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CHAPTER 21
ENVIRONMENTAL LAW
ENVIRONMENTAL REGULATION—During the 1960s the public became increasingly
concerned with the environment. Pressure was placed on the federal government to enact
legislation to protect and enhance the quality of the environment. In 1970 Congress created the
Environmental Protection Agency (EPA) to implement and enforce federal environmental
legislation (at the time, the Clean Air Act). The EPA is now one of the largest federal agencies. It
has primary responsibility for overseeing the federal effort to control water, air, and land
pollution and to control pollutants associated with consumer products.
Add. Case: Idaho v. ICC (DC Cir., 1994)—[This gives an idea of the broad range of laws that
can impact a single decision.] The Union Pacific RR applied for permission to abandon rail
service on an unprofitable 72 mile stretch of track through Idaho mountains that serviced some
mines once a week. The ICC agreed that the route was unprofitable and allowed the
abandonment subject to compliance with environmental safeguards. The state of Idaho and
various private parties objected to the ICC decision to allow the abandonment.
Decision: Under NEPA the ICC must complete an Environmental Impact Statement “in every
recommendation or report on proposals for ... major federal actions significantly affecting the
quality of the human environment.” Before the RR removes track, it must consult with the Idaho
Dept. of Environmental Quality and the EPA. Since assorted materials have been dropped along
Add. Info.: As the case notes, NEPA imposes requirements on government agencies to show they
have considered the environmental impacts of a wide range of activities. In Citizens Awareness
Network v. U.S. Nuclear Regulatory Comm. (59 F.3d 284) the First Circuit held that the NRC
violated NEPA by allowing decommissioning of a nuclear plant without an EIS. In Catron Co. v.
U.S. Fish and Wildlife Service, 75 F.3d 1429, the Tenth Circuit held that the FWS failed to
comply with NEPA when it designated land as critical habitat under the Endangered Species Act
without an EIS. An EIS considers not only the environmental impact but must address alternative
actions that could be taken to achieve a similar result of the intended regulation or action. As the
following case notes, the U.S. is immune from many environmental law penalties; as owner of
vast parts of land in the U.S. this has significant implications for air, water, land and specie
protection.
Add. Info: A joint study by the EPA and Amoco indicated that higher levels of pollution control
could be had at lower cost if flexibility was used rather than straightforward compliance with
EPA’s command-and-control regulations. Because of the very high cost of compliance with
environmental regulations, there is often an adversarial relationship between businesses. The
U.S. spends a greater share of national income on environmental controls than any major
nation.
POLLUTION AND THE COMMON LAW—Until the early 1970s, problems posed by
pollution were most dealt with by citizens, states, and localities. Most disputes involving
pollution were argued under a common law theory such as nuisance, trespass, negligence, or
abnormally dangerous activities; nuisance being the most heavily relied upon theory. While
regulatory law dominates now, common law actions are still available and in the past few years
have been used more and more. Each year, some of the largest jury verdicts in the country are for
common law environmental cases.
Nuisance, Trespass, and Pollution—A nuisance may be either public (involving rights held by
many people) or private (involving the property rights of a few people). A nuisance is something
that unreasonably and substantially interferes with someone’s rights. Public nuisance cases are
typically brought by a city attorney. Individuals bring private nuisance suits. Courts may weigh
the costs to society of the pollution when reaching decisions in these cases. If the pollution is too
costly, the polluter may be enjoined from causing further harm. If, on the other hand, the polluter
provides benefits to the society, the court may rule that the polluter can continue its harmful
activities, but must compensate the plaintiffs in monetary terms for their harms. In Georgia v.
Tennessee Copper (1907), the Supreme Court held that a smelter could be enjoined from
operating if it proved incapable of controlling its harmful pollution. A trespass is an unauthorized
and direct breach of the boundaries of another person’s land. Any violation of land may be a
trespass, but for a violation to be a nuisance the violation must involve a substantial and
unreasonable interference with the use of another’s property. Pollution cases may involve both
trespass and nuisance.
