Environmental Law

1. WOTUS a. First rule that came out for WOTUS: 1975 - EPA/Corps - expanded beyond navigable waters to include: 1) Tributaries of NW 2) Interstate waters and their tributaries 3) Non-navigable intrastate waters whose use or misuse could affect interstate commerce 4) Wetlands adjacent to above waters b. 1977 - 404 context - Congress amended act to exempt certain activities, not waters 1) Normal farming, silvicultural, and ranching activities c. Unsettled law: what if a river only flows for part of the year bc of snow melt? d. List of cases WOTUS cases 1) 1985 - Riverside Bayview a) US v. Riverside Bayview Homes, Inc. b) Should navigable water include wetlands adjacent to truly navigable waters? c) Court defers to the agencies A) Hard to know where wet and dry begins B) Deferred to corps ecological judgment that adjacent wetlands are "inseparably bound up" with the waters to which they are adjacent C) Broad objective of CWA is to maintain and improving water quality and protecting aquatic ecosystems D) What does "navigable" mean in the context of the CWA? (we can stretch it...at the time, didn't define it, but acknowledged it can be stretched)

1) 1986 - New regulations - new WOTUS rule a) Traditional interstate navigable waters b) "all interstate waters including interstate wetlands" c) "all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce" d) "tributaries of such waters" e) "wetlands adjacent to such waters and tributaries (other than waters that are themselves wetlands" A) The regulation defines "adjacent" wetlands as those "bordering, contiguous to, or neighboring" water of the US B) It specifically provides that "wetlands separated from other waters of the US by man-made dikes or barriers, natural river berms, beach dunes and the like are adjacent wetlands" C) This language is still being challenged today (by Sacketts) 2) 2001 - SWANCC 3) 2006 - Rapanos (this is messy - plurality opinion) 4) 2008 - Bush Guidance interpreting Rapanos 5) 2015 - Obana regulations - significant Nexus 6) 2019 - Trump Regulations - Scalia test (complete disaster) 7) Pascua Yaqui Tribe v. EPA a) Challenge to the 2020 Trump Rule A) 2015 Rule based on science B) 2020 rule based on policy/politics b) Remand c) Vacate d) Effect? A) Does D Ct opinion have nationwide effect? B) EPA/Corps- will apply pre- 2015 rule C) For now, we're back to Rapanos 8) ? - Biden regulations a. 1975 - EPA/CORPS - expanded beyond navigable waters to include: 1) Tributaries of NW 2) Interstate waters and their tributaries 3) Nonnavigable intrastate waters whose use or misuse could affect interstate commerce (like the great salt lake) 4) Wetlands adjacent to above waters b. 1977 - 404 context - Congress amended act to exempt certain activities, not waters 1) Normal farming, silvicultural, and ranching activities

a. In-class notes 1) How do we protect the environment for everyone? (some criticisms about environmentalism in general) 2) One maj criticism is that it has been a movement of rih white people. Dakota access pipeline protests advocated for indigenous rights. 3) Sierra Club - see slide. People questioned if they were the group that should be doing environmental legal work anymore 4) Kardashian issue: water co wants to put restrictive water meters on them, bc a fine, to them, means nothing b. Environmental justice tools? 1) U.S. Constitution, 14th Amendment a) Environmental case law is sparse at best 2) Washington v. Davis (1976) a) African-Americans failing police test at much higher rates than whites b) "Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination." 3) Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) a) Rezoning request denied by low/moderate income housing development in a rich neighborhood. b) Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. 4) Executive Order 12,898- Clinton 1994 a) Applies to the actions of Federal agencies (executive branch) b) Disclaims intent to create private rights c) Tool to persuade, but not compel 5) A general issue with all of these: causation

1) In-class notes a) How can we protect against decisions that are affecting communities differently, esp marginalized communities. These are a handful of tools we could use: A) 1) US constitution, 14th amendment (environmental case law is sparse at best) B) 2) Washington v. Davis (1976) (African-Americans failing police test at much higher rates than whites. "disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.") (basically: courts will be concerned about impact, but we won't say it's the end all be all) C) 3) Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) (dealt with rezoning request that was denied by low/moderate income housing developmentnt in a rich neighborhood. They were denied, said that there was racial development. Court said that proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause) D) 4) Executive Order 12,898 - Clinton 1994 (applies to the actions of federal agencies (executive branch). Disclaims intent to create private rights. Tool to persuade, but not compel. Is confined to the exec branch. b) Causation will be a big thing when arguing for environmental justice. Proving an environmental harm is hard.

a) Functional Equivalent Test A) Factors: Time and distance would be the most important Other relevant factors: The nature of the material through which the pollutant travels The extent to which the pollutant is diluted or chemically changed as it travels The amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source The manner by or area in which the pollutant enters the navigable waters; and The degree to which the pollution (at that point) has maintained its specific identity b) District court on remand (the Maui case) A) Factors considered: Transit time and distance traveled Amount of wastewater Impact to the ecosystem After completing its analysis, the district court ultimately concluded that the county must obtain a permit under the CWA

1) Plaza Health a) Point source "means any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term doesn't include agricultural stormwater discharges and return flows from irrigated agriculture." Guy says that nothing under this definition says that he can be a point source. b) Facts: owner of a blood testing facility decided that a good way to dispose of his blood testing vials was to put it on a pilon and let the waters of NJ wash it out to sea. c) Ct: we'll concede that people don't fit in the definition of point source. d) Second circuit: a human cannot be a point source. e) Definition of pollutant (everybody agreed this counted as pollutant): "pollutant means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954), heat, wrecked, or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." 1. National Cotton Council of America v. US EPA (6th Cir. 2009) a. What is being challenged? b. Do we have: 1) Point source 2) Navigable waters 3) Addition of a pollutant a) Chemical pesticides b) Biological pesticides 4) Role of timing c. Pollutant "means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.

a) Applicability - aka, what you need in order to trigger new source review A) Stationary source B) New or modified source C) "Major" source D) Covered pollutant b) Stationary source A) • General: "major stationary source" and "major emitting facility" mean any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant - 7602(j) • NSPS: "stationary source" means any building, structure, facility, or installation which emits or may emit any air pollutant. Nothing in subchapter II of this chapter relating to nonroad engines shall be construed to apply to stationary internal combustion engines. 7411 c) New or modified source - CAA 111(a)/42 US 7411(a) A) "new source" means any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source. B) Modification means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted. d) What is considered an "air pollutant" A) Nonattainment NSR - criteria pollutants - ozone, carbon monoxide, particulate matter, sulfur dioxide, lead, nitrogen dioxide Prevention of significant deterioration NSR - applies to sources that emit "air pollutants" - EPA interprets as an air pollutant regulated under other CAA programs besides hazardous air pollutants (includes mobiles sources)

1) UARG v. EPA a) Cited by WV v. EPA b) Does the mobile source provisions trigger stationary source provisions? A) Does EPA automatically have to regulate B) Does EPA have the discretion to require it if it's not required? c) Can BACT be required for "anyway" sources? d) Chevron doctrine is in play here. Under Chevron, we assume it's ambiguous. Question is whether EPA acted reasonably. e) First issue - ct breaks it up into two categories of regulation. 1) sources that don't already have a permit. All the sources that'll be looped into regulation based solely on GHG emissions. 2) Can we add GHG to people who already have permits. f) We have to consider what an "air pollutant" is depending upon which section of the CAA we are under. Look at what program you are in. g) Answer: yes, we can write in GHG in existing permits. 2) WVA v. EPA a) Can 11(d) be the basis of the clean power plan? b) New Performance Standards A) Section 111(b) requires EPA to establish emission standards for any category of new and modified stationary sources that the Administrator, in his or her judgment, finds "causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare." B) For listed source categories, EPA must establish "standards of performance" that apply to sources that are constructed, modified or reconstructed after EPA proposes the NSPS for the relevant source category. C) Once EPA has elected to set an NSPS for new and modified sources in a given source category, section 111(d) calls for regulation of existing sources with certain exceptions. D) Section 111(a)(1) provides that NSPS are to "reflect the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated." E) This level of control is commonly referred to as best demonstrated technology (BDT).

