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Chapter 52 – Environmental Regulation
 

Chapter 52 – Environmental Regulation

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  • The link is to the main page of the U.S. Environmental Protection Agency.
  • The limitation within the definition of pollution that focuses on human welfare reflects the enforcement limitations placed on EPA with most of the environmental laws. The photo of the bald eagle is a reference to the mutagenic properties of toxins, specifically DDT ( d ichloro- d iphenyl- t richloroethane ). Rachel Carson’s seminal book, Silent Spring (see http://en.wikipedia.org/wiki/Silent_Spring), warned that we would have a silent spring when no birds were left because of the harmful effects of DDT. Specifically, DDT was used to kill insects and birds ate the toxin-covered insects. Ingesting the DDT caused the eggshells of birds to thin, so that a bird sitting on the egg would crack it and destroy the egg; no surviving eggs, no birds. The mutagenic property was particularly noticeable in the bald eagle and other raptors because of “toxic loading” in which fish ate many toxin-covered insects, and birds ate many fish, which increased the levels of DDT in the bloodstream of predators. The bald eagle population rapidly declined and was on the verge of extinction before DDT was banned from use in the United States. However, DDT was simply shipped to other nations. Toxic effects: Carcinogenesis means “cancer-causing.” For example, leukemia (blood cancer) is a signature disease linked to benzene exposure. Mutagenesis means “mutation-causing.” The classic example of this effect is harm caused by DDT. Teratogenesis means “birth defect-causing.” The maquilladoras along the El Paso/Mexico border are reknowned for the toxins dumped into the environment and the teratogenic effect in which babies are born without brains (anencephaly). Behavior disorders commonly associated with toxin exposure, especially heavy metals, include neurological damage and auto-immune dysfunction. The classic example of behavior disorders was the connection between mercury and illness. In the 1950s, the Chisso Corp. chemical plant was releasing methylmercury directly into Minamata Bay. More than 111 people from Minamata City, Japan suffered from severe neurological disorders from eating fish contaminated with extremely high concentrations of methylmercury. The toxic effect of mercury is known as Minimata Syndrome or Mad Hatter’s Syndrome. The Japanese government officially recognizes 2,265 victims as of October 2001. According to the Public Broadcasting System investigate program, NOW, “In America one-in-six children born every year have been exposed to mercury levels so high that they are potentially at risk for learning disabilities and motor skill impairment and short-term memory loss.” See the EPA report on fish consumption: http://www.cfsan.fda.gov/~dms/admehg3.html.
  • The phrase “significantly affecting” generally is the key issue in litigation, though the first issue is always whether a governmental activity is a “major federal action.”
  • Example: Each state must comply with it’s statewide environmental permits (CWA, CAA, etc.) from the federal government. A state environmental agency that considers issuing a permit to a private developer to build a residential sub-division must follow federal and state environmental law. NEPA, along with other environmental laws, will require the private party and/or the state agency to prepare an EIS since the environment will be impacted in a number of ways. Moreover, the developer probably will obtain federally-guaranteed loans to undertake the development. The bottom line – and practical advice – is to do the EIS if an opponent to the action might raise a claim of governmental action.
  • The phrase “practical and feasible” implicitly means that financial impact is included within the analysis, allowing cost-benefit analysis.
  • The photograph depicts an acid leachate pond used for mining in the Western United States. “ The formation of mine acid drainage and the contaminants associated with it has been described by some as the largest environmental problem facing the U.S. mining industry.” (U.S. Forest Service 1993, Ferguson and Erickson 1988, Lapakko 1993b) “In the western U.S., the Forest Service estimates that between 20,000 and 50,000 mines are currently generating acid on Forest Service lands, and that drainage from these mines is impacting between 8,000 and 16,000 kilometers of streams (U.S. Forest Service 1993). In addition to the acid contribution to surface waters, AMD may cause metals such as arsenic, cadmium, copper, silver, and zinc to leach from mine wastes. According to the Forest Service, the metal load causes environmental damage, and is of greater concern than the acidity in environmental terms. See the U.S. EPA Technical Document, Acid Mine Drainage Prediction, EPA 530-R-94-036 NTIS PB94-201829 (December 1994), available at http://www.epa.gov/epaoswer/other/mining/techdocs/amd.pdf.
