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Chapter 49
ENVIRONMENTAL LAW AND LAND USE CONTROLS
RESTATEMENT
Beginning in the 1960s, Congress began passing federal laws that would eventually provide a complete set of
environmental laws. Most of the federal anti-pollution laws are administered by the Environmental Protection Agency
(EPA).
Federal laws regulate air pollution through emissions permits and controls. Water pollution is also controlled through
a permit system.
Waste materials discharge and clean-up are regulated by the federal government. The Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) provides for an inventory and clean-up of
hazardous waste materials.
The quality of the environment was the focus of the National Environmental Policy Act. Environmental impact
statements (EIS) are required under NEPA whenever federal action significantly affecting the quality of the human
environment is considered.
The EPA has the authority to pursue litigation or criminal penalties in cases in which business have emitted pollution.
There are private remedies as well including actions in nuisance.
A nuisance is conduct that unreasonably interferes with the enjoyment or use of land and include noise and
emissions. Courts use a utilitarian approach to balance the nuisance with the economic need for the cause of it as
when a factory emits smoke but is the community’s livelihood. A nuisance that affects one or a few parties is a
private nuisance. A nuisance that affects various parties is a public nuisance. Remedies for nuisances include
injunctions, fines, and money damages.
Land use controls, either private in the form of covenants, or public in the form of zoning, also shape the quality of
life.
STUDENT LEARNING OUTCOMES
LO.1: List and describe the federal statutes that regulate various aspects of the environment.
LO.2: Explain how environmental laws are enforced and describe the criminal penalties for violation of
environmental laws.
LO.3: Define "nuisance" and list the remedies available.
LO.4: Explain the role and application of covenants and zoning laws.
INSTRUCTOR’S INSIGHTS
Break the chapter down into three components – related Learning Outcomes are indicated in ( ):
1. What are the statutory environmental laws?
Discuss air pollution regulation (LO.1)
Explain water pollution controls (LO.1)
2. How are environmental laws enforced?
List the parties who can enforce the laws (LO.2)
Explain the criminal penalties for violations (LO.2)
3. What are land use controls?
CHAPTER OUTLINE
I. What are the Statutory Environmental Laws?
A. Enforced by the Environmental Protection Act (EPA)
B. Air pollution regulation
1. Clean Air Act (1955, 1963, 1970, 1977, 1990 Amendments)
2. Sets federal standards for nonattainment areas
3. Establishes an emissions offset policy
4. Uses bubble concept for permits
a. MACT new standard vs. BAT
5. New developments in air quality
a. Environmental Defense v. Duke Energy, 549 U.S. 561
b. Massachusetts v. EPA, 549 U.S. 497 – Supreme Court held that inaction by EPA on global warming
c. Expansion of pollution controls across state borders − the Transport Rule and holding upwind
C. Water pollution regulation
1. Effluent guidelines for discharge
2. National permit system
a. Best conventional treatment (BCT)
5. Oil Pollution Control Act
D. Solid waste disposal regulation
1. Resource Recovery Act
5. Superfunds Amendment and Reauthorization Act
a. Liability for owners and operators
b. Liability for transporters
6. Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996 – limited lender
CASE BRIEF: Burlington Northern Railway/Shell Oil Co. v. U.S.
556 U.S. 559 (2009)
FACTS: In 1960, Brown & Bryant, Inc. (B & B), began operating an agricultural chemical distribution
business. Using its own equipment, B & B applied its products to customers’ farms. B & B opened
its business on a 3.8 acre parcel of former farmland in Arvin, California, and in 1975, expanded
operations onto an adjacent .9 acre parcel of land owned jointly by the Atchison, Topeka & Santa
Fe Railway Company, and the Southern Pacific Transportation Company (Railroads). Waste water
and chemical runoff from the facility was allowed to seep into the ground water below.
During its years of operation, B & B stored and distributed various hazardous chemicals on its
property sold by Shell Oil Company (Shell). When B & B purchased chemicals from Shell, Shell
would arrange for delivery by common carrier, f.o.b. destination. When the product arrived, it was
transferred from tanker trucks to a bulk storage tank located on B & B’s primary parcel. During each
of these transfers leaks and spills could, and often did, occur. Although the common carrier and B &
B used buckets to catch spills from hoses and gaskets connecting the tanker trucks to its bulk
storage tank, the buckets sometimes overflowed or were knocked over, causing chemical spills
onto the ground during the transfer process.
