Frank M. RCRA 1. Is the material a solid waste? o Statute s. 1003(27) of RCRA defines solid waste as any [...

..] from a [...] and other discarded material including [...] material resulting from [...] operations and from community activity. -very broad definition S. 1004(27) ?? a. Is the material discarded? o Rule The definition of solid waste only includes discarded material. In American Mining Congress I, the court held that the EPA need not regulate spent material facilities recycle or reuse in an ongoing mfg or industrial process o Application 1) Are the materials discarded? Materials are discarded if the facility has disposed of, abandoned, or thrown them away. AMC v. EPA I 2) Will the material be reused as a certainty? Materials are not discarded if they are destined for immediate reuse in another phase of the industrys on-going process and have not become part of the industrys on-going waste disposal problem. AMC v. EPA II o Potential reuse of materials is not enough to avoid being classified as discarded certain to be reused. 3) Is the reuse immediate or delayed? What was the amount of time until reuse? o Few min OK :In Association of Battery Recyclers, the DC Circuit rejected the notion that temporary storage of the materials even for a few minutes subjected them to regulation as solid waste. Not regulable by RCRA still immediate re-use. o 6 months NOT OK - In Owen Electric Steel Co., the 4th circuit held that slag produced, cured on the ground, and sold six months later was discarded material, despite its reuse. [not immediate too long]. Is regulable by RCRA. 3a) Is the reuse direct or indirect? o Plain meaning of immediate Could mean direct [as well as at once] Was the material recycled/reused in a direct way?

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Frank M. o Where will the recycling/reuse take place? Offsite indirect Onsite is it used as part of the original closed loop process or not? If not, arguably indirect. 4) Has the material being reused/recycled already been part of the manufacturing process or is it raw material? o In American Petroleum Institute, the court held that it was waste before it was recycled b/c owner got rid of it then it was recycled What if it had not first been used in manufacturing process? Raw ore instead of from the process Fact that it had been used first then discarded was dispositive o If have two diff things, one not used its not covered Does this make any sense Policy: want to encourage recycling BUT its the same exact harm Purpose o To discourage sham recycling o To avoid environmental harm

2. If the material is a solid waste, is it a hazardous waste? Statute o RCRA s. 1004(5) A solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infection characteristics, may (A) cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) post a substantial present or potential hazard to human health or the environment when improperly treated, stores, transported, or disposed of, or otherwise managed. a. Is the material a listed waste? o 40 CFR s. 261 o Is the waste at issue derived from another waste? Derived-from rule: wastes derived from the treatment, storage, or disposal of a listed waste (such as ash residue from incineration of a listed waste) are hazardous wastes. If a substance is derived from [by statute by means of TSD] a listed hazardous waste, then it too is a listed hazardous waste. o Mixture rule for listed wastes;

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Frank M. If the substance is a mixture of X and a listed hazardous waste, then the resulting mixture is hazardous waste b. Is the material excluded from RCRA regulation? o Petroleum, nuclear waste etc. c. Is the material a characteristic waste? o s. 1004(5) of subpart C 1) Ignitable 2) Corrosive 3) Reactive chemically 4) Exhibits TC toxicity 5) Unstable 6) Fatal to humans in low doses or has an LD -50 or LC -50 7) Contains toxic constituents Big 4 o 1) Ignitability 2) Corrosivity 3) Reactivity 4) Toxicity o Is there a mixture of wastes? - Mixture rule for characteristic wastes: If the result of a mixture of a substance with a characteristic and another substance has a characteristic then it is a hazardous waste. If not, then it is not. If a substance that is the result of some TSD process on a characteristic waste has a characteristic then it is a hazardous waste. If not, then it is not. - (Not hazardous if the resulting mixture no longer exhibits any subpart C characteristic). o Does the mixed substance still exhibit a characteristic waste? If so, still a hazardous waste 3. Are there any defences? RCRA s. 3001(i) household waste exemption

CERCLA 1. Is this a release or threatened release? 2. Is this a hazardous substance? 3. Is this at a facility? 4. Which s. 107 liability category or categories does [defendant] potentially fall under? Statute s. 107 o 4 classes of potentially responsible parties bearing cleanup liability under Superfunds cost recovery provisions 1) current owners and operators 2) owners and operators at the time waste was disposed of at the facility 3) generators of waste

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4) persons who transported waste to the facility Parties are liable for A) all costs of removal or remedial action incurred by the federal government not inconsistent with the NCP B) any other necessary costs of response incurred by any person consistent with the NCP C) damages for injury to natural resources D) costs of health assessments

4a. Is [defendant] liable as a current owner or operator of the facility? Statute o CIRCLA s. 107 lists current owners and operators as potentially responsible parties bearing cleanup liability under Superfunds cost recovery provisions Rule o 1) In New York v. Shore Realty Corporation, the court held the then current owner of the property liable even though it neither owned the site at the time of disposal nor caused the presence or the release of the hazardous waste at the facility o 2) In New York v. Shore Realty Corp, the court held that a showing of proximate cause is not required before liability may be imposed on current or former owners or operators of disposal sites. o Reasoning Statute uses passive verbs, does not need to actively be done as long as the def is not innocently unaware of situation. Continued leaching and seepage all constitute releases o A release can be an ongoing process, doesnt just happen once when the substance is disposed of o Policy Not holding the current owner liable could a) undermine the statute b/c often the companies who caused the problem are judgment proof b) it would also encourage companies to sell (person who is selling the property will have to pay more to sell the property b/c buyer is assuming liability) Does [defendant] have an affirmative defense (s.107(b))? o act of god o act of war o act or omission of a third party other than an employee or agent of the defendant or one whose act or omission occurs in connection with a contractual relationship with defendant. 1. Due care is required when a corporation bases its affirmative action on an act or omission of a third party. If [def] could show took due care has a defense.

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Frank M. In New York v. Shore Realty Corporation, the court held that a company which was aware its tenant had dumped waste in the past and could have readily seen that this activity would continue did not take due care.

2. The act or omission refers to what happened during [defendants] ownership, not something which happened before. In New York v. Shore Realty Corporation, the court did not hold the defendant liable for the initial release, but for the continued leaking, seepage, or dispensing of chemicals 3. The third party is the sole cause Does [defendant] have an innocent purchaser defense? o Congress amended s. 107(r) to add innocent landlord defense [Defendant] is not liable if: 1) It did not have actual or constructive knowledge ... o To satisfy, [defendant] must have made an all appropriate inquiry Involves due diligence process (law is murky) 2) It was a government entity who acquired property through involuntary transfer 3) The land was inherited 4b. Is [defendant] liable as a previous owner or operator of the facility? Statute o CERCLA s. 107 lists owners or operators at the time waste was disposed of at the facility as potentially responsible parties bearing cleanup liability under Superfunds cost recovery provisions Rule o 1) Prior owners and operators are liable under CERCLA only if they owned or operated the facility at the time of disposal of any hazardous substance. New York v. Shore Realty Corporation o 2) In New York v. Shore Realty Corp, the court held that a showing of proximate cause is not required before liability may be imposed on current or former owners or operators of disposal sites. Does [defendant] have an affirmative defense? o See 4a Was the pollution caused by soil migration? (substance got on ground, seeped in, and spread out underground) o Circuit split The 4th Circuit in Nurad held the defendant liable under passive owner liability Court wanted to avoid where an owner could avoid liability simply by standing idle while an environmental hazard festers on his property. Where passive can incur liability. rd The 3 Circuit in CDMG rejected passive owner liability. No liability. 5

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Frank M. pointed to active words defining disposal and that interpreting otherwise would make innocent purchaser defense invalid. Distinction b/t leaking drums and soil migration (described above)

[operator; substantial control test, actual control test, etc...] 4c. Is [defendant] liable as an operator due to its position as a parent company of the subsidiary company, [subsidiary company]? Statute o CERCLA s. 107 lists current ... operators and operators at the time waste was disposed of at the facility as potentially responsible parties bearing cleanup liability under Superfunds cost recovery provisions Rule o A parent corporation that actively participates in and exercises control over the operations of a subsidiary cannot be held liable as an operator of a polluting facility owned or operated by the subsidiary unless the corporate veil is pierced. US v. Bestfoods Reasoning A statute such as CERCLA does not advent the common law unless Congress specifically states that it does Can the parent be held directly liable for operating the facility itself? o Issue is not whether parent operates the subsidiary but whether it operates the facility Not direct liability: corporate offices in common, to have participation and control, monitoring the subsidiarys performance, supervision of the subsidiarys finance and capital budget decisions, articulation of general policies and procedures An operator must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations 4d. Is [defendant] liable as a transporter? 4e. Is [defendant] liable as a generator? Statute o s. 107(a)3 any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances 4f. Is [defendant] liable under s. 107(a)(3) as an arranger? Statute o s. 107(a)3