  • The link is to the guide on the EPA website. Mobile sources: vehicles. Stationary sources: industrial smoke stacks, light industrial operations (including drycleaners and restaurants).
  • Hyperlink is to the case opinion on the Findlaw.com website. On March 18, 2005, the U.S. Environmental Protection Agency, the Department of Justice announced a major Clean Air Act (CAA) New Source Review Program (NSR) settlement with Ohio Edison Company (Ohio Edison), a subsidiary of FirstEnergy Corp., to resolve CAA violations at the company’s W.H. Sammis Power Plant located in Stratton, Ohio, several of the company’s coal-fired power plants in Illinois. The states of New York, New Jersey and Connecticut were co-plaintiffs in the lawsuit and also joined the settlement. Under the settlement, Ohio Edison will spend $1.1 billion between now and 2012 on various pollution controls to substantially decrease emissions at the Sammis plant and other nearby Ohio Edison power plants. The Sammis plant must comply with an annual tonnage cap for sulfur dioxide (SO2) and nitrogen oxides (NOX) emissions that declines over time.
  • The Sammis plant was one of the largest sources of air pollution in the nation, emitting a total of about 205,000 tons of SO2 and NOx in 2003.
  • Ohio Edison agreed to reduce emissions of harmful sulfur dioxide (SO2) and nitrogen oxides (NOx) from the Sammis plant, as well as from other Ohio Edison and its parent company’s coal-fired power plants, with an expected cost of approximately $1.1 billion. Ohio Edison also will provide a total of $10 million to the states of New York, New Jersey and Connecticut to perform environmentally beneficial projects related to air pollution in those states. The $8.5 million civil penalty imposed is the second largest penalty against a power plant. The $25 million amount for mitigation projects, to compensate for the harmful effects of Ohio Edison's past violations, is the largest mitigation project commitment in any of the United States' NSR settlements with utilities to date. See the EPA press release: http://yosemite.epa.gov/opa/admpress.nsf/b1ab9f485b098972852562e7004dc686/11e00336eca5561e85256fc8005470fc!OpenDocument
  • International agreement and cooperation to protect the stratospheric ozone layer began with the negotiation of the Vienna Convention for the Protection of the Ozone Layer, concluded in 1985. The terms of the agreement were set forth in the Montreal Protocol on Substances that Deplete the Ozone Layer, signed in September 1987 and effective in 1989. In 1990, the signatory parties to the Montreal Protocol agreed to phase out controlled substances, including CFCs (chloro-fluoro carbons), halons, carbon tetrachloride, methyl chloroform, HCFCs, HBFCs, and methyl bromide. The obligations under the treaty required signatory nations to implement laws to enforce the phase out schedule. The US signed the Kyoto Protocol, or next phase of the climate change agreement in 1997, but has yet to ratify or support the agreement . The text of the Kyoto Protocol to the United Nations Framework Convention on Climate Change may be found at http://unfccc.int/resource/docs/convkp/kpeng.html
  • The hyperlink is to the Supreme Court’s opinion on the Oyez.org website. The federal Clean Air Act was enacted in 1970 and was later amended on more than one occasion. Section 202 (a) (1) of the Act, 42 U.S.C. § 7521(a)(1), provides: “The [Environmental Protection Agency (EPA)] Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. . . .” The Act defines “air pollutant” to include “any air 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.” § 7602(g).
