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Chapter Twenty Two Environmental Law

As previous chapters have demonstrated, this country has often turned to the government to solve problems created by business enterprises. Early in the history of our nation, people recognized that certain problems, such as monopolization and labor strife, were national in scope and required a national solution.

Unfortunately, we did not exercise the same degree of foresight in thinking about protecting our physical environment. We looked at our smokestack industries with pride and saw them as symbols of our great productivity and technological advances. People did not fully appreciate that the billowing smoke was making the air less healthful to breathe and that the industrial sewage dumped into rivers was killing or contaminating many forms of aquatic life. The demands placed on nature to serve as a garbage disposal grew ever greater.

Some people eventually started to realize that pollution was a negative externality. It was a cost of the product not paid for by the manufacturers in their costs of production or by consumers in the purchase price. Rather, its costs were being imposed on the community, as community members were forced to breathe dirty air and to fish and swim in impure water. People who had the misfortune of living in industrialized areas were paying even higher costs than were people in rural areas through pollution-related diseases and discomfort. These costs not only were being borne by those who did not use or manufacture the products whose production caused the pollution but also, in many cases, were higher than the cost of preventing the pollution in the first place.

During the late 1960s, environmental problems became a major national concern, which led to the enactment of legislation to protect the environment and clean up existing problems. This chapter first examines alternatives to the regulatory approach for solving pollution problems and examines the primary agency responsible for enforcing environmental laws, the Environmental Protection Agency. Next we discuss the primary direct regulations designed to protect the environment, followed by an overview of the Pollution Prevention Act of 1990. The global dimensions of environmental protection are discussed last.

Alternative Approaches to Environmental Protection

Tort Law

Torts are injuries to one’s person or property. Pollution injures citizens and their property. Our first attempts to regulate pollution were through the use of tort law, in particular, through the use of the tort of nuisance. A  nuisance  is an unreasonable interference with someone else’s use and enjoyment of his or her land. If a factory were emitting black particles that settled on a person’s property every day, depositing a layer of dirt on everything in the vicinity, that person might bring an action based on nuisance. He or she would be asking the court to enjoin the emission of the particulates. Before the tort of nuisance was used in attempts to stop pollution, an injunction was always granted when a nuisance was found. Nuisance, therefore, would appear to be the perfect solution to the problem of pollution. The following classic case, however, demonstrates why actions claiming the tort of nuisance are ineffective.

nuisance

An unreasonable interference with someone else’s use and enjoyment of his or her land.

 Case 22-1 Boomer et al. v. Atlantic Cement Co.

New York State Court of Appeals 257 N.E.2d 870 (1970)

Defendant Atlantic Cement Company operated a large cement plant that emitted considerable amounts of dirt and smoke into the air. These emissions, combined with vibrations from the plant, caused damage to the plaintiffs, Boomer and other owners of property located close to the plant. The plaintiffs brought a nuisance action against the defendant, seeking an injunction. The trial court ruled in favor of the defendants; it found a nuisance but denied plaintiffs the injunction they sought. The plaintiffs appealed to the intermediate appellate court, and the judgment of the trial court was affirmed in favor of the defendant. The plaintiffs then appealed to the state’s highest appellate court.

Judge Bergan

[T]here is now before the court private litigation in which individual property owners have sought specific relief from a single plant operation. The threshold question raised on this appeal is whether the court should resolve the litigation between the parties now before it as equitably as seems possible, or whether, seeking promotion of the general public welfare, it should channel private litigation into broad public objectives.

A court performs its essential function when it decides the rights of parties before it. Its decision of private controversies may sometimes greatly affect public issues. Large questions of law are often resolved by the manner in which private litigation is decided. It is a rare exercise of judicial power to use a decision in private litigation as a purposeful mechanism to achieve direct public objectives greatly beyond the rights and interests before the court.

Effective control of air pollution is a problem presently far from solution even with the full public and financial powers of government. In large measure adequate technical procedures are yet to be developed and some that appear possible may be economically impracticable.

It seems apparent that the amelioration of air pollution will depend on technical research in great depth, on a carefully balanced consideration of the economic impact of close regulation, and on the actual effect on public health. It is likely to require massive public expenditure and to demand more than any local community can accomplish and to depend on regional and interstate controls.

A court should not try to do this on its own as a by-product of private litigation and it seems manifest that the judicial establishment is neither equipped in the limited nature of any judgment it can pronounce nor prepared to lay down and implement an effective policy for the elimination of air pollution. This is an area beyond the circumference of one private lawsuit. It is a direct responsibility for government and should not thus be undertaken as an incident to solving a dispute between property owners and a single cement plant—one of many—in the Hudson River Valley.

The cement-making operations of defendant have been found by the Court at Special Term to have damaged the nearby properties of plaintiffs in these two actions. That court accordingly found defendant maintained a nuisance and this has been affirmed at the Appellate Division. The total damage to plaintiffs’ properties is, however, relatively small in comparison with the value of defendant’s operation and with the consequences of the injunction which plaintiffs seek.

The ground for the denial of injunction, notwithstanding the finding both that there is a nuisance and that plaintiffs have been damaged substantially, is the large disparity in economic consequences of the nuisance and of the injunction.

[T]o grant the injunction unless defendant pays plaintiffs such permanent damages as may be fixed by the court seems to do justice between the contending parties. All of the attributions of economic loss to the properties on which plaintiffs’ complaints are based will have been redressed.

The nuisance complained of by these plaintiffs may have other public or private consequences, but these particular parties are the only ones who have sought remedies and the judgment proposed will fully redress them. The limitation of relief granted is a limitation only within the four corners of these actions and does not foreclose public health or other public agencies from seeking proper relief in a proper court.

It seems reasonable to think that the risk of being required to pay permanent damages to injured property owners by cement plant owners would itself be a reasonably effective spur to research for improved techniques to minimize nuisance.

The damage base here suggested is consistent with the general rule in those nuisance cases where damages are allowed. “Where a nuisance is of such a permanent and unabatable character that a single recovery can be had, including the whole damage past and future resulting therefrom, there can be but one recovery.” It has been said that permanent damages are allowed where the loss recoverable would obviously be small compared with the cost of removal of the nuisance.

Thus, it seems fair to both sides to grant permanent damages to plaintiffs which will terminate this private litigation.*

Reversed in favor of Plaintiff, Boomer.

Critical Thinking About The Law

In Case 22-1, the New York Court of Appeals became the third court to find the Atlantic Cement Company guilty of committing a nuisance against the plaintiff Boomer. At the same time, the state’s highest court also became the third court not to grant an injunction to halt the cement company’s pollution.

At first glance, the finding of the court and its subsequent decision seem to contradict one another. A closer look at the case, however, reveals that Judge Bergan, in delivering the decision, qualified when a nuisance warrants an injunction. The questions that follow will help you identify this qualification and determine the primary ethical norm to which such a qualification is tied.

1. To demonstrate your ability to follow legal reasoning, in your own words, run down the court’s reasoning for its decision.

Clue: Do not be too narrow here. You want to identify (1) why the court granted damages to the plaintiff and (2) why the court did not order an injunction.

2. The court argued that granting the plaintiff monetary damages should promote more environmentally friendly practices on the part of businesses, because they would develop technologies to avoid having to pay damages. What assumption did the court make in this reasoning?

Clue: Reread the court’s reasoning. This assumption is related to the quantitative relationship between the damages imposed on businesses for polluting and the economic benefits of polluting for businesses.

In Boomer, the plaintiffs technically “won” the case because they were granted a greater remedy than the lower courts had granted; they were granted an injunction in the event the defendant failed to pay permanent damages within a set period of time. They did not, however, achieve their objective, which was to eliminate the nuisance through receipt of an injunction, the traditional remedy in a nuisance action. Thus, in Boomer v. Atlantic Cement Co., the court decided that before it would apply the traditional nuisance remedy to stop the pollution, it would weigh the harms resulting from the injunction against the benefits. Because of a lack of scientific knowledge, judges at that time did not see the true costs that the polluting behavior was imposing on the community. Thus, a major problem with using nuisance laws to stop pollution is that the courts will not necessarily use their authority to issue an injunction to stop the polluting behavior even when they find that a nuisance exists. Nuisance actions can be and are used, but they are used primarily as a way for plaintiffs injured by pollution to recover damages for their losses.

Negligence, an Alternative Tort Solution

 Negligence is also used at times in the fight against pollution. Plaintiffs must establish the elements of negligence as described in  Chapter 11 : duty, breach of duty, causation, and damage. Negligence would most often be used in a case in which a defendant’s polluting behavior harmed a plaintiff. For example, if a defendant buried hazardous waste in the ground and the waste seeped down into the water table, contaminating the plaintiff’s well water and injuring the plaintiff, the plaintiff might bring a negligence action.

Negligence actions involving hazardous materials are often difficult to prosecute successfully, primarily because many of the pollutants do not cause immediate harm. By the time the harm occurs, it is often difficult to link the damage to the defendant’s release of the material, making the element of causation extremely difficult to prove. The availability of defenses such as contributory or comparative negligence, as well as assumption of the risk, helps weaken the effectiveness of this tort. It also shares with nuisance the attribute of being reactive rather than preventing pollution in the first place.

The primary method of controlling pollution today is through direct regulation. Before we discuss the regulatory approach, though, some additional alternatives to regulation should be considered.

Government Subsidies Approach

One such approach is the use of government subsidies. Under a subsidy system, the government pays polluters to reduce their emissions. Some subsidies that could be used are tax breaks, low-interest loans, and grants for the purchase and installation of pollution-control devices. The primary problem with this approach is that when a subsidy is for less than 100 percent of the cost, the firm that limits its pollutants must still pay the difference between the actual cost and the subsidy, a cost not borne by its competitors.

Emission Charges Approach

Another approach is simply to charge the polluter a flat fee on every unit of pollutant discharged. Each rational polluter would theoretically reduce pollution to the point at which the cost of reducing one more unit of pollutant is greater than the emission fee. The larger the fee for each unit, the greater the motivation of firms to reduce their emissions. Difficulties in monitoring every discharge of the pollutant and in calculating the amount that should be assessed for each unit of the various pollutants are major problems with this approach. A final problem with this approach is that it may amount to licensing a continuing wrong. Some firms might simply pay the charges and continue to emit pollutants that would be difficult to clean up even with the fees collected.

Marketable Discharge Permits Approach

Discharge permits provide a similar approach to pollution control. The government would sell permits for the discharge of various pollutants. These pollutants could be discharged only if the polluter had the appropriate permit. Polluters would be encouraged to reduce their emissions because this reduction would enable them to sell their permits. This approach is currently being attempted on a limited scale to reduce emissions of one significant air pollutant, sulfur.