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Frank M. any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances

Entity qualifies as an arranger when it takes intentional steps to dispose of a hazardous substance. Burlington Northern case (ex: entering into a contract an intentional act) In Burlington Northern, the court held that to qualify as a an arranger, the defendant must enter into the sale of the hazardous substance with the intention that at least a portion of the product be disposed of during the transfer process by one or more of the methods described in 6902(3). o Mere knowledge that spills and leaks continued to occur is insufficient grounds to find defendant arranged for disposal Fact intensive and case specific 2 extremes of arranger liability o Liable entity enters into transaction for sole purpose of discarding a used and no longer useful haz substance o Not Liable entity merely sold a new and useful product and the purchaser, unbeknownst to the seller, disposed of the product in a way that led to contamination (sellers intent to dispose does not attach to purchaser) Unclear area o Cases where the seller has some knowledge of buyers planned disposal or whose motives for the sale of the substance arent clear o Policy: preventing people from disguising their intent to sell/dispose of hazardous waste. If intention is required, what if leaking and spilling are included in disposal? [Aceto approach]

Rule

5. Is [defendant] one of multiple PRPs? If so, does [defendant] partly share responsibility? See above elements of s. 107 6. If [defendant] is partly responsible, is the harm caused capable of apportionment? Rule o Although s. 107 imposes a strict liability standard, it does not mandate joint and several liability in every case. Burlington Northern: Is the harm capable of apportionment?

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Frank M. Not all harms are capable of apportionment, and CERCLA defendants seeking to avoid joint and several liability bear the burden of proving that a reasonable basis for apportionment exists. Burlington Northern o Diversity of harm analysis 433A of Restatement of Torts: When 2 or more persons acting independently cause a distinct or single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he himself caused. o But where 2 or more persons cause a single and indivisible harm, each is subject to liability for the entire harm

7. If [defendant] is held subject to joint and several liability, is it eligible for de minimis settlement under s. 122(g)? 8. Can the [defendant] sue other PRPs for their share of the liability? Statute o Under S. 107, a party is subject to joint and several liability. SOL is three to six years from completion of removal work or initiation of remediation work o Under s. 113(f), liability is to be equitably allocated among PRPs. SOL is three years from the date of judgment or settlement contribution protection exists only for s. 113 actions s. 113(f) bars contribution from parties who have settled with the government for matters addressed in the settlement Rule o S. 107 and s. 113(f) allow private parties to recover expenses associated with cleaning up contaminated sites.. US v. Atlantic Research o PRPs can utilize s. 113 to seek contribution only after they have been sued for cost recovery. Cooper Industries v. Aviall

9. What is the appropriate allocation of response costs among the PRPs? s. 113f o Gore factors: (1) ability of parties to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can be distinguished, (2) amount of hazardous waste involved, (3) degree of toxicity of the hazardous waste, Frank M. 8

Frank M. (4) degree of involvement of parties in the generation, transportation, treatment, storage or disposal of haz waste, (5) degree of care exercised by parties with respect to the haz waste concerned, taking into account the characteristics of such hazardous waste, and (6) degree of cooperation by the parties with Feerfal, State or local officials to prevent any harm to the public health or the environment. These factors are neither an exhaustive nor exclusive list the primary emphasis is placed on the harm each party causes the environment and care on the part of the parties (US v Vertac)

10. Are there multiple states involved and is there a law (city/county/state ban) restriction on the removal of waste? (dormant commerce clause)? Statute commerce clause Rule: 1) Is the law a simple economic protectionism? a. If so, the ban is "per se invalid" - against the commerce clause. 2) Is the law directed to legitimate local concerns? a. Pike test - balancing test - unless local concerns outweigh the commerce clause. If this, may have a case. (Philadelphia v NJ) If a ban on a specific facility, may be OK (Mayor & CC of Baltimore) 11. Is there an issue involving the Commerce Clause and Environmental Justice? If race or socio-economic issues are raised bring this up. Louisiana Energy Services case

Clean Air Act Quick summary: Is it a pollutant? Is it a criteria pollutant? If its not a criteria pollutant (regulated under CAA) then no permit is required If its a criteria pollutant then yes, discharger needs a permit o How do you get a permit? o Look at relevant control technology-standards In Attainment areas PSD = BACT In Non-attainment areas then a modified or new source = LAER In both new sources = NSPS If its routine maintenance (RMRR) then still an existing source = RACT BACT LAER non-attainment areas

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Frank M. 1. Is the material a criteria pollutant under the CAA? Rule o The following are declared by the EPA to be criteria pollutants: Sulfur dioxide Nitrogen oxides Particulate matter Big Small (more harmful) Carbon monoxide Lead Hydrocarbons Ozone 2. Is the source stationary or mobile? (All are regulated by CAA) If stationary, go to 3. o Incinerators, chimneys, factories, any burning-machine, any machine can be a source, smoke-stack, building/structure/facility or source which may emit an emission anything that emits a toxin in the air If mobile, go to ... o Mobile sources are moving sources = motorized vehicles, planes, trains, trucks, cars etc. o Most states are pre-empted by CAA from promulgating their own regulations concerning mobile sources state can either use EPAs (s.202 CAA emissions standards for new motor vehicles or new motor engines) or a waiver to be able to adopt CAs standards. 3. If stationary source, is the source a new source or a modified source? Statute o CAA 111(2) new source any stationary source, the construction or modification of which is commenced after the publication of regulations (or proposed) prescribing a std of performance under this section which will be applicable to such source. o CAA 112(3) stationary source any building, structure, or facility, or installation which emits or may emit any air pollutant. o CAA 111(4) modification any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted Rule for modifications (2 steps) o 1) whether there has been a physical or operational change RMRR exemption EPA always exempted certain alterations from being physical changes if constituted routine maintenance, repair, or replacement Case-by-case, fact intensive nature of RMRR review

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Frank M. o Impt Issues (Duke Erringer case) 1) What is considered routine Split b/t facility specific or industry as a whole 2) whether what counted as routine maintenance in EPAs prior findings should govern the case o 2) whether there is an increase in emissions or a new air pollutant is emitted Based on annual emissions, not the emissions rate 4. Is new/modified source in a Non-Attainment area? If a new source LAER (technology-forcing) o Requirement of a new permit get permit if Existing, but modified source BACT Existing, but not modified (maintained only) - RACT 5. Is new/modified source in an Attainment area? PSD which entails BACT 6. Can [defendant] get a variance? Will EPA approve the variance? Yes if the SIP standards are effectively impossible to meet.

2. If not, should the material be a criteria pollutant under the CAA? o Statute o CAA s. 302(g) air pollutant means any pollution agent or combination of such agents, including any physical, chemical, biological, radioactive ... substance or matter which is emitted into or otherwise enters the ambient air. [very broad] s. 108(a)(1)(A) any air pollutant...which in [the EPA administrators] judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare [limitation] s. 302(h) includes, but is not limited to, effects on soils, water, crops, ....weather ... as well as effects on economic values and on personal comfort and well-being ... Rule o Endanger does not mean an actual injury has to be present, it was enough that a significant risk of harm. - Ethyl Corp and Lead Industries o EPA can set the NAAQs w/ respect to vulnerable population. - Lead Industries o EPA has discretion to set adequate margin of safety and does not need to limit the NAAQs to clearly harmful effects (can regulate w/ respect to effects that are more uncertain) Ethyl/Mass cases?