  • Note that there’s a lot of politics involved in this case related to emissions controls on new vehicles and the issue of global warming!! Interestingly, the Clean Air Act specifically links to the Montreal Protocol which is an international treaty to reduce ozone-depleting substances (i.e., to reduce the greenhouse effect and global warming). For a good summary of the status of the Clean Air Act, see the Congressional Research Staff Report for Congress available at http://www.cnie.org/NLE/CRSreports/06Nov/RL32483.pdf. For further information on global warming and download of important documents, visit the Intergovernmental Panel on Climate Change (awarded a Nobel Peace Prize in 2007) at http://www.ipcc.ch/
  • Two important points: (1) the Supreme Court did NOT order EPA to issue a rule, and (2) Massachusetts had standing to sue. With regard to the first point, the Court stated: “ We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA.s actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843.844 (1984). We hold only that EPA must ground its reasons for action or inaction in the statute.” With regard to the second point, a notable fact is that Justice Stevens wrote the 5-4 opinion for the majority and both Chief Justice Roberts and Justice Scalia dissented. Chief Justice John Roberts, appointed to the Supreme Court in 2005 by George W. Bush, was Acting Solicitor General in 1990 and argued on behalf of the U.S. an important case related to the Massachusetts v. Environmental Protection Agency case: Lujan v. National Wildlife Federation , 497 U.S. 871, 883-889, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990). Justice Scalia wrote the majority opinion in the National Wildlife Federation case, which held in a 5-4 decision 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. The ruling denied standing (right to sue) to the National Wildlife Federation in a challenge to an administrative agency (Bureau of Land Management). Of the four justices in the National Wildlife Federation minority, only Justice Stevens remained on the bench when Massachusetts v. EPA came before the court and he wrote the majority opinion ruling that Massachusetts had standing to sue the EPA. Sidebar: In Lujan v. Defenders of Wildlife , 504 U.S. 555 (1992) (two years after the National Wildlife Case), Stevens was again in the minority (5-3) of a decision denying standing to an environmental organization challenging an agency. To summarize the Supreme Court’s “standing” on this issue, environmental organizations representing citizens do not have standing but a state representing citizens does have standing.
  • The hyperlinks are to the documents and the photo indicates the disappearing sea ice that endangers the polar bear and many other arctic inhabitants. International agreement and cooperation to protect the stratospheric ozone layer began with the negotiation of the Vienna Convention for the Protection of the Ozone Layer, concluded in 1985. The terms of the agreement were set forth in the Montreal Protocol on Substances that Deplete the Ozone Layer, signed in September 1987 and effective in 1989. In 1990, the signatory parties to the Montreal Protocol agreed to phase out controlled substances, including CFCs (chloro-fluoro carbons), halons, carbon tetrachloride, methyl chloroform, HCFCs, HBFCs, and methyl bromide. The obligations under the treaty required signatory nations to implement laws to enforce the phase out schedule. The US signed the Kyoto Protocol, or next phase of the climate change agreement in 1997, but has yet to ratify or support the agreement . The text of the Kyoto Protocol to the United Nations Framework Convention on Climate Change may be found at http://unfccc.int/resource/docs/convkp/kpeng.html
  • Link to the EPA presentation on the Clean Water Act at: http://www.epa.gov/watertrain/cwa/
  • Literally, the “fishable/swimmable” term means that humans may fish or swim in the river. Many water bodies are designated as “impaired.” The link is to the EPA TMDL website: http://www.epa.gov/OWOW/tmdl/index.html
  • The hyperlink is to the Supreme Court’s opinion in pdf. In U.S. v Hopkins , Robert Hopkins was Spirol’s vice president for manufacturing and falsified documents about compliance with an EPA consent decree. Hopkins was convicted following a jury trial and sentenced to 21 months in prison, with two years probation following that, and a $7,500 fine. Hopkins appealed, arguing that the government should have been required to prove that he intended to violate the law and that he had specific knowledge of the particular statutory, regulatory or permit requirements imposed under the Clean Water Act. The government contended that it was enough to prove that he had acted voluntarily or intentionally to falsify, tamper with, or render inaccurate a monitoring method—or to violate the permit—and that he did not do so by mistake, accident, or other innocent reason. The government was correct, of course!
  • See EPA information about the regulatory authority for wetlands under Section 404: http://www.epa.gov/owow/wetlands/pdf/reg_authority.pdf
  • Because of the very broad definition, a ditch that sometimes retains water long enough to grow cattails or other wetland vegetation may be a “wetland” by definition.
  • The first hyperlink is to the National Oceanic and Atmospheric Administration’s information page about the environmental disaster. The second hyperlink is to the court’s opinion and the recorded argument on the Oyez.org website. In March 1989, supertanker Exxon Valdez ran aground on a reef in Alaska’s Prince William Sound, spilling 11 million gallons of crude oil in an environmentally sensitive area. The accident occurred because the tanker’s captain (with a history of alcohol abuse known by Exxon and a high blood-alcohol level 11 hours after the spill) inexplicitly left the bridge and a dangerous course correction to unlicensed subordinates. Exxon spent an estimated $2.1 billion in clean-up costs, pled guilty to criminal violations that resulted in fines, settled a civil action by the United States and Alaska for some $900 million, and paid another $303 million in voluntary payments to private parties.
