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Chapter 17 – Environmental Protection

6. The requested injunction was denied. “It would be stretching the language of the statute well

a. The Supreme Court said no. The parent corporation will have no liability unless under

b. The Supreme Court said the test should be whether the corporate parent actively

8. The students could have a discussion based on this question. Tucker’s position does not seem to

9. Problems include: rain runs off the lots carrying pollution and causing erosion; parking lots help

10. The students could have a discussion based on this question. Under constitutional law, an

individual must have “standing” to commence a lawsuit. In order to have standing, the plaintiff

11.

a. Federalism. Pollution sources are, by their nature, local in character. Those closest to the

b. Some states will not act for want of resources or for philosophical reasons. In their desire to

c. The students could have a discussion based on this question.

12.

a. The students could have a discussion based on this question. The perpetrators said it was a

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Chapter 17 – Environmental Protection

b. From a legal standpoint, tagging the cars can be viewed as vandalism, a misdemeanor.

13. The students could have a discussion based on this question.

Supplementary Cases

I. Union Electric Co. v. Environmental Protection Agency, 427 U.S. 246 (1976)

(See Regulation of Air Pollution p. 747)

Syllabus

Section 110(a) (1) of the Clean Air Act of 1965, as added by the 1970 amendments to the Act,

requires that each state formulate, subject to approval by the administrator of EPA, an

implementation plan providing for attainment of national ambient air quality standards—both

primary standards (those necessary to protect the public health) and secondary standards

(those necessary to protect the public welfare). Section 110(a) (2) provides that the

administrator “shall approve” the proposed plan if it has been adopted after public notice and

hearing and meets 8 specified criteria, including provisions for attaining the primary standards

“as expeditiously as practicable but…in no case later than three years from the date of

approval of such plan,” and of the secondary standards within a “reasonable time,” and

provisions for such control measures “as may be necessary” to attain both the primary and

secondary standards. Section 307(b) (1) of the Act provides that a petition for review of the

administrator’s “action in approving [the] implementation plan” may be filed in the appropriate

United States court of appeals, and must be filed within 30 days from the date of such

approval, or after such date if the petition is based on grounds arising after the 30th day.

Petitioner electric utility company, whose coal-fired generating plants are subject to the sulfur

dioxide restrictions in the Missouri implementation plan, did not seek review of the

administrator’s approval of that plan within the required 30 days, but rather applied to the state

and county agencies for, and received, one-year variances. At a time when the petitioner was

seeking extension of these variances, the administrator notified it that sulfur dioxide emissions

from its plants were violating the Missouri plan. Thereupon the petitioner filed a petition for

review of the administrator’s approval of the plan, claiming that various economic and

technological difficulties had arisen more than 30 days after the approval, making compliance

with the emissions limitation impossible. The Court of Appeals dismissed the petition for lack

of jurisdiction, holding that only matters which, if known to the administrator at the time he

approved the state plan would justify setting aside the approval, are properly reviewable after

the 30-day period; and that since claims of economic and technological infeasibility, such as

petitioner was asserting here, could not properly justify the administrator’s rejection of a plan,

such claims could not serve at any time as the basis for a court’s overturning a plan.

The Supreme Court held:

1. Since, regardless of when a petition for review is filed under section 307(b)(1), the court

is limited to reviewing “the administrator’s action in approving [the] implementation

plan,” if new “grounds” are alleged, they must be such that, had they been known at the

time the plan was presented to the administrator for approval, it would have been an

abuse of discretion for him to approve the plan. A contrary holding should shift a

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Chapter 17 – Environmental Protection

substantial responsibility in administering the Act from the administrator and the state

agencies to the federal courts.

