978-1285428222 Chapter 21 Lecture Note Part 3

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Add. Case: Burlington Northern and Santa Fe Railway v. U.S. (Sup. Ct., 2009)–In 1960,

B&B, an agricultural chemical distributor, began operations on a piece of land owned by the

company in Arvin, California. It later expanded operations onto an adjacent piece of land owned

by two railroad companies. B&B used hazardous chemicals, including a pesticide D-D

purchased from Shell Oil. Over time, these chemicals were spilled and contaminated the ground.

After an examination of the site, the EPA ordered a cleanup and spent $8 million. It then sued

Shell and the railroads to recover the costs. The district court and court of appeals found

defendants liable for the costs. The railroads and Shell appealed to the Supreme Court.

Decision: Reversed and remanded. Shell is not liable as an “arranger” of the disposal of

hazardous substances the Arvin facility. While the statute does not define the term, plain

language would imply that an arranger takes intentional steps to dispose of a hazardous

substance. The facts do not support that. Shell sold the pesticide to B&B for its resale. No doubt

Add. Case: U.S. v. Atlantic Research Corp. (Sup. Ct., 2007)–Atlantic Research leased

property at a government site where it retrofitted rocket motors for the government. The

wastewater from the retrofitting process contaminated the soil and groundwater. Atlantic cleaned

the site at its expense and then sued the government to recover some of the cost. The appeals

court held for Atlantic. The government appealed.

Decision: Affirmed. The Comprehensive Environmental Response, Compensation, and Liability

Act (CERCLA or Superfund) allows private parties to recover expenses associated with cleaning

up contaminated sites. Potentially responsible parties are liable for all costs associated with

Add. Case: Kalamazoo River Study Group v. Menasha Corp. (6th Cir., 2000)–A portion of

the Kalamazoo River is polluted with PCBs and is a Superfund site under CERCLA. Paper mills

along the river were PRPs. The mills were joined by other companies to form the Kalamazoo

River Study Group (KSRG), which investigated the environmental damage prior to recovery. No

parties were adjudged liable for contamination. KSRG sought to recover investigation expenses

from various companies that the study found to have added PCB to the river. Both Menahsa and

Eaton, which have plants on the river identified as possible PCB sources, refused to contribute

to cover KSRG expenses. KSRG sued. The court held that firms found to have crossed the

“threshold of significance standard” for contributing pollutants would have to contribute to

cover KSRG expenses. Menahsa and Eaton did not meet that standard and so did not have to

contribute. KSRG appealed.

Decision: Reversed. One discharge into a Superfund site is sufficient to support liability under

CERCLA. There is no need for causation to be shown; that is, that a particular polluter caused

particular problems. Even if Menasha and Eaton are small PCB contributors, they are liable and

Add. Case: U.S. v. Chromalloy American (5th Cir., 1998)–In 1981, EPA discovered chromium

contamination at a Chromalloy plant in Odessa, Tx. After review, in 1988 EPA ordered treatment

of the site. In 1991, Chromalloy and EPA entered into an agreement, under which the company

would do the prescribed cleanup and pay EPA for oversight costs. In 1996, EPA demanded

$470,710 in oversight costs for 1992 through 1994. Chromalloy protested the amount as too high

and that it was not responsible for EPA’s indirect costs. Court ruled for EPA; Chromalloy

appealed.

Decision: Affirmed. The court found that EPA accounted for its costs and the court properly

deferred to EPA’s expertise. Chromalloy would have to show that EPA was arbitrary and

Add. Case: Olin Corp. v. Consolidated Aluminum (2nd Cir., 1993)–Olin improperly disposed

of chemicals at a NY aluminum facility until 1972. Contaminated land was left behind when Olin

sold the operation in 1973 to Consolidated. The sale included a standard provision in which

Consolidated agreed to “be responsible for and to pay, perform, discharge and indemnify Olin

against all liabilities, obligations and indebtedness” related to the property (i.e., Consolidated

agreed to clean up any legal problems left behind on the land). Later Superfund was passed. EPA

ordered a cleanup of contaminated soil from the pre-1972 operations. Consolidated sued Olin

for contribution to the costs of the clean up. Olin denied responsibility.