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Frank M. 3. If the material should be a criteria pollutant, how should it be regulated? NAAQS SIPS EPA approval of state plan FIPS

Is it Carbon dioxide? it could soon be a criteria pollutant (proposal made) o May parallel the same legislation as lead (lead was most recently added to list of criteria pollutants) Mass v EPA case

Mobile Stationary Direct Indirect Concerns State v fed gvmt roles Regulating regional air v permitting individual polluters Translating tech-based pollution stds to legal reqs Air quality control regions regions where air quality is monitored or controlled Federal role (NAAQS) -create nationally uniform quality stds for ambient air -create tech based stds for individual polluters emissions Naaqs geographically uniform standards for ambient air quality States role (SIPS) -enforce NAAQS by enforcing SIPS Lisas notes: NAAQs mandated by CAA EPA sets them, SIPs are plans made by states to meet the NAAQs, if EPA rejects SIPS, then EPA sets a FIP. In analyzing whether SIPs are sufficient, EPA cannot take costs into account. Frank M. 1

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DECISION TREE: Is X a criteria pollutant? o No? then its OK do not need a permit o Yes? Is it RMRR (Routine Maintenance Repair Replacement)? Yes then its an existing source and so RACT is required No then its a new or modified source and subject to NSPS so is it an attainment area (complies with NAAQs)? Yes then it comes under the PSD program = BACT is required No then it comes under NSR so, does it net out? o No then its subject to LAER o Yes it is OK as it is. BACT determined on a case by case basis by the state. NSPS = triggered by not being RMRR (being new or modified) NSPS triggers a floor technology - Federally mandated be as Attainment area a geographical area in compliance with NAAQs for that criteria pollutant. Non-attainment area the area is not in compliance with NAAQs for the criteria pollutant. NSPS is a federally mandated control technology for any new or modified source and sets a floor technology for each criteria pollutant that the new or modified source has to be as good or better than. Its an absolute floor BACT may be above or below it. If BACT is below it, then NSPS sets the floor.

Clean Water Act - CWA Foundational prohibition s.301(a) = discharge of ANY pollutant by ANY person - so incredibly broad! What limits this broad definition? o s.502 (12) = any addition of any pollutant to navigable waters from any POINT source - So - there has to be 3 elements: 1) pollutant, 2) navigable waters & 3) from any point source = so permit reqs only cover discharges from point sources that inv. the add.of a pollutant. CWA is comprehensive: prohibits all discharges of water pollutants unless the discharger has a PERMIT that incorporates effluent limitations. CWA requires SEPARATE permits for discharges of dredged/fill material in regulated wetlands (s.402 permit/s.404 permit see below p.17) 1.Is it a discharge of a pollutant? s.301(a) the discharge of any pollutant by any person shall be unlawful. a) Is it navigable water? s.502(7) navigable waters means the waters of the United States, including the territorial seas

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Frank M. o "navigable waters" do not have to be "navigable" and do not need to be "waters" = held that it can be wetlands, so not necessarily "navigable" or "waters" (Riverside Bayview Homes very broad def. of navigable waters) o Issue: whether isolated wetlands used by migratory birds are "navigable waters" for benefits of interstate commerce? (SWANCC case) SC used rigid/linguistic def. of "navigable- big depart.from Riverside. Held - non-navigable, isolated, intrastate waters (unlike the wetlands at issue in Riverside) did NOT actually abut on a navigable waterway and were NOT included as "waters of the US". In SWANCC - had to be a signif. nexus betw. water regulated+nav. waters o Rapanos case (plurality): held there is a significant nexus between the body of. Scalias test = did not look at navigable, but what is "waters of the US" (plural) = inc. ONLY relatively perm., standing or cont. flowing bodies of water "forming geographic features" - streams, oceans, rivers and lakes (excludes puddles/dry channels) = consist. w/Cong + purposes of Act waters of US does not inc. channels th/which water flows intermittently or
ephemerally or channels that periodically provide drainage for rainfall.

Scalias 2 part test: 1) water body adjacent to wetland contains water of the US 2) wetland has a continuous surface connection w/that water making it difficult to determine where wetland begins and ends Thus - wetlands with only an intermittent, physically remote
connection to "waters of the US" LACK the necessary connection to covered waters that have a significant nexus as in SWANCC.

Kennedy (disagreed w/Scalia) - significant nexus test (from SWANCC case) wetlands possess the requisite nexus, and thus come within the statutory phrase navigable waters, if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as navigable. When in contrast, wetlands effects on water quality are speculative or insubstantial; they fall outside the zone fairly encompassed by the statutory term navigable waters. (Stevens:dissent would defer to agency as to what is navigable) Justice K's test is essentially the test which will need to be used for future cases - along with plurality/dissent to get up to 5.

b) Is it a pollutant? s.502(6) pollutant means dredged, spoil, solid waste, incinerator residue, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste discharged into water.

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Frank M. o In 1993, ACE issued new rule (removed de minimis exception) to expand def. of 'discharge' to cover "any addition of dredged material into, inc. any REDEPOSIT of dredged material within the waters of the US" o This new rule subjects to fed.reg. virtually all excav./dredging in WETLANDS. Incidental fallback does NOT require a permit (i.e. material taken from one
body of water to another in same geographical location/waters)

Regulable re-deposits DO require a permit (redep. to/from new location, or take redep., keep it out for a while then redep need a permit) Incidental re-deposits (fallbacks) of dredged materials could NOT be regulated as "discharges" because they did NOT result in the net ADDITION of any pollutants to receiving waters (soup falls from ladle) Incidental spillage to water permit is req. (Mokelumne River case) Incidental re-deposit not only from original pollutant to be point source, just need to convey redeposit to water (from a boat etc.-Mikosuccee case) Water transfers made between distinct water bodies = this is an addition, thus a discharge of a pollutant, so requires a permit (South Florida MD v Miccosukee) to protect the preservation of different water bodies o If punching holes in wetlands, so activity moved/mixed up contents of wetland materials= sufficient to constitute a discharge of a pollutant (Deaton/Borden case)

c) Is it a point source? If yes - a permit is required under NPEDS permit system s.502(14) point source means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft (boat), from which pollutants are or may be discharged. This term does not include agricultural storm water discharges and return flows from irrigated agriculture. EPA does NOT have the authority under the CWA to categorically exempt categories of point sources from the permit program under 402. (NRDC v Costle) Is a person a point source under the CWA? o Held: A human being is NOT a point source (US v Plaza Health Laboratories) no structural sense to incorp. human into point source o Dissent: point source designation is more about controllability than character of
the point source (dont want only non-point sources); this would allow pollution to escape liability as give corporations incentive to evade statute by simply putting a human being on the end of the chain of disposal Discharge in this case was more like a point source, much more controllable and came from an identifiable point Must distinguish betw.individual litterer and one acting on behalf of a municipality or a corporation.

o Note - can argue that a human being w/a hose may be considered a point source, if the hose is determined to be a point source.

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Frank M. Examples of cases - activities that were/were not held to involve discharges from a POINT SOURCE that did/did not require a NPDES permit: 1. Does dam that discharges water w/reduced O2 content req. permit as point source? Held: dam was not required to obtain a permit. EPA properly determined that Congress did not intend a dam to be a point source. (Nat.Wild. Fed. v Gorsuch) 2. Does discharge of dead fish from a hydroelectric plant's penstocks require a permit? Held: no permit was required - following the Gorsuch case.(National Wildlife Fed. v. Consumers Power Co. 1988) 3. Is a permit required if toxic materials are discharged into a stream when a settling pond used to process gold ore overflows during an unusually sudden snowmelt? Held: YES - a permit was required b/c Congress defined "point source" to embrace the "broadest possible definition of ANY identifiable conveyance from which pollutants might enter the waters of the US" (US v Earth Sciences Inc 1979) 4. Are a series of surface impoundments designed to capture, contain and evaporate toxic runoff from an abandoned mine, a point source, when their contents occasionally spill into a nearby river? Held: YES - impoundments were held to be a point source - although concurring judge noted that as the facility was like a dam/was constructed to reduce pollution, would have been willing to defer to EPA if it had been determined that facility was not a point source. (Committee to Save Mokelumne River v East Bay Mun.Util.Dist 1993) 5. Is the application of aquatic herbicides to irrigation canals a discharge from a point source that requires a permit? Held: YES - (Headwaters Inc v Talent Irrigation District 2001) 6. Is a pump that moved polluted water (pollutant was phosphorous) from a canal to a reservoir a point source that requires a permit? Held: YES. Court rejected arguments by Water District that s.402's permit requirements ONLY apply when pollutants originate from a point source and not when they merely pass through them. d) Can the pollutant get a variance under s.301(n) fundamentally different factors? Must apply to EPA for a variance EPA cannot take costs of BPT into account for variances (can for BADT and BAT) What are the standards?

