ANSWERS TO PROBLEMS
1. Atlantic Cement operated a large cement plant. Neighboring landowners sued for
damages and an injunction, claiming that their properties were injured by the dirt,
smoke, and vibrations coming from the plant. The lower court found that the plant
constituted a nuisance and granted temporary damages but refused to grant an
injunction because the benefits of operating the plant outweighed the harm to the
plaintiffs’ properties. The landowners appealed. Does the plant constitute a nuisance?
Should it be shut down?
Answer: Private Nuisance. This would be a private nuisance action because the alleged
2. Seindenberg and Hutchinson (the site owners) leased a four-acre tract of land (the Bluff
Road site) to a chemical manufacturing corporation (COCC). While the lease initially
was for the sole purpose of allowing COCC to store raw materials and finished products
in a warehouse on the land, COCC later expanded its business to include the brokering
and recycling of chemical waste generated by third parties. COCC’s owners
subsequently formed a new corporation, South Carolina Recycling and Disposal, Inc.
(SCRDI), for the purpose of taking over COCC’s waste-handling business. The site
owners accepted rent from SCRDI. The waste stored at Bluff Road contained many
chemical substances that federal law defines as hazardous. Subsequently, the
Environmental Protection Agency concluded that the site was a major fire hazard. The
Federal government contracted with a third party to perform a partial cleanup of the
site. South Carolina completed the cleanup. The Federal government and South
Carolina sued SCRDI, COCC, the site owners, and three third-party generators as
responsible parties under Resource Conservation and Recovery Act and Comprehensive
Environmental Response, Compensation and Liability Act. Explain whether the United
States and South Carolina will prevail.
3. The State of Y submits a plan under the Clean Air Act to attain national ambient air
quality standards. Can the Environmental Protection Agency administrator deny
approval of the State plan because it is (a) less stringent or (b) more stringent than the
agency believes is feasible? Explain.
4. Kennecott Copper Corp. brings this challenge to an Environmental Protection Agency
(EPA) order that rejected a portion of the State of Nevada’s implementation plan dealing
with the control of stationary sources of sulfur dioxide (SO2). All of the SO2 emissions
come from a single source—the Kennecott copper smelter at McGill. The EPA based its
decision on the belief that the Clean Air Act National Ambient Air Quality Standards
(NAAQS) must be met by continuous emission limitations to the maximum extent
possible and that the Act permits the intermittent use of emission controls only when
continuous controls are not economically feasible. Kennecott contends that the EPA must
approve any State implementation plan that will attain and maintain an NAAQS within
the statutory time period. Who will prevail? Why?
Answer: National Ambient Air Quality Standards. The EPA acted within its authority in
5. The Environmental Protection Agency (EPA) administrator issued an order suspending
the registration of the pesticides heptachlor and chlordane under the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA). Velsicol Chemical Corp., the sole
manufacturer of these pesticides, brings this action, contending that the evidence does
not support the administrator’s contention that the continued use of these chemicals
poses an imminent hazard to human health. Velsicol and the U.S. Department of
Agriculture (USDA) contend (a) that the EPA’s laboratory tests on mice and rats do not
“conclusively” show that either chemical is carcinogenic; (b) that mice are too prone to
tumors to be reliable test subjects; and (c) that human exposure to these chemicals is
insufficient to create a risk. Nonetheless, human epidemiology studies on both chemicals
provide no basis for concluding that either pesticide is safe. The administrator based
part of his claim on residues of these chemicals found in soil, air, and the aquatic
ecosystem over long periods of time and on the presence of these chemicals in the
human diet and human tissue. Does FIFRA apply in this situation? Explain.
Answer: FIFRA. The manufacturer’s voluntary cessation of production of heptachlor did
6. The U.S. Department of the Interior filed an environmental impact statement with regard
to its proposal to lease approximately eighty tracts of submerged land, primarily located
off the coast of Louisiana, for oil and gas exploration. Adjacent to the proposed area is
the greatest estuarine coastal marsh in the United States. This marsh provides rich
nutrients for the Gulf of Mexico, the most productive fishing region of the country. The
environmental impact statement (EIS) focused primarily on oil pollution and its negative
environmental effect. Three conservation groups contend that the EIS is insufficient in
that it does not properly discuss alternatives. The government contends that (a) it need
only provide a detailed statement of the alternatives, not a discussion of their
environmental impact, and (b) the only alternatives the NEPA requires it to discuss are
those that can be adopted and implemented by the agency issuing the impact statement.