Decision: The appeals court held Consolidated responsible for the bill; Olin was relieved of

liability. The sale agreement language in which Consolidated agreed to pick up all

Practical Problems—EPA may pursue cleanup in two ways: it may undertake the cleanup effort

itself and recover costs by suing responsible parties after the fact, or it may order private parties

to pay for and conduct the cleanup. An order to conduct a cleanup usually results in a suit

questioning the validity of the order. Costs of litigating Superfund claims are enormous. Because

current owners of property may be held financially responsible for the improper dumping of

other parties, it is important that businesses purchasing property conduct environmental audits

before they buy. Land purchasers should also investigate the past business conduct of prior

owners to determine whether it was likely that hazardous wastes could have been dumped or

buried on the land in the past. Failure to take these steps could result in liability, even for an

“innocent” landowner. A huge amount of land, especially old urban land is essentially abandoned

due to Superfund uncertainties; this is becoming a major problem in trying to revitalize urban

areas.

SPECIES PROTECTION—Several federal laws address protecting the environment for plants

and animals; most important law is the Endangered Species Act of 1966 (which was amended in

1973 to its current form). It authorizes designation of habitat areas where the environment must

be preserved to save endangered species. The government develops recovery plans for

endangered and threatened species. Recovery programs get little federal funding given the

requirements of the statute, hence the reliance on regulatory control of private lands.

Habitat Protection—The Secretary of the Interior declares species to be endangered (or

threatened) and establishes the critical habitat areas (via Fish and Wildlife Service, FWS,

usually). Once a species is declared endangered, private and public parties are prohibited from

engaging in unauthorized activities that would injure the species. The Act has attracted most

attention when it is used to block or alter development when an endangered species is present. In

the 1978 case Tennessee Valley Authority v. Hill, the Supreme Court blocked the completion of a

dam on the Little Tennessee River because the dam would destroy the habitat of the snail darter,

a small fish. (Note: In one of its rare uses, a committee appointed by the President, as permitted

by ESA (referred to as the “God Squad”) overruled the Court’s decision.) Prior to the Sweet

Home case it was not clear how extensive the power of the government was to regulate habitat.

Add. Case: Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (S. Ct.,

1995)–Private landowners and others dependent on forest products for a living sued the

Secretary of Interior and the FWS, claiming the definition of “harm” in ESA regulations too

broad and beyond the intent of Congress. Besides directly injuring a specie, harm is also defined

to mean habitat modification. Hence, FWS controls substantial private land that contains the

northern spotted owl and the red-cockaded woodpecker, taking plaintiffs’ lands out of productive

use. The appeals court agreed with the plaintiffs.

Decision: The Supreme Court reversed, upholding the regulation. ESA applies to all lands and

Add. Case: Cook Inlet Beluga Whale v. Daley (D. D.C., 2001)–“The Cook Inlet Beluga Whale

is a genetically distinct, geographically isolated marine mammal with a remnant population that

inhabits Cook Inlet from later April or early May until October or November.” The National

Marine Fisheries Service (NMFS) estimates that the population has fallen from 1000 to 300

whales in 20 years due to hunting by Native Americans. The NMFS decided to list the whale as

“depleted” under the Marine Mammal Protection Act (MMPA) rather than as “endangered”

under the Endangered Species Act (ESA). Depleted is a listing that may be used for marine

mammals that are determined to be below its Optimum Sustainable Population. The MMPA gives

the Secretary authority to issue regulations to limit takings by Native Americans, but does not

have the regulatory impact of a listing under the ESA. The listing under the MMPA, rather than

under the ESA, was challenged as arbitrary and capricious in violation of the law.

Decision: The decision of the Secretary is upheld. The decision to protect the whale under the

MMPA rather than under the ESA was not arbitrary or an abuse of discretion. The NMFS must

use the ESA, rather than the MMPA, if the specie population will qualify as endangered even if it

Controversy and Uncertainty—The FWS is grossly underfunded for the task it is charged within

the ESA (as the case below indicates). To accomplish its task, it generates popular support by

devoting most resources to well known species, such as the grizzly bear and bald eagle. It uses

regulatory powers to control habitat, forcing private property owners to bear most of the cost of

specie protection. This produces political backlashes.

