Environmental Engineering Chapter 27 Unit Government Regulation And Property Chemicals Federal

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Chapter 27

ENVIRONMENTAL LAW

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

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?

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?

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 Clean Air Act, Congress directed the EPA to establish national standards for pollution that harms

health as well as for pollution that may not be a threat to health but has other unpleasant side effects, such

as obstructing visibility and harming plants or other materials.

The Clean Air Act has four major provisions:

• Primary Standards

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You Be the Judge: Central Arizona Water Conservation District v. EPA

Facts: The Clean Air Act declared “as a national goal the prevention of any future, and the remedying of

any existing, impairment of visibility in mandatory federal “Class I” areas [such as the Grand Canyon].”

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

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

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?

Answer: NGS would gain no benefit. People who visited the Grand Canyon in the winter might see

Question: Without an order from the EPA, would NGS ever choose to reduce its sulfur dioxide

emissions?

suffer the harm nor benefit from the cleanup. They have no economic reasons to avoid polluting.

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?

would cost $1075 per visitor. The annual expenditure of $89.6 million works out to $224 per visitor.

General Questions:

• 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?

990 F.2d 1531, 1993 U.S. App. LEXIS 5881 United States Court of Appeals for the Ninth Circuit, 1993

Chapter 27 Environmental Law 3

• 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?

New Sources of Pollution

Some states had air so clean that they could have allowed air quality to decline and still have met EPA

Greenhouse Gases and Global Warming

On its Web site, the EPA states “Evaporation will increase as the climate warms, which will increase

average global precipitation. Soil moisture is likely to decline in many regions, and intense rainstorms are

International Treaties

In 2009, delegates of 193 countries, including both the United States and China, agreed to a “statement of

intention” to reduce greenhouse gases, to supply developing countries with green technology and to help

them adapt to climate change.

General Questions:

• Is global warming a serious problem?

Soot Particles

In 2005, the EPA set standards for soot emissions from buses and power plants that were weaker than its

Air Toxics

The Clean Air Act directed the EPA to set so-called National Emission Standards for Hazardous Air

Pollutants (NESHAPS), which are safety standards for toxics that provide an adequate margin of safety

without regard to 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.

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• Wetlands — The CWA prohibits any discharge of dredge and fill material into wetlands without a

permit.

Case: Entergy Corporation v. Riverkeeper, Inc.

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

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

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

compliance. And finally, the EPA’s assessment of the relatively meager financial benefits of the

129 S. Ct. 1498; 2009 U.S. LEXIS 2498, SUPREME COURT OF THE UNITED STATES, 2009

Chapter 27 Environmental Law 5

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

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?

Answer: $83 million.

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?

Additional Case: S. Fla. Water Management District v. Miccosukee Tribe of

Indians

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.

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?

541 U.S. 95; 124 S. Ct. 1537; 2004 U.S. LEXIS 2376 Supreme Court of the United States, 2004

6 Unit 5 Government Regulation and Property

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-

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?

Other Water Pollution Statutes

• The Safe Drinking Water Act requires the EPA to set national standards for every contaminant

potentially harmful to human health that is found in drinking water.

Waste Disposal

Resource Conservation and Recovery Act

The RCRA establishes rules for treating both hazardous wastes and other forms of solid waste (such as

ordinary garbage).

The RCRA:

• Bans new open dumps,

• Requires that garbage be sent to sanitary landfills,

Superfund

Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA, a/k/a Superfund) to clean up existing hazardous waste sites.

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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.

Question: What arguments can you make that CERCLA should be reformed?

Answer:

• Joint and several liability is unfair. Every potential polluter is liable unless it can prove that it did

not pollute, which means that a company that did only modest damage may be liable for

enormous expenses.

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 have to

pay them retroactively is fair. They were shirking their responsibility and cannot now complain.

is a much better choice than boarding up.

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?

Evelyn Nieves, “Love Canal; Houses Sell Themselves,” New York Times, July 21, 1996, p. 21.

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Chemicals

Federal Insecticide, Fungicide, and Rodenticide Act

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

pesticides with the EPA.

Federal Food, Drug, and Cosmetic Act

standards.

Food Quality Protection Act of 1996

The Food Quality Protection Act requires the EPA to set pesticide standards at levels that are safe for

children.

Toxic Substances Control Act

Natural Resources

National Environmental Policy Act

The National Environmental Policy Act (NEPA) requires all federal agencies to prepare and

You Be the Judge: Winter v. Natural Resources Defense Council, Inc.