From the perspective of people wishing to reduce the total amount of pollution emitted into the environment, the primary advantage that this system offers over a system of charges is that the government actually limits the total amount of pollution through the permits; no permits will be issued once a certain amount of emissions has been authorized. To reduce pollution, the government can simply reduce the number of permits that it issues. Again, however, there is the problem of monitoring the pollution sources.

Direct Regulation Approach

Direct regulation is the primary device currently used for environmental protection. During the late 1970s, a comprehensive set of regulations designed to protect the environment and specifically to improve air and water quality was adopted. These regulations established specific limits on the amount of pollutants that could be discharged.

One issue that must be determined when direct regulations are to be used is whether the standards set by the regulations are “technology forcing” or “technology driven.” So-called  technology-forcing standards  are set primarily on the basis of health considerations, with the assumption that once standards have been established, the industries will be forced to develop the technology needed to meet the standards.  Technology-driven standards , in contrast, try to achieve the greatest improvements possible with existing levels of technology. Most of the early environmental regulations in this country were technology forcing. In some instances, this approach was highly successful, and impressive technological gains were made. In other instances, sufficient technology had not yet been developed, and we were unable to meet some rather lofty goals.

technology-forcing standards

Standards of pollution control set primarily on the basis of health considerations, with the assumption that once regulators have set the standards, industry will be forced to develop the technology needed to meet them.

technology-driven standards

Standards that take account of existing levels of technology and require the best control system possible given the limits of that technology.

Environmental regulations are enforced primarily by administrative agencies. The judiciary is available as a last resort to ensure that these agencies fulfill their obligations under the law. Because the administrative agencies are staffed by presidential appointment, the attitude of the chief executive has a substantial impact on an agency’s behavior. Under different administrations, federal environmental regulations have been enforced with varying degrees of vigor.

The remainder of this chapter focuses primarily on direct regulation as a means of protecting the environment, because despite some minor changes in some of the environmental laws, direct regulation is still the primary means of protecting the environment. We will first examine the Environmental Protection Agency, which has primary responsibility for enforcing the direct regulations.

The Environmental Protection Agency

Like other areas of administrative law, environmental law is primarily made up of regulations passed by a federal agency operating under the guidance of congressional mandates. The primary agency responsible for passage and enforcement of these regulations is the  Environmental Protection Agency (EPA) .

Environmental Protection Agency (EPA)

The federal agency charged with the responsibility of conducting an integrated, coordinated attack on all forms of pollution of the environment.

The EPA is one of the largest federal agencies, having approximately 17,384 employees as of the year 2011. The agency was created by executive order in 1972 to mount an integrated, coordinated attack on pollution in the areas of air, water, solid waste, pesticides, radiation, and toxic substances—a rather substantial mandate for any agency. The reason for placing control of all types of environmental problems within one agency was to ensure that the attack on pollution would be integrated. In other words, Congress wanted to be certain that we would not have a regulation reducing air pollution that simply led to increased water pollution. Unfortunately, such integration did not occur. Within the agency, separate offices were established for each of the areas of pollution, and there was very little interaction between them.

Recognizing the inefficiency of the EPA’s organizational structure, in 1993, then EPA administrator Carol Browner took one of the first major steps toward trying to make the agency one with a truly integrated focus. She moved all enforcement actions from the various program offices into one main enforcement office, the Office of Compliance, which has as its primary focus “providing industry with coherent information about compliance requirements.” The office is divided into groups of regulators that focus on separate sectors of the economy: energy and transportation, agriculture, and manufacturing. Browner also created a new Office of Regulatory Enforcement to take on the tough responsibility of deciding which polluters would be taken to court. 1

1  P. Wallach and D. Levin, “Using Government’s Guidance to Structure Compliance Plan,” National Law Journal, S10 (Aug. 30, 1993).

One area of special concern to business managers, especially since 1990, has been the EPA’s use of criminal sanctions, including incarceration, to enforce environmental laws. These cases are not actually tried by the EPA; rather, they are passed on by the EPA to the Justice Department with a recommendation for prosecution.

Since 1994, the agency has been operating under a policy statement issued to guide its special agents in their enforcement activities. Under this policy, the agents are to look for “significant environmental harm” and “culpable conduct.” To satisfy the second criterion, the EPA looks for a “history of repeated violations,” “concealment of misconduct,” “falsification of required records,” “tampering with monitoring or control equipment,” and “failing to obtain required licenses or permits.” 2

2  E. Devaney, The Exercise of Investigative Discretion (American Law Institute, 1995).

By issuing this policy, the EPA is trying to put firms on notice as to when their conduct is clearly unacceptable and may subject them to criminal liability. The policy also reflects the EPA’s intent to target the worst violators and make examples of them, hoping that such prosecutions will have a deterrent effect.

The EPA’s Final Policy on Penalty Reductions encourages firms to engage in environmental self-auditing. If a firm can demonstrate that it discovered a violation and moved to correct it, the EPA will seek to reduce the penalty for the violation. Of course, the firm that engages in a self-audit, discovers a violation, and chooses not to change the harmful practice is setting itself up as a candidate for criminal prosecution. See  Exhibit 22-1  for the elements of a successful environmental auditing program.

Exhibit 22-1 Elements of a Successful Auditing Program

The National Environmental Policy Act of 1970

One of the first major environmental laws passed in this nation set forth our country’s policy for protecting the environment. This act, the National Environmental Policy Act of 1970 (NEPA), is regarded by many as the country’s most influential piece of environmental legislation.

The NEPA is also viewed as an extremely powerful piece of legislation, because its primary purpose and effect have been to reform the process by which regulatory agencies make decisions. Title II of the NEPA requires the preparation of an  Environmental Impact Statement (EIS)  for every major legislative proposal or agency action that would have a significant impact on the quality of the human environment. A substantial number of these statements are filed every year and are the basis of a significant amount of litigation.

Environmental Impact Statement (EIS)

A statement that must be prepared for every major federal activity that would significantly affect the quality of the human environment.

Threshold Considerations

An EIS is required when three elements are present. First, the action in question must be federal, such as the grant of a license, the making of a loan, or the lease of property by a federal agency. Second, the proposed activity must be major, that is, requiring a substantial commitment of resources. Finally, the proposed activity must have a significant impact on the human environment.

Content of The EIS

Once an agency has determined that an EIS is necessary, it must gather the information necessary to prepare the document. The NEPA requires that an EIS include a detailed statement of

1. the environmental impact of the proposed action;

2. any adverse environmental effects that cannot be avoided should the proposal be implemented;

3. alternatives to the proposed action;

Comparative Law Corner Pollution Controls in Japan

Japan’s first pollution legislation was passed in 1970, protecting air, water, and other areas. Instead of using a system like that of the United States, in which a national agency (the EPA) performs checks and assessments, Japan addressed the problem from inside the industries themselves.

Japan’s solution was to require certain industries to have personnel specifically in charge of making sure the company was following environmental laws. Any company in one of the following industries is covered under this regulation: manufacturing, electric power supply, gas supply, or heat supply, which has facilities that generate soot, dust, noise, polluted water, or vibration. Larger companies are required to have three levels of pollution control personnel. At the highest level is the pollution control supervisor, who supervises and manages the work relating to control of pollution in factories. A higher-level manager, such as the factory manager, is suitable and may fulfill this role. Below the supervisor is the senior pollution control manager, who assists the pollution control supervisor and directs the pollution control managers. At the lowest level are the pollution control managers, who actually do the inspections and make sure everything is up to environmental standards in their facility type.

4. the relationship between local short-term uses of the human environment and the maintenance and enhancement of long-term productivity; and

5. any irreversible and irretrievable commitments of resources that would be involved in the proposed activity should it be implemented.

A continuing problem under the act, however, is interpreting what is meant by environmental impacts. Clearly, they extend beyond the immediate effects on the natural environment; in some cases, they have been held to include noise, increased traffic and congestion, the overburdening of public facilities such as sewage and mass transportation systems, increased crime, increased availability of illegal drugs, and (in a small number of cases) damage to the psychological health of those affected by the agency action. Other cases, however, have not allowed all such damages. For example, the loss of business profits resulting from a proposed agency action has not been considered an environmental impact.

The following case illustrates how difficult it sometimes is for the court to determine a significant environmental impact that requires the filing of an EIS.

Another problem regarding the scope of the EIS pertains to the requirement of a detailed statement of alternatives to the proposed actions. What alternatives must be discussed, and how detailed must the discussion be? In general, any reasonable alternatives, including taking no action, must be discussed. The more likely the alternative is to be implemented, the more detailed the statement must be.

 Case 22-2 Brodsky v. United States Nuclear Regulatory Commission

United States Court of Appeals for the Second District 2013 U.S. App. LEXIS 339 (2013)

Richard L. Brodsky, a New York State Assemblyman, asserted, among other claims, that the Nuclear Regulatory Commission (NRC) erred in not producing an environmental impact statement (EIS) under the NEPA. The plaintiff claimed that the defendant’s production of an environmental assessment (EA) and a finding of no significant impact (FONSI) were inadequate. According to the defendant, the environmental assessment looked at an increase in fire safety risk and every other adverse environmental effect. In the end, the U.S. District Court for the Southern District of New York concluded that the defendant agency’s environmental assessment satisfied its minimal burden to justify foregoing the environmental impact statement and granted the defendant summary judgment. The plaintiff appealed.

Judge Sack

The Need for an Environmental Impact Statement under NEPA

Plaintiffs contend that the NRC erred in failing to produce an environmental impact statement (“EIS”) under NEPA, instead producing only an environmental assessment (“EA”) and a finding of no significant impact (“FONSI”). We disagree:

“Judicial review of agency decisions regarding whether an EIS is needed is essentially procedural,” and “the decision not to prepare an EIS is left to the informed discretion of the agency proposing the action.” “[A] reviewing court must ensure that [the agency] has taken a ‘hard look’ at the environmental consequences and assess whether the agency has convincingly documented its determination of no significant impact.”

The NRC’s EA and FONSI satisfy the agency’s minimal burden to justify foregoing the EIS. The EA contains extended discussion of why the exemption does not create any fire safety risk, examines whether this exemption would have any other adverse environmental effect, and considers the alternative of not granting the exemption (and thereby requiring compliance). The NRC was not required to say more.