CASE: In Re Polar Bear Endangered Species Act Listing (DC Cir. 2013)—FWS was

petitioned to list the polar bear under the ESA. The bear population is healthy, but FWS ruled

that climate change would make the bear endangered during the coming decades and listed it as

threatened. Groups challenged the listing as inadequate or too restrictive. The district court

upheld the FWS listing; petitioners appealed.

Decision: Affirmed. The issue for an appeals court is if there was a reasoned decision process.

Questions: 1. Bear habitat does not appear to be in danger in many of the 19 areas in which they

congregate, so why would it matter if there is a threat to only some areas?

ESA applies to any habitat where a species may be endangered, so if the problem existed in only

2. If the problem may not occur for as much as 45 years, why should anything be done

now?

Problems are hard to solve after the fact and bear populations are not as quick to change as some

Add. Case: Center for Biological Diversity v. Marina Point Development Assoc. (C.D.,

Calif., 2005)—Developers began work on a lake front condo project in the early 1980s and

spent 20 years doing background permit work before construction started. The Center monitored

the project and complained to the Corps and other agencies about permit violations, such as

improper dredging of the lake, disturbing bald eagle habitat, and other problems. The Corps

ordered corrective action, but the Center believed that inadequate and sued to enjoin further

work.

Decision: Motion granted. The project violated the ESA by disturbing bald eagle habitat. The

project was also violating Clean Water Act permits by improper dredging and wetlands damage.

Add. Case: Ctr. for Bio. Diversity v. Norton (D. N.M., 2001)–On January 28, 1999, the Fish

and Wildlife Service (FWS) received a petition from the Center for Biological Diversity (CBD) to

list the Sacramento Mountains checkerspot butterfly as endangered with critical habitat. Under

the ESA, the Sec. of Interior has 12 months to issue a finding on a petition. On December 27,

1999, FWS concluded that listing “may be warranted.” While a draft report had been prepared,

the final finding was not published. The CBD filed suit against the Secretary for declaratory and

injunctive relief, arguing that the Secretary violated the requirement by not issuing the finding

report within twelve months. The Secretary responded that because of budget cuts at the

Department of Interior, she should have more time to complete the finding.

Decision: Plaintiff’s motion granted. The Secretary will publish a twelve-month finding within

thirty days in the Federal Register. The Secretary argued that publishing in a timely manner is

Issue Spotter: Picking a Sweet Spot

Lots of things, besides local zoning rules, must be considered. Are there endangered species on

the property or bordering it. Is the property the habitat of a specie? Are there any old

environmental problems left over from before–stuff that was dumped and maybe buried on the

property that must be cleaned up before development? Does the property contain wetlands that

cannot be built upon? Will construction affect existing water flows so that the water rights of

surrounding property owners could be affected? Similarly, will development change the direction

and quantity of water runoff, so that neighboring property could be flooded?

GLOBAL ENVIRONMENTAL ISSUES—Certain environmental issues affect many nations

and exist across borders and are best handled in the international arena. Global cooperation in

areas of concern is important to all nations.

The Ozone—Excess ozone in the air we breathe is caused largely by automobile exhaust. Too

much ozone at low atmosphere levels is a problem. Ozone depletion in the upper reaches of the

atmosphere is caused by a different substance: clorofluorocarbons (CFCs). CFCs, such as freon,

are used as refrigerants and in some plastics. If large quantities of CFCs are present in the

atmosphere they eat a hole in the ozone layer, exposing life on earth to increased ultraviolet

radiation. Domestic Agreement—After evidence was presented in the mid-1980s that a hole in

the ozone layer existed over Antarctica, U.S. manufacturers of CFCs agreed to stop production of

the product. The Montreal Protocol of 1987, an international agreement, froze CFC production at

1987 levels and cut production 50% by 1998. The Protocol was revised in 1990 banned CFCs

and halon (a fire fighting chemical) by 2000. In the U.S., CFC and halon production ended in

1995. This phaseout of CFCs cost the world economy approximately $200 billion.

International Cooperation—A number of pressing environmental issues require the

cooperation not only of industrial nations (as was the case for CFCs) but also of less developed

nations. The Montreal Protocol established a fund, paid for by wealthier nations, that can be used

to help poorer nations who are hurt by the CFC ban. This represents wealthy nations buying

environmental protection/ environ-mental rights from poorer nations. This is likely to be an

important trend in global environmental issues, especially given the very poor state of the

environment in many nations, the ex-communist nations particularly. For example, it is estimated

that the unified German nation spent $100 billion by 2000 to start cleaning up the former East

Germany. Other major global environment issues include global climate change and vanishing

rainforests.