  • The hyperlink is to the U.S. government’s Restore the Gulf website about the BP Deepwater Horizon disaster and Gulf coast recovery.
  • “ Extremely acidic drainage with high concentrations of toxic heavy metals discharges from inactive underground mines and surface waste piles at Iron Mountain, California. The acid mine drainage (AMD) contains high concentrations of copper, cadmium, and zinc which are harmful to aquatic life and pose a potential threat to human health. The AMD from Iron Mountain discharges to creeks that flow into the Sacramento River between Shasta Dam and Redding. The creeks draining Iron Mountain are essentially devoid of aquatic life. The AMD discharges have significantly contributed to the decline of the Sacramento River fishery. The Winter Run chinook salmon has been designated as a federal endangered species, and other species of fish that spawn in the river are designated as threatened species.” See the full USGS documentation at http://ca.water.usgs.gov/projects00/ca527.html
  • The hyperlink is to the judicial opinions on the SCOTUSblog.com website. In U.S. v Dean: General Metal Fabricators, Inc. (GMF), owned and operated a facility for metal stamping and plating. The facility utilized hazardous chemicals and generated hazardous waste but did not have a RCRA permit nor did it maintain the required records of the treatment, storage, and disposal of hazardous substances. The hazardous waste disposal practices at GMF were discovered by chance by state waste-management authorities whose attention was caught, while driving to an appointment at another facility, by two 55-gallon drums abandoned among weeds on GMF’s property. The owners of GMF, Joseph and Jean Sanchez, as well as Clyde Griffith, the plant manager, and Gale Dean, the production manager, were indicted for conspiracy to violate RCRA, and, individually, for violations of various sections of RCRA. At his request, Dean’s trial was severed from that of the other defendants. Dean dumped and buried drums of hazardous waste for five years rather than properly dispose of the materials. Dean was convicted of conspiracy to violate RCRA as well as of (1) failure to file documentation of hazardous waste generation, storage, and disposal; (2) storage of spent chromic acid without a permit; (3) disposal of chromic acid rinse water and sludges in a lagoon without a permit; and (4) disposal of paint sludge and solvent wastes in a pit without a permit, all in violation of RCRA. Dean appealed his conviction. In U.S. v. Sanchez Enterprises, Inc., et al. (the suit against the parent company of General Metal Fabricators and the company’s owners), on August 22, 1991, Sanchez Entelprises, Inc. entered a plea of guilty to a single felony violation of RCRA for the illegal disposal of hazardous waste. The corporation was fined $150,000, of which $25,000 is to be paid into an environmental fund for the State of Tennessee.
  • Superfund was created as part of a set of amendments (Superfund Amendments and Reauthorization Act of 1986) to be an “insurance” to cover remediation of sites where the PRPs were not identifiable or defunct. Check the photo gallery of the EPA Superfund site to see a number of “before and after” photos: http://www.epa.gov/superfund/action/process/sfgallry.htm
  • The hyperlink is to the opinion on the GoogleScholar.com website. In United States v. Domenic Lombardi Realty, a subsequent purchaser, but not an innocent landowner, was held liable for cleaning up a property that had been contaminated, in part, by the actions of its predecessor in title.
  • About 350 pesticides are used on the foods we eat in the U.S. See the EPA Citizen Guide to Pest Control & Safety at http://www.epa.gov/OPPTpubs/Cit_Guide/citguide.pdf Other EPA fact sheets on pesticides are available at: http://www.epa.gov/pesticides/factsheets/health_fs.htm
  • Not considered to be an effective law.
  • The link is to the FWS endangered species webpage: http://www.fws.gov/endangered/ Statistics on listed species current as of Jan. 1, 2012.
  • Photos left to right: Bald eagle (recovering), California gnatcatcher (threatened), Florida panther (endangered, with approximately 30 animals in the wild). According to the Sierra Club: The U.S. has destroyed more than half its wetlands The U.S. has logged 95-98% of its virgin forests in the lower 48 states At least 80% of the coastline in the lower 48 states has been developed. The Earth is losing up to 50,000 species per year (E.O. Wilson & Stephen Kellert, Eds., 1993. The Biophilia Hypothesis. Washington, DC: Island Press.).
