Unlock document.
This document is partially blurred.
Unlock all pages and 1 million more documents.
Get Access
Chapter 45
ENVIRONMENTAL LAW
I. Common Law Actions for Environmental Damage
A. Nuisance
1. Private Nuisance
2. Public Nuisance
B. Trespass to Land
C. Strict Liability for Abnormally Dangerous Activities
D. Problems Common to Private Causes of Action
II. Federal Regulation of the Environment
A. National Environmental Policy Act
1. Council on Environmental Quality
2. Environmental Impact Statements
a. Procedure for Preparing an EIS
b. Scope of EIS Requirement
c. Content of an EIS
d. Nature of EIS Requirement
B. The Clean Air Act
1. Existing Stationary Sources and Motor Vehicles
Then in Use
a. National Ambient Air Quality Standards
b. State Implementation Plans
c. Prevention of Significant Deterioration Areas
d. Nonattainment Areas
2. New Source Standards
a. New Stationary Sources
b. New Vehicles
c. Hazardous Air Pollutants
d. Acid Rain
C. The Clean Water Act
1. Point Sources
a. Effluent Limitations
b. National Pollutant Discharge
Elimination System (NPDES)
c. The 1977 Amendments
2. Non-Point Source Pollution
3. New Source Performance Standards
D. Hazardous Substances
1. The Federal Insecticide, Fungicide and
Rodenticide Act
2. The Toxic Substances Control Act
3. The Resource Conservation and
Recovery Act
4. The Superfund
E. International Protection of the Ozone Layer
Cases in This Chapter
Massachusetts v. Environmental Protection Agency
South Florida Water Management District v. Miccosukee Tribe of Indians
Chapter Outcomes
After reading and studying this chapter, the student should be able to:
Outline and explain the common law actions for environmental
damage and the difficulties in prevailing in such actions.
Explain the major substantive provisions of the National
Environmental Policy Act.
Explain the regulatory scheme of the Clean Air Act.
Explain the regulation of both point and nonpoint sources of pollution
by the Clean Water Act.
TEACHING NOTES
In the 20th century, the human population of the earth has increased from
1.6 billion to 5.9 billion (1998) people, and at the present rate of growth will
double again within the student’s lifetime. As populations have grown,
people have crowded into towns and cities, and air and water have grown
much dirtier. Technology, which has helped people live longer, travel faster,
I. COMMON LAW ACTIONS FOR
ENVIRONMENTAL DAMAGE
People may bring private tort actions to recover damages for harm to the
environment. For example, if Alice’s land is polluted by the mill next door,
Alice may sue the mill in tort for the damage to her land. Plainti6s have
generally relied on the theories of nuisance, trespass, and strict liability.
*** Chapter Outcome***
Outline and explain the common law actions for environmental damage and
the difficulties in prevailing in such actions.
A. NUISANCE
Private Nuisance
Private nuisance involves an interference with a person’s use and enjoyment
of his or her land. The plainti6, when suing, must show that the defendant
has substantially and unreasonably interfered with the use and enjoyment of
the plainti6’s land — not that the defendant’s conduct was unreasonable but
that the interference was.
Public Nuisance
A public nuisance is an activity that interferes with the health, safety, or
comfort of the public.
Generally, only a public representative, such as the attorney general, may
sue to stop a public nuisance. Public representatives frequently are unwilling
to sue to abate a public nuisance out of concern about the economic impact
of closing an industrial operation. Consequently, relatively few public
nuisance actions have been brought against polluters.
B. TRESPASS TO LAND
To establish trespass to land, a plainti6 must show an invasion which
interferes with the plainti6’s right of exclusive possession of the property and
which is the direct result of an action by the defendant.
C. STRICT LIABILITY FOR ABNORMALLY DANGEROUS
ACTIVITIES
Strict liability is liability without fault if a person engages in an abnormally
dangerous activity. To establish strict liability, the plainti6 must show that the
defendant is carrying on an unduly dangerous activity in an inappropriate
location and that the plainti6 has suffered damage because of this activity.
Only a limited number of strict liability actions have been brought against
polluters.
D. PROBLEMS COMMON TO PRIVATE CAUSES OF ACTION
• The costs of private litigation are high. And while the environmental
damage may be considerable overall, the extent of any particular
injury may not warrant a person pursuing a private lawsuit.
• Tort actions generally do not provide relief for aesthetic, as opposed to
physical, injury.
II. FEDERAL REGULATION OF THE ENVIRONMENT
Because private causes of action have proved inadequate to recompense
and prevent environmental damage, the federal, state, and local
governments have enacted statutes to protect the environment.
*** Chapter Outcome ***
Explain the major substantive provisions of the National Environmental Policy Act.