Add. Case: Stevenson v. E.I. DuPont (5th Cir., 2003)--The Stevensons lived near a DuPont
plant. They sued for contamination from emissions that affected their person, property and
livestock on theories of negligence, nuisance and trespass. The jury found that there was trespass
and that the value of their property had been reduced by $168,000.
Decision: New trial on damages. DuPont committed trespass by allowing emissions to go on the
Stevensons’ property. Under Texas law, the damage measure is the difference in market value of
Add. Case: Bradley v. American Smelting and Refining (Sup. Ct., Wash., 1985)--Plaintiffs
lived four miles from defendant’s smelter. They sued for damages in trespass and nuisance
because the plant emitted heavy metal particles that deposited on their land. The plant was in
compliance with state and federal air pollution regulations. Defendant argued it could not be
liable for common law actions, because state and federal regulation exempted it. The federal
court where the action was filed asked the Washington high court to clarify the common law of
nuisance and trespass.
Decision: Defendant could be sued for trespass and nuisance. Defendant could be liable because
it knew that emissions from the smelter would result in particulate deposits on land owned by
others. Although the gases emitted were undetectable by human senses, they were a direct
invasion of plaintiff’s property. The knowing deposit of particulate could support claims of
Negligence, Strict Liability, and Pollution—A polluter who fails to use reasonable care to
prevent the pollution may be subject to a suit in tort for negligence. Polluters who engage in
abnormally dangerous activities may be strictly liable for the harms they cause. Because toxic
pollutants are considered to be abnormally dangerous, those who emit such pollutants are likely
to be strictly liable for the harms they cause.
Add. Case: Branch v. Western Petroleum (Sup. Ct., Utah, 1982)--Branch owned property next
to defendant, which built a pond for wastewater from oil wells that contained toxins. The
pollutants percolated through the ground and contaminated Branch’s wells, killing 100 chickens.
He sued, alleging defendant created an abnormally dangerous condition by dumping oil well
wastewater and that defendant should be strictly liable. The district court agreed. Defendant
appealed.
Decision: Affirmed. The Court considered legal principles that governed liability for the
pollution of subterranean waters by industrial wastes. In Utah, percolating waters belong to the
people, therefore, no one has a right to pollute such waters. Dumping toxic water was unduly
Add. Case: U.S. v. Reserve Mining (D. Minn., 1974)--Reserve’s mining operation discharged
large quantities of toxic fibers into Lake Superior, contaminating the drinking water of the city of
Duluth, and into the air. Studies concluded that exposure to the fibers could cause asbestosis and
other cancers in humans. Reserve’s discharges had the potential to harm the health of persons
exposed to contaminated water or the air borne particles.
Decision: The court balanced health concerns against benefits of a large operation that
employed many people. Preserving the economic benefits of one group could not justify placing
the health of others at risk. Defendant knew of the possible dangers of its discharges, yet did
Water Rights and Pollution—Under the common law, no right to pollute water exists. Rights in
the use of water are determined by riparian water law. (States located in the western U.S. use a
variety of other water rights.) Riparian law states that a person living along a body of water may
make reasonable use of that water, but must pass the water long in usable form. Persons living
upstream may not pollute water to the detriment of people living downstream. This body of law
provides another basis for bringing suit against polluters.
CASE: Whalen v. Union Bag & Paper Co. (Ct. App., NY, 1913)—Whalen owned a farm that
bordered a creek; he used water from the creek to water plants and his livestock. The defendant
built a new pulp paper mill, located upstream from Whalen that employed over 500 people.
Whalen sued the mill, claiming it polluted the stream so that its water was unfit for use. The trial
court awarded Whalen monetary damages and held that the mill could be shut down if it did not
stop polluting within a year. The court of appeals struck down the injunction and reduced the
plaintiff’s monetary damages. Whalen appealed to the highest court of New York.
