined
 In 3 subsequent cases, “Navigable Waters” have been defined through the 1344 Dredge and Fill
permit program, and not the 1342 program
 1344 Applies to land developers who want to dump fill material into water to fill it
 Issued by Army Corps of Engineers
 Note:

You will need to argue that the 1344 definition applies to the 1342 program
 1. It should apply to both programs
o a. There is 1 definition of “Navigable Waters”
o b. 1311 is 1 prohibition that applies to both Permit Programs
 So intended to use same definition for both programs
o c. One Word Cannot mean 2 different things
o Therefore, interpretation applies equally to 1344 and 1342 programs
 2. Counter Argument:
o a. The Court was concerned with §1251 (b) ( 101)
 Which preserves “states rights” and federalism, rather then
the 1311 prohibition
o b. To Reach outer limit of Congressional Power Clear Statement
 A Point Source is pollution emitter: Not a State Function
85
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




A Dredge and Fill Permit is Land Use: Is a State Function
Therefore, regulating pollution is not a traditional state
function…and should apply differently
Arguably then, Definition of “Navigable Waters” should
apply to 1342 program but not 1344 program
1344 (t) has specific land use provison…so could be 2
meanings…
US v. Riverside Bayview:
 F: The Corps defined “Navigable Waters” also as “tributaries” and “all wetlands adjacent to
Navigable waters.” Wetlands were defined as “areas inundated or saturated by surface or ground
water, to support prevalence of vegetation….” They generally include marshes, swamps, bogs. Π
owns 80 acres of land near a marsh. He was dumping fill materials into the marsh. Corps brought
suit saying he needed a permit
 I: Is extension of definition to Wetlands adjacent to navigable waters reasonable?
 R:
 1. Wetlands Adjacent to Navigable Waters is within Purview of Definition
 Statute was ambiguous in definition
 Language, Broad §101 purpose of act, and legislative history support this
 Comprehensive idea of CWA is only met when regulate an entire ‘water
system’…the adjacent waters can affect the actual navigable waters
 Technicality and inherent difficulty in determining what “navigable water” is
difficult
 Due to the large purpose of CWA, ambiguity of definition, the Corps must
come up with definition..is reasonable
o Not For Court to change—Defer
 2. ∆’s land is within Definition of Wetlands:
 Definition does not require flooding be frequent
 Just requires “inundated or saturated”
 ∆’s land met definition and, wetland was adjacent
 Wetlands Adjacent to in fact Navigable Waters are within Definition
SWANNC v. US Army Corps of Engineers:
 F: Land in question was previously dried. However, some ponds had formed. Π’s hoped to
develop the land, but sought Corps interpretation. Pursuant to Migratory Bird Act, which defined
“navigable Waters to include intrastate waterways or wetlands, rivers, streams, that could be used
by migratory birds and interstate commerce.” Corps witnessed 120 species of birds there.
 I: Are Non-Adjacent Waters, wholly intrastate and non-navigable within CWA jurisdiction?