  • CITES is an international version of the U.S. Endangered Species Act, requiring each nation to list threatened and endangered species and for each nation to protect the listed species from other nations. The link is to the CITES webpage.
  • The links are to 3 relevant programs
  • True. True. False. Environmental laws do not prevent pollution, but merely set pollution limits and establish a system to compensate for environmental harm. False. Most environmental laws provide for civil remedies and criminal penalties.
  • The correct answer is (e).
  • True. True. True. False. CERCLA is a constitutional and retroactive law.
  • True. False. While the statute literally applies to federal agencies, by the nature of the regulatory scheme, NEPA also applies to state agencies and impacts private entities desiring a permit from a state or federal agency. False. Most states have taken primacy for implementation and enforcement of the laws. True.
  • The correct answer is (d). An Environmental Impact Statement must analyze the: Impact of proposed action on the environment Any expected adverse effects of the action Practical and feasible alternative methods Any irreversible effects the action might generate
  • The correct answer is (e). A PRP is defined as: Current owners or operators of facility or vessel; Former owners or operators of facility or vessel, if they owned the property at time of disposal; Those who arrange for treatment or disposal of hazardous substances at a facility (usually the generators); and Transporters of hazardous substances who selected the disposal site
  • Opportunity to discuss environmental issues, corporate social responsibility, and society.

Chapter 52 – Environmental Regulation Chapter 52 – Environmental Regulation Presentation Transcript

  • C H A P T E R 52 Environmental RegulationEvery human has afundamental right to anenvironment of quality thatpermits a life of dignity andwell-being.United Nations Conferenceon the Human Environment 52-1
  • Learning Objectives• Explain when an environmental impact statement must be prepared and the information it must include• Discuss major provisions of the: Clean Air Act, Clean Water Act, and hazardous waste laws• Describe the impact global climate change may have on business 52-2
  • Overview• U.S. Environmental Protection Agency (EPA) created in 1970 to protect human health and the environment• Human health and our environment are protected by: – Regulatory law (stick) – Market incentives (carrot) – Voluntary Measures (carrot) 52-3
  • The Subject of the LawsHealth & SafetySewage Treatment Plant ↑Warning Sign → 52-4
  • The Subject of the LawsEnvironmental Damage Strip Mine ↑ Clearcut → 52-5
  • The Subject of the LawsConservation EffortsIllegal Wildlife Products ↑Protecting Ridley Turtle eggs → 52-6
  • The Subject of the Laws PollutionIndustrial Air Pollution ↑Seabird Killed in Oil Spill → 52-7
  • Definition of Pollution• The EPA defines pollution as any substance in the environment that endangers human welfare• Toxic substances in pollutants linked to:• Carcinogenesis• Mutagenesis• Teratogenesis• Behavior disorders Bald eagle faced extinction due to mutagenic effect of DDT 52-8
  • Sources of Environmental Law• Principal sources of environmental law: – Civil (Common Law) Actions – Federal Regulation – State, Tribal, and Municipal Regulation – International Treaties and Conventions 52-9
  • Agency Enforcement• The EPA, Occupational Safety & Health Admin. (OSHA), and Dept. of Justice (DOJ) work together to implement & enforce law – Agencies issue regulations pursuant to Administrative Procedure Act to support and implement federal laws 52-10
  • State & Tribal Regulation• States and Tribes may enact laws to regulate the environment within their jurisdiction – State laws implemented by state agencies – State law may not conflict with federal law Muscogee NationTribal Police Officer 52-11
  • Nature of Environmental Law• Most environmental laws are implemented through permitting programs that establish pollution limits for air emissions or effluent discharge into waterways by businesses or governmental entities• Environmental laws do not prevent pollution, but merely set pollution limits and establish a system to compensate for environmental harm 52-12
  • OVERVIEW OF FEDERALENVIRONMENTAL LAWS 52-13
  • National Environmental Policy Act (NEPA)• The first modern environmental law, NEPA does not deal with pollution control – Applies only to government agencies – Created the Council on Environmental Quality• Requires federal agencies to prepare an environmental impact statement (EIS) for major Federal actions significantly affecting quality of human environment 52-14
