978-1285860381 Chapter 40 Solution Manual Part 2

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Chemicals

More than 85,000 chemicals are used in food, drugs, cosmetics, pesticides, and other products. Up to

3,000 new chemicals are introduced each year. Although consumers may think that these products have

been safety tested, that is true for only a very small percent. Our regulatory system assumes that they

are safe unless proven otherwise. Thus, after the Deep Horizon oil spill in the Gulf of Mexico, two

million gallons of chemicals were used to disperse the oil slick, without evidence that this treatment

was safe.1

Federal Insecticide, Fungicide, and Rodenticide Act

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requires manufacturers to

Natural Resources

National Environmental Policy Act

The National Environmental Policy Act of 1969 (NEPA) requires all federal agencies to prepare an

environmental impact statement (EIS) for every major federal action significantly affecting the quality

of the human environment.

Additional Case: The Lands Council v. McNair2

Facts: The Forest Service was concerned about a section of the Idaho Panhandle National Forest that

had old growth trees. Over time, the area had become overcrowded with younger trees. The increased

density was harmful to all trees because they competed for moisture, sunlight, and nutrients, but was

especially damaging to the older ones.

The Forest Service decided to permit logging of some younger trees. The logging would generate

23.5 million board feet of timber. The Lands Council was opposed to cutting down trees but was also

concerned about the collateral impact of logging, such as the creation of roads. The Lands Council

sued to stop the project, claiming that the Forest Service had failed to develop an adequate EIS as

required by NEPA. The district court denied Land Council’s motion for a preliminary injunction. A

three-judge panel of the appeal’s court reversed the district court’s decision. The entire appeals court

decided to rehear the case (sitting “en banc”).

Issue: Did the Forest Service’s EIS comply with NEPA?

Holding: Yes, the decision of the three-judge panel is reversed. According to the court, NEPA does

not impose any substantive requirement on federal agencies, it ensures a process. NEPA requires

agencies to take a hard look at the environmental consequences of their action by preparing an EIS for

each major federal action significantly affecting the quality of the human environment. The EIS must

provide full and fair discussion of significant environmental impacts so as to inform decision makers

and the public of the reasonable alternatives which would avoid or minimize adverse impacts.

NEPA does not require the Forest Service to affirmatively present every uncertainty in its EIS. To

do so would be an onerous requirement given that experts routinely disagree, and such a requirement

might prevent the Forest Service from acting due to the burden. Although the Forest Service must

1<FTN>Ian Urbina, “Think Those Chemicals Have Been Tested?” The New York Times, April 13, 2013.

</FTN>

2 2008 U.S. App. LEXIS 13998, United States Court of Appeal for the Ninth Circuit, 2008.

acknowledge and respond to comments by outside parties that raise significant scientific uncertainties

and reasonably support that such uncertainties exist, the Forest Service does not have the burden to

anticipate questions that are not necessary to its analysis, or respond to uncertainties that are not

supported.

Here, according to the court, the Forest Service did not ignore that there may be some adverse

impact from logging. The Forest Service acknowledged possible short-term negative impacts, but

explained based on its habitat sustainability model, that is actions would not decrease suitable habitat

in the short-term and would enhance it in the long-term.

While the Forest Service must explain its methodology, NEPA does not require the court to decide

whether an EIS is based on the best scientific methodology available. Thus, the court concluded that

the Forest Service took the requisite hard look at the environmental impacts of the project to satisfy the

requirements of NEPA.

Question: If NEPA does not impose and substantive requirements on federal agencies, what is the

point of the law?

Answer: The point of NEPA, according to the court, is to require all federal agencies to follow the

Question: Given that purpose, how does the law protect natural resources and the environment?