1) Assuming it is an air pollutant, can EPA decline to make an endangerment finding bc they believe it is bad policy? a) Ct says: EPA is trying to say the word "judgment" in 202 allows them to not make a decision based on policy. SCOTUS says no, that "judgment" is talking about whether or not its endangering public or welfare. That's in your judgment. Judgment doesn't mean "I don't have to do this bc I think it's the wrong time to do it." b) Can't get out of making a decision just bc you think it's bad policy to do so at this point in time. 2) EPA said they wouldn't even consider whether GHG could be regulated under 202. The case is about whether they must go back and at least consider whether it should be regulated. a) EPA said we can't be regulating China, India, so we can't regulate GHG overall. Standing issue. 3) Mass. V. EPA - Scalia dissent a) Greenhouse gases don't cause problems in the ambient air - they cause issues in the atmosphere. b) Reading of air pollution is too broad A) "Not only is EPA's interpretation reasonable, it is far more plausible than the court's alternative. As the court correctly points out, 'all airborne compounds of whatever stripe,' ante, at 1460, would qualify as 'physical, chemical, substances or matter which are emitted into or otherwise enter the ambient air.' It follows that everything airborne, from Frisbees to flatulence, qualifies as an 'air pollutant.' This reading of the statute defies common sense. B) Let's push back on this - would a throw tennis ball really endanger public health or welfare? Also: this is a FEDERAL statute talking specifically about MOBILE sources. Also: problem with causation. Carbon dioxide is naturally in out atmosphere. What caused deaths from Ian: the hurricane. GHG just caused global warming.

1) Utility Air Regulatory Air Group v. EPA a) Question: Does regulating greenhouse gases under mobile sources trigger permitting requirements for stationary sources? b) New Source Review Overview A) Requires industrial facilities to install modern pollution control equipment when they are built or when making a change that increase emissions significantly (permits ar required pre-construction) B) Purpose: to protect public health and the environment, even as new industrial facilities are built and existing facilities expand C) Ensures that air quality does not worsen where the air is currently unhealthy to breath (ie nonattainment areas) AND is not significantly degraded where the air is currently clean (ie attainment areas) c) Basic new source review requirements A) Permit B) Emission control technology - based on whether you're a new or modified source OR an existing source. There is a chart for this: New or modified source: Nonattainment area: lowest achievable emission rate (LAER) PSD area: Best available control technology (BACT) Existing source: Nonattainment area: Reasonably available control technology (RACT) C) Mechanisms to protect ambient air quality D) Further requirements depend on source and air shed classification Nonattainment new source review (NNSR) Prevention of Significant Deterioration (PSD) Applicability rules similar between NNSR and PSD, but NNSR applies to smaller facilities

1. Chart describing NAAQS: a. Start - measure ambient air quality. Ask - is it acceptable (ie, does it meet ambient air quality standards? 1) If no, then compute needed emission reductions. a) Enforce needed emission reductions A) Re-measure ambient air quality, re-ask if it is acceptable 2) If yes, then predict future air quality, accounting for growth. Then ask if it is acceptable? a) If yes, then you stop b) If no, then compute and enforce future needed emission controls. Re-predict future air quality, accounting for growth, and re-ask if it is acceptable. 2. Criteria pollutants - we only have six a. Five were designated by congress 1) Carbon monoxide, ground level ozone, particular matter, nitrogen dioxide, sulfur dioxide b. One by lawsuit 1) Lead (Pb)- NRDC v. Train c. 2009 green house gas petition denied by Trump EPA in 2021 d. No firm requirement to revisit/update 3. Criteria Pollutants- 108(a)(1)/42 USC 7408(a)(1) a. Air quality criteria and control techniques 1) (a) Air pollutant list; publication and revision by Administrator; issuance of air quality criteria for air pollutants a) (1) For the purpose of establishing national primary and secondary ambient air quality standards, the Administrator shall within 30 days after December 31, 1970, publish, and shall from time to time thereafter revise, a list which includes each air pollutant— b) (A) emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare; c) (B) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and d) (C) for which air quality criteria had not been issued before December 31, 1970 but for which he plans to issue air quality criteria under this section.

1. Air Pollutant- 42 USC 7602(g) a. The term "air pollutant" means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term "air pollutant" is used. 2. Lead v. GHG a. NRDC v. Train 1) While the literal language of section 108(a)(1)(C) is somewhat ambiguous, this ambiguity is resolved when this section is placed in the context of the act as a whole and in its legislative history. The deliberate inclusion of a specific timetable for the attainment of ambient air quality standards incorporated by congress in section 108-110 would become an exercise in futility if the Administrator could avoid listing pollutants simply by choosing not to issue air quality criteria b. GHG Denial 1) 108(a)(1)(3) can't be ignored - if can't set a NAAQS, can't list as a criteria pollutant 2) Train case is pre-Chevron. Clause is ambiguous, and under Chevron, defer. 3. Air Quality Criteria - 108(a)(2)/42 USC 7408(a)(2) a. (2) The Administrator shall issue air quality criteria for an air pollutant within 12 months after he has included such pollutant in a list under paragraph (1). Air quality criteria for an air pollutant shall accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, in varying quantities. The criteria for an air pollutant, to the extent practicable, shall include information on-- • (A) those variable factors (including atmospheric conditions) which of themselves or in combination with other factors may alter the effects on public health or welfare of such air pollutant; • (B) the types of air pollutants which, when present in the atmosphere, may interact with such pollutant to produce an adverse effect on public health or welfare; and • (C) any known or anticipated adverse effects on welfare.

1. If you want to challenge a rulemaking: a. Clean Air Act Sec. 307 (42 USC 7607)- file petition within 60 days in DC Circuit 1) https://www.bloomberglaw.com/product/blaw/document/X1U8V5INMLG8VMQ17I8QBQQ2MUM b. "Pursuant to Clean Air Act § 307(b)(1), 42 U.S.C. § 7607(b)(1), Federal Rule of Appellate Procedure 15, and D.C. Circuit Rule 15(a)(1), American Lung Association and American Public Health Association hereby petition this Court for review of the final action taken by Respondents United States Environmental Protection Agency and Andrew R. Wheeler, Administrator, United States Environmental Protection Agency, and entitled "Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating units; Revisions to Emissions Guidelines Implementing Regulations," published at 84 Fed. Reg. 32,520 (July 8, 2019)." 1) Filed on July 8, 2019. 2. To challenge an enforcement act against you: a. Proceed to Administrative Court: https://www.epa.gov/sites/default/files/2013-09/documents/alj-practice -manual_0.pdf b. To challenge ALJ's action, must file an appeal within 45 days with EPA's Environmental Appeals Board c. Then you can get in a court of law, based on what is in the Administrative Record