 R:
 1. Riverside Bayview allows CWA to extend to non traditional ‘navigable’ water
 Legislative Acquiescence to Corps interpretation showed intend to reach that
far
 There was “Significant Nexus” between a clearly navigable water and wetland
 2. While Extended, ‘Navigable’ may not be eliminated from definition and
Significant Nexus between Regulated Water and ‘Navigable’ Water
 Here A pond, 2 counties inland of any water, that was previously dry
because birds live there is not within purview of ‘navigable water’
 Did not have a ‘significant nexus’
 3. Clear Statement is needed to reach Outer Limits of Congress’ Power
 Here, because the reach is so far, perhaps to the limits of Congress’s power,
there must be a clear indication that Congress intended to reach that far
o Federalism Concerns:
 States have a 10th amendment Concern
 Traditional primacy, and power over land and water would
be infringed on
 Traditional Land use is for States
86
o

Without a clear statement—Court will not reach the question of
whether Congress has this power or not
o §1251 (b) Preserves State Rights, and seems as though a clear
statement that Congress did not intend to reach this far
 Chevron inquiry is not acceptable here
o Statute is clear that it did not intend to reach this far Step 1
o Even if statute were ambiguous, Chevron deference is not applicable
in this scenario anyway
 Migratory Bird Rule is Unconstitutional
 Stevens (dissent):

‘Navigable’ was already eliminated by further defining it as a ‘water of the united
states’
 Navigable was a term of art then, and Congress further defined it
 This may be interpreted as ‘any water’ in the United States, without relevance
to its adjacency or not
 Therefore, corps definition is within the purview of the Clean Water Act
 No Federalism Issue:
 Land Use Planning is a State Function, which choose how to use a land
 Environmental laws merely require that however it is used, it doesn’t fail to
protect the environment
 Federal Authority has always been there fore environmental regulation
Rapanos v. United States:
 F: 2 Cases consolidated. In Rapanos, dumping into a wetlands, which were connected to a drain,
which drained into a creek, which drained into a River.
 I: Does the CWA cover wetlands adjacent to Tributaries which are Adjacent to Navigable
Waters?
 In essence, how far does Navigable Waters Reach
 R:
 Scalia Approach:
 1. Navigable Water has a definite meaning
 by using dictionary comes up with, Navigable Waters are:
o “Relatively Permanent, standing, flowing bodies of water—
connotating continual presence, as opposed to intermittent, ordinarily
dry channels…described ordinarily, as streams, oceans, rivers, and
lakes
 2. Wetland has meaning too
 “A Continuous Surface connection with a navigable body of water, as defined”
o In practice, this means it will be difficult to tell where a wetlands
ends and navigable waters begin
o That is when they may be reached under CWA
 3. Federalism Concern:
 Water and Land use planning are quintessential state and local power
 Cited §1251 (b)
 Allowing a broad definition like this, treats Corps as a Local Zoning Board
 Clear Statement is needed to show this far of a reach
o Without it, Court will not interpret statute that broadly…avoid
CC/10th questions
 Stevens Dissent Approach:
 Stevens argues that Riverside Bayview already controls
 Their holding pertained to “Wetlands adjacent to Navigable Waters or
tributaries” so this decision has been made
 Chevron Applies:
 Ambiguous Statute
 Technicality of Issue is difficult
87
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

Wetlands are extremely important to the total purpose and scheme of CWA
o Offer flood control, sediment protection and water purification,
species food and habitat
 Chevron Step 2:
o Agency Validly and reasonably interpreted their statute
 SWANCC is irrelevant
 Case dealt with non-adjacent non-wetlands, so it should not apply
 Remand:
 If works under Kennedy or Scalia  Should apply
 Kennedy Concurrence:
 Disagrees with Scalia:
 Artificial, unsupported restrictions foreclose what may have previously been
acceptable
 Restricts Agency
 Disagrees with Stevens:
 Stevens defers no matter what; excessively deferential reaches too far
 SWANNC And Bayview created a framework:
 1. A significant nexus must exist between wetlands and typically navigable
water
o to determine, look at the purpose and goals of the CWA
 2. The Goal is Broad
 3. “Wetlands possess the required significant nexus, with a navigable
water, if they ‘significantly affect the chemical, physical, biological
integrity of the navigable waterway”
o Categories:
 1. If Speculative or Insubstantial it should not apply
 2. Pursuant to Riverside Bayview, those waters that are
adjacent to a navigable water categorically qualify
 3. Wetlands adjacent to major tributaries may be ok
 4. Army Corps of Engineers may be able to identify
categories of tributaries that, due to the volume of flow,
proximity to navigable waters, or other relevant
considerations are significant enough to qualify under the
Significant Nexus Test
o Test:
 If fits into one of these 3 Categories
 Ok, but if not:
 Case-By-Case evaluation under the Significant Nexus Test
 If does not fit No CWA Jurisdiction
Who Is Controlling?