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Frank M. CWA divides sources between EXISTING and NEW sources (Act does not require EPA to actually show that the technology is being used..) 1972 Act: For existing sources BPT by 1977 (EPA must consider costs, not required to balance costs and benefits as in BAT) BAT by 1983 (more stringent than BPT - as for BPT = EPA must balance costs and benefits of alternatives) BAT does not require that the technology is actually IN USE by industry currently - as long as it can be shown to work - EPA can peg its effluent limit on this technology. For NEW sources: BADT: Can be set by looking at process changes in the industry itself. EPA can say we will set the limit at X, based on our feeling that industry could do better recycling, more process changes - if this is done, then effluent levels would meet the limits. 1977 Act: 1) Industry said it was too hard to achieve BAT by 1983 2) BPT was retained as a "floor" (minimum level) for all sources (esp. extensions) = BADT was retained for NEW sources But for existing sources, BAT requirement was replaced as follows: (3 requirements) 1) For Toxic pollutants (e.g. lead) - BAT by 1984 2) For Conventional pollutants (e.g. oil) - BCT (Best Conventional Technology) (so for existing sources BCT and BAT; new sources BADT) 3) Non-conventional pollutants - BAT (but a waiver possible for costs or water quality) Water quality can be a waiver, but not a factor for setting the limit in the 1st place EPA cannot take an individual facilities costs into account (so EPA has the power to put companies out of business) Thus - standard is = EPA says that a company can only emit X amount of [lead] how you get to X limit - the industry has to use BAT or BCT etc. - by demonstrating that it is possible with that technology standard. Levels of Technology Standards: 1) BPT (least stringent) 2) BCT 3) BAT 4) BADT (most stringent) Four Different Standards: 1. Best Practicable Technology Currently Available (BPT) i. Original version (1972) of CWA required all existing sources to achieve BPT controls within five years.

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Frank M. ii. 2. i. ii. iii. 3. i. ii. iii. 4. i. ii. Set for classes or categories of point sources, and takes costs into account (consider total cost of technology, benefits achieved, existing controls, etc.) Best Available Technology Economically Achievable (BAT) Stricter standard than BPT, under original CWA all existing sources were supposed to achieve BAT by 1983, and toxic polluters were supposed to achieve it immediately. 1977 amendments extended BAT compliance to 1984 for toxic polluters, and changed the standard for conventional polluters from BAT to BCT (so more strict) BAT requires consideration of cost, but just to determine what is actually feasible, not as a form of cost-benefit balancing. Best Conventional Technology (BCT) Stricter than BPT but not as strict as BAT, BCT was conceived because it was clear that existing sources were not going to be able to meet original statutory deadlines. BCT asks EPA to take into account the reasonableness of the relationship between costs and benefits. The two cannot be completely incommensurate, but EPA does not need to cost-justify everything that it requires under BCT. Note: In practice BPT and BCT standards have merged, and apply to conventional pollutants, and BAT applies to toxic pollutants. Best Available Demonstrated Technology (BADT) The strictest standard of the four, it applies to all new sources. Similar to the CAA BDAT standard, it requires the "degree of emission limitation achievable through the application of the best system of emission reduction which, taking into account the cost, has been adequately demonstrated."

CWA s.301, s.402, s.404: Interaction between s.301(a): (discharge of ANY pollutant by ANY person is UNLAWFUL except in compliance w/ certain sections - inc. a PERMIT under s.402 and s.402 (discharge of a pollutant permits) and s.404 (discharge of dredged or fill material permits)

(WETLANDS) a) s.402 permit individual permit - NPDES Permit Program = s. 402 o Permit system for discharge of pollutants is governed by s.402's national system = NPDES program and must incorporate effluent limitations (restrictions on the quantities of pollutants that may be discharged - mandated by s.301). b) s.404 permit nationwide (general) permit o ACE is charged with administering permit system allowing dredged or fill materials into navigable waters/wetlands under s.404 o Permits for discharge of DREDGED or FILL material = s. 404

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Frank M. o General permits may be issued on state, regional, or nationwide basis for minimal activities o If can show you have minimal cumulative impact on environment, you won't necessarily need an individual permit (under s.402), and can get a nationwide general permit (s.404) o Exemptions to s.404 permit requirement: o Discharge from normal farming, ranch operations, forestry etc. o But cant convert a wetland to another use/where virgin wetlands involved. Definition of fill material: Issue: Whether ACEs permit allowing gold mine to discharge slurry into AK lake violate CWA as a discharge that did not meet EPA standard of s. 306 - Here, we have navigable waters, have point source o Q: are tailings from mine a pollutant? (Coeur Alaska v. SE Alaska CC) o Yes, CWA includes crushed rock as pollutant- but what permit is req? o -NPDES permit or 404 permit for dredged/fill material? o Here - regulation problem: slurry meets def. of pollutant and fill material, so meets def. of req a permit under both 402 and 404 = plain language argument for both permits (s. 301: except as in compliance w/ this section ... AND ... 404 - word and means both permits are required but this is overlapping authority, so either/or.) o Court held s. 402 does not apply: Rule: Where a s. 404 permit may be issued, s. 402 may not be issued Ginsberg dissent: s. 404 is permissive, court may issue a permit; does not create an exception to s. 306(e) (national standards of performance o s. 306 trumps s. 404 permissive one o Def. of fill material is incredibly broad; worried it will create a loophole If you pollute a little bit youre subject to s. 402 So, instead of polluting a little bit, you pollute a lot to fill up the water body to get out of s. 404 (then only have to deal w/ ACE) Majority: fill has to serve some sort of purpose Trash or garbage is excluded from regulatory definition of fill material o If s.404 permit does apply, what is req for a permit? o Permit must be denied if practical alterns avail that would have a less env. impact; ACE is quite lenient re: practical alterns; easy to say v. costly.
o

Water Quality-based Controls: Under CWA Congress went primarily with tech-standard/assigning a numeric limit Water-quality standards were kept as a back-up s.303, multi-step process for regulating water- quality largely done by states, states are drivers here. o Arkansas v Oklahoma CofA held: EPA's issuance of As permit for a sewage plant was arbitrary - b/c it misinterpreted O's water quality standards. No actual, detectable violation Frank M. 1

Frank M. o Could EPAs interpretation of state standards be given deference? Yes - b/c the EPA regulation effectively incorp into fed law those state standards, so entitled to deference o What could O do? O can always sue under a common law nuisance claim. Under which law? = A's state law (Oulette case - preemption of source state law).
s.401 = another way that water-quality based controls are used = Water quality Certification: PUD No.1 of Jefferson County Case: o Did the dam have to obtain a certification? Yes.

o 2 elements s.401: 1) it needed a fed license, 2) project resulted in discharge into nav waters.
What was the discharge? 1) release of the dredge material during construction 2) water after it has been used to make electricity = so the basic jurisdictional terms were satisfied. What was the state trying to do? - tried to impose a minim. stream flow req. to protect the fish. o Was the stream flow req related to the discharges? Is it a limit on the quality of the water being discharged? = NOT directly related to the discharge per se. Why does the dam need to get certification if NOT related to the discharges? b/c s.401(d) covers MORE than just discharges - certif must set forth: any applicant for a license will comply with - s.401(d) is much broader than just the discharge = covers the applicant. So state could impose limits on the applicant - as long as threshold condition of a discharge is met. First establish a discharge, then apply limit on applicant. What limits what the state can actually do? Still have to look at s.303 - is s.303 listed as part of s.401(d)? NO. SC - s.401(d) - to 301 - to 303.. So water quality standards can be used as a limitation on a state's certification - even if not directly related to water quality standards at issue, but state is trying to use a minimum stream flow, they do not refer to water quality - so does the state lose on this ground: Is the minimum stream flow a numerical water criteria? NO. = so is it a water quality standard? NO. State can adopt measures (water quality standards) to protect designated uses, without setting numerical criteria. But what if the minimum stream flow is about quantity, not quality? Court said that quantity is closely related to quality. If you decrease quantity of water - then you have a more concentrated amount of pollutant o e.g. 5g of salt in bottle of water, if let some of water evaporate and still have 5g of salt, then have more concentrated amount of salt pollutant. Justice Thomas - believed that min flow req is unrelated to any discharge; that discharge is an emission (amount flowing/issuing out); that the minim. stream req is a limitation on amount of water that project can take in - two are opposite Justice O'Connor - functional view based on purposes of CWA.