1. Another ex - you wanna challenge a clean water act permit: a. If you wanna challenge your permit, must file a petition to review with EPA's environmental appeals board within 30 days of receiving notice from the EPA Regional Administrator of your final permit b. But you must have submitted comments on the draft permit or participated in public hearings on the draft permit. 1) Issues raised on appeal must have been made during the public comment period if they were reasonably ascertainable. 2) If you didn't comment/participate in hearing, he only way you can appeal is based on conditions in the final permit that were not in the draft permit. c. Only after can you go to court. d. Same procedures apply if you are challenging a permit that was issued. e. Also applies to Resource Conservation and Recovery Act (RCRA), Underground Injection Wells (UIC), Prevention of Significant Deterioration (PSD) permit under the Clean Air Act, or decision to deny permit for the active life of a RCRA hazardous waste management facility. 2. Other actions require a 60-day notice to sue... a. Failure to perform non-discretionary actions, like revise the methods used to estimate emissions of volatile organic compounds ("VOC"), carbon monoxide ("CO"), and oxides of nitrogen ("NOx") for emission sources at least once every three years: 1) https://www.epa.gov/system/files/documents/2022-08/EIP%20v.%20Regan%20-%20LEF%20Complaint%20 July%2029%202022.pdf b. Or review and revise regulations: 1) https://www.epa.gov/system/files/documents/2022-08/Statewide%20v%20EPA%20%20-%202022-08-25_c omplaint%20-Inactice%20CCR%20units.%20DC%20DC.pdf c. Or failure to respond to a petition

A. Types of potentially responsible parties (PRPs) 1. Current owner or current operator a. The current owner of a facility can be liable for a release of hazardous substances under section 107 even though the hazardous substances were disposed on the property before she bought the property b. The current owner of a facility can be held liable under CERCLA even though she wasn't negligent, or didn't cause the release of hazardous substances from the facility c. A prima facie case against the current owner of a facility under section 107 consists of the following allegations: 1) The D is the current owner or operator of the facility 2) There has been a release of hazardous substances from the facility 3) The release caused the P to incur response costs d. See, New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985) 2. Anyone who owned or operated the site/facility at the time of disposal a. A former owner or operator of a facility can be held liable for a release of hazardous substances under section 107 only if hazardous substances were disposed on the property while she owned or operated the facility b. CERCLA defines the term "disposal" broadly to include "discharge, deposit, injection, dumping, spilling, leaking, or placing." c. strict liability: EPA doesn't have to prove that he/she knew that it had a hazardous substance or intentionally disposed of the hazardous substances in order to allege a prima facie case of liability under section 107(a)(2) 1) you're liable if a discharge happened when you owned it. Current owner has bop to show who owned it when the discharge happened. If EPA goes after you as a previous owner, you can argue that the EPA has to prove it happened when you owned it. d. Prima facie case against former owner/operator 1) A prima facie case against the former owner or operator of a facility under section 107 consists of the following allegations: a) The D was the owner or operator of the facility b) At a time when hazardous substances were disposed at the facility c) There has been a release of hazardous substances from the facility d) The release caused the P to incur response costs.

1. Anyone who arranged for disposal or treatment/arranger liability a. Category includes persons who "arranged for" the disposal of hazardous substances that they owned or controlled. Includes generators of hazardous substances that are disposed at the facility b. They are jointly liable with the entity that created the substance. c. Prima facie case: A P must merely show that: 1) The D arranged for the disposal of hazardous substances owned or controlled by the D 2) The D's hazardous substances were sent to a facility 3) There has been a release of the type of hazardous substances that they sent to the facility from the facility 4) AND: a) The release caused the P to incur response costs d. Prior to SCOTUS's decision in Burlington Northern and Santa Fe Rr. Co. v. U.S., 129 S.Ct. 1870 (2009), many cts held that when a person sells a hazardous substance to another person with knowledge or reason to know that the other person will dispose of the substance, the seller can be held liable as a person who "arranged for disposal" of a hazardous substance, even though the buyer received consideration for the substance and the transaction was structured as a sale of a "product." e. However, in 2009, SCOTUS held that persons will only be held liable under section 107(a)(3) if they intend to dispose of hazardous substances. Ct stressed that "while it's true that in some instances an entity's knowledge that its product will be leaked, spilled, dumped, or otherwise discarded may provide evidence of the entity's intent to dispose of its hazardous wastes, knowledge alone is insufficient to prove that an entity 'planned for' the disposal." 2. Transporters - only liable if they get in the site selection process. a. In order to est a prima facie case of liability against a D under section 107(a)(4), a P must demonstrate that: 1) The D transported hazardous substances to a facility selected by the transporter 2) There has been a release of the type of hazardous substances that they sent to the facility from the facility 3) AND a) The release caused the P to incur response costs b. P doesn't have to demonstrate that a transporter knew that the substances that it transported were hazardous substances, or that the transporter was negligent in selecting a site for disposal or treatment of the hazardous substances c. The P must demonstrate that the transporter selected the disposal or treatment site. A person who merely transports hazardous substances toa site chosen by the generator of the hazardous substances won't be held liable.

1. (stationary sources) National Ambient Air Quality Standards (NAAQS) and State Implementation Plans (SIPs) - five steps a. 1) what are the pollutants that we are or should be addressing under NAAQS? 1) These are criteria pollutants b. 2) set air quality standards for these pollutants c. 3) Designate Air Quality Control Regions - "Air Sheds" 1) Makes sense to regulate based on these regions. It is easier to see if we are attaining the standards in each region than by looking at the nation as a whole 2) States designate these, but sometimes these go over state boundaries d. 4) Establish a plan, generally by the state writing the SIP for each Air Shed 1) If in two states, the states must cooperate with each other in establishing this e. 5) Implement the SIP 2. What are criteria pollutants - 108(a)(1)/42 USC 7408(a)(1) a. Only six. b. Five are designated by congress: 1) Carbon monoxide (CO), ground level ozone, particulate matter (PM), Nitrogen dioxide, sulfur dioxide 2) One by lawsuit - lead (Pb) - NRDC v. Train 3) 2009 Green House Gas petition denied by Trump EPA in 2021. a) GHG not listed as a criteria pollutant is the result; said it was too big of a problem to meet, it's a cross-state issue. 3. Hazardous Air Pollutants (HAP) a. EPA sets technology-based limits on emissions of hazardous air pollutants for new and existing sources b. Hazardous air pollutants - pollutants other than criteria pollutants that present "a threat of adverse human health effects," including substances known or anticipated to be "carcinogenic, mutagenic, teratogenic, neurotoxic," or otherwise "acutely or chronically toxic" section 7412(b)(2) c. All covered sources must reduce emissions to a specific level determined by the "maximum degree of reduction" considered "achievable" in practice by using the best existing technologies and methods. Section 7412(d)(3).

1. Basic New Source Review Program Requirements a. Permit based b. Emission control technology is what it's based on c. Mechnisms to protect ambient air quality d. Further requirements depend on source and air shed classification a. Nonattainment New Source Review (NNSR) b. Prevention of Significant Deteiroration (PSD) c. Applicability rules similar between NNSR and PSD, but NNSR applies to smaller facilities d. Nonattainment area is where you're not meeting air quality standards. Will based upon whether you're new or modified or instead an existing source. e. Chart 1. New or modified source a. Nonattainment area: lowest achievable emission rate (LAER) b. PSD area: best available control technology (BACT) 2. Existing source a. Nonattainment area: reasonably available control technology (RACT) 2. New Source Performance Standards a. Section 111(b) requires EPA to establish emission standards for any category of new and modified stationary sources that the Administrator, in his or her judgment, finds "causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare." b. For listed source categories, EPA must establish "standards of performance" that apply to sources that are constructed, modified or reconstructed after EPA proposes the NSPS for the relevant source category. c. EPA first lists diff types of categories, like diff types of factories or power plants. Break them up into categories, est a standard of performance that will apply to the construction, modification, or reconstructions for that source category. d. Section 111(a)(1) provides that NSPS are to "reflect the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated." e. This level of control is commonly referred to as best demonstrated technology (BDT) 1) See WVA v. EPA majority at top of 23.