A. THE NATIONAL ENVIRONMENTAL POLICY ACT
In 1969, Congress enacted the National Environmental Policy Act (NEPA) to
establish environmental protection as a goal of federal policy. (See textbook,
pg. 853 for excerpt from the act.) The NEPA has two major substantive
sections:
• one creating the Council on Environmental Quality (CEQ)
• one requiring federal agencies to prepare an environmental impact
The Council on Environmental Quality
The Council on Environmental Quality is a three-member advisory group and
is part of the Executive Office of the President. The CEQ makes
recommendations to the president on environmental matters and prepares
annual reports on the condition of the environment.
Environmental Impact Statements (EIS)
The NEPA does not focus on a particular type of environmental damage.
Rather, it expresses the federal government’s concern with protecting the
environment by mandating the EIS requirement. An environmental impact
statement (EIS) is required if the proposed action (1) is Federal, (2) is
considered “major”, and (3) has a signiticant environmental impact.
Procedure for Preparing an EIS —
• When a federal agency proposes legislation or considers taking a
major federal action, the CEQ regulations require the agency initially
to make an “environmental assessment,” which is a short analysis of
the need for an EIS.
Scope of EIS Requirement — The EIS requirement applies to a broad
range of projects — not only those a federal agency undertakes itself but
also those by other parties, as a result of some federal decision, when such
projects will affect environmental quality.
The NEPA’s EIS requirement is also construed to apply to the urban
environment, not just to the natural environment.
Health effect, including psychological health, are considered environmental
effect under the NEPA. However, the Supreme Court has held that an e6ect
Content of an EIS — The EIS must describe in detail:
• the environmental impact of a proposed action,
• any adverse environmental effect that could not be avoided if the
proposal were implemented,
• alternatives to the proposed action, (including doing nothing)
• the relationship between local short-term uses of the environment and
the maintenance and enhancement of long-term productivity,
• and any irreversible and irretrievable commitments of resources the
Nature of EIS Requirement — After the NEPA was enacted, it was unclear
whether the act was solely procedural or whether it had a substantive
component. The Supreme Court resolved the issue by holding that the
NEPA’s requirements are primarily procedural and that the NEPA does not
require that the relevant Federal agency attempt to mitigate the adverse
effect of a proposed Federal action. Rather, NEPA attempts to prohibit
uninformed decisions, not unwise agency actions.
B. THE CLEAN AIR ACT
Initially, the states had primary responsibility for controlling air pollution, and
the federal government merely supervised the states’ effort and offered
technical and financial assistance. But state effort proved inadequate, and
Congress enacted the Clean Air Act Amendments of 1970, greatly expanding
the federal role. Major revisions to the Clean Air Act were enacted in 1977
and 1990. In March 2011, EPA issued the Second Prospective Report that
looked at the results of the Clean Air Act from 1990 to 2020. According to
this study, the direct bene=ts from the 1990 Clean Air Act Amendments are
estimated to reach almost $2 trillion for the year 2020 and to prevent
230,000 early deaths. Direct costs of implementation are estimated at $65
billion.
*** Chapter Outcome***
Explain the regulatory scheme of the Clean Air Act.
The act establishes two regulatory schemes:
• one for existing sources and
• one for new stationary sources.
The states retain primary responsibility for regulating existing stationary
sources and motor vehicles then in use (i.e., in use when the act or its
subsequent amendments took e6ect).
The federal government regulates new sources, new vehicles, and hazardous
air pollutants.
CASE 45-1
MASSACHUSETTS v. ENVIRONMENTAL PROTECTION
AGENCY
The United States Supreme Court, 2007
549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248
http://scholar.google.com/scholar_case?case=16923241216495494762&q=549+U.S.+497&hl=en&as_sdt=2,10
Stevens, J.
[On October 20, 1999, a group of nineteen private organizations =led a
rulemaking petition asking the Environmental Protection Agency (EPA) to
regulate greenhouse gas emissions from new motor vehicles under the
Clean Air Act. Fifteen months after the petition’s submission, EPA
requested public comment on all the issues raised in the petition, adding
* * *
The scope of our review of the merits of the statutory issues is narrow. As we have
repeated time and again, an agency has broad discretion to choose how best to marshal its
limited resources and personnel to carry out its delegated responsibilities. * * *
* * *
EPA concluded in its denial of the petition for rulemaking that it lacked authority under
[citation] to regulate new vehicle emissions * * * [T]he Clean Air Act expressly permits
review of such an action. We therefore “may reverse any such action found to be …
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
[Citation.]