Facts: 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. The Navy’s EA determined that the sonar training would not adversely

affect the animals or the environment and, therefore, it did not have to prepare an EIS.

Environmental groups filed suit asking that the Navy be required to prepare an EIS and also requesting an

injunction to prevent it from conducting the training exercises until the EIS was complete. The trial court

ruled that the Navy had to prepare an EIS but could nonetheless proceed with the exercises beforehand, if

it took certain steps to mitigate harm to the marine mammals. The Navy appealed but the appellate court

affirmed this decision. The Supreme Court granted certiorari.

You Be the Judge: Must the Navy prepare an EIS before it can conduct sonar training exercises?

Argument for the environmental groups: Even the Navy admits that the training exercises would cause

555 U.S. 7; 2008 U.S. LEXIS 8343, SUPREME COURT OF THE UNITED STATES, 2008

Chapter 27 Environmental Law 9

The trial court did not ban all sonar exercises, it simply established rules to protect the marine

mammals. Since the Navy has never tried operating under these rules, it cannot say that they are harmful.

Once it prepares an EIS, it may well be able to go ahead with the sonar exercises without any limitation.

But in the meantime, it is important, and required by law, to protect the animals from irreparable harm.

Argument for the Navy: Antisubmarine warfare is currently the Pacific Fleet’s top priority. With all due

respect to the lower courts, the Navy is in the best position to determine how much harm this ban on sonar

compared with the Navy’s interest in protecting the safety of our nation.

Also, the Navy conducted an EA which revealed that these training exercises would not have a significant

environmental impact. Indeed, the Navy has been conducting sonar training exercises for 40 years,

without a single documented sonar-related injury to any marine mammal. At most, sonar may cause

temporary hearing loss or brief disruptions of marine mammals’ behavioral patterns.

While it is true that, even without an EIS, the lower court would permit some use of sonar in the

exercises, Navy officers testified that these restrictions would greatly undermine the value of the training.

lies.

NOTE: The Supreme Court ruled for the Navy, following the arguments laid out here. It offered great

deference to the Navy and the President’s national security assessment about the importance of the sonar

training.

Question: What was a major factor in the Supreme Court’s decision?

Additional Case: The Lands Council v. McNair

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

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

10 Unit 5 Government Regulation and Property

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?

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 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.

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 same

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

The Endangered Species Act (ESA) requires the government to protect and develop plans to revive

species that are in danger of becoming instinct.

Case: Gibbs v. Babbitt

Facts: The red wolf is 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 two

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

Chapter 27 Environmental Law 11

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

Issue: Is the anti-takings 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?

Answer: Farmers and ranchers became angry when wolves killed their domestic livestock.

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

Question: Do wolves affect interstate commerce?

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

loss.

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 clean-up because you are the current owner.

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

(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.

Essay 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 (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. Has Ahmad violated U.S. law?

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 the company went in one weekend and cut

down trees before it met the condition. Caught in the act, it promised no more logging until it had a

plan to protect the birds. It waited until the long weekend over Thanksgiving to take down some more

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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 the

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 of

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

aware that the leaks were occurring. B&B ultimately went bankrupt. Is Shell liable for the costs of

cleaning up this site?

5. 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. Never more so than with the environment. Being completely honest, which of

the following are you willing to do:

➢ 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.

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➢ Buy (more expensive) pesticide-free produce.

2. Externalities pose an enormous problem for the environment. Oftentimes, the people making

decisions do not bear the full cost of their choices. Thus, the owners of a power plant that emits tons

of greenhouse gases are shifting some of these costs to the rest of the world and even to future

generations. 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 recently announced that it had 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 will remain a member of this 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?

3. 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?

4. Many of the environmental statutes permit citizen suits. As a result, environmental groups bring many

lawsuits against both the EPA and polluters, alleging violations of these statutes. Are these suits a

good idea? The Fish and Wildlife Service says that it spends so much of its resources responding to

litigation over why it has not listed endangered species that it has no resources left to actually to do

the listing. Businesses argue that it is unfair for every citizen to be a cop on the beat. On the other

hand, environmental groups often supplement the limited resources of the EPA.

5. The Winter case deals with the balance between national security and the environment. Consider

these additional issues: What if the President felt it was important to national security to store

reserves of oil in a manner that could harm groundwater? Or permit drilling in areas that are

environmentally fragile such as Alaska or the gulf coast? Would you support such decisions? Should

there be a review process for these decisions?