I. Clean Water Act A. History of the CWA 1. Pre-CWA a. Pre-CWA regulatory system was mainly state driven water quality standards applicable to interstate or navigable waters. b. Standards depended on uses (eg agricultural/industrial/recreational). c. Enforcement possible only to prevent imminent health hazard or when quality fell below a specified ambient level (limited actual enforcement) 2. CWA a. Purpose: "to restore and maintain the chemical, physical, and biological integrity of the nation's water." b. Policy: "recognize, preserve, and protect the primary responsibilities and rights of states." c. Congressional authority - p120-22 1) Interstate commerce clause a) Three broad categories b) CWA cases all come under the ICC c) ESA cases 2) Property cause a) Management of federal land and waters 3) Treaty clause/necessary and property clause a) Missouri v. Holland b) Bond v. US d. State authority 1) Tenth amendment police power - reserves to the states power not delegated to the federal gov a) Land use/planning considered a quintessential state power A) People don't like the federal government telling them what they can and cannot do on their property 2) Limits on state action a) Dormant Commerce Clause b) Supremacy Clause c) Preemption d) Cooperative federalism

1. CWA basic info a. Regulates surface water 1) But see Maui case b. Cooperative federalism 1) Federal rules, state implementation c. Two types of discharges 1) Point sources a) Ex: factor directly dumping into water 2) Nonpoint sources a) Ex: a house's septic system runs downhill as a result of rain, enters water supply 2. Pollution today/sources of pollution in US rivers a. Municipalities 17% b. Industry 9% c. Other 9% d. Nonpoint source pollution 65% 3. Simplified conceptual map of the CWA a. Statutory purposes 1) Regulatory programs a) National pollutant discharge elimination system (NPDES) b) Water quality standards A) Section 401 certifications B) Listing impaired waterways, TMDIs and continuing planning processes c) Section 404 program: regulation of filling of "navigable waters" 2) Funding programs a) Revolving loan program b) Section 319 water quality grants

1. NSPS Steps a. CAA directs EPA to: 1) "1) determine, taking into account various factors, the best system of emission reduction which...has been adequately demonstrated; 2) 2) ascertain the degree of emission limitation achievable through the application of that system, and 3) 3) impose an emissions limit on new stationary sources that reflects that amount" b. EPA does this on a pollutant by pollutant basis and by source categories c. Sources can decide how they will meet the limits. 2. CAA 111(d) a. Once EPA has elected to set an NSPS for new and modified source in a given source category for a pollutant, section 111(d) calls for regulation of existing sources with certain exceptions within that same category 1) Limits: a) Pollutant can't be covered by NAAQS or HAPs b) This is meant to operate as a gap filler when those other two areas aren't covering it b. EPA decides the amount of pollution reduction that must ultimately be achieved by again determining "the best system of emission reduction...that has been adequately demonstrated for existing covered facilities. 40 CFR section 60.22(b)(5) c. The states then submit plans containing the emissions restrictions that they intend to adopt and enforce in order not to exceed the permissible level of pollution established by EPA.

1. Clean Power Plan a. This was a regulation put into place by Obama EPA. Was a CAA 111(d) rule to address CO emissions from existing sources b. 111(d) rule to address carbon dioxide emissions from existing sources c. BSER included three measures or building blocks: 1) Step 1: "heat rate improvements" at coal fired plants to burn coal more efficiently 2) Then two generation shifting measures: a) Step 2: A shift in electricity production from existing coal fired power plants to natural gas fired plants b) Step 3: Shift from both coal and gas fired plants to new low or zero carbon generating capacity, mainly wind and solar. d. Three way to comply/meet those goals: 1) Reduce plant's production of electricity/energy 2) Build a new natural gas, wind, or solar plant or invest in an existing facility that could then increase production 3) Purchase emission allowances from other, better power plants as part of a cap and trade regime. e. Then they had to figure out what is the degree of emission limitation we'll reach under this system. 1) What was the degree of emission limitation achievable through the application of BSER (the three steps)? 2) EPA projected that by 2030, it would be feasible to have coal provide 27% or national electricity generation, down from 38% in 2014. a) Based on a "reasonable amount" of generation shifting b) Resulted in numerical emissions ceilings so strict that no existing coal plan would have been able to achieve them without engaging in one of the three steps c) It would have been billions in compliance costs d) Energy Information Administration said: would result in 10% higher electricity costs and would reduce GDP by a trillion of 2009 dollars by 2040.

I. Endangered Species Act A. ESA Overview 1. Purpose: get species to the point where they don't have to be listed anymore. 2. Statutory purpose and definitions 3. Listing - section 4 4. Consultation - section 7 5. Take - section 9 6. Trump administration regulatory changes B. Statutory purposes and definitions 1. Purpose - ESA Section 2 a. (b) Purposes The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species . . . b. Notes 1) Thinking about both species and where it lives 2) Terrestrial species, freshwater species are governed by DOI. Marine species and fish the go from fresh to salt water are governed by SOC. Dealing with two different authorities here.

1. Definitions - ESA section 3 a. For the purposes of this chapter . . . (3) The terms "conserve," "conserving," and "conservation" mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. . . . b. (15) The term "Secretary" means, except as otherwise herein provided, the Secretary of the Interior or the Secretary of Commerce as program responsibilities are vested pursuant to the provisions of Reorganization Plan Numbered 4 of 1970. . . c. (6) The term "endangered species" means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man d. (20) The term "threatened species" means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. e. (16) The term "species" includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.

A. Regulated entities 1. Under RCRA, we have different kinds of categories for who is regulated: a. Generators - the entity generating the hazardous wastes. There are three categories of generators: 1) Large quantity generators a) Hazardous waste produced: more than 1000 kg per month b) Hazardous waste stored: no quantity limit 2) Small quantity generators a) Hazardous waste produced: 100 - 1000 kg/month b) Hazardous waste stored: less than 6000 kg 3) Conditionally-exempt small quantity generators a) Hazardous waste produced: less than 100 kg/month b) Hazardous waste stored: less than 1000 kg b. Remember that households are exempt from RCRA - you can bury waste in your backyard and be ok under RCRA, BUT you may have CERCLA liability 2. Generators have several major reqs they have to meet under RCRA: a. Hazardous waste determination b. Storage, labeling and raining c. Use of property licensed TSDF (treatment storage disposal facility) d. Accumulation before disposal or treatment 1) For generators to store under RCRA, they're supposed to be limited in terms of how much they are storing. Large generators can store for 90 days, small can store for up to 180, as long as they are meeting the storage reqs under the act. e. Identification number f. Manifest requirement 1) Tracking system. Starts with the generator, they create this manifest that carries with the waste through the whole process of treatment, storage, disposing. g. Waste minimization h. Record keeping and reporting

1. Generator has three steps they have to go through to determine if their waste is a hazardous waste a. Has it produced an exempt waste 1) Domestic sewage 2) Irrigation return flows 3) NPDES permit discharges 4) Certain nuclear material b. Has it produced a listed waste 1) F list wastes from nonspecific sources, K list wastes from specific waste streams from particular industries, P list and the U list consist of "pure or commercial grade formulations of certain specific unused chemicals." c. Has it produced a characteristic waste 1) Ignitability, corrosivity, reactivity, or toxicity. 2. Storage requirements a. Large generators can only store hazardous wastes for ninety days 1) Clock begins when the first drop goes into the drum, except for on site accumulations 2) If you accumulate for more than 90 days, you are a storage facility (TSD) and have to meet storage requirements, such as having to have a permit. 3) Creates a cascading violation - if you store for to long, you begin to violate many more provisions. Every day you go over is another violation in terms of fines 4) Exemption - generator can accumulate hazardous waste in a container under the control of the oerpator at/near the point of generation where wastes initially accumulate without a permit a) Ex: putting cloths, rages, wipes, debris in a drum b) Must label as hazardous waste c) 90 day clock doesn't start until drum is full and moved to storage area. 3. Closure reqs a. Generators must close equipment, structures, soils, and units by meeting specified performance standards and disposal and decontamination requirements b. Large quantity generators - must have plan for when facility closes c. Small quantity generators - closure requirements apply to tanks, drop pads, and containment buildings d. Very small quantity generators - not required.