In the late 1970’s Shell took several steps to encourage the safe handling of its products. Shell
provided distributors with detailed safety manuals and instituted a voluntary discount program for
distributors that made improvements in their bulk handling and safety facilities. Later, Shell required
distributors to obtain an inspection by a qualified engineer and provide self-certification of
compliance with applicable laws and regulations. B & B’s Arvin facility was inspected twice and told
Shell that it had made a number of recommended improvements to its facilities. Despite these
improvements, B & B remained a “‘[s]loppy’ [o]perator.” The EPA soon discovered significant
contamination of soil and ground water.
By 1989, B & B was insolvent and ceased all operations. That same year, the Arvin facility was
designated as a Superfund site. By 1998, the Governments had spent more than $8 million in
cleanup costs.
In 1991, EPA (Governments) ordered the Railroads to conduct certain cleanup processes. The
Railroads did so, incurring expenses of more than $3 million in the process. Seeking to recover at
least a portion of these costs, the Railroads brought suit against B & B.
The state and local governments appealed the District Court’s apportionment, and Shell
cross-appealed the court’s finding of liability. Applying a theory of arranger liability, the Ninth Circuit
held that Shell arranged for the disposal of a hazardous substance. The Court of Appeals held
Shell and the Railroads jointly and severally liable for the Governments’ cost of responding to the
contamination of the Arvin facility.
ISSUE: Is someone who arranged for delivery of a product responsible when the buyer does not take
proper precautions in disposing of that product or using or transferring it?
REASONING: The primary pollution at the Arvin facility was contained in the southeastern portion of the facility
most distant from the Railroads’ parcel and that the spills of hazardous chemicals that occurred on
the Railroad parcel contributed to no more than 10% of the total site contamination, some of which
did not require remediation. The court reversed the Court of Appeals’ conclusion that the Railroads
are subject to joint and several liability for all costs arising out of the contamination of the Arvin
facility. The court held that Shell should not be held liable as an arranger under CERCLA because
it did not arrange for disposal and it ran responsible programs to get distributors to comply with its
standards. However, there was not intent on the part of Shell to dump the chemicals by arranging
for their delivery. The court also held that the Railroads’ share of the site remediation costs was
reasonably apportioned at 9% and that the parties were not joint and severally liable.
DISCUSSION POINTS: Thinking Things Through
The Leaking Barrels GE Sold
In the Burlington case, the court refused to hold Shell liable for the “sloppy” conduct of a customer in receiving goods
purchased from Shell because Shell had made legitimate sales to customers and had provided information on the
proper transport of its goods. Shell was not involved in the spills, and mere knowledge was not enough to result in its
liability under CERCLA.
The situation in the GE case is slightly different. This was a situation where GE had contaminated materials and had
made arrangements with Fletcher to buy the materials from it. The goods being transferred were the contaminants
and there was a need for disposal. A company cannot isolate itself from responsibility for disposal simply by hiring a
contractor. There is a requirement to follow through with the reliability and responsibility of that contractor.
In this case, GE, in one of the longest lasting EPA cases in history, was held liable. GE had a duty to follow through
on the conduct of the party with whom it had contracted for disposing of its PCB materials.
7. Subsidiary liability
8. Have the students discuss the reasons they think are behind the recent and rapid development of
pollution and environmental controls. Because many of the students will not be able to reflect on the
mood of society during the 1960s, you may wish to channel your discussions into the area of
contemporary environmental proposals, such as the following:
a. Bottle deposit and recycling laws
b. The establishment of nonsmoking areas in public facilities and restaurants
c. New regulations requiring the removal of lead from gasoline
Have your students investigate the locations of toxic waste sites in your area that are on the
Superfund list.
Ask them to research why these sites are located where they are, the risks and potential hazards
9. Self-audits
a. Mitigates penalty
b. EPA policy is called Self-Policing, Disclosure, Correction and Prevention of Violations
10. Brownfields
a. Joint state/federal program
E. Environmental quality regulation and environmental impact statements
F. Other environmental regulations
CASE BRIEF: Babbitt v. Sweet Home Chapter of Communities for a Great Oregon
515 U.S. 687 (1995)
FACTS: Two federal agencies halted logging in the Pacific Northwest because of its impact on the habitats
of the northern spotted owl and the red cockaded woodpecker, both endangered species. Sweet
Home Chapter, a group of landowners, logging companies, and the families of loggers, brought suit
challenging the authority of federal agencies to halt logging in the Northwest. The secretary of the
interior and the Fish and Wildlife Service both had these two birds on their endangered species lists
and maintained that the destruction of the trees through logging was a destruction of the habitats of
these birds.