We have considered plaintiffs’ remaining arguments and, with the exception of the public participation challenge under NEPA addressed in our related opinion issued today, conclude they are without merit. The judgment of the district court is therefore AFFIRMED IN PART in accordance with this order.*

Affirmed in part in favor of Nuclear Regulatory Commission.

Critical Thinking About The Law

1. Reasons or facts by themselves do not necessarily lead to one and only one decision. In this case, for instance, could you make the case that the court strains to find on behalf of the Nuclear Regulatory Commission? Explain.

Could the same evidence have been used to overturn the original decision? Why or why not?

2. Is “significant impact” ambiguous? In other words, is it reasonable to wonder just what that term means in this instance? Explain.

Effectiveness of The EIS Process

The EIS requirement has clearly changed the process of agency decision making, but many wonder whether the requirement has improved the quality of that decision making.

Now that this umbrella environmental act has been discussed, we will examine some of the specific laws designed to protect various aspects of the environment. The focus will initially be on protecting the quality of the nation’s water.

Regulating Water Quality

Water pollution is controlled today primarily by two pieces of legislation: the Federal Water Pollution Control Act (FWPCA; also called the Clean Water Act) and the Safe Drinking Water Act (SDWA). The first concentrates on the quality of water in our waterways; the second ensures that the water we drink is not harmful to our health. (Some people say that the former law protects the environment from humans, whereas the latter protects humans from the environment.)

The Federal Water Pollution Control Act

When Congress passed the 1972 amendments to the FWPCA, it established two goals: (1) “fishable” and “swimmable” waters by 1983 and (2) the total elimination of pollutant discharges into navigable waters by 1985. These goals were to be achieved through a system of permits and effluent discharge limitations. Obviously, these goals were not attained. Many argue that no one really expected their attainment. They did, however, set a high goal toward which we could aspire.

Point-Source Effluent Limitations

 One of the primary tools for meeting the goals of the 1972 FWPCA amendments was the establishment and enforcement of point-source effluent limitations.  Point sources  are distinct places from which pollutants can be discharged into water. Factories, refineries, and sewage treatment facilities are a few examples of point sources. Effluents are the outflows from a specific source.  Effluent limitations , therefore, are the maximum allowable amounts of pollutants that can be discharged from a source within a given time period. Different limitations were established for different pollutants.

point sources 

Distinct places from which pollutants are discharged into water, such as paper mills, electric utility plants, sewage treatment facilities, and factories.

effluent limitations 

Maximum allowable amounts of pollutants that can be discharged from a point source within a given time period.

Under the National Pollutant Discharge Elimination System (NPDES), every point source that discharges pollutants must obtain a discharge permit from the EPA or from the state if the state has an EPA-approved plan at least as strict as the federal standards. The permits specify the types and amounts of effluent discharges allowed. The discharger is required to monitor its discharges continually and report any excess discharges to either the state or federal EPA. Discharges without a permit or in amounts in excess of those allowed by the permit may result in the imposition of criminal penalties. Enforcement of the act is left primarily to the states when those states have an approved program for regulation. The act, however, provides for federal monitoring, inspection, and enforcement. Citizens may also bring suit to enforce the effluent limits.

An interesting issue that arose under the act was the question of what constituted a discharge. The Supreme Court clarified the term discharge in the following case.

 Case 22-3 Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc. et al.

United States Supreme Court 133 S. Ct. 710 (2013)

Petitioner Los Angeles County Flood Control District operates a “municipal separate storm sewer system” (MS4), a drainage system that collects, transports, and discharges storm water. Because storm water is often heavily polluted, the CWA and its implementing regulations require certain MS4 operators to obtain an NPDES permit before discharging storm water into navigable waters. The District has such a permit for its MS4. Respondents Natural Resources Defense Council, Inc. (NRDC) and Santa Monica Baykeeper filed a citizen suit against the District and others under § 505 of the CWA, alleging, among other things, that water-quality measurements from monitoring stations within the Los Angeles and San Gabriel Rivers demonstrated that the District was violating the terms of its permit.

The District Court granted summary judgment to the District on these claims, concluding that the record was insufficient to warrant a finding that the MS4 had discharged storm water containing the standards- exceeding pollutants detected at the downstream monitoring stations. The 9th Circuit reversed in relevant part. The court held that the District was liable for the discharge of pollutants that, in the court’s view, occurred when the polluted water detected at the monitoring stations flowed out of the concrete-lined portions of the rivers, where the monitoring stations are located, into lower unlined portions of the same rivers.

Justice Ginsburg

The Court granted review in this case limited to a single question: Under the Clean Water Act . . . does the flow of water out of a concrete channel within a river rank as a “discharge of a pollutant”? In this Court, the parties and the United States as amicus curiae agree that the answer to this question is “no.” They base this accord on South Fla. Water Management Dist. v. Miccosukee Tribe, . . . in which we accepted that pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the CWA. Adhering to the view we took in Miccosukee, we hold that the parties correctly answered the sole question presented in the negative. The decision in this suit rendered by the Court of Appeals for the Ninth Circuit is inconsistent with our determination. We therefore reverse that court’s judgment.

. . . [W]e held in Miccosukee that the transfer of polluted water between “two parts of the same water body” does not constitute a discharge of pollutants under the CWA. . . .We derived that determination from the CWA’s text, which defines the term “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any point source.” . . . Under a common understanding of the meaning of the word “add,” no pollutants are “added” to a water body when water is merely transferred between different portions of that water body. . . .”

In Miccosukee, polluted water was removed from a canal, transported through a pump station, and then deposited into a nearby reservoir. . . . We held that this water transfer would count as a discharge of pollutants under the CWA only if the canal and the reservoir were “meaningfully distinct water bodies.” . . . no discharge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another. We hold, therefore, that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway does not qualify as a discharge of pollutants under the CWA. . . .*

Reversed in favor of Petitioner, Los Angeles Country Flood Control District.

Permissible discharge limits under the discharge system are based on technological standards. Most sources today must use the best available control technology (BACT). All new sources must meet this standard, but some existing facilities are allowed to meet a slightly lower standard, best practicable control technology (or BPCT). The EPA issues regulations explaining which equipment meets these standards.

The Safe Drinking Water Act

The FWPCA ensures that the waterways are clean, but “clean” does not necessarily mean “fit to drink.” The SDWA, therefore, sets standards for drinking water supplied by a public water supply system, which is defined by the act as a water supply system that has at least 15 service connections or serves 25 or more persons.

The SDWA requires the EPA to establish two levels of drinking water standards for potential drinking water contaminants. Primary standards are to protect human health, and secondary standards are to protect the aesthetic quality of drinking water.

Primary standards are based on maximum contaminant level goals (MCLGs) and maximum contaminant levels (MCLs) for all contaminants that have the potential to have an adverse effect on human health. MCLGs are the levels at which there are no potential adverse health effects. These are unenforceable, health-based goals; they are the high standards to which we aspire. The MCLs are the enforceable standards. They are developed from the MCLGs but also take into account the feasibility and cost of meeting the standard. By 1991, the EPA was to have set MCLs for 108 of the hundreds of contaminants found in our drinking water and MCLs for 25 more contaminants every three years thereafter. These goals were not met, and the 1996 amendments to the SDWA gave the EPA more flexibility in setting standards so that the agency could focus first on setting standards for the contaminants that posed the greatest potential health hazards.

Keeping up with the ever-increasing MCLs is a difficult task for public drinking water suppliers. Monitoring these systems is also a chore. Most states do monthly monitoring. Violations may be punished by administrative fines or orders. The 1996 amendments also imposed a “right to know” provision, requiring drinking water suppliers to provide every household with annual reports on water contaminants and the health problems they may cause.

Regulating Air Quality

A second major environmental concern is protecting the quality of the air. To that end, Congress enacted the Clean Air Act in 1970. Although air quality continues to improve, the EPA estimated that in 2006, more than 60 percent of Americans lived in areas that did not meet the ambient air quality standards for at least one of six major conventional air pollutants: carbon monoxide, lead, nitrogen oxides, suspended particulates, ozone, and sulfur dioxide. 3

3  EPA, Basic Information. Accessed March 15, 2008 at www.epa.gov/airtrends/sixpoll.html.

Table 22-1  illustrates some of the most common health problems caused by these pollutants. In addition to these enumerated health problems, nitrogen oxides and sulfur dioxide contribute to the formation of acid rain, which defaces buildings and causes the pH levels of lakes to reach such low levels that most plants and animals can no longer survive in them. These pollutants, frequently referred to as criteria pollutants, have been regulated primarily through national air quality standards.

Table 22-1 Air Pollutants and Associated Health Problems

Pollutant	Associated Problems
Carbon monoxide	Angina, impaired vision, poor coordination, lack of alertness
Lead	Neurological system and kidney damage
Nitrogen oxides	Lung and respiratory tract damage
Ozone	Eye irritation, increased nasal congestion, reduction of lung function, reduced resistance to infection
Sulfur dioxide	Lung and respiratory tract damage

Although the EPA is authorized to regulate air quality, environmentalists and others do not always believe that the EPA does its job effectively. In Massachusetts v. Environmental Protection Agency, ultimately heard by the Supreme Court in 2007, the state of Massachusetts and a number of environmental organizations challenged the EPA’s refusal to regulate greenhouse gas emissions from motor vehicles. The high court ordered the EPA to determine whether greenhouse gases did indeed endanger human health. The EPA subsequently made an endangerment finding, which paved the way for the current mobile source performance standards that regulate tailpipe emissions of greenhouse gases and mileage requirements. In 2010, the EPA and the National Highway Transportation and Safety Administration enacted the Tailpipe Rule, which required passenger cars, light-duty trucks, and medium-duty passenger vehicles to meet a 35-mile-per-gallon standard for model years 2012 through 2016. In 2012, a final rule was promulgated establishing greenhouse gas emissions standards for model years 2017 through 2025.

The National Ambient Air Quality Standards

The  National Ambient Air Quality Standards (NAAQS)  provide the focal point for air pollution control. The administrator of the EPA establishes primary and secondary NAAQS for criteria pollutants. Primary standards are standards that the administrator determines are necessary to protect the public health, including an adequate margin of safety. Secondary standards are more stringent, as they are the standards that would protect the public welfare (crops, buildings, and animals) from any known or anticipated adverse effect associated with the air pollutant for which the standard is being established. Currently, the primary and secondary standards are the same for all criteria pollutants except sulfur dioxide. The administrator of the EPA retains the authority to establish new primary and secondary standards if scientific evidence indicates that the present standards are inadequate or that such standards must be set for currently unregulated pollutants.

National Ambient Air Quality Standards (NAAQS)

A two-tiered set of standards developed for the chief conventional air pollutants: primary standards designed to protect public health and secondary standards designed to protect public welfare.