1) Derived From Rule a) Under the derived from rule, any substance derived from the treatment, storage, transportation, or disposal of a listed hazardous waste is also a listed hazardous waste, again subject to certain regulatory exceptions b) Burn n Upp, Inc. is a hazardous waste incineration facility. Much of the hazardous waste that it receives is filter solids left over from the filtration of hexachlorocyclopentadiene during the production of chlordane (K034, T), a K list hazardous waste. After Burn n Upp incinerates this waste, it is left with a fine dust. Bc the filter solids were listed as hazardous wastes for their toxicity, Burn n Upp tests the remaining dust for toxicity using the TCLP procedure. It adds that dust doesn't exhibit the toxicity characteristic. Is the dust a RCRA hazardous waste? A) yes, simply bc it's derived from a listed waste. We don't even care about toxicity levels. 2) The ICR Rule a) Under the EPA's general regulatory definition of hazardous waste, a listed hazardous waste that was listed only bc it was ignitable, corrosive, or reactive (an ICR waste) ceases to be hazardous waste when it no longer displays that hazardous characteristic. b) ICR rule also modifies the mixture and derived-from rules for ICR listed hazardous waste A) If a listed hazardous waste that was listed only bc it was ignitable, corrosive, or reactive is missed with nonhazardous materials, and the effect of the mixing is to eliminate the ignitability, corrosivity, or reactivity, then none of the mixture is a RCRA hazardous waste. c) If a listed hazardous waste that was listed only because it was ignitable, corrosive, or reactive is treated, stored, or disposed of in such a way that all ignitability, corrosivity, or reactivity is eliminated, then none of the products derived from that treatment, storage, or disposal will be RCRA hazardous wastes. d) Since the EPA listed most of the listed hazardous wastes for their toxicity or because they were acutely hazardous. As a result, the ICR rules are, as a practical matter, limited in scope.

1. Generators - are regulated based on how big they are a. Households are exempt from RCRA - you can bury waste in your backyard and be ok under RCRA, but you may have CERCLA liability b. Large quantity generators 1) Hazardous waste produced: more than 1000 kg per month 2) Hazardous waste stored: no quantity limit c. Small quantity generators 1) Hazardous waste produced: 100 - 1000 kg per month 2) Hazardous waste stores: less than 6000 kg d. Conditionally exempt small quantity generators 1) Hazardous waste produced: less than 100 kg per month 2) Hazardous waste stored: less than 1000 kg e. Major requirements 1) Hazardous waste determination 2) Storage, labeling, and training 3) Use of properly licensed TSDF 4) Accumulation before disposal or treatment 5) Identification number 6) Manifest requirement 7) Waste minimization 8) Record keeping and reporting

1. In-class notes a. Standing: who gets to go to court to enforce against environmental harm? Cts have been v strict about environmental Ps getting into court. Standing is a big hurdle. b. Tragedy of the commons - how best do we allocate common resources so that they are sustainably used? How do we get the benefits of resources without overusing them? c. Book makes three points regarding trends: 1) 1) federal legislative stalemate. Since 1990, haven't had a great amount of change to environmental statutes. State power - this gives states a lot of power, can institute their own regimes if they want to go stricter than what the fed statutes are. alternatively: others can scale back the fed regime to give back power to the states. State power is a big point rn in environment policy. 2) 2) The administrate state. West Virginia v. EPA - has thrown administrative law into chaos. Shrinking fed power. 3) 3) emergence of climate change. The laws on the books weren't written with climate change in mind. Argument that they're not really fit to address CC. lotta politicians think we shouldn't do anything in regards to CC. note that all three of these have huge political significance right now

1. How do we protect the environment for everyone? a. Statement from the Sierra Club 1) The most monumental figure in the Sierra Club's past is John Muir. Beloved by many of our members, his writings taught generations of people to see the sacredness of nature. But Muir maintained friendships with people like Henry Fairfield Osborn, who worked for both the conservation of nature and the conservation of the white race. Head of the New York Zoological Society and the board of trustees of the American Museum of Natural History, Osborn also helped found the American Eugenics Society in the years after Muir's death. 2) And Muir was not immune to the racism peddled by many in the early conservation movement. He made derogatory comments about Black people and Indigenous peoples that drew on deeply harmful racist stereotypes, though his views evolved later in his life. As the most iconic figure in Sierra Club history, Muir's words and actions carry an especially heavy weight. They continue to hurt and alienate Indigenous people and people of color who come into contact with the Sierra Club. b. Newspaper article: Kim Kardashian, Kevin Hart, others using a ridiculous amount of water in CA

1. IEDA v EPA, DC Cir. 2004 a. The term "nonroad engine" means an internal combustion engine (including the fuel system) that is not used in a motor vehicle or a vehicle used solely for competition, or that is not subject to standard promulgated under section 7411 (new stationary sources) of this title or section 7521 2. Interpretation in letter in final - so why isn't it reviewable a. EPA issued letter. b. Basis of the case: we have independent equipment dealer situations, mad about the position EPA has taken about importing machineries from abroad. c. Issue is: Asian market has collapsed, other people trying to import equipment into US for cheaper than you can produce in US. d. EPA has rule that says if you're going to import, has to come with a certificate sticker that says it meets xyz standards. e. EPA sends letter, says yes, that's our position. f. Challenger is saying that letter is a final agency action. 3. Why is issuing a letter not an agency action you can challenge in court? a. Interpretation in letter is final - so why isn't it reviewable? 1) "agency action" should allow judicial review over everything an agency does 2) Letter had no concrete impact on IEDA and its members 3) Will not review claims when agency tells a party what it thinks the law requires, even if it is adverse to that party a) Threat of enforcement isn't the same as enforcement. Have to have actually been enforced first. 4) Reopening doctrine - cannot challenge a rule every time it is restated, the EPA restates its position (time limits on challenges) a) "Regulations and interpretations that have not been reopened by agency action remain at repose and are not newly reviewable"

1. Husqvarna AB v. EPA - DC Cir 2001 a. Challenging emission standards for handheld engines- claim they are arbitrary and capricious: 1) Standards inconsistent with statutory standards? 2) Not supported by substantial evidence? a) Was there enough time to comply b) Deference - court refuses to second guess EPA's balancing of statutory factors 3) Procedural errors related to notice & comment? b. Challenging emission standards for handheld engines: 1) Standards inconsistent with statutory standards? a) 42 USC 75447(a)(3)- "Such standards shall achieve the greatest degree of emission reduction achievable through the application of technology which the Administrator determines will be available for the engines or vehicles to which such standards apply, giving appropriate consideration to the cost of applying such technology within the period of time available to manufacturers and to noise, energy, and safety factors associated with the application of such technology" c. Challenging emission standards for handheld engines: 1) Not supported by substantial evidence? a) Was there enough time to comply? b) Deference- court won't second guess EPA judgment that standards are feasible 2) Procedural errors related to notice & comment? a) Fair notice- EPA provided opportunity to comment and Husqvarna did b) Final rule "logical outgrowth" of proposed rule c) Didn't show rule would be different without alleged errors d. Ct says: we're deferring. Won't second guess EPA's balancing of statutory factors.