ISSUE: Could the two agencies halt logging?
REASONING: The two federal agencies had clear authority under the Endangered Species Act to halt the logging
activities. The extent of federal authority under the act will be determined on a case-by-case basis.
NOTE: Congress intervened and reinstated logging in the Pacific Northwest by suspending the
application of environmental laws there. The Endangered Species Act enjoys continual
congressional attention and review. Also, environmental groups worked with paper manufacturers
to develop the Sustainable Forest Initiative for Mutually Approved Logging.
DISCUSSION POINTS: Ethics & the Law
Spreading the Manure a Little Too Thick
Natural vs. chemical is not the issue – does the water change character because of the effluents? If so, there is a
violation.
This was a really poorly run company from an operational perspective. Below is a summary of the EPA findings:
Mahard’s poultry operations generated significant amounts of manure – estimated to be in excess of 50,000
tons of dry manure per year. Mahard applied poultry manure to its agricultural fields in excess of the
agronomic rates, resulting in the accumulation of large amounts of nutrients in the soils.
Rain causes these nutrients to discharge to area waterways. Mahard's facilities are in violation of the Clean
Water Act (CWA) Sections 301 and 402.
Violations of CWA Section 402: Mahard failed to design, construct, operate or close its wastewater
and manure lagoons in compliance with federal and state laws and its NPDES permits.
Violations of CWA Section 301 and 402: Wastewater from the lagoons and seeps around the barns
flowed untreated through channels and into area waterways without a permit at the Prosper, Texas,
facility and in violation of its NPDES permits at six other facilities.
Violations of CWA Section 402: Mahard failed to maintain adequate grass buffer strips along area
waterways in violation of federal and state law and its NPDES permits. Mahard failed to comply
with numerous operations and maintenance requirements specified in its NPDES permits.
Violations of CWA Section 402: Mahard failed to comply with the requirements of the Texas
Construction Storm Water General Permit or to ensure adequate drinking water for its employees at
its facility near Vernon, Texas.
The States of Texas and Oklahoma also alleged violations of comparable state laws.
Mahard must address CWA violations at all seven of its facilities. The terms of the Consent Decree:
Prohibit land application of manure on Mahard’s agricultural fields that have excessive
concentrations of phosphorus in the soils, and restrict land application at other agricultural fields.
Require Mahard to clean out and properly dispose of accumulated manure in its poultry barns.
Require Mahard to clean out and properly close its inactive wastewater and manure lagoons, and
to conduct ground water monitoring until groundwater falls below certain threshold contaminate
levels.
Require Mahard to obtain permit coverage for its unpermitted Prosper, Texas, facility and comply
with its existing NPDES permits at the other six facilities.
Require Mahard to install and maintain 100-foot buffer strips along waterways that cross its
facilities.
Restrict, and in some cases prohibit, the grazing of livestock on agricultural fields that have
excessive levels of phosphorus contamination.
Require Mahard to properly compost all mortalities, and prohibits further land application in
violation of the Consent Decree.
Require Mahard to construct a concrete lined storage structure to store manure at the Ravia, Okla.
facility.
Require Mahard to provide adequate treatment of drinking water at its Vernon-Chillicothe, Texas
facility.
Under the Consent Decree, Mahard agreed to pay a civil penalty of $1.9 million to be split equally among the United
States, the State of Texas, and the State of Oklahoma. In addition, Mahard agreed to spend $3.5 million to fix up its
facilities and prevent the draining of the soil and spread less manure.
G. State environmental regulation
II. How are Environmental Laws Enforced?
A. Parties responsible
1. EPA
4. Other federal agencies
a. Department of Commerce
b. Department of Interior
B. Criminal penalties (Use Chart in Figure 49-1)
1. Clean Air Act
2. Clean Water act
a. Penalties – $25,000 per day, up to 1 year imprisonment, or both; $50,000 and/or 3 years for willful
3. Resource Conservation and Recovery Act
a. Penalties – $250,000 per day, up to 15 years imprisonment, or both; $1,000,000 for corporations
4. Hazardous Substance/Response Trust – funds for clean-up
5. Oil Pollution Act
a. Penalties – $25,000 per day or $1,000 per barrel; $3,000 per barrel if willful or negligent; $250,000
and/or 5 years for failure to report
b. Private suit – private actions in negligence
C. Civil remedies
D. Private remedies: Nuisance
1. Nuisance is conduct that unreasonably interferes with use of land
CASE BRIEF: Spur Industries, Inc. v. Del E. Webb Development Co.
