sources of legal constraints (common law, constitutional, and statutory) protecting the environment justifications for, economic impact of, and allocation of governmental authority for environmental regulation. efforts to protect the environment through economic-incentives and information disclosure National Environmental Policy Act statutes that control pollution, Clean Water Act, Clean Air Act, statutes designed to control contamination of land by hazardous substances, environmental law enforcement and litigation Endangered Species Act
“NEPA declares a national policy which will encourage productive and enjoyable harmony between man and his environment” (Section 101) “NEPA itself does not impose substantive duties mandating particular results, but simply prescribes the necessary process for preventing uninformed - rather than unwise - agency action…If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.” A substantive compliance with the law would mean that the agency must select the alternative that affords the most environmental protection and enhancement (many state “little NEPAs” require substantive complicance). NEPA, requires only informed decisionmaking with the intent that agencies select and implement actions protecting the environment. The agency must follow certain planning and public and agency involvement and review procedures in support of informed and, hopefully wise, decisions. NEPA could be interpreted with substantive requirements in section 101, in addition to the procedural requirements in Section 102. CAA section 309 definitely evaluates environmental impacts from a substantive standpoint. Until the Supreme Court changes its precedent OR the CEQ proposes new regulations, however, NEPA will continue to be interpreted in a procedural light, with a national policy for environmental protection, restoration, and enhancement.
First day review course 2010 m
University of Missouri
Kansas City School of Law
Course # 773, Tue/Thus. 4:15-5:30
Assignment: Thursday, 8-26
• Read Pages 1 to 11,
• Skip over Talbot Page article.
• Read Pages 13 to 36.
What we’ll cover today:
• 40 Year Overview of Environmental Law
• Basics Aspects/Themes
• Cross Cutting Themes
• Hot Topics in Major Environmental Laws
1980 – CERCLA (Superfund)
1984 – Hazardous, Solid Waste
1986 – Safe Drinking Water Amendments
1986 – Emergency Preparedness and
Community Right to Know Act
1987 – Clean Water Act Amendments
1979 – Love Canal, NY
1981 – Times Beach, MO
1981 – Valley of the
1984 – Bophal, India
1990 – Earth Day
1992 – EPA & DOE
Energy Star Label
• Pollution Prevention Act
• Oil Pollution Prevention Act
• Clean Air Act Amendments
Exxon Valdez Ozone damaged trees
2000 – Office of Pollution Prevention
“Read the Label First!” 2006 – Office of Water
• Brownfields 2002
• Voluntary Programs
The "Performance Track“
program was discontinued in
2009, it encouraged
systems, community outreach,
and measurable results.
GREEN POWER PARTNERSHIP encourages organizations to buy
green power. Over 750 partner organizations are purchasing more
then 10 billion kilowatt-hours of green power annually – preventing
CO2 emissions equivalent to those of 1.3 million cars.
METHANE PARTNERSHIP programs have resulted in declines in total
U.S. methane emissions. In 2005, US methane emissions were over
11% lower than emissions in 1990. The U.S. is working with 19 partner
countries that account for 60% of global methane emissions, and over 600
public and private sector partners.
EPA’s Voluntary Climate Change
2010 & Next Decade of Environmental Law
New Environmental Laws? New Policy?
• GHG regulation at EPA:
– Massachusetts v. EPA, 549 U.S. 497 (2007).
– GHG Reporting, Final Rule 2010
– GHG Tailoring, Proposed Rule 2010
– Geologic sequestration via the UIC program,
• US Climate legislation? Carbon Tax?
– Clean coal technology?
• UN Framework Convention Climate Change
– 2010 Mexico City Protocol?
– 2009 COP Copenhagen Accord
Earth Day 2010
Basic Aspects of Environmental Law
• Tort and Property Law
• Toxic Torts
• Based on Common Law
• Cooperative federalism
• Administrative Law
• Environmental Justice
• Multi-Media vs. Single-Media
• Ecosystem Services
• Laws of Nature
• Laws of Ecology
• Environmental Ethics
• Internalize the
Energy flows and material cycles through
ecosystems. The figure shows the links in an
ecosystem between the flow of energy and the
cycle of materials in an ecosystem.
Cross Cutting Themes
1. Uncertainty, scientific
complexity and risk
2. Risk and costs/benefit
3. Sustainability and the
Three Economies –
Environment and Equity
4. Polluter Pays Principle
5. Law and Science
Uncertainty, scientific complexity and risk
•The Making of Environmental Law Richard J. Lazarus
Global Wind Patterns
Complexity and Uncertainty Science and Models
Risk Assessment, Risk Management, and
Projected CO2 Emissions, 1990 – 2030
Public Law Approaches in United States
Some of the Major federal statutes and
major questions we face today.
INFORMATION IS POWER
National Environmental Policy
Act (NEPA) 1970
How to consider Climate
Change in NEPA decisions?
A national policy encouragingA national policy encouraging
productive harmony betweenproductive harmony between
man and his environment,man and his environment,
A procedural law requiringA procedural law requiring
consideration of environmentalconsideration of environmental
effects and informed decisioneffects and informed decision
making –making – Stryker’s BayStryker’s Bay, 444 US, 444 US
223 (1980).223 (1980).
NEPANEPA indirectlyindirectly affectsaffects federalfederal
decisions by requiringdecisions by requiring
procedures & informing decisionprocedures & informing decision
makers & the public.makers & the public.
Clean Water Act of 1972 (CWA)
• Protects chemical, biological and
physical integrity of waters of the
• Prohibits discharges without a permit
• How to define waters of US after
SWANCC (2001) and Rapanos, 126
S.Ct. 2208 (2006)
Clean Air Act
Are Green House Gases (GHGs) an air pollutant?
EVOLUTION OF THE CAA
CAA of 1955 – Research
CAA of 1963 – First nation-wide program
Air Quality Act of 1967 – National
CAA of 1970 – Federal National Ambient
Air Quality Standards, State
implementation, New Source Review,
National Standards for Hazardous Air
Pollutants, and federal enforcement
CAA of 1977 – Prevention of Significant
Deterioration in Attainment Areas
CAA of 1990 – Acid Rain program,
NSHAPs modified, Title 5 Operating
Permits, NAAQS modified, and
improved federal enforcement
Massachusetts Case, S.Ct. 2008, GHG
may be a pollutant under CAA
Comprehensive Environmental Response,
Compensation and Liability Act (Superfund)
Should we renew the Superfund Tax?
Resource Conservation Recovery Act of 1976 (RCRA)
Regulates Hazardous Waste Generators, Transporters and
Treatment, Storage & Disposal (TSD)
RCRA: Regulation of hazardous waste from cradle
to grave … Can RCRA address lifecycle materials
handling from cradle to cradle?
• US DOJ, EPA, States,
and Tribal Govts.
• Civil Adm. & Judicial
• Criminal Prosecution
• Citizen Suits
• International Treaties
Do we need more or
More or LESS citizen
Do we need market
Do we need
Quote for the day:
“For if one link in nature’s chain might
be lost, another might be lost, until
the whole of things will vanish by