On the merits, the first question is whether §202(a)(1) of the Clean Air Act authorizes
judgment cause, or contribute to, air pollution which may reasonably be anticipated to
endanger public health or welfare.” [Citation.] Because EPA believes that Congress did not
intend it to regulate substances that contribute to climate change, the agency maintains that
carbon dioxide is not an “air pollutant” within the meaning of the provision.
The statutory text forecloses EPA’s reading. The Clean Air Act’s sweeping definition of
* * *
While the Congresses that drafted §202(a)(1) might not have appreciated the possibility
that burning fossil fuels could lead to global warming, they did understand that without
regulatory flexibility, changing circumstances and scientific developments would soon
render the Clean Air Act obsolete. The broad language §202(a)(1) reflects an intentional
effort to confer the flexibility necessary to forestall such obsolescence. [Citations.] Because
greenhouse gases fit well within the Clean Air Act's capacious definition of “air pollutant,”
we hold that EPA has the statutory authority to regulate the emission of such gases from new
motor vehicles.
The alternative basis for EPA’s decision—that even if it does have statutory authority to
regulate greenhouse gases, it would be unwise to do so at this time—rests on reasoning
divorced from the statutory text. While the statute does condition the exercise of EPA’s
authority on its formation of a “judgment,” [citation], that judgment must relate to whether
* * *
* * * EPA has offered no reasoned explanation for its refusal to decide whether
greenhouse gases cause or contribute to climate change. Its action was therefore “arbitrary,
capricious, . . . or otherwise not in accordance with law.” [Citation.] We need not and do not
reach the question whether on remand EPA must make an endangerment finding, or whether
Existing Stationary Sources and Motor Vehicles Then in Use
Because the states had not managed to control air pollution, the 1970
amendments provided that the federal government would set national air
quality standards for stationary sources and motor vehicles then in use, and
the states would be responsible for achieving them.
National Ambient Air Quality Standards — The EPA administrator is
required to establish national ambient air quality standards, known as
NAAQS, for air pollutants that endanger the public health and welfare.
“Primary” standards protect the public health, and “secondary” standards
protect elements relating to the public welfare, such as animals, crops and
structures.
The NAAQS for a particular pollutant speci=es the concentration of that
pollutant that is allowable in outside air over designated periods of time.
The EPA administrator established quality standards for seven major classes
of pollutant: carbon monoxide, particulates, sulfur dioxide, nitrogen dioxide,
hydrocarbons, ozone, and lead. (The hydrocarbon NAAQS was later
withdrawn as no longer necessary.)
NAAQS level? This issue arose because much of the United States,
particularly the Southwestern states, had air whose quality exceeded the
standards. Congress, in the 1977 amendments, sought to prevent the quality
of clean air from deteriorating.
Congress established rules for Prevention of Signi=cant Deterioration (PSD)
Areas, classi=ed on a pollutant-by-pollutant basis. Thus, an area may be a
PSD area for one pollutant but not another.
Nonattainment Areas — Nonattainment areas are areas that did not meet
applicable NAAQ standards, and the 1977 and 1990 amendments
established special rules for them. To get a permit from the state, the owner
or operator of a major new stationary source must in some way reduce total
emissions from all sources (existing and new/modi=ed). One way is to pay
the owner/operator of another source to reduce its emissions. Or, an
New Source Standards
The scheme of federal NAAQ standards and state SIPs applies to existing
stationary sources and to motor vehicles then in use. In contrast, the Clean
Air Act authorizes the federal government to establish national emission
standards for new stationary sources, hazardous air pollutants and new
vehicles.
New Stationary Sources — The act requires the EPA administrator to
establish performance standards for stationary sources that are constructed
or modi=ed after the publication of applicable regulations. Since the standard
Acid Rain — Acid rain is precipitation that contains high levels of sulfuric or
nitric acid. The 1990 amendments to the Clean Air Act regulate electric
utilities, which are primarily responsible for releasing sulfuric dioxide into the
atmosphere. (Sulfuric dioxide forms sulfuric acid in the atmosphere.) Utilities
are allotted emission allowances and may either bank or sell their unused
emission allowances.
C. THE CLEAN WATER ACT
Initially the states were responsible for controlling water pollution. Their
effort were inadequate, and Congress overhauled the nation’s water
pollution laws in the 1972 amendments to the Federal Water Pollution
Control Act (subsequently renamed the Clean Water Act). The act, amended
in 1977, 1981, and 1987, attempts to restore and maintain the chemical,
physical, and biological integrity of the nation’s waters.
The EPA may impose civil penalties, as adjusted for inIation in January 2009,
of up to $37,500 per day for each violation. Criminal penalties for knowing
violations are not less than $5,000 nor more than $50,000 per day of