Decision: The court noted that the appellate court probably set aside the injunction ordered by
the trial court because of the great economic harm from shutting down the mill, compared to the
relatively small harm the mill caused Whalen. However, the slight harm caused was no reason
Questions: 1. If the common law was this tough, why would we need federal regulation of water
pollution?
The courts were not consistent about enforcement of riparian rights. The New York high court
backed down from a strong rights position in the 1970 Boomer case that tried to balance rights
against economic values. Over the years the states were split on this issue. Many courts were
2. Should damages be the only resort in such cases? Assuming that the real loss to Whalen was
$312 per year, why should he be able to get an injunction that would put hundreds of people out
of work?
Some courts took the position that injunctions were too strong, so they allowed economic
damages to be paid but no more. The issue is one of how strongly rights are to be enforced. We
Add. Case: Sandusky Portland Cement v. Dixon Pure Ice (7th Cir., 1915)--Both parties owned
riparian rights on the Rock River in Illinois. Dixon operated a plant to gather ice during the
winter, store it, and sell it. Defendant operated a cement plant upstream from the ice plant.
Dixon depended on the river freezing to harvest ice. The defendant diverted millions of gallons
of water from the river each day to cool machinery. Water discharged back to the river was
warmer, causing the river to not freeze. Dixon sued to enjoin discharge of warm water. The court
issued the injunction. Sandusky appealed.
Decision: Affirmed. Each riparian owner is entitled to the reasonable use of the waters of a
river. Owners may not use water so as to substantially diminish the quantity or quality of water
available to downstream owners. Was Sandusky’s use of the water reasonable? The burden of
Add. Info.—Return to Common Law: In recent years there has been a return to common law
actions for environmental damages. As CERCLA and RCRA have become more difficult to use to
go after vaguely related deep pockets, and as the cost of litigation tied to federal statutes has
risen, the common law bases have become more attractive, in part because there is generally no
damage cap. For example, a jury in Texas awarded 8 families $4 million actual and $200 million
punitive damages for pollution of an aquifer by an oil company. No federal statute based action
could have produced such a result. Federal penalties in environmental actions rarely run into
the millions, despite the large number of actions, whereas common law liability can be immense.
CLEAN AIR ACT—The Clean Air Act of 1970 (amended in 1977 and 1990), is considered one
of the strongest pieces of environmental legislation in the world. The Act established a federal air
quality control program that forces cooperation by the states in meeting national air standards.
National Ambient Air Quality Standards—To “protect and enhance the quality of the nation’s
air resources” EPA determines NAAQS for pollutants that it believes harms public health: sulfur
dioxide, particulate, ozone, carbon monoxide, nitrogen oxides and lead. CO2 is the latest
pollutant added to the list (see chart for details).
State Implementation Plans—When the EPA develops a NAAQS, each state is responsible for
developing a SIP to define the control efforts necessary for the state to meet the pollution control
requirements. Every plant that emits more than a certain volume of the listed pollutants must
meet control requirements spelled out in the SIP by a certain date. The burden of enforcing
pollution control requirements rests with the states. The EPA sets the limits of state activity.
When the EPA changes air pollution standards, the states must amend their SIPs to reflect the
change. Revised SIPs are reviewed by the EPA. Failure to submit an adequate plan will result in
EPA writing the plan. All SIPs must include enforceable emission limits; schedules and
timetables for compliance; measures for monitoring air quality and emissions; and adequate
funding and personnel capabilities.
Add. Info.: Congress exempts certain polluters from meeting standards. The dirtiest
coal-burning electric generating plants in the mid-west have been subject to fewer controls than
newer, cleaner burning facilities. Members of Congress from those states teamed with those from
eastern coal producing states to get exemptions; otherwise those facilities probably would have
had to close in favor of cleaner, more expensive new facilities. The Supreme Court put a dent in
the tradition of protecting the worst polluters in the Duke Energy 2007 case mentioned below
here.