1. How does CWA address nonpoint sources? a. States are required to: 1) Set water quality standards for all waters within their boundaries 2) Identify those waters that don't meet the quality standards (section 3030(D)(1)) a) If impaired - states are required to develop a TMDL b. CWA section 304 required the EPA to set federal water quality criteria to guide states in establishing water quality standards. 2. Water quality criteria (WQC) under CWA section 304(a)(1) a. The CWA requires the EPA to develop WQC that reflect the current scientific knowledge of pollutants and their impacts on the environment and human health 1) EPA develops criteria for determining when water has become unsafe for people and wildlife b. The EPA's WQC can then be used by a state or tribe as it establishes or revises its Water Quality Standards 1) These are only recommendations - they are not binding c. WQC ex - control of harmful algal blooms 1) Nitrogen and phosphorus are nutrients that naturally occur in aquatic ecosystems, the presence of these nutrients in excessive quantities can be detrimental to environmental and human health a) Sources: municipal watewaer discharges, stormwater runoff, and agricultural, such as fertilized cropland manure and runoff. 2) Presence of large amounts of these nutrients stimulate rapid algal growth a) When the population of algae rapidly increases, or "blooms," the toxins produced can significantly impact surrounding ecosystems. b) Ex: cyanobacteria, commonly called blue-green algae, are commonly found in freshwater, but certain freshwater cyanobacterial can bloom and produce toxins 3) Why do we care? a) An algal bloom is poisonous if consumed; can result in abnormal liver function, diarrhea, vomiting, nausea, numbness, and dizziness. A) Two cyanotoxins, microcystins and cylindrospermospin, can cause liver and kidney toxicity, respectively b) Children, the elderly, people with compromised liver function, and pets are esp vulnerable to the toxins present in HABs c) Just coming into contact with contaminated water could cause skin rashes or busns. Boiling the water increases the presence of the toxin d) HABs are on the increase and have been resported in all 50 states

1. In response, EPA sid they would create Huamn Health Recreational WQC for microcystins and cylindrospermopsin a. Draft released in 2016, EPA finalized in 2019 1) Microcystins: 8 micrograms/liter (4); Cylindrospermopsin: 15 micrograms/liter (8) 2) Document is 249 pages b. EPA picked values based on the noncancer health effects to kids instead of adults or pets 1) Kids are more susceptible to HABs than adults, and typically ingest more water and spend more time in the water when swimming. c. States could use these recommended values for either swimming advisories at beaches or for adoption into new or revised WQSs 1) Swimming advisory: waterbody shouldn't exceed the recommended values on any single day 2) WQSs - EPA recommends that the values shouldn't be exceeded by more than 10% of the days in each year's recreational season. 2. Under the CWA, congress created the section 319 program for CWA a. Aims to control pollution by nonpoint sources (NPS) requires states to develop reports that identified waters impaired by NPS pollution and the categories of NPS contributing to this problem b. States also have to adopt a NPS management program, which details the state's strategy for addressing NPS pollution c. Once EPA approves a state's NPS program, the state becomes eligible for section 319's grant program d. Guidance regarding what the state programs should look like. EPA has released guidance on the key components of a state NPS management program. Some of these components include: 1) A mix of regulatory, nonregulatory, financial, and technical assistance measures, including BMPs; 2) Both long term and short term goals, including milestones to track these goals 3) Watershed scale projects, as well as statewide programs; 4) Plans to restore impaired waters and protect high quality and threatened waters; a) States, if you have water bodies that are in really good shape, you need to make sure your programs are protecting those bodies, keep them from degrading. 5) Work with federal, tribal, regional, interstate, and local entities; and 6) Coordinate with existing programs, such as US Dep't of Agriculture conservation programs

1. When does hazardous waste become hazardous waste, and how long does it remain hazardous waste? a. In general, the EPA's regulation classifies materials as "hazardous wastes" as soon as possible, and those wastes remain hazardous wastes throughout their life cycle, regardless of mixing (the mixture rule) or treatment (the derived-from rule). b. Characteristic hazardous wastes are deemd RCRA "hazardous wasets" as soon as they exhibit any one of the characteristics identified in Subpart C c. Listed hazardous wastes are deemed RCRA "hazardous wastes" as soon as they meet any of the listing criteria in Subpart D d. Once a material is deemed to be RCRA "hazardous waste," it tends to remain a RCRA hazardous waste. 40 C.F.R. § 261.3(c)(1). 2. Characteristic hazardous wastes a. Under the EPA's regulations in subpart C of 40 CFR part 261, RCRA solid wastes are hazardous wastes if they exhibit certain characteristics b. Remember: the burden is on the generator to know whether or not they have a hazardous waste. c. The EPA has identified four characteristics that will make solid wastes hazardous wastes: 1) Ignitability - does it catch fire easily, at relatively normal temperatures, and burn vigorously 2) Corrosivity - can it chemically eat away at other substances like metals or human flesh, or has a low (two or lower) or high (12.5 or higher) pH 3) Reactivity - waste's ability to explode. Relatively uncommon and generally consist of discarded munitions and explosives 4) Toxicity - materials that are poisonous or carcinogenic a) Toxicity characteristic leading potential (TCLP)

1. Listed wastes a. F List: "particular wastes from certain common industrial or manufacturing processes. Bc these processes can occur in different sectors of industry, F list wastes are wastes from nonspecific sources." b. K list: the K list consists of particular hazardous wastes from specific waste streams from particular industries. As a result, this list is also referred to as the specific source list c. P list and U list: Both he P list and the U list consist of "pure or commercial grade formulations of certain specific unused chemicals." 1) P list: acutely hazardous commercial grade chemicals 2) U list: toxic commercial grade chemicals d. With the exception of those substances on the P list, the EPA has listed most listed hazardous wastes bc of their volatility. e. Rules applying to listed hazardous wastes 1) When a listed hazardous waste is mixed with nonhazardous materials, the entire resulting mixture is considered listed hazardous waste, subject to certain regulatory exceptions 2) The nonhazardous materials are considered RCRA "hazardous wastes" as soon as a listed hazardous waste first mixes with those nonhazardous materials. 3) Mixture rule a) Crude to Go, a petroleum refinery, generates crude oil storage tank sediment (K169, T), a K list hazardous waste. Business is good for Crude to Go, and it decides to expand its facility. The construction process creates a five ton pile of broken, nonhazardous concrete in Crude to Go's parking lot, which is between he main refinery and the storage facility for the waste crude oil storage tank sediment. Crude to Go packs the sediment into special drums and keeps them at its storage facility before shipping the sediment away to be treated and disposed of. One morning during the construction project, Eddie Johnson, a Crude to Go employee is transporting two drums of crude oil storage tank sediment to the storage facility when the construction orkers lose control of a tractor, colliding with Eddie. As a result of the collision, the drums of sediment both crack open, spraying the five-ton pile of concrete rubble with their contents. How much hazardous waste does Crude to Go now have? A) The broken five ton pile all has to be treated as hazardous waste under RCRA.