494 P. 2d 700 (Az. 1972)
FACTS: Spur Industries operated a cattle feedlot near Youngtown and Sun City (communities 14 to 15 miles
west of Phoenix). Spur had been operating the feedlot since 1956, and the area had been
agricultural since 1911.
In 1959, Del E. Webb began development of the Sun City area, a retirement community. Webb
purchased the 20,000 acres of land for about $750 per acre.
In 1960, Spur began an expansion program in which it grew from an operation of five acres to 115
acres. Webb began to experience sales resistance on the lots nearest Spur’s business because of
strong odors. Nearly 1,300 lots could not be sold. Webb then filed suit alleging Spur’s operation
was a nuisance because of flies and odors constantly drifting over Sun City.
At the time of the suit, Spur was feeding between 20,000 and 30,000 head of cattle, which
produced 35 to 40 pounds of wet manure per head per day, or over one million pounds per day.
The trial court enjoined Spur’s operations and Spur appealed.
ISSUE: Could Spur be enjoined from operating on the grounds of being a nuisance? Did Webb owe
compensation?
REASONING: However, the court also noted that Del Webb had moved to the nuisance and Spur had begun
operations in a remote area before the city had grown and that it could not anticipate that it would
have caused a nuisance in that remote area at the time of its creation. Therefore, Del Webb was
required to compensate Spur – an amount of $11 million was later agreed upon by the parties.
DISCUSSION POINTS: Have the students discuss public nuisances using the Spur Industries, Inc. v. Del E. Webb
Development Co. case.
7. Nuisances per se and nuisances in fact
E. Due diligence – private remedy of researching the land before buying
DISCUSSION POINTS: E-Commerce & Cyberlaw
Data Barns, Nuisance, and E-Commerce
Discuss how high tech equipment can still interfere with land and its use. Basic common law doctrine of nuisance is
still used to balance the issues of the need for data barns and the impact on technology if they were shut down.
III. What are Land Use Controls?
A. Restrictive covenants in private contracts
1. Paint, construction, roof restrictions
B. Public zoning
1. Use of statutes to control development and use of land
2. Nonconforming use exception
DISCUSSION POINTS: Sports & Entertainment Law
The Star Wars Studio
Although Mr. Lucas had obtained the right to develop the property, and had sought the approval of the city
government, the continuing protests and ongoing litigation made it impossible to proceed. Sometimes the zoning law
is only as good as neighbors willing to honor the final conclusions of the process.
3. Constitutional restrictions
4. Variance
CASE BRIEF: Hold Fast Tattoo, LLC v. City of North Chicago
580 F. Supp. 2d 656 (N.D. Ill. 2008)
FACTS: Hold Fast Tattoo wishes to open a tattoo studio on North Sheridan Road in the City of North
Chicago and has obtained a prospective lessor at its desired location. In accordance with North
Chicago's zoning ordinance, Hold Fast Tattoo applied for a special use permit to operate a tattoo
studio at that location. On June 21, 2007, the Zoning Board of Appeals of North Chicago
recommended approval of the permit to its city council. The proposal was discussed at two council
meetings, on 7/9/07 and 7/16/07, and Hold Fast Tattoo’s (plaintiff) request for a special use permit
was ultimately denied. The city council informed Hold Fast that its special use permit was denied
because it was “not the kind of business” the council wanted in North Chicago. Hold Fast filed suit.
ISSUE: Can a city have zoning that prohibits tattoo parlors in certain areas?
REASONING: The city has an interest in controlling health and traffic and could target the tattoo parlors. The
restriction did not violate free speech protections because it is not the tattoo artists that is involved
in expression.
DISCUSSION POINTS: Have the students discuss public zoning using the Hold Fast Tattoo, LLC v. City of North
Chicago case. Be sure to discuss the footnote to the case that shows that there is
disagreement among the states and federal courts about tattoos and free speech. The
U.S. Supreme Court may eventually have to hear the issue.