International Perspective: CITES: Global Species Concerns May Conflict with Local

Interests

The Convention on International Trade in Endangered Species is endorsed by most nations.

Countries agree to comply, but it is not a binding treaty so there is little consequence for ignoring

it. The transport of endangered species is prohibited and is enforced at the border at the U.S. and

some countries. Some of the protected species, such as the rhino, are actively traded or, more

commonly, parts of their bodies are traded for alleged medicinal benefits. It is a good source of

income for poor people and buyers think there are benefits to consumption. Alternatives that give

those who live near endangered species incentives to protect them need to be developed to help

encourage conservation.

Climate Change—Kyoto treaty was signed by numerous nations that claim they will reduce

greenhouse gases by 2008-12. The U.S. has not ratified the treaty. [Note: The nations that have

signed the treaty have been all talk, no action, about reducing emissions. Per capita emissions

have been rising faster in the E.U., where the treaty was ratified, than in the U.S.]

CASE: Massachusetts v. EPA (S.Ct., 2007)—Twelve states and some private groups sued the

EPA contending that it had an obligation under the Clean Air Act to regulate greenhouse gases

from vehicle emissions. The EPA responded that its current regulations were sufficient. The

appeals court agreed. Plaintiffs appealed.

Decision: Reversed. Greenhouse gases are an air pollutant. EPA is capricious for not regulating

Questions: 1. The Supreme Court held that the EPA has authority to regulate greenhouse gases,

such as carbon dioxide emissions from vehicles. If Massachusetts and other states feel strongly

about it, why don’t those states address the matter?

A state cannot solve global or even national air quality issues by itself. Air moves so emissions

from California end up, partly, in Arizona. Hence, national or international resolution makes

2. Does the Supreme Court have the authority to order EPA to control such emissions?

No, and it did not claim here it could. It was saying that EPA had authority to address the issue.

This case was more of a political struggle than a legal one. Generally, richer states and

Add. Info.: The Pollution Prevention Act of 1990 focuses on issues of waste management and

makes pollution reduction a priority. This Act changes the focus of federal control from cleaning

up past pollution and setting pollution limits to changing behavior to reduce future pollution.

The Act calls for the reduction of industrial hazardous wastes and encourages changes in

equipment and technology to facilitate these reductions. Redesigning products to minimize

environmental damage caused by production processes is a goal. The EPA is required to do the

following to help meet these pollution reduction goals: identify measurable goals; improve

measurement, data collection and access to information; assess existing and proposed

programs; offer grants for technical assistance; require companies to disclose level of toxic

chemicals they release; and, encourage pollution reduction through the federal procurement

process. Businesses can also encourage pollution reduction through more efficient control and

more effective environmental management.

Discussion Question

At least in the case of water pollution, controls existed in the riparian rights of the Eastern states

and the prior appropriation rights of the Western states. Water rights holders had a cause of action

against those who damaged water which right holders had the right to use. Some states adhered

to the natural flow concept, which favors downstream users and prevents any polluting use

upstream, regardless of who first used the water. Most states adhered to the reasonable use

concept, which favors upstream users to the extent that it allows any reasonable use to be

established at any place along a stream, and requires all users to accommodate that. That is, the

right to discharge wastes into waterways was presumed, but the amount and toxicity of the waste

must be balanced against the rights of other riparians—the landowners whose land abuts the

waterway.

The case Whalen v. Union Bag helps illustrate the law. The case did not mean that there could be

no pollution of potentially injurious levels. To avoid water rights litigation, the mill owner could

have contracted for riparian rights from down stream land owners or bought the land along the

stream.