1. Auer deference a. Applies to an agency's interpretation of its own ambiguous regulation b. The agency's interpretation does "not need to be the only possible reading of a regulation- or even the best one"- Decker c. Agency interpretation stands unless it is "plainly erroneous" - Auer d. Scalia dissent-, 568 U.S. 597 (2013). Decker v. Northwest Environmental Defense Center 1) Does this deference violate separate of powers? 2. Recent cases pulling back on deference a. Decker v. Northwest Environmental Defense Center - 2013 Scalia dissent b. King v. Burwell - 2015 c. Michigan v. Epa - 2015 d. Gorsuch factor- deference is "no less than a judge-made doctrine for the abdication of the judicial duty"- Gutierrez-Brizela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). 1) Non-environmental e. West Virginia v. EPA 1) Gorsuch concurrence gives his view of what the major questions doctrine is

1. Major Questions Doctrine a. "Administrative agencies must be able to point to 'clear congressional authorization' when they claim power to make decisions of vast 'economic and political significance." b. "Doubtless, what qualifies as an important subject and what qualifies as details may be debated." p. 3 c. "[L]awmaking power [is vested] in the people's representatives" d. Meant to be difficult- 2 houses and President/supermajority must agree e. p. 5- danger of the executive branch taking over, "laws would more often bear the support only of the party currently in power." f. "little would remain to stop agencies from moving into areas where state authority has traditionally predominated." g. FN2, p. 7- uncomfortable with power of the administrative state h. "'a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably understood to have granted." p. 9 i. wants "to ensure that the government does 'not inadvertently cross constitutional lines." p. 8 j. This is a way for SCOTUS to not apply any of the Chevron, Auer, Skidmore deferences, be more suspect of agencies, really question what they are doing. k. Rule #1 1) "The doctrine applies when an agency claims the power to resolve a matter of great "political significance" 2) Exs: a) Gonzales - physician assisted suicide when states debating b) NFIB v. OSHA - nationwide COVID vaccine mandate for most workers when states/congress debating 3) Another consideration: a) Has congress considered and rejected a similar proposal? b) Evidence the agency trying to work around the legislative process

I. Intro A. What is EL? 1. EL: how we protect the environment and natural resources - questions like how do we keep our waterways clean, keep climate healthy so forests thrive. 2. Natural resources law: how we manage natural resources. Manage who can use waterways and for what purpose. Determine what forests can be logged and by whom. B. Scattered info 1. This is a fed based class; will look at fed statutes. 2. EL itself isn't that old. Just about fifty years old for most statutes. C. Why did the fed gov begin regulating the environment? 1. Cuyahoga River in Ohio caught fire in the 1960s bc there was so much pollution in it. Got a lot of support to pass environmental statutes in a short amount of time 2. Most statutes signed by Nixon. At that point in time, the pol will was just we've gotta pass these statutes D. Major federal pollution statutes 1. The major fed statutes take diff approaches to regulation: a. NEPA is all about planning (doesn't mandate specific outcomes, but agencies must go through its procedures). b. Some create "command and control" systems - trying to keep pollutants out of the environment (CAA, CWA). c. Some create management requirements (ESA, RCRA). Some create cleanup requirements (SDWA, CERCLA (Superfund)).

1. Major federal pollution statutes - mostly the result of maj legislative interest in 70s and 80s: a. National environmental policy act (NEPA) 1069 b. Clean Air Act (CAA) - 1970 c. Clean Water Act (CWA) - 1970 d. Coastal Zone Management Act (CZMA) - 1972 e. Endangered Species Act (ESA) - 1973 f. Safe Drinking Water Act (SDWA) - 1974 g. Resource Conservation and Recovery Act (RCRA) - 1976 h. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA/Superfund) 2. CERCLA was passed 1980 3. NEPA was basically a procedural statute. As long as agencies are doing the procedure they're supposed to, they're not forced to make any decisions under the act. 4. CAA and CWA are commanding and controlling statutes - let's keep pollutants out of the water and air 5. ESA is about specifically managing species. 6. RCRA, CERCLA we're thinking more about we want to clean up contaminants once they're in the environment. Aka, thinking about how we're going to remediate things. 7. Federalism issues - fed gov can only regulate pursuant to its power in the const. a. Ex: it can't regulate every water way in the US, only ones that are part of interstate commerce

A. Justiciability 1. This is a big issue for environmental Ps. Hurdle for them to get into court. There must be an actual controversy 2. A case is not justiciable if: a. Not an actual controversy between the parties b. Seeks an advisory opinion c. Unripe or moot d. Seeks judgment on a political question e. P lacks standing 3. Standing is the big issue in EL. There are three elements to standing Ps must prove: injury, causation, redressability a. Injury: P must have suffered an injury in fact - an invasion of legally protected interest which is: 1) Concrete and particularized 2) Actual or imminent, not conjectural or hypothetical a) So "some day" intentions to do something don't qualify b. Causation: there must be a causal connection between the injury and the conduct complained of - the injury has to be fairly traceable to the challenged action of the D, and not the result of the independent action of some third party before the court c. Redressability: it must be likely as opposed to merely speculative that the injury will be redressed by a favorable decision 1) Might not be redressable if can only address one small part of the problem

1. Organizational standing a. Prudential rule: Ps ordinarily cannot bring lawsuits to vindicate the rights of others b. Exception: an organization can bring a lawsuit as the representative of one or more of its members if it meets three additional reqs: 1) At least one member of the org must have const standing to sue in their own right 2) The interests the org seeks to protect through the litigation must be germane to the org's purpose 3) Participation of individual members in the suit must be unnecessary to resolve either the claim asserted or relief requested. 2. Massachusetts v. EPA a. Does Mass have standing to challenge EPA's not regulating greenhouse gases for new mobile sources? b. Can you have standing to address a legal problem that injures the whole world (climate change)? 1) Injury, causation, redressability? c. EPA says we all contribute to climate change. d. Ct says: 1) Mass is a sovereign state. Gov itself gets a special solicitude in establishing injury that an individual P wouldn't get. Mass is there to protect its residents. 2) Also: Mass owns coastal property; will be affected by sea level rise. As a state, is a property owner, that's a particularized injury as a landowner - land will be lost through flooding, storming. Remediating temporary flooding will cost a lot of money 3) Mass, you can est injury bc of this. 4) Why doesn't this help private Ps: their injury is more speculative. Also: isn't imminent if you say in 50 years you'll lose your coastal property. Will depend on how they frame their injury. 5) On causation: a) EPA says we get there's a connection between greenhouse gases and global warming. But they say that US is insignificant - what about China and India. How can you say, if US only produces 6% of global emissions, that flooding in NJ is due to US actions. b) Ct says: even if it is only 6% of the cause, that's enough to establish causation. 6) Redressability a) EPA says: what on earth can you do, SCOTUS, that is going to fix climate change? India and China will keep emitting. Your actions won't keep Mass from flooding. b) SCOTUS says - you don't have to show EVERY injury will be fixed; we can slow the process down at least. We can address at least one distinct injury. Any small help you can give is enough for redressability.

1. PSD Overview a. Requires any new or modified "major omitting facility" of a pollutant where in the area is not in nonattainment with the NAAQS to get a permit before construction. b. Can include criteria and non-criteria pollutants c. Major emitting facility: 1) 100 tons-per-year threshold. Applies to 28 specific categories 2) 250 tons/year- all other sources d. PSD NSR Requirements 1) Requires any "new or modified major stationary sources in a nonattainment area to get a permit 2) Emission limitation = Best Available Control Technology (BACT) for each pollutant subject to regulation 3) Emissions Monitoring need to determine the effects of the emissions on air quality 4) Cannot violate NAAQS or what are called "increments" 5) Divide this up according to new or modified source AND existing sources a) New or modified source: A) Nonattainment area: lowest achievable emission rate (LAER) B) PSD Area: best available control technology (BACT) b) Existing source A) Nonattainment area: Reasonably available control technology (RACT)

1. Permit process a. Review applicable technologies, conduct an air quality analysis and allow for notice and comment on the impacts of the source, any alternatives, control technology, and other considerations. b. Operator submits info to agency that they need to determine BACT and any impacts c. BACT must be as stringent as any New Source Performance Standard (NSPS) or any pre-1990 NESHAP (toxic program) d. Developed on facility wide basis, unless modification 2. EPA "Top-Down Approach" NSR Workshop Manual Oct. 1990 a. Identify all available control technologies b. Eliminate technically infeasible options c. Rank the remaining options d. Evaluate the economic, energy and environmental impacts of each technology and eliminate any poor options e. Select the best remaining option 3. NNSR Overview a. Applies to a new major source or a source making a major modification in a nonattainment area. 1) Triggers for NNSR: Threshold is 100 ton/yr for a pollutant for which the area is in non-attainment b. The program requirements include: 1) Using the Lowest Achievable Emission Rate (LAER) 2) Emission Offsets (Discussed in previous class) 3) Public Comment Involvement