Once each of the NAAQS is established, each state has nine months to establish a  state implementation plan (SIP)  that explains how the state is going to ensure that the pollutants in the air within a state’s boundaries will be kept from exceeding the NAAQS. Primary NAAQS must be achieved within three years of the creation of a SIP, and secondary standards are to be met within a reasonable time. The administrator of the EPA has to approve all SIPs. When a SIP is found to be inadequate, the administrator has the power to amend it or send it back to the state for revision.

state implementation plan (SIP)

A plan required of every state that explains how the state will meet federal air pollution standards.

In the 1990 Clean Air Act Amendments, Congress specifically addressed those areas of the country that had not yet met the NAAQS, the so-called nonattainment areas. Such areas are classified into five categories ranging from “marginal” to “extreme,” depending on how far out of compliance they are. New deadlines for meeting the primary standard for ozone were set, ranging from 5 to 20 years. Nonattainment areas also must establish or upgrade vehicle inspection and maintenance programs.

Because emissions from upwind areas may travel and pollute downwind areas, when states develop their SIPs, they are required to take into account the effect of pollution in their state on downwind areas and eliminate those amounts of pollutants that can contribute to nonattainment in those areas. In 2014, the United States Supreme Court, in EPA v. EME Home City Generation, L.P., 4  upheld the EPA’s Cross-State Air Pollution Transport Rule, the rule that mandates that sulfur dioxide and nitrogen oxide emissions from upwind states do not contribute significantly to nonattainment in downwind states.

4  134 S. Ct. 1584 (2014).

New Source Review

As part of the 1977 Clean Air Act Amendments, Congress established the New Source Review (NSR) program, which regulates criteria pollutants and ensures acceptable levels of NAAQS by mandating the installation of new pollution control technology in new or modified stationary sources. In 2002, it was estimated that the NSR regulated more than 17,000 stationary sources, such as power plants, oil refineries, and chemical factories. Consequently, many view the NSR as a key provision in the Clean Air Act, as it removes millions of tons of sulfur dioxide, nitrogen oxides, and mercury from the air each year. 5

5  EPA, New Source Review, Report to the President (June 2002). Available at www.epa.gov/nsr /documents/nsr_report_to_president.pdf.

The NSR program, however, can be changed, and some view proposed changes as further rollbacks of long-standing environmental protections. One proposed change to the NSR would have allowed significant maintenance, upgrades, and expansions to occur without requiring new pollution controls as long as the costs of the modifications did not exceed 20 percent of the cost of the entire “process unit.” Under this proposed rule, major utility plant changes that cost millions of dollars and increase pollution by thousands of tons could be defined as “routine maintenance” and thus be exempt from Clean Air Act protections. Environmental groups expressed strong opposition to this proposal, arguing that it would substantially harm the quality of the air, increase respiratory ailments such as asthma, and cause thousands of premature deaths. In 2004, the EPA reported that more than 100 million people in the United States breathe unhealthy levels of particulates emitted from stationary sources. Citing the widespread health effects of increased particulate matter in the air, environmentalist groups sued to stop implementation of the changes. In March 2006, the D.C. Circuit Court sided with the environmentalists and unanimously ruled to invalidate the NSR rule changes. However, future attempts to change the rule are still possible.

The Acid Rain Control Program

One of the major air quality problems facing the United States, as well as other countries, is acid rain. Roughly 75 percent of  acid rain  is caused by emissions of sulfur dioxide and nitrogen oxides from the burning of fossil fuels by electric utilities. The 1990 Clean Air Act Amendments included an innovative approach to controlling sulfur dioxide emissions.

acid rain

Precipitation with a high acidic content (pH level of less than 5) caused by atmospheric pollutants.

Under the 1990 Clean Air Act Amendments, Congress required the EPA to establish an emissions trading program that would significantly cut sulfur dioxide emissions. Under the program, the EPA auctioned a given number of sulfur dioxide allowances each year. A holder could emit one ton of sulfur dioxide for each allowance. Firms holding allowances would be able to use the allowances to emit pollutants, “bank” their allowances for the next year, or sell their allowances to other firms. The purpose of the program was to reduce total emissions in the most efficient way possible. Those firms for which emission reduction was the cheapest would reduce their emissions extensively, whereas those for which emission reduction would be extremely expensive would find it more efficient to buy allowances. Total emissions would fall because every succeeding year, the number of allowances issued would be reduced, but the firms actually reducing their emissions would be the ones whose emissions could be reduced at the lowest cost.

On March 29, 1993, the first auction of EPA pollution allowances was held. More than 150,000 allowances were sold, with each allowance permitting the emission of one ton of sulfur dioxide. Prices for each allowance ranged from $122 to $450. Utilities were given a fixed amount of allowances and could bid for others at the auction. Some environmental groups also participated in the auction, buying allowances to retire unused to help clean the air.

By 1995, after three years of program operation, the price of the allowances had fallen to less than $140 per ton. In 1998, a total of 150,000 allowances were offered for use that year at a price ranging from $115.01 to $228.92. In 2007, only 125,000 allowances were auctioned, at an average price of $444.39. By 2008, total sulfur dioxide emissions from regulated sources were down to 7.6 million tons, exceeding the program’s long-term goal of 9.5 million tons long before the 2010 deadline. This program is often cited as a model for achieving cost-effective pollution reduction; consequently, many people are looking at emissions trading as a possible way to meet the worldwide problem of too many harmful greenhouse gases. 6

6  EPA, 2007 EPA Allowance Auction Results. Accessed March 15, 2008 at www.epa.gov /airmarkets/trading/2007/07summary.html.

Climate Change

Global climate change is the term increasingly being used by scientists and environmentalists to refer to the process in which Earth’s climate changes in response to greenhouse gases and other pollutants. Global climate change is preferred to “global warming” because the process is complex and involves many more changes than simply an increase in Earth’s temperature. Environmentalists and scientists argue that global climate change is a matter of extreme concern because as Earth’s temperature rises, a number of events are likely to happen. First, the polar ice caps, as well as glaciers in general, will melt. In fact, it appears that glacial loss has already begun. One report indicated that the Arctic Sea ice cover had decreased in 2007 to a drastically new low; another record low was reached in 2012, although there appeared to be a slight rebound in 2013. 7

7  “Arctic Sea Ice Cover at Record Low,” CNN, September 11, 2007. Accessed March 15, 2008 at www.cnn.com/2007/TECH/science/09/11/arctic.ice.cover/index.html?iref=mpstoryview; “Polar Ice Cap Melt Not as Great This Summer.” Accessed September 20, 2013 at www.earthweek.com /2013/ew130920/ew130920a.html.

The melting ice caps will release formerly frozen water, which will raise ocean levels. 8  Higher ocean water levels means that low-lying coastal areas will begin to be flooded. 9  In addition, the release of cold, formerly frozen water will mix with the warmer sea water, which will produce more storms. Further climate changes could follow, and many species of animals could be in danger of extinction from loss of habitat, change of climate, or loss of a different species that served as a food source. 10

8  Pew Center on Global Climate Change, The Basics. Accessed March 15, 2008 at www .pewclimate.org/global-warming-basics.

9  Id.

10  Id.

In general, most scientists and environmentalists recognize the existence of global climate change and the negative effects of greenhouse gases. In reaction to such dramatic changes in temperatures across the globe, for the first time since 1990, the federal U.S. Department of Agriculture has updated the map of planting zones in the United States, in preparation for the “warmer 21st century.” With May 2014 through April 2015 being the warmest 12-month period among all months in the 136-year period of modern meteorological records, evidence of the increased greenhouse effect and emission of global gases seems to be growing. In 2007, 158 UN member countries held a weeklong conference in Bali to discuss strategies for reducing greenhouse gas emissions. 11  The Bali meetings, which ended with general agreement among the 158 countries, were intended to create a continued strategy for reducing greenhouse gases starting in 2012 when the first commitment period of the Kyoto Protocol expires.

11  Andrew Revkin, “Voices on Bali, and Beyond,” New York Times, December 6, 2007. Accessed January 2, 2011 at dotearth.blogs.nytimes.com/2007/12/16/voices-on-bali-and-beyond/?scp =4&sq=bali%20climate%20conference&st=cse.

In 2009, the Copenhagen Agreement was reached and contained promises of major emitting countries to cut carbon and develop a monitoring system to track success or failure. Industrialized countries also agreed to contribute $30 billion in near-term climate aid while raising $100 billion annually by 2020 for vulnerable nations. However, no firm allowances were set. In 2010, countries met once more and agreed to the Cancun Agreement, which fleshed out some of the details of the Copenhagen Agreement and bound countries to keep temperature rise below 2 degrees Celsius above pre-industrial levels, but no other firm commitments resulted, and parties agreed that they need to continue working to resolve the problems that are resulting from climate change. 12

12  Lisa Friedman, “A Near-Consensus Decision Keeps U.N. Climate Process Alive and Moving Ahead,” New York Times, December 13, 2010. Accessed January 1, 2011 at www.nytimes.com/cwire/2010/12/13/13climatewire-a-near-consensus-decision-keeps-un-climate-p-77618 .html?pagewanted=1&sq=bali%20climate%20conference&st=cse&scp=1.

Since that agreement, annual climate conferences have continued to be held, as nation-states that signed the Kyoto Protocol continue to search for ways to fight climate change. During the meetings since 2010, the long-term goal has been a universal UN treaty on climate change by 2015, which would enter force by 2020. During the Bonn meeting in 2013, participants focused on how to transform the world’s energy systems quickly enough toward low-carbon energy, including renewable energy, energy efficiency, and the consideration of carbon capture and storage, while also making significant strides toward the universal treaty extending the Kyoto Protocol. Unfortunately, the United States never joined the Kyoto Protocol and Canada pulled out of the agreement in 2011; Japan, New Zealand, and Russia subsequently pulled out and announced that they would not be signing up to a new interim commitment to the treaty. As a result, even if parties can agree on an extension of the treaty, the extension would cover only about 15 percent of the world’s emissions of greenhouse gases.

On May 15, 2015, leaders from 12 states and provinces in 7 countries, collectively representing more than 100 million people, signed an agreement to limit the increase in the global average temperature to below 2 degrees Celsius, the warming threshold at which scientists say that there will likely be catastrophic climate disruptions. The agreement, called “Under 2 MOU,” was created to provide a template for the world’s nations to follow as work continued toward an international agreement to reduce greenhouse gas emissions ahead of 2015’s United Nations Climate Change Conference in Paris.