  • NEPA• NEPA applies to states and private parties when actions are planned and subject to (at any point) federal approval of permits, loan guarantees, federal loans or insurance, or other federal involvement• Eighteen states, Guam and Puerto Rico have enacted environmental planning laws similar to NEPA 52-15
  • The EIS• An Environmental Impact Statement must analyze the: – Impact of proposed action on the environment – Any expected adverse effects of the action – Practical and feasible alternative methods – Any irreversible effects the action might generate • See: EISs With Open Comment/Wait Period 52-16
  • MEDIA SPECIFIC LAWS• Air Pollution• Water Pollution• Land Pollution – Hazardous Wastes – Toxic Chemicals Acid leachate pond near mining operation 52-17
  • Air Pollution Programs• Toxic air pollutants• Acid rain• Indoor air pollution• Ozone-depleting substances• Greenhouse gases and global warming “End-of-pipe” air emissions at paper mill 52-18
  • Primary Statute: Clean Air Act• Goal of the Clean Air Act is to improve National Ambient Air Quality through standards (NAAQS)• Focus of the law is controlling pollution from mobile sources and stationary sources by issuing permits to polluters• The Plain English Guide to the Clean Air Act 52-19
  • Primary Statute: Clean Air Act• Implemented by agency standards or rules – Air quality standards remain unchanged since 1978 when standards established for six criteria pollutants: lead, CO, VOCs, SO2, particulates, and NO2• Act enforced by agency action and citizen suits against polluters who fail to obtain a permit or violate their permit limitations 52-20
  • Clean Air Act Implementation• Each state is required to develop a state implementation plan for meeting national ambient air quality standards• Consequently, major emitters of pollutants within the state must reduce their emissions to a level that ensures that state overall air quality meets national standards 52-21
  • Clean Air Act Implementation• State environmental agencies issue permits to companies that emit pollutants – Permits specify type of pollutants allowed and amount for each type – New sources treated more stringently than older facilities Mobile point sources 52-22
  • U.S. v. Ohio Edison Company• Facts: – The Sammis Plant, an Ohio Edison coal- fired electric generating plant, required substantial renovation – Ohio Edison intended to achieve a significant increase in operational output, but emissions of sulfur dioxide, nitrogen oxides, and particulate matter also increased – Ohio Edison denied needing new permit 52-23
  • U.S. v. Ohio Edison Company• Procedural History and Ruling: – U.S. and some states brought suit against several operators of coal-fired power plants to gain compliance with the Clean Air Act New Source Review provisions – By failing to obtain a permit for increased emissions related to renovations of the Sammis plant, Ohio Edison violated the Clean Air Act 52-24
  • U.S. v. Ohio Edison Company• Result: – March 2005, EPA agreed to a consent decree by which Ohio Edison agreed to reduce emissions at an expected cost of approximately $1.1 billion, pay a $8.5 million civil penalty, and spend $25 million to perform environmentally beneficial projects related to air pollution within the affected states 52-25
  • International Environmental Law• The Clean Air Act specifically supports U.S. obligations under the Montreal Protocol, an international agreement to reduce air pollution and ozone-depleting substances Pulp and paper mill 52-26
  • Massachusetts v. Environmental Protec • Facts: – 19 private organizations filed a rulemaking petition in 1999 asking EPA to regulate “greenhouse gas emissions … under § 202 of the Clean Air Act” – EPA requested and received public comment for years, yet denied petition in 2003 because: 1. Clean Air Act did not authorize EPA to issue mandatory regulations to address global climate change; 2. Even if EPA had authority to set greenhouse gas emission standards, it would be unwise to do so 52-27
  • Massachusetts v. Environmental Protection Agency• Facts: – Original 19 organizations, 12 states, and local governments sought review of EPA’s order denying the petition in the U.S. Court of Appeals, which deferred to the EPA’s decision – U.S. Supreme Court granted the petitioners’ request for certiorari 52-28
  • Massachusetts v. Environmental Protection Agency• Supreme Court’s Decision by Justice Stevens: – Court discussed standing of litigants, especially sovereign status of states such as Massachusetts – “The harms associated with climate change are serious and well recognized…EPA has refused to comply with [a] clear statutory command…EPA [cannot] avoid its statutory obligation by noting the uncertainty surrounding various features of climate change.” – On remand, EPA must ground its reasons for action or inaction, but Court did not order EPA to make an endangerment finding and issue a rule 52-29