 Kennedy
 Stevens
 Who says Kennedy or Scalia
 Task:
 You will need to argue 1. 1344 interpretation applies to 1342 2. Argue and Explain
Differing Opinions and 3. Fit Facts to the interpreted definition to make it apply or not
Ground Water:
 Federal Circuits are split on whether discharge into underground aquifers that connect to surface
streams need an NPEDS permit or not
 Umtailla Water Quality Ass’n v. Smith Frozen Foods:
 Court held that does not apply
 1. CWA is ambiguous
 2. EPA never interpreted act
 3. State had its own permit program for surface and ground water discharge for
25 years, without EPA interjection
88
 Following Riverside Bayview, SWANNC, and Rapanos, will need to argue it fits into the
definition one of the cases proffered

Perhaps argue it is continuously connected, to surface water, which pollutes an infact
navigable water
 2. Once deemed applicable under §1342, 1311 (a), must comply with §1311 (b) Effluent Limitations:
o General:
 1311 (b) deals with existing point sources
 Once you meet the criteria of §1311 (a), you must have a NPDES permit to discharge. 1342, the NPDES permit
program if you comply with the requirements of 1311…etc...
 So, once you are legally required to get a 1342 permit, look at 1311 (b) to see what applies
 §1311 (b) houses the Technology based Risk management requirements
 2 Phases:
 Phase 1 = §1
 Phase 2 = §2
 “Effluent Limitation”
 §1362 (11): any restriction established by a state or EPA on quantity, rate, concentrations of
chemical, physical, biological…discharged from point source into navigable water…
 Transfer of technology:
 EPA may transfer technology between industries, if it ‘reasonably believes it is available or could be
made available in an industry where it does not exist yet”
 EPA has gone so far, as to require other countries’ technologies…
 Hypothetical Technology:
 Must show it is available…
o There are 2 Phases of Compliance:
Phase
Type of
Pollutant
TBELs
Compliance
Deadlines
Applicable
Factors
Available Backend Adjustments
1
Conv, nonconv., and toxic
BPT
§
1311(b)(1)
(A), (C)
§
1314(b)
(1)(B)
FDF variances
2
Toxic (§
1362(13))
BAT
§
1311(b)(2)
(C)-(D)
§
1314(b)(2)
(B)
FDF; § 1311(k)
Conventional (§
1314(a)(4))
BCT
§
1311(b)(2)
(E)
§1314
(b)(4)(B)
FDF; 1311(k)
Non toxic, nonconventional
BAT
§
1311(b)(2) (F)
§
1314(b)(2) (B)
FDF; 1311(c), (g),
(k)

1. Phase 1 = §1 (Circa 1977):
 §1311 (b) 1 (A-C)
 Who Complies:
 All Point Sources are required to Meet Phase 1
 Regardless of Pollutant type or point source
 *Remember, that industry effluent limits differ, however
 Technology Level Required:
 (A) Best Practicable Control Technology currently available (“BPT”) +
89
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

(C) Any more stringent level required by states
 A. Because EPA isn’t regulating enough or
 B. To meet that States Water Quality Standards
The Process:
 EPA regulates categories, within industry
 For instance, all energy companies that come in for an NPDES permit are required to use the BPT
level from that industry…regardless of what effluent is
 EPA looks at the industrial category, and puts that into your permit
 Note:
 Again, the Clean Water act only mandates performance standards…not design
standards…
 So, Industry with permit does not need to utilize or install that specific
technology…Point source only needs to meet that level of effluent emission!!
No matter what technology chosen
 Look at End not the means
Dupont v. Train (Where EPA gets authority for industry-wide):
 F: EPA regulated industry, by imposing industry wide limits. §1311 requires the technology and,
in 1314, EPA evaluates factors to do so.