The signatories committed to reduce greenhouse gas emissions to 80 to 95 percent below 1990 levels by 2050 or to achieve a per capita annual emission target of less than 2 metric tons by 2050. The targets allow each government to tailor emission reduction plans to fit regional needs. Parties also committed to recruiting additional global partners before the United Nations Climate Change Conference in December 2015. 13  As this book went to press before the Paris meeting, it is too early to know the effect this treaty will have, but many are hopeful that the Paris meeting will result in a new global climate change agreement.

13  Governor Brown, “International Leaders Form Historic Partnership to Fight Climate Change.” Accessed May 15, 2015 at under2mou.org/?page_id=447.

Regulating Hazardous Waste and Toxic Substances

Most of us want to enjoy the products that technology has developed, but what price are we willing to pay for these amenities?

Comparative Law Corner Solar Energy in Germany

Germany has determined that the fossil fuel-based energy system is not sustainable; thus, it has adopted an impressive new policy, called Energiewende, that has as its goal the generation of 80 percent of the nation’s electricity from renewable energy sources by 2050. To attain this goal, Germany has had to move quickly. By the end of 2012, Germany had installed considerably more solar power capacity per capita than any other country, and in the first quarter of 2014, renewable energy sources met a record 27 percent of the country’s electricity demand due to additional installations and favorable weather. It remains to be seen whether Germany can meet its goals, but the huge growth in renewable energy in the country is a good illustration of how governmental policy can be effective in improving environmental conditions. Germans view their approach as an important step in fighting global climate change.

Solar panels on house after house in Germany are helping the nation work toward accomplishing its goal of developing a sustainable economy.

Until the mid-1970s, most people were content to take advantage of newly available products without giving much thought to the by-products resulting from their manufacture. Most businesspeople were primarily concerned about creating new products and using new technology to increase production and profits. Then came a growing awareness of the potential health and environmental risks posed by the waste created in the production process. In addition to the problems created by waste, some of the new products themselves (and their newly created chemical components) were proving to be harmful.

The potential health risks from these chemicals and wastes include a plethora of cancers, respiratory ailments, skin diseases, and birth defects. Environmental risks include not only pollution of the air and water but also unexpected explosions and soil contamination. Species of plants and animals may be threatened with extinction.

During the mid-1970s, Congress began to take a closer look at regulating waste and toxic materials. One of the problems that regulators face in this area, however, is a lack of scientific knowledge concerning the impact of many chemicals on human health. We know that exposure to many chemicals causes cancer in laboratory animals. We are unable, however, to ascertain the impact of each increment of exposure. For example, we know that saccharin in some quantity can cause cancer in humans, but we do not know what quantity or whether especially sensitive persons may be affected by substantially smaller amounts. Congress has responded to these and related problems in a variety of ways.

Four primary acts are designed to control hazardous waste and toxic substances: (1) the Resource Conservation and Recovery Act of 1976; (2) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980; (3) the Toxic Substances Control Act of 1979; and (4) the Federal Insecticide, Fungicide, and Rodenticide Act of 1972.

The Resource Conservation and Recovery Act of 1976

The Resource Conservation and Recovery Act of 1976 (RCRA) regulates both hazardous and nonhazardous waste, with the primary emphasis on control of hazardous waste. The focus of the act is on the treatment, storage, and disposal of hazardous waste (see  Exhibit 22-2 ). The reason for this focus was the belief that it was not necessarily the creation of waste that was the problem, but rather the improper disposal of such waste. Also, it was hoped that making firms pay the true costs of safe disposal would provide the financial incentive for them to generate less waste.

The Manifest Program

 The best-known component of the RCRA is its  manifest program , which is designed to provide “cradle-to-grave” regulation of hazardous waste. A waste may be considered hazardous and, thus, fall under the manifest program in one of three ways. First, it may be listed by the EPA as a hazardous waste. Second, the generator may choose to designate the waste as hazardous. Finally, according to the RCRA, a  hazardous waste  may be “garbage, refuse, or sludge or any other waste material that has any one of the four defining characteristics: ignitability, corrosivity, reactivity, or toxicity.”

manifest program

A program that attempts to see that hazardous wastes are properly transported to disposal facilities licensed by the EPA so that the agency will have an accurate record (manifest) of the location and amount of all hazardous wastes.

hazardous waste

Any waste material that is ignitable, corrosive, reactive, or toxic when ingested or absorbed.

Once a waste is designated as hazardous, it falls under RCRA’s manifest program. Under this program, generators of hazardous waste must maintain records called manifests. These manifests list what amount and type of waste is produced, how it is to be transported, and how it will ultimately be disposed of. Some wastes cannot be disposed of in landfills at all. Others must receive chemical or biological treatment to reduce toxicity or to stabilize them before they can be deposited in landfills. If the waste is transported to a landfill, both the transporter and the owner of the disposal site must certify their respective sections of the manifest and return it to the creator of the waste. The purpose of these manifests is to provide a record of the location and amount of all hazardous wastes and to ensure that such waste will be properly transported and disposed of.  Exhibit 22-3  shows the hazardous waste manifest trail. An electronic

Exhibit 22-2 What is a Hazardous Waste?

Exhibit 22-3 The Hazardous Waste Manifest Trail

Source: EPA, Environmental Programs and Challenges: EPA Updates (Washington, DC: EPA, August 1988), 88.

hazardous waste manifest trail is currently being developed to increase the safety of hazardous waste disposal.

All firms involved in the transportation and disposal of hazardous waste must be certified by the EPA in accordance with standards established under RCRA. Every year, approximately 12 million tons of hazardous waste are transported for treatment, storage, or disposal.

RCRA Amendments of 1984 and 1986

 Congress amended RCRA in 1984 and 1986. The primary effect of the amendments was to make landfills (or hazardous waste dumps) a last resort for the disposal of many types of waste. Advanced treatment, recycling, incineration, and other forms of hazardous waste treatment are all assumed to be preferable to land disposal. Some wastes were banned entirely from landfill disposal.

The 1986 amendment requires that companies report the amount of hazardous chemicals they release into the environment each year. From 1997 to 2001, RCRA reported a decrease in overall chemical emissions each year, but in 2004, toxic chemical emissions increased 5 percent over the previous year; this included a 3.4 percent increase in lead emissions and a 10 percent increase in mercury emissions. Environmental groups blame the lax standards of the Bush administration for the increase in toxic chemicals released into the environment. 14

14  Juliet Eilperin, “Toxic Emissions Rising, EPA Says,” Washington Post (June 23, 2004), A-2.

Enforcement of RCRA

 RCRA is enforced by the EPA. States, however, may set up their own programs as long as these programs are at least as stringent as the federal program. The EPA gives any state that has taken the responsibility for regulating its hazardous wastes the first opportunity to prosecute violators. This procedure is consistent with the EPA’s enforcement of other environmental laws.

If the state fails to act within 30 days, the EPA takes action to enforce the state’s requirements. The EPA may issue informal warnings; seek temporary or permanent injunctions with criminal penalties of up to $50,000 per day of violation, civil penalties of up to $25,000 per violation, or both; or impose other penalties that the EPA administrator finds appropriate.

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, As Amended By The Superfund Amendment and Reauthorization Act of 1986

If the manifest program is followed, waste will be disposed of properly and there will be no more contaminated waste sites. Before RCRA was enacted, however, there was extensive unregulated dumping. Something had to be done to take care of cleaning up the sites created by improper disposal.  Exhibit 22-4  shows some of the risks posed by these sites.

To alleviate the problems created by improper waste disposal, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) authorized the creation of the  Superfund , primarily from taxes on corporations in industries that create significant amounts of hazardous waste. Additional funding also came from appropriations from the general fund; fines, penalties, and recoveries from responsible parties; and interest accrued on the balance of the fund. The money in Superfund was then used by the EPA or state and local governments to cover the cost of cleaning up leaks from hazardous waste disposal sites when their owners could not be located or were unable or unwilling to pay for the cleanup. Superfund also provides money for emergency responses to hazardous waste spills other than oil spills. When an owner is found after a cleanup or was initially unwilling to pay, the EPA may sue to recover the costs of the cleanup.

Superfund

A fund authorized by CERCLA to cover the costs of cleaning up hazardous waste disposal sites whose owners cannot be found or are unwilling or unable to pay for the cleanup.

Under CERCLA, liability for cleanup extends beyond the immediate owner. So-called potentially responsible parties who also may be held liable include (1) present owners or operators of a facility where hazardous materials are stored, (2) owners or operators at the time the waste was deposited there, (3) the hazardous waste generators, and (4) those who transported hazardous waste to the site.

Successful actions under CERCLA to recover costs have been less frequent than originally hoped. The fund was intended to be self-replenishing but has not been. Thus, CERCLA was amended in late 1986 by the Superfund Amendment and Reauthorization Act of 1986 (SARA). These amendments provided more stringent cleanup requirements and increased Superfund’s funding to $8.5 billion, to be generated primarily by taxes on petroleum, chemical feedstocks, imported chemical derivatives, and a new “environmental tax” on corporations. Additional money was to come from general revenues, recoveries, and interest.

The future of Superfund, however, remains in question. The taxes on chemical and petroleum companies used to support Superfund cleanups expired in

Exhibit 22-4 Environmental or Public Health Threats Requiring Superfund Emergency Actions

Source: Office of Emergency and Remedial Response (Superfund), U.S. EPA, reprinted in Environmental Programs and Challenges: EPA Updates (EPA, August 1988), 96.

1995 and require reauthorization from Congress. Consequently, in 2003, the fund was depleted of any money from the chemical or petroleum industries, shifting the cleanup burden primarily to the taxpayers through allocations by Congress from the general fund. 15  Because Superfund is no longer funded by polluter and industry dollars, the completion of Superfund cleanups has declined significantly because the fund is now primarily dependent on annual allocations from the general fund. Environmentalists warn that without a renewal of the tax on chemical and petroleum industries, Superfund will not be able to treat many of the nation’s most polluted sites, and in 2010, the EPA seemed to support their position, estimating that the cost of cleanup was increasing beyond the current funding needed for Superfund sites.

15  General Accounting Office, Superfund Program: Current Status and Future Fiscal Challenges, GAO/RECD-03-850, July 2003.

