Suggested Additional Assignments
Research: Superfund Sites
Divide students into groups and ask them to contact the EPA to determine if there are any Superfund sites
in a designated state. If there are, ask students to discover:
How the site was created
Who is supervising its cleanup
Who is paying for the cleanup
How long the process has been going on
How long until it is completed, and
Whether there has been litigation over the cleanup.
Research: Global Warming
Ask students to find out more about global warming and be prepared to discuss their conclusions in class.
In particular, they should consider:
Is global warming a serious problem?
What should our own government, and other governments, do?
What should they do personally?
Chapter Overview
Chapter Theme
The issue in environmental regulation is not, “Are you in favor of a clean environment?” Instead, the
issues are:
Who will pay to clean up existing damage and to protect against current and future
damage?
How can our society make environmental decisions that will provide maximum benefit
while minimizing cost?
Quote of the Day
“Rest is not idleness, and to lie sometimes on the grass under the trees on a summer’s day, listening to the
murmur of water, or watching the clouds float across the sky, is by no means a waste of time.” –Sir John
Lubbock (1834-1913), English writer, banker, statesman, and naturalist.
Air Pollution
Clean Air Act
In the United States, air pollution is regulated by the Clean Air Act of 1963.
The Clean Air Act major provisions are as follows:
Primary Standards
Secondary Standards
State Implementation Plans (SIPs)
Regulation of Stationary Sources
Prevention of Significant Deterioration (PSD) Program
Motor Vehicles
Toxics
Citizen Suits
You Be the Judge: Central Arizona Water Conservation District v.
EPA1
Facts: In the Clean Air Act, Congress directed the EPA to issue regulations that would protect visibility
at national landmarks. The Navaho Generating Station (NGS) is a power plant 12 miles from the Grand
Canyon. The EPA ordered NGS to reduce its sulfur dioxide emissions by 90 percent. To do so would
cost NGS $430 million initially in capital expenditures and then $89.6 million annually. Average winter
visibility in the Grand Canyon would be improved by at most 7 percent, but perhaps less. The NGS sued
to prevent implementation of the EPA’s order.
You Be the Judge: Did the EPA act arbitrarily and capriciously in requiring the NGS to spend half a
billion dollars to improve winter visibility at the Grand Canyon by at most 7 percent?
Argument for NGS: This case is a perfect example of environmentalism run amok. Half a billion dollars
for the chance of increasing winter visibility at the Grand Canyon by 7 percent? No rational person would
choose to spend his own money that way, but the EPA is happy to spend NGS’s. Winter visitors to the
Grand Canyon would undoubtedly prefer that NGS provide them with a free lunch rather than a 7 percent
improvement in visibility. The EPA order is simply a waste of money.
Argument for the EPA: Under the Clean Air Act, Congress instructed the EPA to protect visibility at
national landmarks such as the Grand Canyon. How can NGS, or anyone else, measure the benefit of
protecting a national treasure like the Grand Canyon? Even people who never have and never will visit it
during the winter sleep better at night knowing that the Canyon is protected. NGS has been causing harm
to the Grand Canyon, and now it should remedy the damage.
Courts generally defer to federal agencies, whose experts deal with similar problems all the time. The
EPA has greater expertise in these matters than either NGS or this court.
Holding: No. The court acknowledged that the costs of the EPA order might outweigh its benefits.
However, the Supreme Court held in a similar case that judicial review of EPA decisions should be “most
deferential,” because the agency is “making predictions, within its area of special expertise, at the
frontiers of science.” Therefore, the court supported the EPA’s decision.
Question: How much would the Navaho Generating Station have to spend to comply with the EPA
order to reduce its sulfur dioxide emissions?
Question: What benefit would NGS and the public at large gain from this expenditure?
Question: Without an order from the EPA, would NGS ever choose to reduce its sulfur dioxide
emissions?
Answer: No. This is one of the major problems with pollution. Often, those who pollute neither
Question: How many visitors do you think there are to the Grand Canyon in the winter months?
Question: What is the cost per visitor of the proposed EPA order?
Answer: If amortized over all the visitors in one year, the initial capital expenditure of $430 million
General Questions:
1 990 F.2d 1531, 1993 U.S. App. LEXIS 5881 United States Court of Appeals for the Ninth Circuit, 1993
Ignoring the cost of the initial capital expenditure, is it worth it to pay $224 annually per
visitor for a chance at a 7 percent improvement in visibility? Would visitors rather have a free
night at a hotel than a 7 percent improvement in visibility? How about a free $10 lunch?