  • Global Climate Change• Following Massachusetts v. EPA, the EPA issued a formal finding that greenhouse gas emissions from mobile sources threaten public health and welfare• U.S. signed the Kyoto Protocol (next step after the Montreal Protocol of the Convention on Global Warming ), but has not yet ratified 52-30
  • Water Pollution Programs• Wetlands, Ocean, and Coastal Zone Pollution• Groundwater & Drinking Water Protection• Wastewater Holding a dead sea otter killed by oil from the Exxon Valdez 52-31
  • Primary Statute: Clean Water Act• Goals: – Ensure that navigable water is safe for drinking, fish & wildlife protection, and recreational use – Eliminate or limit discharge of pollutants into coastal and inland waterways Point source pollution 52-32
  • Clean Water Act (CWA) Standards• For non-point and point sources, EPA sets CWA water quality criteria or standards based upon: – Designated Use of Water Body • Fishable/Swimmable Qualitative Criteria – Total Maximum Daily Loads (TMDLs) • Specific limits on pollution for particular water body, included in pollution permits 52-33
  • NPDES Permit Program• Every industrial or municipal facility must apply for a National Pollutant Discharge Elimination System (NPDES) permit to discharge pollutants into inland waterways or oceans• Pollution control is largely achieved through requirement that a polluter use specific technologies to reduce effluent 52-34
  • State Implementation• Most states have taken primacy (primary authority) for Clean Water Act enforcement for their jurisdiction• A state environmental agency issues NPDES permits based on state determinations about the quality of specific water bodies 52-35
  • Violating Water-Related Laws• Federal and state environmental agencies may enforce the Clean Water Act and water-related programs with civil fines and/or criminal penalties, including prison for those who knowingly violate the laws• Citizens also may file suits to remediate or compensate for environmental harm 52-36
  • United States v. Hopkins• Hopkins appealed his conviction for falsifying documents about his former employer’s compliance with an EPA consent decree, arguing that the U.S. had to prove Hopkins had specific knowledge of the permit requirements and an intent to violate law• U.S. contended it was enough to prove that Hopkins acted voluntarily or intentionally to falsify, tamper with, or render inaccurate a monitoring method and Hopkins did not do so by mistake, accident, or other innocent reason• Supreme Court affirmed, applying strict criminal liability 52-37
  • Wetlands• Section 404 of the Clean Water Act (CWA) protects wetlands by requiring a permit from the Army Corps of Engineers before dredged or fill material may be discharged into waters of the United States Endangered green pitcher plant found insome southern wetlands 52-38
  • Definition of Wetlands• Wetlands refers to "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas." See EPA wetlands page. 52-39
  • Liability for Oil Spills• 1989 Exxon Valdez disaster prompted the Oil Pollution Prevention, Response, Liability and Compensation Act of 1990• Spill-related lawsuits consolidated into Exxon Shipping Co. v. Baker, reaching U.S. Supreme Court in 2008 – Issues: were compensatory damages preempted by the Clean Water Act and was punitive damages award excessive as a matter of law – Ruling: no preemption, but case remanded to remit the punitive damages award 52-40
  • Liability for Oil Spills• The 2010 BP Deepwater Horizon oil rig explosion prompted a new look at current oil pollution and offshore drilling regulations – The 1989 Exxon Valdez disaster still impacts the Alaskan coast Oil-soaked brown pelicans and Kemp’s Ridley Sea Turtle await cleanup and rehabilitation 52-41
  • Land Pollution Programs• Primary Laws: – RCRA – CERCLA FIFRA – TSCA Iron Mountain Superfund site (California) contaminated by acid mine drainage 52-42
  • Waste Disposal Laws• In a cradle to grave regulatory system, RCRA and CERCLA regulate storage, disposal, and remediation of toxic and hazardous substances on land Toxic waste, bankrupt company 52-43
  • RCRA• Resource Conservation and Recovery Act authorizes EPA to regulate transport, storage, monitoring, treatment, and disposal of solid and hazardous wastes – Tracking from creation of waste through disposal or treatment (cradle to grave)• Any person who fails to follow regulations strictly violates RCRA• See United States v. Southern Union Co. 52-44
  • CERCLA• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, or Superfund, authorizes EPA to ensure the clean-up and remediation of hazardous waste sites• Also authorizes EPA to assign liability for clean-up costs to any potentially responsible party (PRP) or all PRPs 52-45
