403
CHAPTER 46
ENVIRONMENTAL LAW
ANSWERS TO QUESTIONS
AT THE ENDS OF THE CASES
CASE 46.1—QUESTIONS (PAGE 901)
WHAT IF THE FACTS WERE DIFFERENT?
Suppose that the EPA had carried out scientific tests that showed mercury was relatively harmless as a
byproduct of electricity generation. How might this have affected the court’s ruling? If the assumption
THE GLOBAL DIMENSION
Because air pollution knows no borders, how did this ruling affect our neighboring countries? If the
CASE 46.2—QUESTIONS (PAGE 904)
THE ETHICAL DIMENSION
404 UNIT NINE: GOVERNMENT REGULATION
In this case, aquatic organisms were most directly at risk. Is it acceptable to apply cost-benefit analyses
to situations in which the lives of people are directly affected? Explain. Yes, because funds are limited
and costs can become prohibitive. In the environmental law context, for example, is it worth billions of
dollars to clean water that may harm only a few people? Even the most ardent supporters of
environmental protection might concede that it is not. No, because for some parties, in some situations,
there may be more important factors than money to take into account. These might include such social
and political goals as assistance for the disadvantaged.
THE GLOBAL DIMENSION
CASE 46.3—QUESTIONS (PAGE 905)
1A. Assume that during most of the year, there was a solid strip of land around the property in
question that remained completely dry. Would the outcome of this case have been the same? Why or
why not? Much would depend on what percentage of the year that the strip of land around the property
in question was actually dry. If it were dry for 95 percent of the year, the outcome of this case probably
would have been different. If it were dry only 50 percent of the year, then the outcome probably would
not have changed.
2A. According to the judge in this case, what three characteristics of jury instructions does a federal
appellate court examine to determine whether a district court has abused its discretion in omitting a
requested jury instruction? Which of these three characteristics was at issue in this case? The judge
noted that “a district court abuses its discretion in omitting a requested jury instruction only if the
requested language (1) is substantively correct; (2) is not substantially covered in the charge given to the
jury; and (3) concerns an important point in the trial.” The language of the instructions submitted to the
ANSWERS TO QUESTIONS IN THE REVIEWING FEATURE
CHAPTER 46: ENVIRONMENTAL LAW 405
AT THE END OF THE CHAPTER
406 UNIT NINE: GOVERNMENT REGULATION
2A. Oversight
Typically, the federal government establishes air-quality regulations, but the primary responsibility for
overseeing and controlling air-pollution rests with both state and local governments.
3A. Equipment
Major stationary sources of air pollution are required to use the maximum achievable control
technology to reduce emissions. The EPA issues guidelines as to what equipment meets this standard,
ANSWER TO DEBATE THIS QUESTION IN THE REVIEWING FEATURE AT
THE END OF THE CHAPTER
The courts should reject all wetlands cases in which the wetlands in question do not consist of
actual bodies of water that exist during the entire year. The Army Corps of Engineers brings numerous
cases to court each year that involve areas that are not “wet” part of the year. Some are only wet
during storms. Congress never created wetlands legislation to protect such areas. The U.S. is a huge
ANSWERS TO QUESTIONS AND CASE PROBLEMS
AT THE END OF THE CHAPTER
46-1A. Clean Air Act
(Chapter 46—Pages 899–901)
46-2A. QUESTION WITH SAMPLE ANSWER: Environmental laws
Fruitade has violated a number of federal environmental laws if such actions are being taken without a
permit. First, because the dumping is in a navigable waterway, the River and Harbor Act of 1886, as
46-3A. Environmental laws
(Chapter 46—Page 897)
As a general rule, a property owner is free to use his or her property in any manner desired so long as
such use is not in violation of any statute or does not interfere with the property rights of others. When
such use interferes with another’s property rights, an action may be brought as a tort of nuisance. In
such a case, the court would try to balance the interests of both parties. In an action involving an issue
46-4A. Environmental impact statement
(Chapter 46—Pages 898–899)
The court held that the Corps acted arbitrarily and capriciously in issuing the FONSI and adopting the
SMP, and issued a preliminary injunction against the Corps’s acting under the SMP. The court also
46-5A. CERCLA
(Chapter 46—Page 908)
The court granted Cytec’s motion, holding that Goodrich responsible for the CERCLA liability of Dyestuffs
on a successor liability theory. The court pointed out that “[a] successor corporation may be held
responsible for the liabilities of the predecessor corporation . . . when: . . . the transaction amounts to
a de facto consolidation or merger.” The “hallmarks” of a de facto merger include “a continuity of
shareholders resulting from a sale of assets in exchange for stock, . . . the immediate or rapid
dissolution of the predecessor corporation, and . . . the assumption by the purchasing corporation of all
46-6A. CASE PROBLEM WITH SAMPLE ANSWER: Superfund
The court should impose a penalty on Gurley for failing to comply with the requests for information by
46–7A. Clean Water Act
(Chapter 46—Pages 902–904)
The FoE argued, among other things, that the CWA requires “total maximum daily loads,” not seasonal
or annual loads. The EPA responded in part that “the many ways in which pollutants damage the
environment call for a more flexible understanding of ‘daily.’ ” The court held that the CWA does not
CHAPTER 46: ENVIRONMENTAL LAW 409
loads. On the FoE’s appeal, the U.S. Court of Appeals for the Second Circuit reversed the lower court’s
decision and remanded the case with instructions to vacate “the non–daily ‘daily’ loads.” The appellate
court emphasized that under the CWA, the District of Columbia was required to set “the total maximum
daily load” for “each pollutant that contributes to the Anacostia’s violation of the dissolved oxygen and
turbidity standards. Nothing in this language even hints at the possibility that EPA can approve total
maximum ‘seasonal’ or ‘annual’ loads. The law says ‘daily.’ We see nothing ambiguous about this
command. ‘Daily’ connotes ‘every day.’ Doctors making daily rounds would be of little use to their
patients if they appeared seasonally or annually. And no one thinks of ‘[g]ive us this day our daily bread’
46–8A. Environmental impact statement
(Chapter 46—Pages 898–899)
The National Environmental Policy Act (NEPA) requires that an environmental impact statement (EIS) be
prepared for every major federal action that significantly affects the quality of the environment. An
46–9A. Environmental impact statement
(Chapter 46—Pages 898–899)
The appeals court found that the plaintiffs failed to establish that the NPS acted in an arbitrary and
46–10A. A QUESTION OF ETHICS: Clean Air Act
(a) The court held that the fuel economy standards and GHG regulations did not cover the
same subject and that the rules are not “an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress” in requiring NHTSA to set fuel economy standards. The state rules
“embrace much more than a simple requirement to improve fuel economy, cloaked in the rhetoric of
The court disagreed. The court cited the “U.S. Dept. of State, U.S. Climate Action Report—2006’”
that “applauds nonfederal policies and measures that limit GHG emissions: ‘In addition to the national
effort, state and local governments and private and nonprofit organizations are taking a variety of steps
that contribute to the overall GHG intensity reduction goal. These nonfederal climate change activities
can be an important factor in the success of emission reduction policies.’ The report goes on to specify
process to prompt automakers to develop and employ new, state–of-the-art technologies, more often
than not over the industry’s objections. The introduction of catalytic converters in the 1970s is just one
example. In each case the industry responded with technological advancements designed to meet the
challenges.
“[T]wo factors suggest the industry can meet these challenges. First, EPA clearly has the authority