2. Since both the language of the relevant provision of the Clean Air Amendments of 1970,

especially section 110(a) (2), and their legislative history make it clear that Congress

intended that grounds of economic and technological infeasibility be deemed wholly

foreign to the administrator’s consideration of a state implementation plan, a court of

appeals reviewing an approved plan under section 307(b)(1) cannot set it aside on such

grounds, no matter when they are raised.

a. The mandatory “shall” in the provision section 110(a)(2) that the administrator

“shall approve” an implementation plan if it satisfies the 8 specified criteria,

clearly indicates that the administrator is not to be concerned with factors other

than those specified, none of which appears to permit consideration of economic

or technological infeasibility.

b. The criterion of section 110(a)(2) that the primary air quality standards be met “as

expeditiously as practicable but… in no case later than three years,” does not

require consideration of claims of economic and technological infeasibility; but, as

both the language and legislative history of the criterion make clear, it was

intended that the administrator must approve a plan that provides for attainment

of the primary standards in three years, even if attainment does not appear

possible, the three-year deadline being central to the regulatory scheme of

technology forcing.

II. Natural Resources Defense Council, Inc. V. U.S. Environmental Protection

Agency, 824 F. 2d 1146 (D.C. Cir. 1987) (See Regulation of Air Pollution p. 747)

Syllabus

Emission standards under the Clean Air Act were established by the EPA for vinyl chloride,

which is a strong carcinogen. After challenge to standard was settled by proposed

amendments, EPA concluded it would abandon proposed amendments and propose only

minor revisions to standards. National resources group petitioned for review. The Court of

Appeals held that: (1) Group’s challenge to withdrawal of amendments was timely; (2)

common-law doctrine of exhaustion of remedies did not require that petition be dismissed; (3)

EPA was not required to set zero level of emissions when level below which no harm would

occur could not be determined; (4) cost and technological feasibility could be considered in

setting standards; and (5) cost and technological feasibility could not be considered in setting

standards that determine what was “safe.” Decision vacated and case remanded.

III. U.S. v. Wilson, 133 F. 3d 251 (4th Cir. 1997) (See Regulation of Water Pollution

p. 751)

Syllabus

Defendants were convicted of felony violations of the Clean Water Act (CWA) for knowingly

discharging material into a wetlands without a permit. They appealed, arguing that the

regulations were invalid as to them because the property in question could not “affect”

interstate commerce and that the CWA could not be applied to lands that do not have a “direct

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Chapter 17 – Environmental Protection

or indirect surface connection” to other waters of the U.S.

As part of a land development project, defendants attempted to drain and/or fill on certain

parcels that the government argued contained wetlands, covered by the CWA and certain

regulations. The parcels were more than ten miles from the Chesapeake Bay, more than six

miles form the Potomac River and hundreds of yards from the nearest creeks. The CWA was

passed under Congress’ Commerce Clause powers and prohibits discharge into “navigable

waters,” but the act defines “navigable waters” as simply “the waters of the United States.”

The court found that the Act would allow Congress to reach some nonnavigable waters, but

only those that are at least interstate or closely related to navigable or interstate waters. As

such, the regulation at issue exceeded congressional authorization. The court similarly found

that the instructions to the jury “intolerably stretches the ordinary meaning of the work

‘adjacent’ and the phrase ‘waters of the United States’ to include wetlands remote from any

interstate or navigable waters.” Thus, the jury instructions were in error.

The case was reversed and remanded for a new trial of the defendants.

IV. Quivira Mining Company v. United States Environmental Protection Agency,

765 F. 2d 126 (10th Cir. 1985) (See Regulation of Water Pollution p. 751)

Syllabus

Mining companies challenged authority of EPA under Clean Water Act to regulate discharge of

pollutants from uranium mining and milling facilities into gullies or “arroyos.” The Court of

Appeals held that substantial evidence supported administrator of Environmental Protection

Agency’s findings that both gully and creek were waters of the United States within meaning of

Clean Water Act. This was affirmed by the court.