Answer: The law helps to protect natural resources and the environment because the process of

Endangered Species Act

Worldwide, 25 percent of mammals, 22 percent of reptiles, and 13 percent of birds are threatened

with extinction. This threat is largely caused by humans. Case: Gibbs v. Babbitt3

Facts: The red wolf used to roam throughout the southeastern United States. Owing to wetlands

drainage, dam construction, and hunting, this wolf was on the endangered species list. The Fish and

Wildlife Service trapped the remaining red wolves, placed them in a captive breeding program, and

then reintroduced them into the wild. Ultimately, the FWS reintroduced 75 wolves into the

120,000-acre Alligator River National Wildlife Refuge in eastern North Carolina and the Pocosin Lakes

National Wildlife Refuge in Tennessee. After reintroduction, about 41 red wolves wandered from these

refuges onto private property. Plaintiff Richard Lee Mann shot a red wolf that he feared might attack

his cattle. Mann pled guilty to taking an endangered species without a permit..

Two individuals and two counties in North Carolina filed suit against the U.S. government, alleging

that the anti-taking regulation as applied to the red wolves on private land exceeded Congress’s power

under the interstate Commerce Clause of the U.S. Constitution.

Issue: Is the anti-taking provision of the ESA constitutional?

Holding: Yes, the anti-takings provision of the ESA is constitutional. The red wolves had a

substantial impact on interstate commerce – attracting tourists, promoting scientific research,

supplying pelts to the fur trade, eating livestock, and protecting farms by killing other animals

(raccoons, deer, and rabbits).

Question: Who’s afraid of the big bad red wolf?

Question: What legal claim did the plaintiffs make against the Secretary of the Interior (Bruce

Babbitt)?

3 214 F.3d 483, 2000 U.S. App. LEXIS 12280 United States Court of Appeals for the Fourth Circuit, 2000

Question: Do wolves affect interstate commerce?

Answer: The court ruled that they do, for several reasons:

Question: How does this case reflect a general problem of environmental regulation?

Multiple Choice Questions

1. Suppose that you are the manager of General Motors plant that is about to start producing

Hummers. The Hummer requires special protective paint that, as it turns out, reacts with other

chemicals during the application process to create a pollutant. What does the Clean Air Act require

of you?

(a) Reduce other emissions from the plant so that the total quantity of pollutants is the same.

(b) Provide an analysis showing that the benefits outweigh the costs.

(d) Obtain a PSD certificate from the EPA.

Answer: The factory was required to obtain a permit from the state of Indiana ensuring that, even

2. The EPA _________ have authority to regulate greenhouse gases. The states ____________

impose their own standards for these gases.

(a) Does/can

(b) Does/cannot

(d) Does not/can

3. For purposes of the Clean Water Act, Farmer Brown’s fields ________ a point source. A canal that

collects rainwater and discharges it into the Everglades ________ a point source.

(a) are/is

(b) are/is not

(d) are not/is not

4. You own property on which hazardous wastes are found. You know the identity of three former

owners. You are:

(a) Liable for all the costs of cleanup because you are the current owner.

(b) Liable for one-quarter of the costs of cleanup.

(d) Not liable for any of the costs of clean-up, because the damage occurred before you bought the

land.

5. The Toxic Substances Control Act:

(a) Requires manufacturers to test for safety all chemicals before they can be used in products.

(b) Requires the EPA to test for safety all chemicals before they can be used in products.

(d) Permits the EPA to require testing of a chemical only if there is evidence that it is dangerous.

Case Questions

1. Tariq Ahmad decided to dispose of some of his laboratory’s hazardous chemicals by shipping

them to his home in Pakistan. He sent the chemicals to Castelazo (a company in the United

States) to prepare the materials for shipment. Ahmad did not tell the driver who picked up the

chemicals that they were hazardous,nor did he give the driver any written documentation.

What law has Ahmad violated? What does this law require? What penalties might he face?

Answer: Ahmad was convicted of transporting hazardous waste in violation of the Resource

2. The marbled murrelet is a seabird on the list of endangered species. Pacific Lumber Co. received

permission to harvest trees from land on which the murrelet nested, on the condition that it would

cooperate with regulators to protect the murrelet. But before the company met this condition, it went

in one weekend and cut down trees.Caught in the act, it promised no more logging until it had a plan to

protect the birds. But it went in again over the long Thanksgiving weekend to take down even more

trees. A federal court then ordered a permanent halt to any further logging. There was no evidence that

the company had harmed the murrelet. Had it violated the law?