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Frank M. Total Maximum Daily Loads (TMDLs): s.303(d)(1)(A) CWA - requires states to ID those waters for which effluent limitations for nontoxic pollutants are NOT stringent enough to achieve water quality standards TMDL (Total Max. Daily Loads): States must ID quality-limited waterways (impaired waterways) where effluent limitations are not stringent enough to implement water quality standards s.303(d)(1)(C) - requires states to establish TMDL's of these pollutants "at a level necessary to implement the applicable water quality standards" subject to EPA review and approval. Set TMDLs w/in 10 yrs o TMDL includes ALL sources - Natural background, Point sources and Non-point sources o a pollutant by pollutant analysis. For each pollutant, the maximum amount allowed so that the water body will continue to meet water quality standards. = if states do NOT set TMDL's, EPA has a non-discretionary duty to set them (must). Pronsolino case: P argued TMDL's did not apply to waters polluted by solely nonpoint sources; that s. 303(d)(1) (c) applied to point sources only (subject to effluent limitations); here, waters were NOT subject to effluent limitations in 1st place, so CWA did not apply Different interps of statute, so 2-step Chevron analysis - Court held: there is nothing in s.303 which distinguishes point from nonpoint sources. Rule: State must establish a TMDL for ALL point source, nonpoint source or combination of pollutant discharges, except where effluent limitations do the job of meeting water quality standards. Enforcement of TMDLs: NO enforcement for nonpoint source discharges (no permits required). States make list of waterways (s.303), send list to EPA for approval State is not required by statute to enforce/implement TMDLs (may lose fed grant money) If state wants to enforce TMDL's: impose NPEDS permits for point sources only. o (May need permit due to other reasons logging - logging permit) o If waterway is affected from point & nonpoint sources, only POINT sources are subject to a permit, even if majority of discharge comes from a NONpoint source. Tragedy = NO permit to impose on nonpoint sources under CWA. o Thus not much effective control for nonpoint = this penalizes point sources (they get hammered by TMDL's - as only people the state can go after) even if they are a small contributor of pollution.
HYPOs: 1. Gun Club - shoots lead pellets: Discharging pollutants into water w/out NPEDS permits? Is there a discharge of a pollutant w/out a permit? s.502(12) Has the club discharged a pollutant into a navigable water? Yes Is the discharge from a point source? (is a gun a point source?) - yes.

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Yes, club has violated the CWA and should get a permit

2. Industry wide effluent standard - should it be the standard for the Gun Club? EPA - should create a sub-categ. for the gun club as club does not manuf the lead discharge Could the club get a variance? Club should be able to demo. a fundamental difference here. What are some different type of limits? o Permit could limit location/amount of firing 3.If levels of lead exceed the water quality standards, how can s.303(d) set additional limitations with TMDL's? - follow procedure above

Environmental Impact Assessment: NEPA National Environmental Protection Act s. 102(2)(c) - EIS Requires federal agencies to consult with other agencies that have some jurisdiction or special expertise regarding the environmental impacts at issue An environmental impact statement (EIS) must be prepared by any agency whose major federal actions significantly [affect] the quality of the human environment... o include in every recommendation or report on proposals for legislation and other major Fedreal actions significantly aecting the quality of the human environment, a detailed statement... Once an EIS is prepared there is mandatory public disclosure provision w/ public comment period Calvert Cliffs (77) (procedural nature) Held that agency duties under NEPA are judicially enforceable ([o]ur duty, in short, is to see that important legislative purposes heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy.) Held that s. 102 of NEPA imposed inflexible procedural duties, requiring a strict standard of compliance by federal agencies o The mandate to prepare an EIS and consider to the fullest extent possible all impacts on the environment, could not be brushed aside at an agencys discretion Ensured that strict compliance w/ NEPA reqs. would be enforced by courts NEPA imposes a systematic balancing analysis that weighs environmental consequences against technical and economic considerations Strykers Bay Neighborhood Council (substantive nature)

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Frank M. Held that NEPA did not impose judicially enforceable substantive requirements, stating that once an agency has made a decision subject to NEPAs procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences. Established that while NEPA may affect substantive decisions, it cannot demand particular substantive results, only a mandatory process

Admin process Categorically excluded projects predetermined to have no significant impact on the environment o No EIS Project EIS in dispute o Environmental assessment Whether or not the project will have a significant effect on the env and require an EIS Yes EIS No announce a finding of no significant (environmental) impact o briefly present[s] the reasons why an action ... will not have a significant effect on the human env and for which an EIS therefore will not be prepared. It shall include the EA or a summary of it 40 CFR 1508.13 Categorically included projects that, because of size or impact, always require and EIS If EIS is required Draft EIS prepared and shared w/ relevant federal, state, and local agencies, those who apply to the agency for permits, and citizens Comment period Final EIS (FEIS) Final decision 102(2)(c) Threshold decision Is a proposal 1) major 2) federal 3) an action 4) significantly affecting the 5) human 6) environment? Major Federal Action Statute 40 CFR s. 1508.18 Major federal actions includes actions with effects that may be major and which are potentially subject to Federal control and responsibility Broad: Permits licenses rules regulations policies, even in some circumstances reaches failure to act

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Frank M. May include failure to act if that failure would have been reviewable under the APA or other applicable law as agency action

Major o Can the agency avoid major by dividing up the project into segments? Rule Do the separate segments have logical termini and independent utility? Lange v. Brinegar (9th); Swain (5th) Federal o Is the federal project a small part of a larger product (small handle problem)? Case law Permit Requirements - Eighth Circuit held that in reviewing construction of a transmission line the ACE could restrict consideration of whether an EIS was needed the to area in and around the navigable waters. Winnegabo Tribe of Nebraska v. Ray. Federal Funding - Tenth Circuit held that the agency should focus on the impact of the entire project even though the Federal Highway Admin segmented the project into four parts b/c Congress had designated that the federal funds could not be segmented.. Ross v. Federal Highway Admin Settlement Involvement - Eleventh Circuit held that an EIS was not required where the federal government was involved in reaching a settlement between a state and a private entity. US v. Southern FL Water Mgmt Dist. o In dicta held that NEPA obligation may arise where federal funding or permits are used to implement the settlement. Action o Has there been a decision not to take any action? Cases Court said a decision not to do something (apply pesticides), effectively electing a course of temporary inaction does not trigger NEPA. Thus, inaction or a failure to act is not an action considered under NEPA. Minnesota Pesticide v. Espy A failure to act might require EIS if that failure 1) would be reviewable under admin procedure act, 2) especially where agency has a nondiscretionary duty to act. CEQ reg and case mentioned in class but not in reading.

Significantly Affects Significantly o Statute (40 CFR s. 1508.27) Requires consideration of both context and intensity Frank M. 2

Frank M. (a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant. (b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity: 1. Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial. 2. The degree to which the proposed action affects public health or safety. 3. Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas. 4. The degree to which the effects on the quality of the human environment are likely to be highly controversial. 5. The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks. 6. The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration. 7. Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts. 8. The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources. 9. The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973. 10. Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.

o Cases Ninth Circuit, using 4, 5, and 6, held that the likely impact of whale hunting on the whale population in the local area (versus CA overall) where the tribe wanted to hunt was a matter of hot dispute surrounded by considerable uncertainty and that an EIS should be prepared that

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Frank M. includes consideration the precedential effect of allowing the Tribe to hunt. Anderson v. Evans Ninth Circuit using 3, 4, and 5, held that the unique characteristics of Glacier Bay, the substantial controversy surrounding the potential effects of increased vessel traffic, and great uncertainty surrounding those effects required the NPS to prepare an EIS or its plan to permit more cruise ships to operate in Glacier Bay. NPCA v. Babbitt

Effects o Statute (40 CFR s. 1508.8) Effects include: (a) Direct effects, which are caused by the action and occur at the same time and place. (b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. Effects and impacts as used in these regulations are synonymous. Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial. o Cases Psychological harm is not to be considered. Regardless of the gravity of the harm alleged, NEPA does not apply unless the harm has a sufficiently close connection to the physical environment. Supreme Court in Metro Edison v. PANE Where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant cause of the effect. Dept. of Transportation v. Public Citizen Where the preparation of an EIS would serve no purpose in light of NEPAs regulatory scheme as awhole, no rule of reason would require an agency to prepare an EIS. Id. Proximate cause has to be tied back directly to a citizen. Id. Cumulative impacts regulation requires agency to assess the impact of the action when added to other past, present, and reasonably foreseeable future actions regardless o what agency (Federal or non-Federal) undertakes such other actions. Center for Bio Diversity v. Nat Highway Traffic Safety Admin Though there might be an individually minor effect on the environment, rules are collectively significant actions taking place