Substantial evidence, including evidence that during times of intense rainfall, there was

service connection between gully and navigable-in-fact streams, that both flowed for period

after time of discharge of pollutants into water, and that flow continued regularly through

underground aquifers fed by surface flow into navigable-in-fact streams, was sufficient to

support decision of administrator of Environmental Protection Agency that gully and creek

were “waters of the United States” within meaning of Clean Water Act.

V. Arkansas v. Oklahoma, 112 S. Ct. 1046 (1992) (See Regulation of Water

Pollution p. 751)

Syllabus

The Clean Water Act provides for two sets of water quality measures: (1) effluent limitations,

which are promulgated by the EPA (Agency), and (2) water quality standards, which are

promulgated by the states. The Act generally prohibits the discharge of effluent into a

navigable body of water unless the point source obtains a National Pollution Discharge

Elimination System (NPDES) permit from a state with an EPA-approved permit program or

from the EPA itself. A Fayetteville, Arkansas, sewage treatment plant received an EPA-issued

permit, authorizing it to discharge effluent into a stream that ultimately reaches the Illinois

River upstream from the Oklahoma border. Respondents, Oklahoma and other Oklahoma

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Chapter 17 – Environmental Protection

parties, challenged the permit before the EPA alleging, among other things, that the discharge

violated Oklahoma water quality standards, which allow no degradation of water quality in the

upper Illinois River. The EPA’s Chief Judicial Officer remanded the initial affirmance of the

permit by the administrative law judge (ALJ), ruling the Act requires an NPDEA permit to

impose any effluent limitations necessary to comply with applicable state water quality

standards, and that those standards would be violated only if the record shows by a

preponderance of the evidence that the discharge would cause an actual detectable violation

of Oklahoma’s waster quality standards. The ALJ then made detailed findings of fact,

concluding the Fayetteville had satisfied the Chief Judicial Officer’s standard; and the Chief

Judicial Officer sustained the permit’s issuance. The Court of Appeals reversed, ruling that the

Act does not allow a permit to be issued where a proposed source would discharge effluent

that would contribute to conditions currently constituting a violation of applicable water quality

standards. It concluded that the Illinois River was already degraded, that the Fayetteville

effluent would reach the river in Oklahoma, and that the effluent would contribute to the river’s

deterioration even though it would not detectably affect the river’s water quality.

The Supreme Court held that the EPA’s action was authorized by the Clean Water Act.

1. Where interstate discharge is involved, both federal common law of nuisance and an

affected State’s common law are preempted. Affected states may not block a permit, but

must apply to the EPA Administrator, who may disapprove a plan if he concludes that the

discharge will have an undue impact on interstate waters.

2. The EPA has construed the Act as requiring that EPA-issued permits comply with the

requirements for a permit issued under an approved state plan and with the Act, which

appears to prohibit the issuance of a federal permit over the objection of an affected State

unless compliance with the affected State’s water quality requirements can be insured.

3. The EPA’s requirement that the Fayetteville discharge comply with Oklahoma’s water

quality standards is a reasonable exercise of the substantial statutory discretion

Congress has vested in the Agency. There is no need to address the question whether

the Act requires compliance with affected States’ standards, for it clearly does not limit the

EPA’s authority to mandate such compliance. EPA regulations, which since 1973 have

required that an NPDES permit not be issued when compliance with affected States’

water quality standards cannot be insured, are a reasonable exercise of the Agency’s

discretion and are a well-tailored means for reaching the Act’s goal of achieving state

water quality standards.

4. Contrary to the Court of Appeals’ interpretation, nothing in the Act mandates a complete

ban on discharges into a waterway that is in violation of existing pollution standards.