A temporary upswing in cleanups did occur as a result of a $600 million allocation to the Superfund from the American Recovery and Reinvestment Act of 2009 (the federal “stimulus” designed to create jobs and improve the economy). The beginning of construction at 26 new Superfund sites increased operations at another 25 ongoing cleanups, and completion of projects at over 20 sites as a consequence of this injection of money, has been cited by some as evidence for the reinstitution of the tax on the chemical and petroleum industries. 16

16  Braunson Virjee, “Stimulating the Future of Superfund: Why the American Recovery and Reinvestment Act Calls for a Reinstatement of the Superfund Tax to Polluted Sites in Urban Environments,” Sustainable Development Law & Policy 11, no. 1, article 12. Available at http://digitalcommons.wcl.american.edu/sdlp/vol11/iss1/12.

To see whether any of these Superfund sites are near you, go to www.epa.gov /superfund/sites/index.htm and use the EPA’s interactive map of Superfund sites.

Applying the law to the facts . . .

Bob owns a rather large piece of property that is in an area zoned for industrial use. He sells the property for a price that is significantly below market value. When his friend Rodney asks why he unloaded the property so quickly for such a low price, he explains that when he first purchased the property, some people were paying the former owner to allow them to dump stuff in an unused area in the back. He continued to pick up extra cash that way for a couple of years, but then decided that the stuff was starting to smell. So he was going to cover it all up so that he could put a building on top of the area. He never did construct the building, but he did level the land so that the area was ready to be used for a building. Then he worried that some of what was dumped might be hazardous waste and he could have actually owned a future Superfund site. By selling the property before it was declared a Superfund site, he believed he could save himself quite a bit of money since the new owner would be the one who was liable. Is Bob correct? Why or why not?

The Toxic Substances Control Act of 1979

Toxic substances are integral parts of some products that we use every day. Neither RCRA nor CERCLA regulates these substances. The Toxic Substances Control Act (TSCA) attempts to fill this regulatory gap. It attempts to ensure that the least amount of damage will be done to human health and the environment while allowing the greatest possible use of these substances.

The term toxic substances has not been clearly defined by Congress. By reviewing the types of substances regulated under TSCA, however, one would probably conclude that a  toxic substance  is any chemical or mixture whose manufacture, processing, distribution, use, or disposal may present an unreasonable risk of harm to human health or the environment. This broad definition encompasses a large number of substances. Thus, control of these substances is a major undertaking.

toxic substance

Any chemical or mixture whose manufacture, processing, distribution, use, or disposal presents an unreasonable risk of harm to human health or the environment.

The primary impact of TSCA comes from its procedure for evaluating the environmental impact of all chemicals, except those regulated under other acts. Under TSCA, every manufacturer of a new chemical must give the EPA a premanufacturing notice (PMN) at least 90 days before the first use of the substance in commerce. The PMN contains all the available data and test results showing the risk posed by the chemical, although no amount or type of data is specifically required. The EPA then determines whether the substance presents an unreasonable risk to health or whether further testing is required to establish the substance’s safety. The manufacture of the product is banned when the risk of harm is unacceptable. If the EPA determines that the supplied data is insufficient to determine that the product is safe, then more testing can be required, and a manufacturer of the product must wait until the tests have been satisfactorily completed. Otherwise, manufacturing may begin as scheduled.

Applying the law to the facts . . .

Belinda wants to start importing a chemical for use in a new product she hopes to manufacture, but she is concerned because not much research has been published about the safety of the chemical. In fact, there has been only one blind-reviewed study of side effects of the chemical, and that one was inconclusive. “Don’t worry, her friend reassures her. All you have to do when filling out the PMN is submit what data are available. If there are no data showing that the chemical presents an unreasonable risk, then the EPA has to approve the chemical.” Is her friend right? Why or why not?

The Federal Insecticide, Fungicide, and Rodenticide Act of 1972

One category of toxic substances that has been singled out for special regulatory treatment is  pesticides , which are defined as substances designed to prevent, destroy, repel, or mitigate any pest or to be used as a plant regulator or a defoliant. Insecticides, fungicides, and rodenticides are all forms of pesticides.

pesticide

Any substance designed to prevent, destroy, repel, or mitigate any pest or to be used as a plant regulator or defoliant.

Pesticides are obviously highly important to us. Their use results in increased crop yields. Some pesticides kill disease-carrying insects. Others eradicate pests, such as mosquitoes, that simply cause us discomfort. Yet, pesticides have harmful side effects; they may cause damage to all species of life. A pesticide that does not degrade quickly may be consumed along with the crops on which it was used, potentially harming the consumer’s health. The pesticide may get washed into a stream to contaminate aquatic life and animals that drink from the stream. Once the pesticide gets into the food chain, it may do inestimable harm.

In 1972, FIFRA created the registration system that is used to control pesticide use. To be sold in the United States, a pesticide must be registered and properly labeled. A pesticide will be registered when (1) its composition warrants the claims made for it; (2) its label complies with the act; and (3) the manufacturer provides data to demonstrate that the pesticide can perform its intended function, when used in accordance with commonly accepted practice, without presenting unreasonable risks to human health or the environment.

A pesticide with general use registration can be sold without any restrictions. A restricted use registration will be granted if the pesticide will not cause an unreasonable risk only if its use is restricted in some manner. Typical restrictions include allowing the pesticide to be used only by certified applicators or allowing it to be sold only during certain times of the year or only in certain regions of the country or only in certain quantities.

Registration is good for five years, at which time the manufacturer must apply for a new registration. If at any time prior to the end of the registration period the EPA obtains evidence that a pesticide poses a risk to human health or the environment, the agency may institute proceedings to cancel or suspend the registration.

The EPA believes that progress under FIFRA has been significant, although there are critics of the act. In fiscal year 2006 alone, 297 product registrations were canceled as a result of FIFRA. 17

17  Environmental Protection Agency, Board of Scientific Counselors, National Center for Environmental Research (NCER) Standing Subcommittee-2007, Federal Register (Aug. 22, 2007). Accessed March 15, 2008 at www.epa.gov/fedrgstr/EPA-PEST/2007/August/Day-22/p16560.pdf.

Pesticide Tolerances in Food

 Under the Federal Food, Drug, and Cosmetic Act (FFDCA), the EPA establishes legally permissible maximum amounts of pesticide residues in processed food or in animal products such as meat or milk, as well as on food crops such as apples and tomatoes. Before a pesticide can be registered, an applicant must obtain a tolerance for that pesticide. To obtain the tolerance, the applicant must provide evidence of the level of residue likely to result and data to establish safe residue levels. Under the 1996 Food Quality Protection Act, a safe residue level is a level at which there is a “reasonable certainty of no harm” from exposure to the pesticide. The law also requires distribution of a brochure on the health effects of pesticides.

The Pollution Prevention Act of 1990

Tremendous gains have been made through the laws described in the preceding sections, but it has become more costly to get increasingly smaller reductions of pollutants. Whereas initially a $1 million expenditure on end-pipe controls might have reduced emissions by 80 percent, today that same investment is likely to result in only a 5 percent reduction.

Recognition of this decline in the effectiveness of direct regulation and the consequent need to look for alternative approaches to pollution problems led to passage of the Pollution Prevention Act of 1990, in which Congress set forth the following policy:

Pollution should be prevented or reduced at the source whenever feasible; pollution that cannot be prevented should be recycled in an environmentally safe manner, whenever feasible; pollution that cannot be prevented or recycled should be treated in an environmentally safe manner whenever feasible; and disposal or other release into the environment should be employed only as a last resort and should be conducted in an environmentally safe manner.*

The government’s role in encouraging this policy is one of providing a “carrot” as opposed to the “stick” of direct end-pipe regulations. The federal government is providing states with matching funds under the act for programs to promote the use of source reduction techniques for business. A clearinghouse has been established to compile the data generated by the grants and to serve as a center for source reduction technology transfer.

Business Aspects of Voluntary Pollution Prevention

Despite the voluntary nature of actions under this act, pollution prevention is becoming an important concept in business today. Chemical companies, for example, are beginning to see waste as avoidable and inefficient and are looking for ways to change their production processes to reduce the amount of waste they create. Examples abound of firms that are jumping on the pollution prevention bandwagon. For example, DuPont, America’s largest producer of chemicals, voluntarily cut its greenhouse gas emissions by more than 50 percent from its 1991 levels.

Whether it is the increasing cost of waste disposal, a fear of stricter direct regulations, public pressure for firms to be “greener,” or the federal government’s new emphasis on pollution prevention, firms are changing their attitudes toward the environment. Whether this trend toward voluntary source reduction will continue remains to be seen.

Sustainable Development

Along with a shift toward pollution prevention, we have seen a shift from concern about simply being in compliance with environmental regulations toward a concern about sustainability or sustainable development. Sustainable development, a term coined in 1987, refers to development that meets the needs of the current generation without compromising the needs of future generations.

Sustainability, however, goes beyond just environmental matters. Firms talk about maintaining their “triple bottom line,” which refers to looking not just at profit, but at profit, people, and the planet. In other words, firms concerned about sustainable development want to evaluate their performance in broader terms than just making a profit; they also evaluate treating employees fairly and reinvesting in the communities in which they live or are located, as well as minimizing the firm’s ecological impact. Triple-bottom-line accounting attempts to describe the social and environmental impact of an organization’s activities, in a measurable way, in relation to the firm’s economic performance, although at this time, the idea is still not well developed or widely used.

Global Dimensions of Environmental Regulation

The Need For International Cooperation

In most areas of regulation, the United States first enacted national legislation and only later, if at all, considered the worldwide implications of the problem that the law was enacted to resolve. Nevertheless, its first major piece of environmental legislation, the NEPA, addressed the global nature of environmental problems. The act instructed the federal government to recognize the worldwide and long-range character of environmental problems and, when consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of the world environment.

The Transnational Nature of Pollution

International cooperation on environmental matters is essential because environmental problems do not respect national borders. There are three primary means by which environmental problems originating in one area of the globe affect

Linking Law and Business Marketing and Management

In your marketing or management class, you may have learned about environmental sustainability, which is a management approach that focuses on sustaining the environment and still generating profits for a firm. As firms advance toward environmental sustainability, there are four levels that companies examine to gauge their progress.

The first and most basic level is pollution prevention. As already discussed in the previous section, this involves the prevention or reduction of waste before it is created. Companies that are highlighting pollution prevention often use “green marketing” plans by developing environmentally friendly packaging, better pollution controls, and ecologically safer products.

The second level in environmental sustainability is product stewardship, which extends the focus from production creation to the entire product life cycle. At this level, firms often implement design for environment (DFE) policies that consider future consequences of the firm’s products. Consequently, firms are taking measures to find more efficient ways of recovering, reusing, or recycling their products.

The third level is new environmental technologies. Because some companies that have already progressed in pollution prevention and product stewardship are limited by available technologies, new technologies are sometimes needed to meet their environmental goals.