Another frequently employed control on water pollution was the law of nuisance. Nuisance law

was dominated by private nuisance actions, generally defined as “… an unreasonable interference

with the interest in the use and enjoyment of land….” As it relates to water pollution, private

nuisance is generally accepted to be:

“Such impurities as substantially impair [the water’s] value for the ordinary purposes of life, and

render it measurably unfit for domestic purposes; or such as causes unwholesome or offensive

vapors or odors to arise from the water, and thus impairs the comfortable or beneficial enjoyment

of property in its vicinity, or such as, while producing no actual sensible effect upon the water,

are yet of a character calculated to disgust the senses, such as the deposit of the carcasses of dead

animals therein, or the erection of privies over a stream, or any other use calculated to produce

nausea or disgust in those using the water for the ordinary purposes of life….” Trevett v. Prison

Association, 98 Va. 332, 336 (1900)

Public authorities also had common law causes of action against water polluters. At the local

level, suit for public nuisance was the primary cause of action. A public nuisance is “the doing of

… something that injuriously affects the safety, health or morals of the public, or works some

substantial annoyance, inconvenience or injury to the public.” These cases are much the same as

private nuisance actions.

Case Questions

1. Webb developed Sun City, Arizona (a retirement village). His sales were hurt by odors from

Spur’s nearby cattle feedlot, which Webb knew about when he located the development. Webb

Although Webb had come to the nuisance (or having brought others to the nuisance), the court

decided that the feedlot would be permanently enjoined, but Webb was required to indemnify

Typically, the new owner who “comes to the nuisance” pays less for the property because of the

existence of the odor, pollution, or noise. That person will receive a windfall to the extent he or

she can later have the odor, pollution, or noise abated through a nuisance action. The property

2. (answer on Internet for students) The polluter was found liable under strict liability for

abnormally dangerous materials, for negligence, for trespass, and for nuisance. Compensatory

damages were $5.3 million plus interest. Punitive damages of $7.5 million were assessed due to

3. The D.C. Circuit held that the challenge to the regulation was timely. The EPA did not have to

use a zero standard even though the “level below which no harm would occur could not be

determined” because the scientific information was too imprecise to allow such a finding. The

4. (answer on Internet for students) EPA won in a 5-4 decision. The EPA, like other agencies

administering statutes, is entitled to considerable deference. To uphold the right of EPA to grant

5. The court upheld the industry position. The statute defined solid waste as “discarded

material.” Congress was using the term in its ordinary sense, and gave no evidence that it meant

6. (answer on Internet for students) Granted. The citizens gave the state the required 60-day

notice of the suit and filed the suit within 120 days of the date the notice was given to the state.

The residents allegation that the river smelled and looked polluted, and that they use the river

less for recreational, aesthetic, and commercial purposes because the city violates its NPDES

7. The defendants were found liable by the trial court under CERCLA as owners, operators, and

generators of the waste at the dump site. However, the harm was indivisible since the waste was

all dumped together. As provided by the statute, the defendants were found to be jointly and

8. Yes, he was liable as “an arranger” for the transport of hazardous waste to a dumpsite. “A

corporate officer, who has virtually unlimited control over a company and in fact exercises that

control but knows well enough to close his or her eyes to the specific details of the company’s

hazardous waste disposal practices, could avoid CERCLA liability; meanwhile, the employee

9. Reversed and remanded. The property owners have standing under state and federal law to

bring nuisance, trespass, and negligence claims against the firms. They contend they can trace

the link between the emissions from the firms and global warming and changes in the weather.

Ethics Question

Several U.S. manufacturers have been forced to move at least part their operations offshore to

avoid the rigors of U.S. environmental (and other) laws. With few exceptions, those moves have

been legal. Are they ethical?

A number of companies have expressed concern about the pollution their operations offshore

create. It is not uncommon for companies to implement pollution controls on their foreign

Still, many overseas plants do not use controls. Some suggest that the U.S. impose an import

duty on products coming from foreign facilities not using pollution control devices. The

Internet Assignment

U.S. Environmental Protection Agency: www.epa.gov/

Vermont Law School Library Services, Environmental Law Resources:

www.vermontlaw.edu/Environmental_Law_ Resources.htm

Topix, Environmental Law News: www.topix.net/law/environmental

There are many online resources that have environmental law materials. These suggested

websites are particularly worth visiting for their extensive collections of environmental law

materials.