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Frank M. over a period of time and must provide contextual information about cumulative and incremental env impacts. Id. Agency must explain why its rule will not have a significant impact. Making vague and conclusory statements unaccompanied by supporting data does not constitute a hard look at the env consequences of the action as NEPA requires. Id. Baseline problem check others notes

When in the planning process should the EIS be prepared? When theres a proposal for major federal action Statute o 40 CR 1508.23 Defines a proposal as existing at that stage in the development of an action when an agency subject to the Act has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated. Says a proposal exists as soon as an agency has a goal even if the agency does not definitely declare that a proposal exists o Says that a proposal might exist in fact even without a formal report or recommendation Preparation of an EIS should be completed in time for inclusion in any recommendation or report on the proposal. o There needs to be an EIS when the agency is making the decision, not after the decision has already been made Balance agency has to have something in mind to limit scope of the EIS but cannot already have made a decision The trigger point of when the EIS needs to be prepared must be located Cases o When is there a proposal for federal action Rule Mere contemplation or study of a project are not enough. Kleppe v. Sierra Club o Reasoning: Statute says proposal so there has to be a proposal. Id. The court basically held that an idea becomes a proposal when agency says so. Id. o A great deal of discretion is given to the agency in deciding when there has been a proposal and when NEPA is triggered. Id. The forest service was required to prepare an EIS at the earliest possible time (before the first step was taken) otherwise the EIS

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Frank M. would come too late to consider cumulative effects. Thomas v. Peterson What if the agency has to act out of emergency? o Statute 40 CFR 1506.11 Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review. o Must consult with the CEQ on alternative arrangements o Urgency is a way to avoid NEPA review Must balance the equities of the alleged irreparable injury with the public interest and other factors. Winters v. NRPC Courts often defer to military matters. How broad or narrow should the EIS be? (issue of scope) Statute o 40 CFR 2508.25(a)(1) - CEQ regulations require connected actions to be considered together in a single EIS Connected actions: 1) automatically trigger other actions which may require EISs 2) cannot or will not proceed unless other actions are taken previously or simultaneously 3) are interdependent parts of a larger action and depend on the larger action for their justification o 40 CFR 2508.25(a)(2) CEQ regulations require cumulative actions to be considered together in a single EIS. Cumulative actions are actions which when viewed with other proposed actions have cumulatively significant impacts o Case Because 1) timber sales could not proceed without the road and the road could not proceed without timber sales 2) cost-benefit analysis considered that the timber itself most justified building the road 3) timber sales were largely behind road construction, they were connected actions. Thomas v. Peterson Because road construction and timber sales would result in sediment deposits that would detriment several species located around a nearby river they were cumulative actions. Id. What if fed gvmt takes some action but reserves some action for later? o Rule NEPA requires agency review at the point of commitment; proper time of EIS is at the point when the agency has obtained a maximum range of options prior to the decision. Sierra Club v. Peterson 2

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Frank M. Agency was required to perform EIS before leases were issued. Because at that point it has made an irreversible and irretrievable commitment of resources and thus irrevocably authorized activities that might have significant impacts. Id. What if the agency reserves the right to block any and all environmental activities after the commitment has been made (i.e. the lease has been issued)? The agency could delay EIS if retained authority to block all activities later. Sierra Club v. Peterson

When is there a duty to consider alternatives, and what range has to be considered? Agencies are not required to consider every alternative, only those that are feasible. Vermont Yankee Nuclear Power Corp. v. NRDC o Considers the information an agency should have before it makes its decision (cant bring in obscure German article ex.). Id. o Proponents of an alternative are required to shoulder the burden of presenting substantial evidence on its merits. Id. How specific does the comment have to be? Comment must be specific enough to require reasonable minds to inquire further o Simply making a comment saying to consider energy conservation is not sufficient. Vermont Yankee o Rule The more specific and feasible the alternative, the more likely it is the agency has to consider What triggers a duty can change over time (where energy conservation might not have triggered a duty in 72, might today) What if possible feasible alternatives is virtually infinite? o Requires an agency to consider a representative range of alternatives CA v. Block can be rejected if agency hasnt ... an important alterative ... A truly representative example is fine Must consider representative range What about unrealistic alternatives? o ?Resource v. Wompenson? might be in tension w/ CA v. Block but really dont conflict Have to consider a range, but not those unlikely to be implemented Quality of analysis Sierra Club v. USACOE o Rule: Inadequate when it practically is fraud Marsh v. Oregon Natural Resources Council o ...

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Standing To have standing to sue, a plaintiff must allege: Action will cause IIF (Injury in fact) Causation (injury is traceable to challenged action) Redressibility (court can provide a remedy) Interest is within zone of interests (protected in statute)

o zone of interests 4th prong of standing doctrine:

Courts have used this to reject efforts by industry groups to use env. statutes to their benefit. (e.g. Nevada LAA v US Forest Service - Court held: a group of ranchers pursuing procedural violations of NEPA and NFMA in order to block reductions in grazing levels did NOT have standing b/c the purpose of NEPA is to protect the env, not the economic interests of those adversely affected by agency decisions.)

o SC in Automobile Workers v Brock: recognized that orgs have standing to assert the interests of
their members, if: 1) At least ONE member would have standing to sue individually, and 2) if interests the organization seeks to protect are "germane to the organization's purposes" Thus = if the subject of a lawsuit is ENVIRONMENTAL - then an env group who has a member sufficiently affected by a decision to qualify for standing can sue in its org capacity.

Sierra Club v. Morton: Mineral King ski resort case. NO standing for Sierra Club here - unless its members can show a more particularized and concrete injury, w/in zone of interests in statute But, Supreme Ct. recognizes that harm to aesthetics/ecology is cognizable as IIF Organization can sue if: o Members have standing o Interest is germane to organizational mission
(Justice Scalia has tried to restrict standing - to preserve separation of powers)

Q: How specific do allegations of injury need to be? o Lujan v NWF - members use unspecified track of land was not specific enough,
didnt live close/use exact public land so no standing Scalia: area is too unspecified for an action

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Frank M. o Lujan v Def of W - someday intentions to visit animals - not specific/imminent enough injury that law requires. o End result? Blackmun - P's just needed to buy plane tickets? Purposes - that P's were good representatives for lawsuit Brock: An org. may sue on behalf of its members b/c interests of members speak to those of org Lujan v. Defenders of Wildlife (1992): Q = specificity of imminence to injury - No standing to apply ESA to foreign actions without a plane ticket to see the animals that are threatened by actions. Scalia = formalistic reqs need tickets as proof of travel plans (note: Scalias footnote in Lujan II: redressability where concrete interests on a professional level) Injury in fact? No o Only hypothetical that you might travel somewhere and might not see certain animals b/c of federal action. Someday intentions not good enough o Animal/vocational nexus: too diffuse of an interest >> use political process o Kennedy/Souter Concurrence: implies that plane tickets back to areas would be enough; must send someone to the place where the impacts of the overall reg. change are manifested o Blackmun/OConnor Dissent: requiring description of concrete plans to return to areas is ridiculous and unhelpful formalism Counter to L v DoW: Espy case: regular visits are sufficient for standing

Procedural right/injury theory: anyone has standing to sue under this act if the government doesnt follow proper procedures o Public interest in administration of laws: Undifferentiated procedural injury: too general

Mass v EPA: EPA argued any harm causes by climate change was too remote to give P (MA) standing to sue. But Court held that the fact that Mass is a state - states are not normal litigants - they are entitled to a "special solicitude in a standing analysis". Court granted Mass standing on common law action on basis of HARM suffered from CO2 emissions (note: CAA case state as a sovereign) against EPA. But court did not rely on any special doctrines with regard to a state as a P for standing Mass has satisfied the most demanding standards of standing - it can have special solicitude, but Mass does not need any here. Held: P had standing to challenge EPA's denial of their rulemaking petition. o Dissent - Chief Justice Roberts, Scalia, Thomas and Alito - argued plaintiffs lacked standing as any harm caused by climate change was too speculative and too remote. CJ Thomas = argued that responding to any problems caused by climate change was function of Congress, not federal courts. After Lujan, some courts went off the deep end by requiring a showing of harm to ecosystem for standing:

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Earth v. Gaston Copper Recycling Corp. (1999): o Held = NO standing because water samples proving that pollutants resulting from permit violations reached Ps canoe in the middle of the lake werent taken Friends of the Earth v. Laidlaw Env. Services (2000): o Roebuck, SC polluters and rare ex. of taking an appeal on behalf of env. group over govt. objections o Maj. made it easier for citizen groups by reversing above cases and requiring a showing of injury to P, not to the env. o Redressability prong as long as violations continued after suit was filed, deterrent impact from civil penalties (abating conduct that injured P and continues to threaten injury) is redress o Reverses Steel Co. which held all remedies insufficient, including civil penalties since they go to treasury and not P Mootness issue suit not barred unless it is absolutely clear that the wrongful behavior could not be reasonably expected to occur in the future Qui tarn private parties have standing to seek recovery on behalf of the fed. govt. under False Claims Act from Ds alleged to have defrauded the govt. Party stands in shoes of govt. since injury in fact was to US, not them

INTER-STATE ISSUES: Is there a flow of pollutants from one state to another affecting the state? o RCRA, NEPA unimplicated o CERCLA unimplicated except for the Dormant Commerce Clause, covered supra (CERCLA 10) o See CAA Cap & Trade System with Ozone. One states SIP cant contribute significantly to nonattainment in another state Michigan v. EPA: (state challenge to SIP plan under Section 110(a)(2)(D)(i)) EPA can consider costs in reducing what is significant States can petition EPA to address individual source that causes violation Section 126 petitions; largely found meritorious by EPA (creates a mandatory duty for EPA to respond). Appalachian Power Co. v. EPA o See CWA Arkansas v. Oklahoma Sewage plant state is liable if it creates any real and measurable difference in water pollutant levels here, plant did not, so A was

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Frank M. not liablethe only multistate issue is whether EPA can account for downstream states in setting levels, which they can. o Dormant Commerce Clause (See, again, CERCLA 10) Discriminatory/economic protectionism Burdens outweigh benefits to locals Fees to compensate for in-state outlay? Flow controls? Government provision of monopoly service? Is it covered by a statute and/or by common law (nuisance/trespass)?

COMMON LAW DOCTRINES: Trespass: A physical invasion of anothers exclusive possession of property 1. Strict liability Nuisance: 1. Private: Intentional and Unreasonable (gravity v. benefit) 2. Public: Interferes w/ public right (health, property, good) 1. Law of source state applies Constitutional Challenges: Anti-commandeering: States must have a meaningful choice (conditioning funding ok) o New York v. U.S. Commerce Clause: o Channels Water? o Instrumentalities Resource itself o Activities that substantially impact Damaging activity Overall goals of statute (CERCLA: U.S. v. Olin) o SWANCC: Court didnt reach commerce clause issue, but suggested that Congress may need to be more specific at the outer reaches of its power Non-delegation: o American Trucking: requisite is intelligible principle o Mich v. EPA: ok to set Ozone NOx budget, states have choice in how to get there

EXTRA NOTES: STANDING: (from Harvard Law Env Outline Spring 2006) a. Private Access to the Courts under Federal Regulatory Statutes: Standing and Citizen Suits Frank M. 3

Frank M. i. General and Important Points: 1. Different standing requirements at different stages of litigation. 2. Differentiate between Constitutional standing requirements and additional statutory standing requirements. 3. Know what specific statutory provision is at issue when considering the Zone of Interest test (See Bennet v. Spear) ii. Article III: Case or Controversy Requirement: 1. Article III of the Constitution extends judicial power of review only to an actual case or controversy. 2. Three Constitutional standing requirements: a. Actual Injury: Injury in fact. b. Causation: Injury suffered must be fairly traceable to the defendants alleged conduct. c. Redressability: Injury suffered must be redressable by judicial order or judgment. 3. Note: Congress is not permitted to relax or remove any of these three constitutional requirements for standing. 4. Note: Satisfying Article III a. The amount of evidence required to satisfy the Article III requirements is different depending on the stage of the trial. b. E.g., at the pleadings stage mere allegations will suffice; at the summary judgment stage (which is where Lujan takes place) there must be enough evidence for a reasonable jury to find standing; at the trial stage standing begins to merge with the merits. iii. Sierra Club v. Morton, 405 US 727 (1972) [CB: 974] 1. Facts: a. Set in Mineral King Valley (Sierra Nevada); area designated in 1926 as a special game refuge and used primarily as a recreation area; pristine wilderness. b. In 40s and 50s US Forest Service considers development for skiing; in 1965 it allows development bids. Winning bid is from Disney, plans a huge complex (Sierra Club had originally supported a smaller proposal). 2. Issue: Does Sierra Club have standing under 702 of the APA? 3. Administrative Procedure Act (APA) (5 USC 551 to 559, 701 to 706) [Supp: 21] a. 10(a) [5 USC 702] of the APA: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. b. Note: There were no more specific statutes under which the Sierra Club could assert standing, so they sued under the APA. 4. Hold: No. APA requires an injury in fact that is within the zone of interests of the organization.

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Frank M. a. Aesthetic and ecological injuries are cognizable interests for standing purposes; b. A plaintiff must show injury in fact (actual injury to the person or to a member of the organization) for standing purposes. 5. Reasoning: (Stewart) a. Injury in Fact: Note: The injury in fact prong requires that a party suffer a direct injury to a cognizable interest. i. Cognizable Interests: 1. Sierra Club receives no economic harm and no physical injury. 2. Aesthetic and Ecological Injury: a. traditionally, at common law, this was not a cognizable injury. b. SC acknowledges aesthetic and ecological injury as a cognizable interest for purposes of standing [CB: 976], although not in this case. ii. Direct Injury: 1. rationale: dont want people with abstract, ideological objections suing in court. Even though the Sierra Club is clearly interested in preserving the Sierra Nevada, how would you draw the line between that and any other organization that claimed a similar mission (slippery slope; CB: 977). 2. response: Shouldnt every individual and group have standing when the government does something unlawful? a. (me) What is the horrible at the bottom of the slippery slope? That anybody can sue when the government does something unlawful? Is that so bad? b. counter: We dont want to have that many attorneys general in every situation. 3. Worries: Efficiency problems, administrative problems, collusive or bad faith suits, ineffective suits brought by parties without adequate resources, etc. 4. Sierra Club: the slippery slope may be a concern, but why not set the bar very high for standing. If any group should have standing, clearly it should be the Sierra Club.

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Frank M. b. Organizational Standing: i. At least one member must have been able to bring suit individually. ii. The interests protected by the lawsuit must be germane to the organization (zone of interest requirement) iii. Neither the claim brought nor the relief requested may depend on the presence of the individual in the suit. 6. Dissent (Douglas): a. Environmental issues should be litigated in the name of the inanimate objects affected. They should have standing themselves (c.f., the fiction of a ship, or of a corporation). b. Note: First and only time this argument has been raised by the SC. 7. Further Developments a. Mineral King: i. Sierra Club initially ignored amicus briefs that alleged specific injuries suffered by identifiable Sierra Club members. 1. Rationale: Sierra Club was attempting to achieve standing as an organization. 2. Go for the broadest holding and precedent possible, knowing they could always fall back on individual members if they lost. ii. Following this case the Sierra Club refilled the suit, alleging injury in fact to individual members. b. Standing Generally (SCRAP) i. SCRAP (group challenging increased railroad rates that made recycling more expensive) case represents the high water mark for APA standing. ii. Court found standing to be attenuated but good enough in SCRAP; today there is no chance it would satisfy standing requirements. iv. Lujan v. National Wildlife Federation, 497 US 871 (1990) [CB: 983, note case] 1. Issue: How specific do allegations of harm or injury by organization members need to be? 2. Hold: (Scalia) Fairly specific. [Scalia] concluded that averments which state only that one of respondents members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred, were insufficiently specific.(CB: 983) v. Lujan v. Defenders of Wildlife, 504 US 555 (1992) [CB: 984] 1. Generally: the most important standing case in environmental law, this was actually an ESA case.