Add. Case: Save Our Health v. Recomp of Minn. (8th Cir., 1994)--A landfill was built in St.
Cloud, Minnesota, by Recomp, under guidelines set by the Minnesota SIP. Surrounding land
owners and a citizen action group brought a citizen’s suit against Recomp, claiming that odors
from the landfill are above odor levels allowed by the SIP, which is written under the Clean Air
Act. District court granted Recomp summary judgment.
Decision: Affirmed. The odors emitted from the landfill met the standards set by the Minnesota
Pollution Control Agency in its SIP. So long as the landfill is in compliance, there can be no
The Permit System—The 1977 amendments to the Act provide procedures for the construction
of new industrial plants. Requirements depend on where construction takes place. Plant owners
must obtain preconstruction permits from either the EPA or the state agency that enforces the
Act.
Add. Case: Environmental Defense v. Duke Energy (Sup. Ct., 2007)--The New Source
Performance Standard (NSPS) and the Prevention of Significant Deterioration (PSD) standards
under the Clean Air Act (CAA) cover new and modified stationary sources of air pollution, such
as coal-burning electricity plants. Duke Power redesigned parts of coal-fired plants in order to
extend their lives. The EPA sued, contending Duke violated the PSD regulations by doing the
work without obtaining a permit. Duke argued that the changes to the plants were not “major
modifications” that required a permit. The trial and appeals courts agreed with Duke; the EPA
appealed.
Decision: Vacated. The EPA was not required to interpret the term “modification” the same in its
regulations governing PSD standards and in regulations governing NSPS. Duke contends that
the difference in definition of “modification” as applied to a stationary power plant is a
Clean Air Areas—Areas where the quality of air exceeds that required by NAAQS are known as
attainment areas or Prevention of Significant Deterioration (PSD) areas. This includes national
parks, wilderness areas, and other areas with high air quality. Only slight increases in the
pollution levels of these areas will be permitted, known as the maximum allowable increase.
Plants may be built in PSD areas if owners agree to install Best Available Control Technology
(BACT) and if the owner can demonstrate that its plant will not cause the maximum allowable
increase to be exceeded. PSD areas are divided into Class I, II, and III areas, Class I being the
most pristine environment.
Add. Case: Citizens for Clean Air v. EPA (9th Cir., 1992)--Spokane, Washington, is in a PSD
area. In the 1980s, the city had to close some landfills because they were Superfund sites. The
city decided to open a new landfill, start a recycling program, and build a waste-to-energy
incinerator (burn trash to generate electricity).The state and federal EPA approved the plan,
which was attacked by a citizen group that claimed the plan did not use BACT to reduce air
pollution. They claimed the incinerator would burn materials that could be recycled, adding
hundreds of tons of air pollutants every year. BACT would be more recycling, which would result
in much less burning.
Decision: The incinerator permit was upheld as not arbitrary or capricious. The approval
process used was proper. The plan went through the normal development process and interested
parties had their input then; unless clear violations of procedure are shown, the citizens have
Dirty Air Areas—Called nonattainment areas, these areas have not achieved the NAAQS.
Owners desiring to build in these areas must meet requirements more stringent than those
imposed in PSD areas. First, owners must agree to control pollution to the maximum degree
possible through use of the Lowest Achievable Emissions Rate (LAER) technology. Second,
owners must certify that all plants they own in the state where they wish to build are meeting SIP
requirements. Third, owners may build in nonattainment areas only if they offset the pollution
their new plant creates reductions in the amount of pollutants (of the same type) emitted by other
plants in the area. The reduction must result in a net air quality improvement. Hence, firms that
want to expand often have to buy and shut down existing polluters. In areas with the worst
pollution problem, such as Los Angeles, this is common practice, even extending to buying
junker cars that pollute a lot.