Should the environment at the Grand Canyon be as clean as possible, without regard to
cost?
How much would you be willing to pay personally to enhance visibility at the Grand
Canyon?
Is it fair to impose these costs on NGS? Should all Americans bear this cost, through the
tax system?
Greenhouse Gases and Global Warming
Scientific evidence underlying the theory of global warming has been debated for a long time, but today,
scientists accept that the burning of fossil fuels produces gases—carbon dioxide, methane, and nitrous
oxide—that create a greenhouse effect by trapping heat in the earth’s atmosphere. The United Nations
Intergovernmental Panel on Climate Change recently issued a report warning that, if governments fail to
limit GHGs by 2030, profound global warming will be impossible to prevent using the technologies
currently available. This report also warned that countries have not taken the steps necessary to adapt to
inevitable changes.
International Treaties: The 1997 Kyoto Protocol to the United Nations Framework Convention on
Climate Change is an international treaty designed to reduce GHGs. However, China and the United
States are the two largest producers of GHGs, but neither is covered by this treaty: The United States
because it refused to sign; China because compliance is optional for developing countries.
General Questions:
Is global warming a serious problem?
What should our own government, and other governments, do?
What should they do personally?
Are they willing to pay $2 more per gallon of gasoline or have their electricity bill double
in cost?
Water Pollution
Clean Water Act
In 1972, Congress passed a statute, now called the Clean Water Act (CWA), with two ambitious
goals: (1) to make all navigable water suitable for swimming and fishing by 1983, and (2) to
eliminate the discharge of pollutants into navigable water by 1985. Like the Clean Air Act, the
CWA also permits citizen suits. The CWA’s goals have not, so far, been met.
Case: Entergy Corporation v. Riverkeeper, Inc.2
Facts: Power plants generate lots of heat. To cool down, they flush vast amounts of water through a
cooling system (called “cooling water intake structures”). In the process, aquatic organisms (fish, shellfish
and plants) that live in this water get squashed against the screens (“impingement”) or in the cooling
system itself (“entrainment”). Under the Clean Water Act, these cooling systems must use the “best
technology available for minimizing adverse environmental impact.”
It took the EPA three decades to issue regulations for these structures. For new power plants, the EPA
required the best technology available, which would reduce fish mortality by 98 percent. But, for existing
plants, the EPA permitted technology that reduced impingement by 80 to 95 percent and entrainment by
60 to 90 percent. The agency made this choice because the cost of converting existing plants to the better
2 129 S. Ct. 1498; 2009 U.S. LEXIS 2498, SUPREME COURT OF THE UNITED STATES, 2009
system would be $3.5 billion per year, which was nine times the cost of the cheaper version. In addition,
the EPA reserved the right to reduce standards for specific plants if they demonstrated that the costs of
compliance would be significantly greater than the benefits.
Riverkeeper, Inc. an environmental organization, challenged these regulations. The appeals court ruled
that the EPA could only consider costs in two circumstances: (1) determining if they could be ‘reasonably
borne’ by the industry or, (2) if there were two ways to achieve the same goal, the EPA could mandate the
cheaper option. The court said, however, that the EPA could not compare the costs and benefits of various
methods, and choose the technology with the best net benefits. Nor could the EPA alter standards for
specific sites based on cost-benefit analysis. The Supreme Court granted certiorari.
Issue: Is the EPA permitted to use cost-benefit analysis when issuing regulations?
Excerpts from Justice Scalia’s Decision:[The CWA] instructs the EPA to set standards for cooling water
intake structures that reflect “the best technology available for minimizing adverse environmental
impact.” The Second Circuit took that language to mean the technology that achieves the greatest
reduction in adverse environmental impacts at a cost that can reasonably be borne by the industry. That is
certainly a plausible interpretation of the statute. But “best technology” may also describe the technology
that most efficiently produces some good. In common parlance one could certainly use the phrase “best
technology” to refer to that which produces a good at the lowest per-unit cost, even if it produces a lesser
quantity of that good than other available technologies.