 EPA Argues that, under 1311 (a) it could issue an industry wide standard
 That industry comes in, and you get permit according to your level…quicker, and more
efficient,
 Industry argued: 1311 (b) is what each plant per permit requires. And, that EPA must evaluate
point source by point source what their effluent level will be, in order to slow down EPA’s
ability. With 42,000 point sources, it certainly would slow down.
 I: While CWA does not specify, may EPA issue industrywide effluent limit?
 R:
 1. Phase 2: 1311 (b) 2 A says “Category or Class”
 Although there is nothing in Phase 1 text, Phase 2 (1311 b 2 A) says EPA may
set effluent limitations for “category or class”
 Congress intended to regulate groups all at once, and not individually
o So Industry argument didn’t work for Phase 2
 So For phase 2, EPA may issue across the board, industry wide effluent
limitations rather then point-source by point-source
 2. But, 1311 (b) 1 (A-C), Phase 1, Doesn’t Have this Language?
 While it may seem that absent this same language, adopted in 1983 for phase
2, it wouldn’t apply to phase 1…
 However, Court says there is no evidence that Congress intended to treate
phase 1 as a point-source by point-source consideration, and phase 2 not
 It would be an anomaly
 The 304 factors are not wholly different either
 Also, if phase 1 and 2 they would be reviewed in two separate courts…would
lead to conflicting interpretation and makes no sense
 Category/Industry-wide regulations promote a consistent, and centralized
regulation in line with Congress’s intention
 1 Limitation:
o Phase 1 must have ‘allowable variances’ to individualized plans
 3. §1316 New Point Source Review:
 Identical to CAA New Source Review
 1. The EPA sets ‘standards of performance for new sources’
 “Standard of Performance” is a standard of control for discharge of pollutant,
which is the greatest degree of effluent reduction achievable through best
available demonstrated control technology
 ∆ argues it must allow for a variance
90
No EPA is prohibited, the Court says, from making any
variances to new source standards of performance (e)
 Court Says:
o Congress intended this to be strict, and prohibitory and it speaks in
terms of ‘standards’
o §1311 speaks of “limitations”
 Turns Out this is no convincing:
o Other parts of the CWA say standards, and have variances
 1317  Chemical Mfrs. Ass’n v. EPA (holding that
variances are appropriate with standards
 1326 (b) says standards refers to 1311, which in this
opinion said must have variance…
 1311 (c), (g) allow modifications to Phase 2 permits,
based on requirements…so something being a ‘limit’ or
‘standard’ obviously isn’t as relevant as Court thought
o Absolute Language Argument:
 Court also argued that because of the mandatory language in
306, that means there can be no variances, but…
 Mandatory “shall” appears in 1311 (b) 1 A too
 So mere fact that absolute language doesn’t mean no
variance either
o §1311 (c) Only Applies to Phase 2:
 Based on this reasoning then, even if Court was reasoning
that a variance is needed where it says, and not where it
doesn’t say
 It just ruled above that Phase 1 needs a variance, but there is
no variance section for phase 1…?
 Contrary to its holding
o National Uniformity Argument:
 Phase 2 rationale, above, listed the desire for national
uniformity…and it requires variance
 And now here, argues national uniformity requires no
variance contradictory
Factors EPA considers to Evaluate Phase 1 Technology of BPT:
 §1314 (b) 1 (B):
 “Factors relating to assessment…”
 EPA looks to “the average of the best performers in the industry”
o Ignores the non-best/less effective performers
o Averages out the best ones level, and then regulates to that level
 Cost benefit Analysis:
o “Consideration of the total cost of technology in relation to effluent
reduction benefits” So Phase 1 requires a CBA
 Judged by:
 “Average of the Best Plants in a Particular Industry”
o Hooker Chem. & Plastics v. Train (EPA correctly looked at average
of best plants, as it’s in line with legislative history)
o Chemical Mfrs. v. EPA (EPA is allowed to look at technology that is
outside of a particular industry, and to transfer other industry
technology
What if EPA Has Not issued Technology Regulation for Particular Industry Yet?