Add. Case: Environmental Defense v. Duke Energy (Sup. Ct., 2007)--The New Source
Performance Standard (NSPS) and the PSD standards under the Clean Air Act cover new and
modified stationary sources of air pollution, such as coal-burning electricity plants. Duke Power
redesigned parts of coal-fired plants in order to extend their lives. The EPA sued, contending
Duke violated the PSD regulations by doing the work without obtaining a permit. Duke argued
that the changes to the plants were not “major modifications” that required a permit. The trial
and appeals courts agreed with Duke; the EPA appealed.
Decision: Vacated and remanded. The EPA was not required to interpret the term “modification”
the same in its regulations governing PSD standards and in regulations governing NSPS. Duke
Add. Case: Alaska Dept. of Enviro. Conservation v. EPA (Sup. Ct., 2004)-- Cominco has a
mine in Alaska. It uses diesel generators and has a PSD permit to operate using BACT in an
attainment area. Wanting to add another generator, it applied for a permit and offered to use
control technology on all generators to cut NOx by 30%. Alaska DEC approved; EPA did not. It
mandated a higher quality, more costly, technology that would cut emissions even more. The
appeals court upheld EPA. Cominco and ADEC appealed.
Decision: Affirmed. EPA has an oversight role over the states in CAA matters. As such, EPA can
Add. Case: Chevron v. Natural Resources Defense Council (S. Ct., 1984)--The NRDC sought
review of the bubble concept developed by the EPA. It stated that EPA could measure from an
emission facility as a whole, rather than measure emissions from each individual emission
source in a complex such as a refinery. The NRDC alleged that the Clean Air Act required
stationary sources of pollution be treated as separate pollution emitting devices (that is,
smokestack by smokestack). Thus, the idea of treating all pollution emitting devices at an
industrial complex as a single device was contrary to the CAA. NRDC won at the appellate level
and the regulations concerning the bubble concept were set aside. Chevron appealed to the
Supreme Court.
Decision: Stationary source is not defined by the CAA. This lack of definition means that the EPA
has discretion in interpreting the term. The EPA specified several reasons for adopting a
plant-wide definition of the term. EPA believed that its definition would provide incentives for
Add. Case: Whitman v. Amer. Trucking Assn. (S. Ct., 2001)--The CAA requires EPA to issue
NAAQS for pollutants for which air quality criteria have been issued. The EPA issued revised
ozone and particulate matter NAAQS, that were challenged by several private parties and states.
The appeals court set aside the new standards, holding that Congress violated the Constitution
by delegating legislative power to the EPA. The held that the EPA must consider the costs of
implementing NAAQS. The EPA appealed to the Supreme Court.
Decision: Reversed. The CAA does not delegate legislative power to the EPA in violation of the
Constitution. When conferring decision-making authority to agencies, Congress must lay down
an intelligible principle to which the party authorized to act must conform. The limits that
Congress set for EPA are within the limits of the Court’s non-delegation precedents. The
Add. Case: Wisc. Elec. Power Co. v. Reilly (7th Cir., 1990)--Wisconsin Electric (WEPCO)
owned an electric power plant on Lake Michigan. The plant had old coal-fired steam generating
units. By the 1980s the company knew the units would need extensive repairs or be replaced.
WEPCO designed a replacement plan. EPA told WEPCO its program must meet higher
standards because the replacement program would be a “physical change” resulting in an
increase in production. WEPCO argued that its changes were “routine” and were, therefore,
exempt from CAA requirements. The EPA ruled against WEPCO in its administrative
proceedings. WEPCO appealed.