  • Potentially Responsible Party• A PRP is defined as: – Current owners or operators of facility or vessel; – Former owners or operators of facility or vessel, if they owned the property at time of disposal; – Those who arrange for treatment or disposal of hazardous substances at a facility (usually the generators); and – Transporters of hazardous substances who selected the disposal site 52-46
  • Retroactive Nature of CERCLA• In general, a law may not be retroactive• However, CERCLA liability is retroactive, meaning that parties may be held liable for releases that occurred prior to the enactment of the statute in 1980 – Reason: entire purpose of law is to clean up past mistakes and protect human health – U.S. v. Domenic Lombardi Realty: defendant failed to prove innocent landowner defense 52-47
  • Pesticide Regulation• The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates use of pest control chemicals in process of food growth through food packaging, to minimize presence in consumable foods 52-48
  • Toxic Substances Control Act• The Toxic Substances Control Act (TSCA) requires anyone planning to sell or market chemicals to first determine effect on human health and the environment• Gives EPA authority to track, investigate, or ban industrial chemicals currently produced or imported into U.S. 52-49
  • Conservation Efforts• Several laws, such as the Endangered Species Act, attempt to identify, list, and protect threatened or endangered species – See U.S. Fish & Wildlife Service webpage – 588 species of U.S. animals are listed and 794 species of U.S. plants are listed as of Jan. 2012• The ESA provides for habitat recovery plans and species recovery plans 52-50
  • Endangered Species Act• ESA began and remains in controversy despite obvious need for and apparent success of the law Bald eagle, California gnatcatcher, Florida panther 52-51
  • International Wildlife Law• The Convention on International Trade in Endange (CITES) prohibits trade in threatened and endangered species, whether animal or plants, or parts of animals or plants Illegal wildlife parts and products confiscated by U.S. agents 52-52
  • Environmental Management• Partly because of the regulatory web and partly as corporate social responsibility, many companies implement an EMS or environmental management system• Types of EMS systems include ISO 14001, Responsible Care, and Smart Wood 52-53
  • Test Your Knowledge• True=A, False = B – Pollution is any substance in the environment endangering human welfare. – States and Indian tribes may enact and enforce environmental laws that do not conflict with federal environmental laws. – Environmental law prevents pollution. – Violating an environmental law may result in a civil penalty, but cannot be a crime. 52-54
  • Test Your Knowledge• Multiple Choice – Sources of environmental law include: a) Federal legislation enacted by Congress b) Federal agency regulations c) State and tribal environmental law enacted pursuant to state and tribal legislative bodies d) All of the above e) All of the above plus international treaties 52-55
  • Test Your Knowledge• True=A, False = B – The Clean Air Act applies to mobile and stationary sources of pollution. – One goal of the Clean Water Act is to eliminate or limit discharge of pollutants into navigable waterways. – Section 404 of the Clean Water Act (CWA) protects wetlands. – Retroactive laws are always unconstitutional. 52-56
  • Test Your Knowledge• True=A, False = B – Both RCRA and CERCLA establish a cradle to grave regulatory system for hazardous waste. – NEPA applies only to federal agencies. – Only the U.S. EPA may enforce the Clean Air Act or Clean Water Act. – RCRA requires companies to track and monitor hazardous waste from creation through disposal or treatment. 52-57
  • Test Your Knowledge• Multiple Choice: An environmental impact statement must analyze: a) The impact of the proposed action on the environment b) Any expected adverse effects of the action c) Practical and feasible alternative methods d) All of the above e) Both A and B only 52-58
  • Test Your Knowledge• Multiple Choice: A potentially responsible party may be: a) A current owner of the facility b) A former owner of the facility c) The plant manager who arranged for the disposal of hazardous substances from the facility d) The company that operates the facility e) All of the above 52-59
  • Thought Question• Given technological improvements in alternative energy (wind or solar power, biofuels), does a company have a responsibility to use Anaerobic bioreactors the best available for sludge digestion and technology? methane production in Kiel, Germany 52-60