The fourth level of environmental sustainability is sustainability vision, in which organizations develop a guide for their firms’ future methods of environmental responsibility. This vision provides a framework for pollution control, product stewardship, and environmental technology.

By focusing on these four levels of environmental sustainability, there is a greater likelihood that firms using this management approach will promote the goals of environmentalists, which, it is hoped, will result in a greener and safer planet. In addition, these organizations will potentially be at less risk of litigation for unsafe practices and will, therefore, maintain a more positive image with the general public.

Source: P. Kotler and G. Armstrong, Principles of Marketing, 12th ed. (Upper Saddle River, NJ: Prentice Hall, 2008), 582–85.

other areas: (1) movement of air in prevailing wind patterns, (2) movement of water through ocean currents, and (3) active and passive migration of numerous species of plants and animals.

Scientists have discovered that air tends to circulate within one of three regional areas, or belts, that circle the globe north and south of the equator. For example, between the latitudes 30°N and 60°N of the equator, the prevailing air currents are the westerly winds. Thus, the air between these latitudes circulates in a westerly direction all around the globe, remaining primarily within those latitudes.

The United States and China both have much of their land masses within these two latitudes. As a result, pollutants emitted into the air in the United States may be carried by these westerly winds to China, just as pollutants emitted into the air anywhere between 30°N and 60°N of the equator anywhere in the world may ultimately end up in the air above the United States. Consequently, the United States could have extremely strict air pollution laws, yet still have polluted air as a result of other countries’ emissions. Likewise, our failure to enact adequate air pollution control laws can adversely affect air quality in other countries. Canada, for instance, attributes some of its pollution problems to the failure of the United States to enact stricter control on sulfur dioxide emissions.

A similar situation exists with respect to the flow of water, except that the regions are not as clearly defined. All ocean currents ultimately connect with one another, so a pollutant discharged into any body of water that flows into an ocean may end up having a negative impact on water quality hundreds of miles away from the country in which it was dumped.

The migration of birds and animals also spreads pollutants. Many animals, such as geese, whales, salmon, seals, and whooping cranes, travel across national borders seasonally. If an animal ingests a hazardous chemical in one country, travels to another country, and is eaten by an animal in that country, that pollutant has now been inserted into the food web in the second country.

The Global Commons

Another closely related reason for international cooperation on environmental matters is that many of the planet’s resources, such as the oceans, are within no country’s borders and are, therefore, available for everyone’s use. Because of this availability, these resources are often called the global commons. Because everyone has access to them, they are susceptible to exploitation and overuse. Cooperation to protect these global resources is the only way to preserve them.

Primary Responses of The United States

The United States has played a role in establishing global environmental policies in four primary ways: (1) research, (2) conferences, (3) treaties, and (4) economic aid. Unfortunately, to date, these responses have not been extremely successful, nor has there been a major commitment of U.S. resources to the resolution of transnational environmental problems.

Research

 Research, the results of which are shared with other nations, is the typical U.S. response to international environmental issues. For example, in response to international concerns about changes in environmental conditions, the U.S. government sponsors research in universities and in federal laboratories by various governmental agencies. Some critics argue that we need to commit more money to research. Others claim that we use research as an excuse for inaction. Many environmentalists view a “commitment to research” as a stalling technique to prevent the imposition of needed controls.

Conferences

 Conferences to discuss specific transnational environmental problems are often held; many are arranged through the United Nations. The first such conference was the United Nations Conference on the Human Environment, held in Stockholm in 1972. Similarly, in 1992, delegates from more than 120 nations met in Rio de Janeiro for the United Nations Conference on Environment and Development, commonly referred to as the Rio Earth Summit. Marking the 10-year anniversary of the Rio Earth Summit, more than 100 heads of state from around the world gathered for the Johannesburg Earth Summit during the summer of 2002 to discuss global climate change and sustainable development. These conferences serve primarily to promote an understanding of the global implications of environmental problems. Often, these conferences lead to the negotiation of treaties designed to help resolve environmental problems.

Treaties

 Treaties are written agreements between two or more nations that specify how particular issues are to be resolved. The process of accepting a treaty varies from country to country. In the United States, a treaty must be negotiated and signed by a representative of the executive branch, generally the president. Then it must be approved by two-thirds of the U.S. Senate. Implementation of a treaty generally requires the passage of federal legislation that translates the objectives of the treaty into laws.

The United States has entered into numerous bilateral (signed by only two nations) and multilateral (signed by more than two nations) treaties, sometimes called conventions, in the area of environmental protection. One of the more successful multilateral treaties the United States has signed is the Montreal Protocol. Originally signed by 24 nations and the European Community on September 16, 1987, the Montreal Protocol on Substances That Deplete the Ozone Layer ultimately led to an elimination of the production of ozone-depleting chlorofluorocarbons (CFCs) by January 1, 1996. A series of summits concerning the problem of ozone depletion has taken place since that initial meeting, and nations continue to amend the treaty to restrict production of more ozone-destroying compounds as our understanding of these chemicals grows.

One of the problems with treaties, however, is that they are unenforceable when the signatories decide not to obey them any longer. Many include clauses that allow a nation to withdraw from a contract or to cease abiding by particular terms after giving notice of its intent to the other parties to the treaty.

More recently, other methods have been used to foster international environmental action. Trade agreements have started to incorporate provisions regarding environmental protection. The North American Free Trade Agreement (NAFTA), for example, included a side agreement on the environment. Although it has been called the most environmentally sensitive trade agreement ever, there is concern that this agreement may ultimately result in a lessening of environmental protection.

Aid

 A final way in which the United States affects environmental policy worldwide is by the judicious use of foreign aid, either financing pollution control projects or giving economic aid for a particular project only when certain environmentally sound conditions have been met. Some aid is also given in the form of technical assistance and training. For example, the U.S. Soil Conservation Service (SCS) provides technical assistance in soil and water conservation to many Latin American and African countries. The SCS also teaches conservation techniques to students from these countries.

Summary

There are many ways a nation can protect its environment. Some of these methods include tort law, subsidies, discharge permits, emission charges, and direct regulation. Beginning in 1970, with the passage of the NEPA, our nation began a course of environmental protection based primarily on specific direct regulations.

The FWPCA established a discharge permit system designed to make the waterways fishable and swimmable. The SDWA sets standards to make our drinking water safe. The Clean Air Act, as amended several times, establishes the NAAQS, standards designed to ensure that conventional air pollutants do not pose a risk to human health or the environment. This act also establishes standards for toxic air pollutants.

Hazardous wastes and toxic substances are regulated primarily by four pieces of legislation. The RCRA sets standards for waste disposal sites and establishes the manifest system for the tracking of hazardous wastes from creation to disposal. CERCLA, as amended by SARA, provided funding and a mechanism for cleaning up hazardous waste sites. The TSCA provided a mechanism for testing new chemicals to ensure that they do not pose unreasonable risks before being used in commerce. Finally, FIFRA established a procedure for the regulation of pesticides through a registration system.

The newest trend in the environmental area is toward pollution prevention. This trend is encouraged by the Pollution Prevention Control Act of 1990.

Solving environmental problems requires cooperation among all nations. Four ways in which the United States works to solve these problems on a global scale are through shared research, conferences, treaties, and aid.

Review Questions

1. 22-1 Explain the common-law methods of resolving pollution problems and evaluate their effectiveness.

2. 22-2 Explain the circumstances under which an environmental impact statement must be filed and describe the statement’s required content.

3. 22-3 Explain how emission charges and discharge permits could be used to help control pollution.

4. 22-4 Present the arguments of those who would abolish the use of the EIS. How would you evaluate those criticisms?

5. 22-5 Describe the structure of the amended FWPCA and explain how each element of the act is designed to further the goals of the FWPCA.

6. 22-6 Compare the structure of the FWPCA with that of the Clean Air Act.

Review Problems

1. 22-7  The defendant operated a mining company. Because he used improper drainage techniques, drainage of pollutants from his mining operation contaminated the private water supplies of the plaintiff property owners located downstream from him. What legal theories would the plaintiffs use to sue the defendant? Would the plaintiffs be likely to win their lawsuit? Why or why not?

2. 22-8  The lead industry challenged the EPA’s establishment of a primary air quality standard for lead that incorporated an “adequate margin of safety.” In setting the standard, the EPA had not considered the feasibility or the cost of meeting the standards. Must the EPA take such factors into consideration in setting primary air quality standards?

3. 22-9  Ohio’s SIP was submitted to the EPA. Approval of a portion of the plan was denied because it was not adequate to ensure the attainment and maintenance of the primary standard for photochemical oxidants in the Cincinnati area. The EPA supplemented the Ohio plan with a provision requiring a vehicle inspection and registration procedure for the Cincinnati area. Cincinnati set up the requisite inspection facilities but refused to withhold registration from those vehicles failing the inspection. The EPA sought an injunction ordering Ohio to implement “as written” the inspection and registration procedure described in the plan. Was the injunction granted? Explain.

4. 22-10  The Idaho EPA, in developing its SIP, determined that the maximum sulfur dioxide emissions that could be captured from zinc smelters with the currently available technology was 72 percent. The state consequently adopted that standard for zinc smelters under the SIP. The federal EPA refused to accept that part of the SIP and promulgated an 82 percent standard. Did the federal EPA have authority to make such a change in the SIP? Why or why not?

5. 22-11  As a cleaning agent in its production process, Kantrell Corporation uses about 50 gallons a day of a highly corrosive acid. It collects the used acid and funnels it through a pipe into a pond located on company property; the pond was dug to serve as a place in which to dispose of the acid and other wastes that could not be incinerated or recycled. Is Kantrell violating any federal environmental regulations? Explain.

6. 22-12  The defendant operated a plant that had refined coal tar for 55 years. It had disposed of its wastes on the site. After the plant closed, the land was purchased by a municipal housing authority. The wastes buried on the site leaked into the groundwater, contaminating the drinking water of nearby cities. The state and the municipalities spent considerable sums of money cleaning up the site. The U.S. government joined the suit, seeking to hold the defendant liable under CERCLA. Was the defendant responsible even though it no longer owned the dump site? Explain.