Decision: Affirmed. Did EPA’s construction of the Act comports with the statutory mandate and
Congressional intent? A court will not overturn EPA’s interpretation unless it is “plainly
erroneous” or “inconsistent.” WEPCO’s replacement plan was a “physical change” within the
Add. Case: Western States Petroleum v. EPA (9th Cir., 1996)--The 1990 amendments to the
CAA required states to modify permit programs. Washington state revised its permit program
and submitted it for EPA approval. The program would exempt “insignificant emissions units”
(IEUs) from the permit process. IEUs are things such as emissions from roof vents and from
fire-fighting equipment. EPA rejected the Washington proposal. Various companies and the
Washington Dept. of Ecology appealed.
Decision: Reversed. The EPA approved similar exemptions for IEUs in eight other states. “EPA’s
rejection of Washington’s IEU rules is undeniably a change ‘in agency interpretation [which]
must be supported by a “reasoned analysis” over and above that required for an interpretation
in the first instance.’” EPA may change requirements for the permit system, once it has provided
a thorough, well-reasoned analysis, but here “EPA fails to provide any explanation at all for its
Expanding Need for Air Quality Permits—Most focus about air permits is on electrical
generation facilities and large production sites, but permits are required even to build new
buildings in some jurisdictions. Air quality regulations are gradually moving to include smaller
and smaller sources.
Add. Case: Sierra Club v. Mississippi Enviro. Quality Permit Bd. (Sup. Ct., Miss, 2006)—
Cook owns a large swine facility with 7,000 pigs in a concentrated animal feeding operation
subject to water and air pollution controls. He was required to obtain an air pollution permit
from the state board. The permit approved his operation, which included a wind break and fans
to dispense odor. The Sierra Club challenged the permit process as inadequate, contending that
tighter controls should apply. The Board affirmed the permit. Sierra sued; the trial court
affirmed. Sierra appealed.
Decision: Affirmed. The Board followed the standards required of such operations, so its permit
was not arbitrary and capricious. There was credible expert testimony to support the control
Mobile Sources of Pollution—Some air pollutants have dropped substantially since the
enactment of the Clean Air Act. But some pollutants have remained fairly constant. The 1990
Amendments to the Act further tighten controls on ozone and other vehicle (mobile sources)
emissions. New tailpipe standards are imposed every few years, depending on the extent of the
ozone problem. The Amendment requires the increased use of alternative fuel sources. States
may set tougher emissions standards than those outlined by the amendments. California has a
particularly tough standard, which several other states have adopted.
CASE: American Trucking Assn. v. EPA (DC Cir., 2010)—California has Congressional
approval to regulate emissions from in-use non-road mobile sources of pollution. The state
toughened emission standards for emissions from air conditioning systems used in refrigerated
trucks. It will require most trucks that travel into California to upgrade equipment. The Am.
Trucking Assn. challenged the rule as arbitrary and capricious.
Decision: Rule upheld. The states and EPA share responsibility for regulating mobile sources of
air pollution. California has authority, from Congress, to regulate in-use non-road engines, such
Questions: 1. Is it likely that most trucks with refrigeration units will, in fact, comply with the
California standard, thereby making it nearly a national standard?
Yes because so many refrigerated goods come from California and because many trucks travel to
California, as it has such a large share of the national market. Further, it is likely that the makers
2. Is a cost of $2,000 to $5,000 per truck not significant?
Since most of the rigs are well over $100,000, that cost is not, as federal regulations go,
Add. Info.: New standards are gradually being imposed for smaller gasoline engines, such as
lawn mower engines, as mobile sources. EPA estimates that some lawnmowers emit as much
pollution in one hour as does a new car driven 8,500 miles. Many products will become more
complex and expensive as controls go to finer levels.
Toxic Pollutants—The EPA must set National Emissions Standards for Hazardous Air Pollutants
(NESHAPs); the agency has identified 191 such substances. EPA has been slow to issue
minimum emission rates (MERs) for all substances. The agency hopes to reduce by 90%
pollution caused by formerly unregulated substances, and to reduce by 75% cancer caused by air
pollution. Substances that pose a threat to human health will be subject to tighter control
standards, without regard to economic factors.