ANSWERS TO QUESTIONS AND CASE PROBLEMS
1. Clean Air Act. Under the 1990 Clean Air Act Amendments, Union will need to purchase the right to release
emissions from someone in Arizona because there are no new permits. The right to emit comes from reductions
2. Oil Pollution Act. Federal Oil could be charged with a violation of the Oil Pollution Act which could cost him fines
of up to $3,000 per barrel per day if the spill was the result of negligence. Even with no negligence the penalties
3. Criminal liability; enforcement. Philip Carey, Celotex, and Smith Land all have liability as owners or former
4. Restrictive covenants. The dog pen was a violation of the restrictive covenant. The pen was a structure by the
ordinary meaning of the word: Anything that is put together is constructed and is a structure. Nothing in the word
5. Environmental; CERCLA. No, General cannot insulate itself under CERCLA – all parties here are liable.
6. Validity of zoning laws. No. The police power may subject property of a private owner to reasonable rules and
7. Public zoning, variance. Yes. The building was within the maximum height limitation and therefore satisfied the
principal purpose of the zoning regulation. To require the owner to rebuild the third floor in order to make it a half
8. Air pollution. The question combines the doctrines of the Massachusetts v. EPA case and the Transport Rule.
9. What constitutes a nuisance. Judgment for Stallcups. The conduct of the Wales Trucking Company interfered
unreasonably with the use and enjoyment by the Stallcupses of their land. This constitutes a nuisance, and the
10. Zoning ordinances. Yes. The city and the people living in the city were confronted with problems because of the
presence of the hills. The hillside ordinance was an attempt to solve these problems by maintaining a lower
11. Zoning ordinances, constitutionality of restrictive covenants. Constitutionally, the objections to the adult homes
have not been upheld. However, in this case, there is not an ordinance or objection to group homes. Rather,
12. Parties bound by the restrictive covenant. Yes. It was not a question of interfering with Norpel’s right to display
the American flag. It was a question of whether he had the right to erect a flagpole in violation of the restrictive
13. Zoning. The San Diego ordinance in issue is designed to separate adult entertainment establishments from
each other and from several other types of uses. Dispersal ordinances of this type that are aimed at controlling
The initial burden to demonstrate available sites rests on the City. The court concluded that the City did not
14. Self-audits. The benefits of a self-audit are:
a. Penalties are less
b. Can eliminate or reduce potential liability by getting the issue resolved and any clean-up done before
anyone is harmed by it
15. Nuisance. The court found there was no nuisance, but the case has been questioned since its decision. Further,
the court allowed the case to proceed on the grounds of trespass and invasion of privacy.
In Indiana, nuisances are defined by statute. Wernke v. Halas, 600 N.E. 2d 117, 120 (Ind. Ct. App. 1992). Indiana
Code section 32-30-6-6 (2006) defines an actionable nuisance as follows: “Whatever is: (1) injurious to health;
(2) indecent; (3) offensive to the senses; or (4) an obstruction to the free use of property; so as essentially to
Both public and private nuisances are further subdivided into nuisances per se, or nuisances at law, and
nuisances per accidens, or nuisances in fact. Wernke, 600 N.E. 2d at 120. “A nuisance per se, as the term
Id.
It is logical, therefore, that the determination that something is a nuisance per se is a question of law, and the
determination of a nuisance per accidens, a question “for the jury or the judge as trier of fact.” Id. This latter
determination is to be made by the trier of fact in light of all the surrounding facts and circumstances, with the
Here, Mills does not allege that Kimbley's use of his land is illegal or that it affects persons other than himself and
his household. Accordingly, he is alleging a private, per accidens nuisance. Mills's nuisance claim during the
summary judgment proceedings was based upon Kimbley's alleged loud music. Yet the record on appeal does
not contain Mills's apparent “declaration” regarding this alleged loud music, and none of the specified portions of
Although Mills's designated evidence includes the allegation that Kimbley's marijuana smoke drifted onto his
property, he did not develop a marijuana-related argument with respect to his nuisance claim or argue that the
To the extent Mills's nuisance claim was based upon allegations other than those regarding loud music, his
nonspecific catchall references to “those facts as explicitly identified supra,” most of which are not part of the
record on appeal, and “all of those nuisance-related facts and instances set forth in extreme detail as contained
LAWFLIX
The China Syndrome (1979) (PG)
An interesting look at the dilemma communities face when their source of jobs or electricity is also a potential safety
hazard. Interesting ethical issues about loyalty, whistle-blowing and journalism.
Erin Brockovich (2000) (R)
The story of ground water pollution and private litigation for recovery.
management system for classroom use.