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Frank M. 2. Facts: Defenders brought sought under the citizen suit provision of the ESA to challenge US AID projects that would jeopardize the (non-domestic) habitat of several endangered species. 3. Standing Analysis: a. Identified individual members will be harmed i. Standing Theory: Members who have traveled to India and Sri Lanka and intend to go back at some point will be harmed by the extinction of the species. They cant return to visit. ii. Courts Analysis (Scalia): 1. Actual or Imminent Injury not satisfied a. Lack of specific intention to return (e.g., a plane ticket) means that standing is not satisfied. b. Scalia: Such some day intentions without any description of concrete plans, or indeed even any specification of when the some day will be do not support a finding of the actual or imminent injury that our cases require(CB: 985) c. Critique i. (me): creates perverse incentives. A race to complete the harms before somebody can buy a plane ticket. ii. (Blackmun, dissent): This is empty formalism, a mere pleading requirement. iii. But it does set a minimum standing requirement, which might help narrow the available parties with standing. 2. Redressability not satisfied iii. Dissent (Stevens) 1. The majority applies the notion of imminence to the wrong action. 2. The injury in question is the destruction of the species, not the moment at which an individual would have seen the species but doesnt. Once the species is gone the opportunity to see it vanishes regardless of when that would have been exercised.

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Frank M. 3. Critique (majority): If destruction of the species is the standard for imminence then, in reality, there is no standing requirement. This would allow everyone to have standing. 4. Counter-critique: But there can be a determination of whether the plaintiff would have been injured at some future time (e.g., demonstrable intent to return to Sri Lanka vs. someone who had never been and could not demonstrate intent to go). iv. Hypos: What counts for standing under this theory? (notes: 16-17) 1. What if I enjoy watching PBS documentaries of an animal that is threatened with extinction? 2. What if adopt an animal by sending money and receiving a photo in return? 3. Issue: Is emotional attachment, even strong emotional attachment, enough to confer standing? a. Humane Society v. Battit suggests that it is not. b. Rationale: Giving money to an organization that protects animals generally does not confer standing, so neither does giving money for the protection of one animal. b. Ecosystem Nexus Theory i. Standing Theory: damaging one part of the environment affects everyone else, even those at a distance (Circle of Life theory) ii. Courts Analysis (Scalia): 1. Inconsistent with Lujan v. National Wildlife Federation which held that a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly in the vicinity of it(CB: 985) 2. critique: (Blackmun, dissent) Different types of harms are at issue a. In this case the extinction of a species spreads throughout the ecosystem, and actually affects distant people. b. In NWF: the Court required specific geographical proximity because of

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Frank M. the particular type of harm alleged in that case: harm to the plaintiffs visual enjoyment of nature from mining activities(CB: 990-991, Blackmun dissent) (my emphasis) iii. Dissent: It cannot seriously be contended that a litigants failure to use the precise or exact site where animals are slaughtered or where toxic waste is dumped into a river means he or she cannot show injury(CB: 991, Blackmun dissent) iv. Counter-response: Chain of causation is far too attenuated to supply standing. Must show some actual harm to get past summary judgment. c. Animal Nexus, Vocational Nexus Theories: similar to ecosystem nexus theory d. Procedural Injury Theory i. Standing Theory: Alleged procedural interest because the government didnt engage in an ESA required consultation with Commerce Dept. (notes: 18-19) ii. Courts Analysis (Scalia): 1. Procedural injuries, in other contexts, do confer standing. 2. but this is only when the procedural injury is attached to an underlying injury to a legally protected interest (e.g., personal health, property, etc.). That means you have a direct personal stake in the appropriate procedures being followed. 3. Where, as here, there is a free-floating procedural injury there is no standing. iii. Separation of Powers (Scalia vs. Blackmun) 1. Scalia: Allowing standing here would enable Congress to usurp Executives prerogative to enforce the laws; enabling everyone to enforce any law undermines Executives role as the law enforcement branch. 2. Blackmun: Scalias view allows the judiciary to encroach on Congress ability to create new (and broad) rights of action. vi. Bennett v. Spear, 520 US 154 (1997) [Handout I: 1] 1. Facts: a. ESA case; FWS issued biological opinion stating that dam would jeopardize two threatened species of fish and their habitat

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Frank M. b. Bureau of Reclamation (overseeing dam and irrigation project) indicates that it will adopt FWS recommendations c. Farmers sue (under ESA and APA 706) alleging that the biological opinion violated provisions of ESA; upset about loss of water for irrigation. 2. Standing Issues: (Scalia, majority) a. Constitutional Standing i. No Injury in Fact: no actual lose of irrigation water yet, so no injury in fact. 1. the water might be distributed evenly so that there is enough for the farmers. 2. the Bureau might choose to ignore the recommendations; the biological opinion is not a final document ii. Hold: Minimum Article III requirements have been met. 1. Rationale: Early stages of litigation so it is enough that farmers allege they will lose irrigation water. 2. Rationale: Everyone knows that biological opinions have coercive effect. Not a final action but Bureau has indicated that it will follow recommendations from FWS, so it might as well be final. b. ESA Standing i. Zone of Interest (ZOI) Requirement under ESA? 1. Congress has expanded the ZOI under the ESA to the limits of what would be permitted under Article III 2. Analysis: Broad language in citizen suit provision suggests that Congress wanted to create an expansive right of action. ii. Hold: Any individual who satisfies Article III (Constitutional) standing requirements can bring suit under ESA. 1. Thus, there is no real zone of interest requirement for claims brought under the ESA. 1. Note: This is somewhat striking coming from Scalia, but it is consistent with Lujan (Congress cannot dispose of the minimum requirements of Article III, but it can go right up to them). c. APA Standing i. SC considers ESA standing before APA standing because:

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Frank M. 1. APA authorizes review only when there is no other adequate remedy, which is why ESA standing claim must be considered first. (Handout I: 3) 2. also note: ESA allows recover of litigation costs; APA does not. ii. Zone of Interest (ZOI) Requirement under APA: 1. note: Applies only to APA claims, not to ESA claims. 2. Extra-constitutional standing requirement: can only sue under APA if you can demonstrate that the interests that you are trying to vindicate are protected by the relevant statute. iii. Satisfaction of ZOI requirement (Analysis): 1. EPA argues that ZOI is not satisfied because the ESA is designed to protect endangered species, not economic interests. The relevant ZOI is species preservation. 2. Response (Scalia, majority): a. Congress intended ESA to account for economic and social interests as well, to prevent over-enforcement of the ESA. Scalia holds that FWS violated the mandate to consider the best available scientific and commercial data. (ESA 7; Handout I: 7) b. Consider ZOI with respect to the specific statutory provision. In this case, economic interests are within the relevant ZOI. vii. Friends of the Earth v. Laidlaw Environmental Services, 528 US 167 (2000) [CB: 1010] 1. Facts: Since 1987 Laidlaw was discharging mercury into SC river in excess of NPDES permit; FOE files a lawsuit in 1992 (seeks injunction, fines, attorneys fees); Laidlaw comes into compliance in 1995. 2. Standing Analysis: a. Initial Standing: i. Injury in Fact? 1. Laidlaw argues that there was no demonstrated environmental harm from the over-release of Mercury (finding of fact at the District Court level).

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Frank M. 2. SC Holds: There is injury in fact. For standing purposes it is the injury to the individuals that matters, not the injury to the environment. (CB: 1012) ii. Reasonable Fear? 1. unreasonable: Plaintiffs are worried for nothing there is no environmental harm. This is sanctioning an irrational fear (e.g., people half a world away who change their behavior) as an injury for purposes of standing. 2. reasonable: a. There may be long-term harm to the environment and to individuals; might be reasonable to alter behavior notwithstanding the District Courts findings. b. And the plaintiffs are actually using the affected area: plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity(CB: 1012) b. Standing after 1995 (Mootness): i. Issue: does post-suit compliance by Laidlaw render FOEs suit moot? ii. Argument: Laidlaw argues that the suit is moot because the redressability prong of Article III standing is no longer satisfied. iii. SC Holds: Not moot. 1. rationale: Even civil penalties can have a deterrent effect and that satisfies the redressability requirement. (CB: 1013) 2. Penalties deter future violations. iv. Dissent (Scalia) 1. Deterrence must be actual, not speculative. 2. The fact that Laidlaw came into compliance (in fact, by shutting down) makes him skeptical that there is any marginal deterrent effect produced by the civil penalties. 3. critique a. (me): but it serves as a deterrent for future polluters. Cant escape

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Frank M. penalties by shutting down the plant and then popping back up elsewhere. b. (Stephenson): Scalias proposal would substantially increase the downside risk for an environmental group bringing a suit. They might gain compliance but it is just important that they receive attorneys fees, in order to be able to bring the next suit. 4. counter: This is a good thing encourages immediate compliance to avoid penalties. (note: I find this unpersuasive)

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