 Note that Dupont, above, gives EPA the authority to regulate industry by industry
 If they simply haven’t regulated a particular industry yet:
 1311 (a), by definition says you cannot pollutant, but
 §1342 (a):
o


91



says that “EPA may issue a permit according to 1311, or prior to taking of
necessary implementing actions relating, conditions as the administrator
determines necessary to carry out the provisions of the chapter
o So EPA is allowed to craft individualized effluent technology limits
 “Best Professional judgment”
 In the absence of industry wide regulations, EPA is to give
permit “with conditions as EPA shall deem necessary” 1342
(a)
Note:
o This is why industry argued in Dupont to have all permits be case by
case evaluation
Phase 2 = § 2 (1311 (b) 2 (A-F)):
 Generally:
 Based on what pollutant you discharge, phase 2 regulates each differently as described below
 Each of these is designed to be an incremental step beyond Phase 1 BPT in an effort to move
towards the goal of CWA
 Note that the title of each pollutant isn’t exactly relevant—but it conveys the desire to
get better and better
 At this point in time:
 Aside from those sources that haven’t gotten industry wide regulations yet, everyone
should be on their way to complying with phase 2, having already complied with phase
1
 Compliance Based on Pollutant Type:
 Conventional Pollutant (§1314 (A) 4)
 Generally thought of as Biodegradeable
 Toxic Pollutants (1311 (b) 2 (D))
 Those not biodegradable, that create a risk of substantial human health impairment
 Non-Toxic/Non-Conventional (1311 (b) 2 F)
 all pollutants other then Toxic or Conventional
 Technology Required:
 §1314 (b) 4 (B) Conventional Pollutants  “Best Conventional Pollutant Control Technology”
(“BCT”)
 §1311 (b) 2 (C, D) Toxic Pollutants  “Best Available Technology Economically Achievable”
(“BAT”)
 §1311 (b) 2 (F) Non-Toxic/Conventional “Best Available Technology Economically
Achievable” (“BAT”)
 Factors EPA Considers to Evaluate Phase 2 Technology:
 Depends on the pollutant and technology level
 1. Conventional Pollutants get BCT according to 1314 (b) 4 B
 1. Conventional pollutants are not considered as bad as Toxic or the uncertain
non-toxic/non-conventional ones
o So, Congress did not want to create as big an increment that exists
between BPT and BAT to regulate “Conventional Pollutants”
 1314 (b) 4 (B)
o Further shows Congressional intent that Conventional pollutants are
not as bad as others
o 2 Cost Benefit Tests:
 1. Compare costs of attaining reduction to effluent reduction
benefits derived and
 2. Cost and level of reduction of pollutants from Publically
Owend Treatment Works to cost and level of reduction of
industrial sources
 Why: Because, the same conventional pollutants from
industry are the same conventional pollutants as a POTW
92


o
So because both industry and POTW are dealing with same
conventional pollutants, makes sense to compare them and
treat/regulate them the same
2. Toxic and Non-Toxic/Conventional get “BAT”  §1314 (b) 2 (B)
 “Factors relating to the assessment…include cost”
o No Cost Benefit Analysis is required
o Note:
 This, from a policy standpoint, makes sense
 Phase 1 should consider it, but Phase 2, dealing with toxic
chemicals, should not be concerned with Cost
 While EPA has to consider cost as a factor, it does not need
to weigh the two
 **Cost Benefit Analysis would almost always lead to a less
restrictive technology being implemented
 This pollutants are more uncertain, and potentially
deadly…so cost benefit not used “False Positive” rather then
False Negative
 EPA looks to the single best performer
o Whatever is best, we regulate to that level
o Congress’s intention was to regulate a more aggressive and stringent
level in an effort to move towards CWA’s goal
 Congress even explicitly stated that if this pushed some
businesses out of business, they were ok with it and was part
of the plan
 Ass’n of Pacfic Fisheries v. EPA:
 F: In considering phase 2 BAT limits, what needs to be ‘available’ and what is ‘economically
achievable?’