5. The Court of Appeals exceeded the legitimate scope of judicial review of an agency

adjudication when it invalidated the EPA’s issuance of the permit on the ground that the

Agency misinterpreted Oklahoma’s water quality standards. It substituted its own reading

of the law for the EPA’s. Thus, it failed to give substantial deference to the EPA. It also

disregarded well-established standards for reviewing actual findings of agencies by

making its own factual findings when the ALJ’s findings were supported by substantial

evidence. As a result, the court’s conclusion that the river’s degradation was an important

and relevant factor which the EPA failed to consider was based on its own erroneous

interpretation of the controlling law. Had it been properly respectful of the EPA’s

permissible reading of the Act—that what matters is not the river’s current status, but

whether the proposed discharge will have a detectable effect on that status—it would not

have adjudged the Agency’s decision arbitrary and capricious.

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Chapter 17 – Environmental Protection

VI. Bennett v. Spear, 117 S. Ct. 1154 (1997) (See Penalties and Enforcement

under Federal Law p. 760)

Syllabus

Two Oregon irrigation districts and the operators of two ranches that receive water from those

districts filed suit challenging a decision of the Fish and Wildlife Service (FWS) under the

Endangered Species Act (ESA). The decision specified the minimum water levels to be

maintained in two reservoirs, with the intent of protecting two fish on the endangered species

list. Petitioners objected to the minimum levels set, arguing that there is “no scientifically or

commercially available evidence indicating that the populations of endangered suckers… have

declined, are declining, or, will decline” if the same procedures for storing and releasing water

from the reservoirs which had been used “throughout the twentieth century” were continued.

(The Klamath Project which directly controlled the water usage was formed in 1902.) The

district court and the circuit court both held that the petitioners had no standing because their

“recreational, aesthetic and commercial interests… do no fall within the zone of interests

sought to be protected by the ESA.” The Supreme Court reversed, holding for petitioners and

permitting the litigation to proceed. Specifically, the Court held:

1. The provision of the ESA permitting “any person” to “commence a civil suit” permits

individuals to bring “actions against the Secretary asserting overenforcement” of the ESA.

2. The interests asserted by petitioners are within the zone of interests to be considered in

ESA determinations. The ESA specifically requires that each agency in its determinations

“use the best scientific and commercial data available.” “The obvious purpose” of this

requirement “is to ensure that the ESA not be implemented haphazardly” and implies an

objective “to avoid needless economic dislocation produced by agency officials zealously

but unintelligently pursuing their environmental objectives.” “Petitioners’ claim that they

are victims of such a mistake is plainly within the zone of interests that the provision

protects.”

VII. Boomer v. Atlantic Cement Co., 257 N.E. 2d 870 (N.Y. 1970) (See Common

Law Remedies p. 766)

Syllabus

Actions by landowners for injunction restraining operator of cement plant from emitting dust

and raw materials and conducting excessive blasting in operating its plant and for damages

sustained as a result of the nuisance so created. The trial court entered judgment for the

cement company which was affirmed by the Appellate Division. Appeals were taken. The

Court of Appeals held that where neighboring landowners sustained injury to property from

dirt, smoke and vibration emanating from defendant’s cement plant, and defendant’s

investment in plant was in excess of $45,000,000 and over 300 people were employed in the

plant, and it appeared that techniques to eliminate annoying by-products of cement making

were unlikely to be developed by any research defendant could undertake within any short

period, injunction would be conditioned on payment by defendant and acceptance by

landowners of permanent damages in compensation for servitude on the land. Reversed and

cases remitted with directions.

Selected Bibliography

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Chapter 17 – Environmental Protection

Rudy Abramson, “Discarded Tires Posing Environmental Nightmare,” Waterloo Courier, April 4, 1990,

p. A1.

Frank Edward Allen, “McDonald’s to Reduce Waste in Plan Developed with Environmental Group,”

The Wall Street Journal, April 17, 1991, p. B1.

Associated Press, “Home Depot Ends Sale of Wood from Endangered Areas,” Waterloo-Cedar Falls

Courier, August 27, 1999, p. D6.

Associated Press, “Report Urges Smarter Planning of Subsidies to Aid Environment,” Des Moines

Jon Bowermaster, “All Creatures Great and Dying,” Rolling Stone, May 3, 1990, p. 79.