[Plaintiffs] contend that this latter reading is precluded by the statute’s use of the phrase “for minimizing
adverse environmental impact.” Minimizing, they argue, means reducing to the smallest amount possible,
and the “best technology available for minimizing adverse environmental impacts,” must be the
economically feasible technology that achieves the greatest possible reduction in environmental harm.
But “minimize” is a term that admits of degree and is not necessarily used to refer exclusively to the
“greatest possible reduction.” It seems to us, therefore, that the phrase “best technology available,” even
with the added specification “for minimizing adverse environmental impact,” does not unambiguously
preclude cost-benefit analysis.
[I]t was well within the bounds of reasonable interpretation for the EPA to conclude that cost-benefit
analysis is not categorically forbidden. In the requirements challenged here the EPA sought only to avoid
extreme disparities between costs and benefits. The agency limited variances from the national
performance standards to circumstances where the costs are significantly greater than the benefits of
compliance. And finally, the EPA’s assessment of the relatively meager financial benefits of the
regulations that it adopted–reduced impingement and entrainment of 1.4 billion aquatic organisms, with
annualized benefits of $83 million, when compared to annual costs of $389 million, demonstrates quite
clearly that the agency did not select the regulatory requirements because their benefits equaled their
costs.
While not conclusive, it surely tends to show that the EPA’s current practice is a reasonable and hence
legitimate exercise of its discretion to weigh benefits against costs. In the last analysis, even [plaintiffs]
ultimately recognize that some form of cost-benefit analysis is permissible. They acknowledge that the
statute’s language is “plainly not so constricted as to require EPA to require industry petitioners to spend
billions to save one more fish or plankton.” This concedes the principle–the permissibility of at least
some cost-benefit analysis–and we see no statutory basis for limiting its use to situations where the
benefits are de minimis rather than significantly disproportionate.
The judgment of the Court of Appeals is reversed.
Question: Is the EPA now allowed to use a cost-benefit analysis under the Clean Water Act?
Question: What would be the annual benefit cost?
Question: What would the annual costs be?
Question: Do the benefits of reducing the impingement and entrainment of 1.4 billion aquatic
organisms outweigh the costs?
Answer: Answers will vary.
You be the Judge Va. DOT v. United States EPA3
Facts: The Accotink Creek is a 25-mile long tributary of the Potomac River. After the
Commonwealth of Virginia violated the CWA by failing to set TMDLs that would enable the Creek to
meet water quality standards, EPA established its own set of TDMLs. The Creek was unhealthy because it
had too much sediment from stormwater run-off. Sediment is a pollutant and, therefore, regulated by the
CWA. However, it is difficult for scientists to measure and set daily pollution standards for sediment
because its content varies and it is not always clear which components cause what problems and how the
various ingredients react with each other. Stormwater run-off is easy to assess and measure but it is not
technically classified as a pollutant. The EPA established TDMLs for the flow rate of stormwater into the
Creek, but Virginia sued, alleging that the EPA had no right to regulate stormwater because it is not a
pollutant.
You be the judge. Does the EPA have the right to limit stormwater run-off (which is not a pollutant)
because it carries pollutants ?
Argument for Virginia: The statute is very clear: The EPA has the right to regulate pollutants.
Stormwater is not a pollutant. Therefore, the EPA cannot regulate it. Beginning and end of story.
Argument for the EPA: Here is what we know: (1) how to measure and handle stormwater run-off,
because civil engineers deal with it all the time; (2). how much stormwater will carry enough sediment to
harm the Accotink Creek; (3) that to repair the Creek, Virginia has to limit stormwater run-off because
that is how the sediment enters the water. What we do not know is how much of each pollutant will, on a
daily basis, damage the Creek. Why spend huge amounts of time and money assessing each individual
component of the sediment just to end up at the same result—limiting run-off?
Remember that the goal of the CWA is to eliminate the discharge of pollutants into navigable water. We
have come up with a reasonable methodology that is very much in keeping with the goals of the CWA.
The court held Commonwealth of Virginia because the EPA had the authority to regulate pollutants not
proxy measures of pollutants.
Holding: Judgment for Virginia DOT. The court found as a matter of law that the “flow” of stormwater is
not a pollutant under the Clean Water Act and could not be the basis of a TMDL.
Question: Would the pollutants in this case be classified as a point source or non-point sources?