 R:
 Available:
 Legislative history of CWA specifically states that if 1 facility demonstrates
that level of technology, it is available or if there is sufficient relevant data
from plant to provide the needed economic and technological justification for
it
 EPA may use 1 study to show that the technology is the best units can meet it
o Bust must be able to demonstrate its effectiveness and articulating the
reasons for its determination
 Economically Available:
 EPA must consider factors set out in 304 (2) (B)
 Does not have to be a cost-benefit analysis
 But, does need to consider all costs that may occur from using technology
o Here, ‘significant amount of land will be required by technology
recommended’ so EPA must consider land cost and especially when
its not readily available
Variances Back end and Front End Adjustments—Why there are 2 different BAT Technologies:
 Variances provide the flexibility in what otherwise seems like a rigid system of controls under CWA
 Originally, in Chemical Mfrs Ass’n v. NRDC, the court stated that EPA may grant variance on the
ground that dischargers situation was ‘fundamentally different’ from its industrial class
 Congress eventually agreed, and codified it
 Front End Adjustment: Regulation through technology based controls
 Back End Adjustment: an opportunity for individual point sources to come in and seek a modification for some
special reason that the point source describes
 “Fundamental Variance Factors”
 §1311 (n) Fundamentally Different Factors:
 EPA may establish an alternative requirement…if the owner/operator demonstrates that
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1 (A). The facility is fundamentally different with respect to the factors listed in 1314
(b), other then cost
 Note So if the ‘applicable factors’ portion of slide above doesn’t apply to
you, may be able to get a variance
1 (B) The application must have information and supporting data…
1 (C) Alternative is no less stringent… and
1 (D)

Phase 1:
 Gets the FDF Factors listed above
 Phase 2:
 Toxic: FDF, above, and 1311 (k)
 Innovative Technology Variance
 Conventional: FDF above, and 1311 (k)
 Non-Toxic/Non-Conventional: FDF above, 1311 (k) and 1311 (c) and (g)
 1311 (c) may get modification if 1. Will represent the maximum use of technology within
economic capability of that point source and 2. Results in reasonably further progress towards
elimination of discharge pollutants
 1311 (g) specific pollutants
 Other Technology Based Approaches in the CWA:
o 1. New Point Source Review 1316 (a) 2:
 Those who commence construction after the publication of a proposed regulation
 Best Available Demonstrated Control Technology
 The most stringent
 New sources are subject to this more stringent standard because they are on notice of it…if you build
post-regulation you get a ratcheted up standard
 Also, more cost-effective, arguably, as they don’t have to retrofit their plant, but instead can build the
technology into the structure
 Counterargument is that it is a disincentive to build new plants… so old plants will continue and
because they are worse, pollution will actually be worse
 In Practice New Point sources get a Phase 2 technology for many industries
o 2. Publically Owned Treatment Works 1311 (b) 1 B
 Primary Treatment Removal of the biosolid
 Secondary Treatment separate water and biosolids easier
 CWA only regulates to the secondary treatment level
o 3. Indirect Discharger 1317
 Indirect dischargers are those industries that send their effluent to a POTW
 2 Levels of Control:
 1. Prohibited Discharge Standard:
 Industry cannot send effluent to POTW that harms POTW or interferes with operation
 2. Categorical Pre-Treatment
 If industry is sending an effluent to POTW that it cannot treat, or that would go right
through the treatment indirect discharger must pre-treat it
o 4. Biosolids Disposal (1345):
 The waste that is skimmed out of the POTW needs to be put somewhere
 Could be tainted if there is indirect discharger…we don’t want to use the human waste to fertilize if its
tainted with an indirect industrial effluent
 This section then, deals with specific practices designed to protect with “Best Management Practices”
 Water Quality Standards 1313 (c) 1:
o Above is the core of the clean water act but, WQS provide a safety net
 Because technology based standards don’t regulate the total amount of pollutant allowed, but instead regulate the
level allowed to be emitted…there may be many polluters using the best technology possible, and we still end up
with dirty water
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o
WQS allows this to occur
 Is the Ambient Quality Risk based approach we saw in CAA, incorporated into CWA
The Process:
 All states have assumed the responsibility to set WQS, subject to EPA’s review and approval
 1. Establish a designated use:
 §303 (c) 2 A specifies some public water, propagation of fish and wildlife, recreational
purposes, agriculture, industrial, etc...