Vicky Cahan, “To Stop Spills, Punishment Must Cost More Than Prevention,” Business Week, July 10,

1989, p. 26.

Dennis Cauchon, “Risk of Cancer in USA Is Barely Measurable,” USA Today, February 11, 1999, p.

1A.

Damon Chappie, et al., “Pollution Control 20 Years After Earth Day: A Retrospective on Federal

Environmental Programs,” Environment Reporter 21, No. 1, Part II, May 4, 1990, p. 123.

Mike Clary, “Battle Between Birds, Logger Grows in Forest,” Los Angeles Times, October 15, 1990, p

A5.

Editorial, “Fight on, Exxon,” The Wall Street Journal, May 2, 1991, p. A18.

Editorial, “Ignorance Makes Success of Oil Cleanup Hard to Gauge,” USA Today, March 24, 1999, p.

24A.

Editorial, “Needed: Superfund Cleanup,” Omaha World-Herald, November 26, 1999, p. 26.

Editorial, “10 Years After the Spill,” San Francisco Chronicle, March 28, 1999, p. 6.

Ramesh Gehani, “Will Oil Spills Sink Exxon’s Bottom Line?” Business and Society Review, No. 75,

Fall 1990, p. 80.

“The Globe’s Dirty Dozen,” The Wall Street Journal, October 3, 1999, p. A5.

Rose Gutfeld, “For Each Dollar Spent on Clean Air Someone Stands to Make a Buck,” The Wall Street

Journal, October 29, 1990, p. A1.

Jonathan Harr, A Civil Action (Random House 1995).

Richard L. Hudson, “Cost of Chernobyl Disaster Soars in Study,” The Wall Street Journal, March 29,

1990, p. A10.

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Chapter 17 – Environmental Protection

Robert L. Jackson, “Toxic Emissions Fell 9% in ’88, EPA Reports,” Los Angeles Times, October 4,

1990, p. A26.

Tom Kenworthy, “It’s a New World: Polluters Go to Prison,” USA Today, April 21, 2000, p. 3A.

Brad Lemley, “The New Ice Age,” Discover, September 2002, p. 35.

Jessica Mathews, “Results of Environmental Laws Are Clear,” Waterloo-Cedar Falls Courier, June 19,

1996, p. A6.

Mark M. Nelson, “As Shroud of Secrecy Lifts in East Europe, Smog Shroud Emerges,” The Wall Street

Journal, March 1, 1990, p. A1.

Lynda J. Oswald, “Multinational Corporations’ Responses to Environmental Risks in Transitional

Economies,” Environment and Business Newsletter, 1, no. 2, Sept. 1996, p. 1.

Robert Poole, “The Asset Test: A Privatization Agenda,” Reason Magazine, February 1995, p. 34.

Paul Raeburn, “Global Warming: Look Who Disagrees with Bush,” Business Week, April 23, 2001, p.

67.

Paul Reidinger, “Don’t Drink the Water,” ABA Journal 76, March 1990, p. 98.

Alain L. Sanders, “Battling Crimes Against Nature,” Time, March 12, 1990, p. 54.

Randolph B. Smith, “Environmentalists, State Officers See Red as Firms Rush to Market ‘Green’

Products,” The Wall Street Journal, March 13, 1990, p. B1.

Randolph B. Smith, “Rush to Endorse ‘Environmental’ Goods Sparks Worry About Shopper

Confusion,” The Wall Street Journal, April 16, 1990, p. B1.

Dick Thompson, “Smog Alert,” Time, December 9, 1996, p. 71.

Campion Walsh, “The Regulatory Toll,” The Wall Street Journal, September 13, 1999, p. R9.

Paul Wiseman, “Public Get Angry; Firms Get Greener,” USA Today, April 11, 1990, p. 1B.

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