Case Problems

1. 22-13  A nonprofit conservation organization, Western Watersheds Project, filed a lawsuit challenging the Bureau of Land Management’s (BLM) decision to grant a 10-year grazing permit for four federal public land allotments for violating the NEPA. In deciding to grant the permits, the BLM had filed an EA, but had not included in the EA a discussion of the “no action” alternative. The organization argued that the EA was defective without a discussion of the effects of the no action alternative. The BLM believed that it did not need to discuss the “no action” alternative because it was relying on the previously prepared Resource Management Plan to determine that elimination of grazing was not viable or was not a necessary option. The BLM noted that it had also examined two other alternatives. The District Court granted the BLM summary judgment. How do you believe the Court of Appeals ruled in this case? Why? Western Watersheds Project v. Bureau of Land Management, 721 F.3e 1264 (2013) CA 10 (Wyo.), 2013 WL3801818.

2. 22-14  An insurer, Chubb Custom Insurance Company, sought recovery of insurance payments made to its insured, the defendant, Space Systems/Loral, Inc., for environmental response costs incurred from cleaning up pollutants. The plaintiff insurer sought this recovery by asserting claims of CERCLA. The district court held that the insurer lacked standing to sue because it had not become statutorily liable for response costs under CERCLA. The district court dismissed the insurer’s claim of CERCLA, and the plaintiff insurer appealed. Do you agree with the decision of the district court? Why or why not? Do you think the appellate court affirmed or reversed the decision of the district court? Why? Chubb Custom Ins. Co. v. Space Systems/Loral, Inc., 788 F. Supp. 2d 1017 (9th Cir. 2013).

3. 22-15  From 1979 to 2005, AVX Corporation leased 27 acres of property, referred to as “Horry Land Property.” The plaintiff, AVX Corporation, claimed that the U.S. operations at the airfield during World War II caused TCE contamination on all of the real estate parcels that the airfield formerly encompassed, including the Horry Land Property. AVX Corporation sued the United States under CERCLA to recover costs it incurred after cleaning up the Horry Land Property in Myrtle Beach, South Carolina. The United States then filed a counterclaim for equitable contribution under CERCLA. The district court concluded that the United States did not contribute to any contamination on the property. The plaintiff, AVX Corporation, appealed. How do you think the appellate court ruled? Why? What evidence do you think the appellate court would need to reverse the decision of the district court and conclude that the United States did contribute to the contamination on the property? AVX Corp. v. United States of America, 2013 U.S. App. LEXIS 2762 (2013).

4. 22-16  Sonat operated a natural gas company that included multiple compressor stations along a pipeline that spanned from Texas to Georgia. Many of the compressor stations included mercury metering. Sonat also used the lubricating oil Pydraul in the compressor engines at the stations. In 1989, Sonat discovered that this lubricating oil contained the toxic chemical polychlorinated biphenyl (PCB). Sonat tried to find solutions to remove Pydraul from the compressor stations. It was further discovered that Sonat’s mercury-metering stations were discharging mercury along the pipeline. In 1992, the EPA notified outside gas pipeline companies that Sonat’s mercury meters were leaking. Sonat conducted multiple remedial activities at its various mercury stations to prevent migration of mercury into groundwater. The business then received umbrella and excess-liability insurance policies from LMI Insurers. LMI later argued that Sonat’s cleanup costs were not “damages” that LMI was obligated to pay because Sonat’s cleanup projects were an “internal business decision and not the result of any compulsory process by a court or a state or federal agency.” However, in court, LMI was required to pay Sonat’s environmental remediation costs because the Toxic Substances Control Act required Sonat to report contaminations to the EPA and Sonat’s remedial cleanup costs constituted “damages.” The insurers appealed. How do you think the appellate court ruled? Why? Certain Underwriters at Lloyd’s v. Southern Natural Gas Co., 142 So.3d 436 (Ala. 2013).

5. 22-17  In 2007, it was found that Title II of the Environmental Protection Act (EPA) “authorized EPA to regulate greenhouse gas emissions from new motor vehicles if the Agency formed a judgment that such emissions contribute to climate change.” Subsequently, the EPA began heavily regulating greenhouse gas emissions. In addition to regulating emissions from new motor vehicles, the EPA also began making stationary sources of greenhouse gases, such as factories and power plants, subject to the Act’s “Prevention of Significant Deterioration” (PSD) provisions, based on the potential of stationary sources to emit greenhouse gases. Numerous parties, including several states, challenged the EPA’s greenhouse gas-related actions by filing for petitions for review in the D.C. Circuit. The case eventually went to the U.S. Supreme Court, where it would decide if it was permissible for the EPA to determine whether its new motor vehicle greenhouse gas regulations could lead to requirements under the act for stationary sources of greenhouse gases. How do you think the Court ruled? Why? Util. Air Regulatory Group v. EPA, 134 S. Ct. 2427 (U.S. 2014).

6. 22-18  Plaintiff Violet Gallagher filed a complaint against defendant East Buffalo Township for alleged discharge of “turbid, malodorous garbage laden water” onto her property and into the Susquehanna River due to the Township’s storm water management system. The plaintiff alleged that these actions violated the federal Clean Water Act, as well as Pennsylvania’s Stormwater Management Act. What evidence would the plaintiff need to provide for the court to find that the federal Clean Air Act was violated? How do you think the court ruled? Why? Gallagher v. E. Buffalo Twp., 2013 U.S. Dist. LEXIS 123626 (M.D. Pa. 2013).

Thinking Critically about Relevant Legal Issues

As the issue of global climate change comes to the fore in international discussions and as countries attempt to find solutions for climate change, attention frequently turns to the Kyoto Protocol. By June 2007, 17 countries had signed and ratified the Kyoto Protocol. By 2011, the number of parties to the Kyoto Protocol had risen to 192. Notably absent from the list of countries is the United States, which has stated that it will not ratify the Protocol. Although some environmentalists argue that the United States should ratify, the United States is correct to refuse.

The Kyoto Protocol, although well intentioned, is doomed to fail. An analysis indicates that its goals are ineffective. Although countries that ratify the Kyoto Protocol agree to reduce their greenhouse gas emissions to pre-1990 levels, only 35 countries have agreed to cap their greenhouse gas emissions. Agreeing to a cap is not part of the treaty. Also, the Protocol exempts developing nations and instead requires developed nations to limit their greenhouse gas emissions. By not requiring developing countries to limit their emissions, those who created the treaty have permitted these countries to continue to pollute at high volumes, thus offsetting any efforts taken by developed countries.

What further makes the Kyoto Protocol ineffective is that developing countries are excluded and China is counted as a developing country. By not having to reduce its emissions, China will continue to pollute in large quantities, preventing any hope of curbing global emissions. In addition, it is unfair that China and other developing countries can pollute at will, thus avoiding engaging in costly emission reduction strategies. The ability to avoid paying to reduce emissions gives China an unfair advantage on the global market, as it can produce and sell products cheaper compared with developed countries that need to pay for emissions-reducing technology.

There is another irony in the Kyoto Protocol that China helps to exemplify. If developed nations lower their demand for fossil fuels in an attempt to reduce greenhouse gas emissions, this reduction will lower the price of fossil fuels. As fossil fuels become cheaper, developing countries, especially China, will increase their use of cheap fossil fuels, which will produce even more greenhouse gases. Exempting China means that the Protocol cannot work.

But the main reason the United States shouldn’t ratify the treaty is that it doesn’t need to. In 2012, the United States became the first industrialized nation to meet the original 2012 target for CO2 reductions. Signatories to the agreement are now being asked to commit to a new goal—to reduce GHG emissions by at least 18 percent below 1990 levels in the eight-year period from 2013 to 2020. If past behavior is a good predictor of future behavior, the United States doesn’t need to ratify any treaty; it most likely will continue reducing its emissions and meet this goal, too. The current efforts of the United States are more than enough to try to address the problem of global climate change, thus making ratifying the Kyoto Protocol unnecessary.

1. What are the issue and conclusion in this essay?

2. Does the argument contain significant ambiguity in the reasoning? Explain.

Clue:  What words or phrases could have multiple meanings?

3. Ask and answer the critical thinking question that you believe reveals the main problem with the author’s reasoning in this essay. Explain why the question you asked is particularly harmful to the author’s argument.

4. Write an essay from the viewpoint of someone who holds a different opinion from that of the essay author.

Clue:  What other ethical norms could influence an opinion about this issue?

Assignment On The Internet

Environmental protection is often a slow and arduous process because many enforcement efforts end up in the court system. Using Internet sites such as LexisNexis and www.law.cornell.edu/wex /environmental_law, find a recent court case involving a Superfund cleanup site.

What was disputed in the case? What reasons and/or laws were cited in the court’s decision? How does the information in this chapter better assist you in understanding the court’s decision? If cleanup was done, who was found responsible for the cleanup of the site? Finally, do you agree with the ethical norms that underlie the court’s decision? Why or why not?

 On The Internet

· www.epa.gov The EPA home page is a source of valuable information about the main agency responsible for protecting the environment.

· www.unep.org This is the home page of the United Nations Environmental Programme.

· sedac.ciesin.columbia.edu/entri/index.jsp This site provides lists of environmental treaties and resource indicators.

· www.epa.gov/superfund Information about the EPA’s Superfund program can be found on this site.

· www.nrdc.org The National Resource Defense Council works to prevent negative externalities that harm the environment.

· www.eere.energy.gov The U.S. Department of Energy provides information regarding renewable energy sources and explains how this type of energy can help combat pollution and global climate change.

· http://newsroom.unfccc.int/ Go to this site to find the most current information about UN action with respect to climate change.

For Future Reading

· Frederickson, Robert. “A Green Bird in the Hand: An Example of Environmental Regulations Operating to Stifle Environmentally Conscious Industry.” Boston College Environmental Affairs Law Review 34 (2007): 303.

· Inman, Kelly. “Recent Development: The Symbolic Copenhagen Accord Falls Short of Goals.” University of Baltimore Journal of Environmental Law 17 (2010): 219.

· LeBel, Mark E. “Lack of Judicial CAIR: Chevron Deference and Market-Based Environmental Regulations.” New York University Environmental Law Journal 20 (2013): 277.

· Malloy, Thomas F. “The Social Construction of Regulation: Lessons from the War Against Command and Control.” Buffalo Law Review 58 (2010): 267.

· Palassis, Stathis N. “Beyond the Global Summits: Reflecting on the Environmental Principles of Sustainable Development.” Colorado Journal of International Environmental Law and Policy 22 (2011): 41.

· Shufelt, Jennie. “New York’s CO2 Cap-And-Trade Program: Regulating Climate Change Without Climate Change Legislation.” Albany Law Review 73 (2010): 1583.

· Thompson, Aselda. “Comment: Exposing a Gap in CERCLA Case Law: Is There a Right to Recover Costs Following Compliance with an Administrative Order after Atlantic and Aviall?” Houston Law Review 46 (2010): 1679.