 EPA:
 A. Limits states ability to alter a use designation to make less demanding
 B. May ratchet the use up beyond where it is
 C. States are supposed to set their uses such that waters leaving the state don’t impair
downstream states to meet their WQS
 D. States traditionally have substantial discretion in setting use.
 2. Adopt Water Quality Criteria for each body that is consistent with the designate use:
 Set at:
 1. Quantitative Concentrations (40 CFR 131.3 (b)
 2. Narratives:
 May say something like “cannot have pollution” or toxins
 But this is very broad, and uncertain and most likely unenforceable
 Actually is a case requiring change to quantitative from narrative
 1314 (a) 1: EPA sets its own WQS to help states determine what the appropriate WQS is for that
particular designated use based on the ‘latest scientific knowledge’
 While states may deviate, they must ‘have sound scientific rationale for doing so’
 State will need to convince EPA why their standard is wrong or why their water is
unique The Burden of Deviation is on the States
 3. Apply a Non-Degradation Policy:
 required, but very little is known about it
 1313 (d) 4 B: Waters with WQS must comply with the EPA non-degradation policy
 Tier 1 Waters: Waters where the fishable-swimmable goal is attainable can only be degraded if
degradation ‘preserves the attainability of that goal’
 Tier 2 Waters: Waters with a better then fishable-swimmable goal may only be degraded as
‘necessary to accommodate and important economic or social development’
 Tier 3 Waters: Outstanding National Resource Waters are protected by an irrebuttable
presumption that existing water use and quality must be maintained
 4. State Submits their proposed WQS to EPA for review:
 The Role of EPA:
 1. States submit their WQS to EPA for review  1313 (c) 2 A
 Such submission to EPA must have designated use, water quality criteria, and
“shall be…to protect the public health or welfare, enhance water quality and
serve purposes of CWA”
 2. 1313 (c) 3: If EPA Approves Becomes Federal Standard
 1313 (c) 3: If EPA disapproves
o remands to state to make changes to fix problem
 3. 1313 (c) 4: If EPA determines after state has had chance to redo, or hasn’t submitted
that it is inconsistent with what CWA requires, EPA may promulgate its own WQS for
states
 EPA Has been granted the authority to do so
 Nat’l Wildlife Fed’n v. Browner: held that EPA doesn’t automatically have to
accept the states promulgated WQS—instead, it has discretionary authority to
do so
 5. Establish TMDL’s (1313 (d) 1 C) and Allocate them among potential sources
 A TMDL is the total capacity a body of water can take of a pollutant—how much can be
discharged into that body of water, without exceeding WQS
 This is what is put into the permits and allocated
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Again—the whole idea is to prevent going over the WQS
 So while we allow pollution in, through technology based limits above, the
TMDL makes sure we do not go above the WQS + Margin of Safety
 Note:
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Unlike technology standards above, WQS TMDLs apply to both point and non-point
sources
1313 (d) 1 (A):
 Each state makes a list identifying and ranking in priority those waters where
technology limits are not enough to meet WQS
 Pronsolino: has held that EPA’s view that the list should include all impaired
waters is accepted
1313 (d) 1 (C) Components
 1. Waste Load Allocation: The amount allowed from point sources
 2. Load Allocation: The amount allowed from non-point sources
 3. Natural Background Concentrations of relevant pollution
 how much pollution is already within the water
 4. Seasonal Variations:
 5. Margin of Safety (which takes into account uncertainty and lack of knowledge and
its effect on water quality)
Process:
 1313 (d) 2: Once a state creates a TMDL it submits it to EPA for review
 EPA approval means that state incorporates TMDL into its current plan
 Disapproval means that EPA promulgates its own TMDL
 1313 (f):