Additional Case: S. Fla. Water Management District v. Miccosukee
Tribe of Indians4
Facts: Canals built throughout the 1900s to facilitate development in south Florida caused flooding and
other problems. To solve these problems, the United States Army Corps of Engineers’ built a vast array of
levees, canals, pumps, and water storage areas. This litigation focuses on the pumping of groundwater and
rainwater from canal C-11 into a wetland area (called WCA-3). Before entering C-11, the rainwater
absorbs contaminants produced by human activities, including phosphorous from fertilizer used by
farmers. When this phosphorous is pumped into WCA-3, it alters the balance of the WCA-3 ecosystem
and stimulates the growth of algae and plants foreign to the Everglades.
3 541 U.S. 95; 124 S. Ct. 1537; 2004 U.S. LEXIS 2376 Supreme Court of the United States, 2004
4
The Miccosukee Tribe of Indians was impatient with the pace of initiatives intended to restore the
ecological integrity of the Everglades. The Tribe sued under the Clean Water Act to halt the pumping of
water from C-11 into WCA-3. It alleged that C-11 was a point source and, therefore, could not discharge
pollutants into WC-3 without a permit. The District argued that the canal was not a point source because
it did not create the pollutants; it simply transported them. The Tribe filed a motion for summary
judgment, which the trial court granted and the appellate court affirmed. The Supreme Court granted
certiorari.
Issue: Is a canal a point source when it transmits pollutants that it did not create?
Holding: The Court held that the canal was a point source under the Clean Water Act. The Act defines
point source as “any discernible, confined and discrete conveyance, such as a pipe, ditch, channel, or
tunnel from which pollutants are or may be discharged.” A point source need not be the original source of
the pollutant; it need only convey the pollutant.
Question: Why did the tribe want C-11 defined as a point source?
Answer: It wanted to protect the Everglades from further pollution. If C-11 was defined as a point
Question: What was the District’s argument?
Answer: It argued that C-11 was not a point source because it did not itself generate pollutants. C-11
Question: What did the Court rule?
Answer: It ruled that C-11 was a point source, which, under the Act’s definition, includes pipes,
Question: The result in this case seems straightforward. Why did the District choose to litigate all the
way to the Supreme Court? Wouldn’t its time and money have been better spent solving the pollution
problem?
Waste Disposal
Superfund
The goal of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),
more commonly known as Superfund is cleaning up hazardous wastes that were illegally dumped in the
past.
Current Focus: Love Canal
Congress passed Superfund legislation, at least partly, in response to Love Canal. Fittingly, Love Canal
now serves as an illustration of what CERCLA can accomplish. In 1978, Love Canal was a major
environmental disaster. In the early 1980s, the federal government bought 788 houses near Love Canal.
It immediately tore down 238 of them. In 1988, it declared 360 of them to be habitable and, at the
beginning of 1993, put them on the market at prices between $48,000 and $52,000. This was 15 percent
below market price for equivalent houses in the area. To avoid speculation, purchasers were required to
live in their houses for three years. Although the government had expected that it would take between 10
and 15 years to sell the houses, all but four sold within three and a half years. Ken Denman, the real
estate agent at Love Canal (now called Black Creek Village), said that, despite the capped canal in the
middle of the neighborhood, “You can’t find a Love Canal resident worried about toxins.”5
Question: What arguments can you make that CERCLA should be reformed?
5Evelyn Nieves, “Love Canal; Houses Sell Themselves,” New York Times, July 21, 1996, p. 21.
Answer:
Joint and several liability is unfair. Every potential polluter is liable unless it can prove
It is unfair for potential polluters to be liable retroactively. Before Congress passed
Per site costs average more than $30 million and take more than 10 years. The law is
What about the story of the 84-year-old woman that began this chapter (text p. 1005)?
Before CERCLA, we all paid less for goods because manufacturers did not pass along to
Question: What arguments can you make that CERCLA should not be amended (or at least not
weakened)?
Answer:
The polluters should have been paying these costs of cleanup all along. The fact that they
If polluters do not pay the costs of cleanup, then taxpayers will. Why should people who
Love Canal demonstrates that even the most polluted property can be rehabilitated.
Research: Superfund
If students engaged in the Superfund research, now would be an appropriate point to ask them to report to
the class with answers to these questions:
How was the site created?
Who is supervising its cleanup?
Who is paying for the cleanup?
How long has the process been going on?
How long until it is completed?
Has there been litigation over the cleanup?