Answer: Pacific Lumber violated the taking provision of the Endangered Species Act. Although

3. You Be the Judge: WRITING PROBLEM The Lordship Point Gun Club operated a

trap and skeet shooting club in Stratford, Connecticut, for 70 years. During this time, customers

deposited millions of pounds of lead shot and clay target fragments on land around the club and in Long

Island Sound. Forty-five percent of sediment samples taken from the Sound exceeded the established

limits for lead. Was the Gun Club in violation of the RCRA? Argument for the Gun Club: The Gun

Club does not dispose of hazardous wastes, within the meaning of the RCRA. Congress meant the

statute to apply only to companies in the business of manufacturing articles that produce hazardous

waste. If the Gun Club happens to produce wastes, that is only incidental to the normal use of a

product. Argument for the plaintiff: Under the RCRA, lead shot is hazardous waste. The law applies

to anyone who produces hazardous waste, no matter how.

Answer: The court held that the Gun Club was in violation of the RCRA because it was disposing

1. Shell Oil sold pesticides to B&B, which allowed these chemicals to leak into the ground. Shell

neve owned or operated the site, and never transported wastes to the site. B&B ultimately went

bankrupt. Is Shell liable for the costs of cleaning up this site? What law is applicable ?

2. Before the Department of Agriculture issued regulations on genetically modified beets, what steps

did it need to take under the environmental statutes?

Discussion Questions

1. Life is about choices. Life is about choices—and never more so than with the environment. Being

completely honest, which of the following are you willing to do? Why?

Drive a smaller, lighter, more fuel-efficient car?

Take public transportation or ride your bike to work?

Vote for political candidates who are willing to impose higher taxes on pollutants?

Insulate your home?

Unplug appliances when not in use?

Recycle your wastes?

Pay higher taxes to clean up Superfund sites?

2. The Navy wanted to conduct training exercises off the coast of California for sonar submarines.

Scientists were concerned that the sounds emitted by the sonar would harm marine mammals,

such as whales, dolphins, and sea lions. Environmental groups filed suit, asking that the Navy

prepare an EIS. The Navy responded that these training exercises were important for national

security and therefore it did not have to prepare an EIS. Was the Navy correct?

Answer: The court ruled that the Navy did not have to file an EIS. The president—the commander in chief

3. The Commonwealth of Virginia refused to prepare TMDLs for polluted Accotink Creek. When

the EPA prepared its own set of TMDLs, Virginia sued to avoid compliance. Should Virginia be

allowed to determine how much pollution to permit in its own waters? Alternatively, is it

ethical for Virginia to refuse to comply with the law and to prolong the dispute with litigation?

4. ETHICS Externalities pose an enormous problem for the environment. Often, the people

making decisions do not bear the full cost of their choices. And businesses tend to fight efforts

to make them pay these externalities. For example, CropLife America lobbied against a bill that

would support research on the effects of chemicals on children. On the other hand, Nike

resigned its seat on the board of the United States Chamber of Commerce in response to the

Chamber’s active lobbying against legislation that would regulate greenhouse gases. But Nike

decided to remain a member of the group. What ethical obligation do American companies have

to support environmental legislation that may impose higher costs? Do they have an obligation

to look out for the greater good, or should they focus on maximizing their shareholder returns?

What Life Principles would you apply? What would Kant and Mill say?

5. Is cost-benefit analysis an effective tool in environmental disputes ? How do we measure the costs

and benefits? How do we know what benefits we might gain from saving endangered species, or

improving visibility at the Grand Canyon? In the Entergy case, how does the EPA calculate the

benefits of not squashing fish against intake screens? Should you survey people to ask them how

much it is worth? Or just think in terms of lives saved or sick days avoided? Or should we protect

the environment regardless of cost?