Is the government correct in its contentions? Why?
Answer: National Environmental Policy Act: Environmental Impact Statement. The
7. Chemical Manufacturers Association (CMA) and four companies that manufacture
chemicals challenged a test rule promulgated by the Environmental Protection Agency
under the Toxic Substances Control Act, (TSCA). The plaintiffs asserted that the EPA
must find that the existence of an unreasonable risk of injury to health is more probable
than not before it may issue a test rule under the act. In response, the EPA claimed that it
may issue a test rule under the TSCA if the agency determines that there is a substantial
probability of an unreasonable risk of injury to health. The test rule required
toxicological testing to determine the health effects of the chemical, 2-ethylhexanoic
acid, and imposed on exporters of this chemical a duty to file certain notices with the
EPA. What standard should be applied? Why?
Answer: Toxic Substances Control Act. The toxic substances control act establishes a
two-tier structure: the EPA must find that a chemical substance “presents or will present
8. National-Southwire Aluminum Company (NSA) owns and operates a plant that emits
fluoride. When its wet scrubbers were turned off as part of its regular maintenance
program, NSA discovered no appreciable change in ambient fluoride levels. Because of
the expense of operating the scrubbers and its belief that using the scrubbers did not
significantly affect ambient fluoride levels, NSA desired to turn the scrubbers off
permanently. Accordingly, NSA sought a determination from the EPA that turning off the
scrubbers would not constitute a modification requiring the application of new source
performance standards to the plant. Turning off the scrubbers would result in an
increase of more than 1,100 tons per year of fluoride emissions with no decrease in the
emission of any other pollutant. This increase was nearly 400 times the level the EPA
had established as inconsequential. The EPA determined that turning off the scrubbers
would constitute a “new source” modification. Accordingly, NSA was required either to
leave the scrubbers on or to install new pollutant control equipment. Is the EPA correct
in its assertion? Explain.
Answer: New Source Standards: Stationary Sources. Determination of the EPA affirmed.
The Clean Air Act defines “modification” as any physical change or change in operation
of a “stationary source” that increases the emission of air pollutants. Under NSA’s
argument, a “modification” depends on the amount of pollutant the pollution-generating
9. The city of Fayetteville, Arkansas, received a National Pollutant Discharge Elimination
System permit from the Environmental Protection Agency (EPA) for the discharge of
sewage into a stream that ultimately reaches the Illinois River, twenty-two miles upstream
from the Oklahoma border. The EPA permit limited the effluent discharge to comply with
Oklahoma water quality standards, but the EPA stated that those standards would be
violated only if the discharge would cause an actual, detectable violation of Oklahoma
standards. Oklahoma appealed the permit, arguing that the permit violated Oklahoma
water quality standards, which allow no degradation of water quality. Explain whether
the permit should be granted.
ANSWERS TO “TAKING SIDES” PROBLEMS
When considering an application for a special use permit to develop and operate a ski
resort at Sandy Butte, a mountain in Washington that is part of a national forest, the Forest
Service prepared an environmental impact statement (EIS). The EIS recommended the
issuance of a special use permit for what was to be a sixteen-lift ski area, and the forest
service issued the permit as recommended. Four organizations sued, claiming that the EIS
was inadequate. The lower court held that the EIS was adequate, but the Court of Appeals
reversed, concluding that the National Environmental Policy Act required that actions be
taken to mitigate the adverse effects of a major federal action and that the EIS contain a
detailed mitigation plan.
(a) What are the arguments that the EIS should only to take a hard look at the relevant
environmental consequences?
(b) What are the arguments that the EIS should propose actions that mitigate the
relevant environmental consequences?
(c) What should the EIS include in this situation?
ANSWER:
(a) The Act mandates that the relevant government agency review all environmental
consequences but not propose ways to mitigate these consequences. Results are not
mandated only the appropriate review.
(b) An agency’s environmental impact statement (EIS) should include a fully developed
plan detailing what steps will be taken to mitigate adverse environmental impacts.