 No matter what, states may not undercut the 1311 technology requirements
 People must continue to comply with them
 1311 (b) 1 C: States may, however, ratchet above the TMDL
 It goes into the NPDES permit and becomes enforceable under 1311 (b) 1 C
 Reasons why a state would go above:
o 1. Want cleaner water
o 2. Perhaps so that it can overregulated point sources, so that non-point
sources may be left along
 1313 (d) 2: If State Fails to Establish TMDL:
 EPA may promulgate its own TMDL for the state and determine the loads for
waters EPA determines are necessary to implement the WQS
 Litigation is Vast Over This Issue:
o Many litigants argue that 1313 (d) 2 is a mandatory duty of EPA’s
o 1. Litigation is vast because TMDL brings same idea of the Pre-1948
FWPCA, which needed a cause and effect relationship
 TMDLs are allocated to people who may not actually be
polluters, such as non-point sources who argue industry is a
polluter while they are not
 Scientific Uncertainty is also a large issue
o 2. Political Pressure: When a state makes a TMDL, political pressure
begins to mount from industrial polluters—make the TMDL large so
there is more to allocate to point sources
 This is more true when allocation occurs
o If TMDL is narrative rather then quantitative also makes a big issue
of what it exactly means and who it make be allocated to
 American Paper Inst. v. Train actually required a narrative
be changed to a quantitative statement
Can a TMDL solely apply to Non-Point Source:
 Pronsolino v. Nastri:
 F: California submitted its WQS pursuant to 303 (d) and EA disapproved.
California failed to resubmit so EPA created their own. California then made
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the TMDLs, and allocated some of them to non-point sources. Π owned 800
acres, and TMDL effected him, because he had to avoid sediment runoff into
water, which harmed his logging for almost $1M. He sued
I: Whether TMDLS may apply to non-point sources?
R:
o 1. Arguments:
 EPA argued that 1313 (d) 1 applies to all waters, and point
and non-point sources
 Pronsolino argues 1313 (d) 1 is only for point sources
o 2. 1313 (d) 1 says ‘waters’
 it does not specify whether it should be from point souce or
non-point source
 Only deals with impairment of waters and not how they got
impaired
o 3. Statutory Construction Argument:
 1. ∆ argued that 1313 (d) 1 should be read to apply to the
words ‘effluent limits’ which only apply to point-source
which by definition would exclude non-point source
 2. No read naturally, you read forward towards the
‘water quality standards’ language…not backward
 3. Also, 1313 (d) is sandwiched in between a, b, c, and e, all
of which deal with WQS which by nature does not
distinquish between point and non-point sources
 4. So, it makes sense that 1313 (d), within all of those
provisions does not either
o 4. Federalism Argument:
 1. The TMDL only applies to broad categories of non-point
sources rather then particular parcels it avoids the
argument that EPA is infringing on traditional land use
 2. Does not force state how to implement TMDL
 State is in no way required to act here function of
cooperative federalism and spending power
 Here, state choise if it would comply with it and how it
would comply with it
o Note: Although EPA May Promulgate its own TMDL
 State does not have to follow and EPA cannot enforce it
 Why:
 Stems from Congress’s desire to steer clear from any nonpoint source issues—pursuant to the political issues
 Even though they may have been able to reach them, this is
more of land use planning then the CAA, where EPA can
enforce its NAAQS it adopts
 However While EPA cannot enforce its adopted WQS
TMDLs, its power is the ability to void an NPDES permit
issued by the state 1342 (d)
 So EPA Says Fine, if you wont allocate TMDLs to nonpoint sources, we may void a NPDES permit you issue…this
gives EPA the ability to influence states choices in allocating
at least part of their TMDL to non-point sources
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