A. Cost Distrubution 1. Question 1 - what claims can we bring a. Cooper industries - scope of 113(f)? 1) What about those who have voluntarily incurred clean up costs? 2) You can seek contribution from other potentially liable parties if you are a PLP. 3) Question here: how should the provision be interpreted - bc the statute itself says "any person make seek contribution from any other person who is liable or potentially liable under CERCLA." People were interpreting that to say you could even collect for contribution if you weren't currently being sued. SCOTUS says no, the only way you can go for contribution under this section is if you're actively being sued in a civil action to recover costs you have incurred. 4) Effect: once 113(f) was passed, everyone was interpreting 107 to not be available to PRPs. b. Atlantic research - scope of 107(a)(4)(B)? 1) SCOTUS says PSPs can sue under 107 to recover costs. What you need to be able to sue is to show you've incurred response costs. c. Effect 1) Statute of limitations? 2) Amounts recoverable? How do we apportion costs? 2. Potential claims a. 107(a)(4)(B) - cost recovery 1) Permits cost recovery by a party who has incurred cleanup costs a) Joint and several liability b) D can counterclaim under 113(f) and have equitable allocation c) 3 or 6 year statute of limitations - 113(g)(2) d) Atlantic Research - PRPs can use this provision b. 113(f) - contribution 1) When PRP pays more than its fair share either through a 107 civil action or settlement with the government. a) Allocate costs based on equitable factors b) Cooper Industries - can only be brought during or following a civil action c) Three year SOL after entry of judgment or administrative order.

1. Potential situations (what applies where, how you can recover costs in each of these situations) a. Those who are being or have been sued under CERCLA: 113(f)(1) 1) And 107? Fn 6 - Atlantic Research - a) Lower courts say no - if you have a claim for contribution, don't' have claim for cost recovery. b) SCOTUS denied cert on this b. Those who have settled with the EPA or the state: 113(f)(3)(b) 1) And 107? See above 2) What about is part of settlement involves clean up? c. Those who engage in "voluntary" cleanups: 107(a)(4)(B) 1) Usually landowners that were voluntarily cleaning up sites bc if they didn't, either state or EPA was going to make them. But they haven't been sued, and they ahven't settled yet 2) You can already be sued, and in that case, you have to use 113. If you cleanup in addition to that, have to go under 107. 3) 113 has a three year SOL. 107 has a six year SOL. Can sue for contribution under 113. But then the remediation you have to wait until complete, and then sue under 107. d. Those who have received unilateral order from EPA under 106 1) Unresolved, presumably treated as voluntary cleanup e. Those who have cleaned up pursuant to judicial or admin settlement under state law? 1) Cts are split

1. National primary and secondary ambient air quality standards - 109/42 USC 7409 a. Text 1) (a) Promulgation 2) (1) The Administrator— 3) (A) within 30 days after December 31, 1970, shall publish proposed regulations prescribing a national primary ambient air quality standard and a national secondary ambient air quality standard for each air pollutant for which air quality criteria have been issued prior to such date; and 4) (B) after a reasonable time for interested persons to submit written comments thereon (but no later than 90 days after the initial publication of such proposed standards) shall by regulation promulgate such proposed national primary and secondary ambient air quality standards with such modifications as he deems appropriate. 5) (2) With respect to any air pollutant for which air quality criteria are issued after December 31, 1970, the Administrator shall publish, simultaneously with the issuance of such criteria and information, proposed national primary and secondary ambient air quality standards for any such pollutant. The procedure provided for in paragraph (1)(B) of this subsection shall apply to the promulgation of such standards. 6) (b) Protection of public health and welfare 7) (1) National primary ambient air quality standards, prescribed under subsection (a) shall be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health. Such primary standards may be revised in the same manner as promulgated. 8) (2) Any national secondary ambient air quality standard prescribed under subsection (a) shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air. Such secondary standards may be revised in the same manner as promulgated b. "Welfare" - 42 USC 7602(h) 1) Text a) (h) All language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being, whether caused by transformation, conversion, or combination with other air pollutants.

1. Primary and secondary standards - 40 CFR Part 50 a. Primary standards provide public health protection, including protecting the health of "sensitive" populations such as asthmatics, children, and the elderly b. Secondary standards provide public welfare protection, including protection against decreased visibility and damage to animals, crops, vegetation, and buildings. c. Periodically, the standards are reviewed and sometimes may be revised, est new standards d. In some areas of the US, certain regulatory requirements may also remain for implementation of previously est standards 2. Units of measure for the standards are parts per million (ppm) by volume, parts per billion (ppb) by volume, and micrograms per cubic meter of air (µg/m3 a. Pollutant: 1) Carbon monoxide (CO) a) Primary. b) Averaging time: 8 hours/one hour c) Level: 9ppm/35ppm d) Form: not to be exceeded more than once per year 2) Lead (Pb) a) Primary and secondary b) Averaging time: rolling three month average c) Level: .15 mg/m d) Form: not to be exceeded 3) Nitrogen Dioxide a) Primary if: A) Averaging time one hour B) Level 100 ppb C) Form: 98th percentile of one-hour daily maximum concentrations, averaged over three years b) Primary and secondary if: A) Averaging time one year B) Level: 53 ppb C) Form: annual mean 4) Ozone a) Primary and secondary b) Averaging time: 8 hours c) Level: .07 ppm d) Form: annual fourth-highest daily maximum 8-hour concentration, average dover three years

a. First thing state is supposed to do when EPA finalized NAAQS is to say which area is above, below what the standard is, or is it not classifiable. Supposed to do this within one year. b. EPA then looks over what the state has done, and finalize those designations within two years of the new NAAQS c. Then, once they get the designations, state is in charge to designate how they will meet that air quality standard. Give a draft plan, includes a notice and comment period. Supposed to be done within three years of new NAAQS d. EPA then decides whether they will approve, partially approve, or disapprove the state plan. supposed to do so within one year of the state submitting the plan. they can conditionally approve the plan - if so, state has to take other measures within a year. e. State must then bring nonattainment areas into attainment. Supposed to do that within five years.

1. Required SIP elements a. "Include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights)... timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of [the CAA" b. Require monitoring and date collection c. Include programs necessary to limit unpermitted modification, construction, and operation of stationary sources d. Provide adequate assurances that the state has adequate personnel, funding, and authority to implement the SIP 2. Plan is also supposed to make Reasonable Further Progress a. Way to balance reducing emissions with also limiting economic/political impacts b. Requires state to demonstrate that SIP will: 1) Produce annual incremental emission reductions 2) Will achieve attainment by statutory deadline 3) Graph: a) NAAQS attainment holds steady. Over the years, the emissions gradually go down. That counts as reasonable further progress. 3. Other requirements a. CAA requires states to impose certain levels of emission controls b. The act defines what each of these means c. SIP will also include other control technologies from other areas of the act d. New major sources must obtain a permit e. In nonattainment areas, new sources must also obtain offsets f. Graph 1) New or modified source a) Nonattainment area: Lowest achievable emission rate (LAER) b) PSD area: best available control technology (BACT) 2) Existing source a) Nonattainment area: reasonably available control technology (RACT)

A. WVA v. EPA was the first time the phrase "Major Questions Doctrine" was used. All of the following come from the Gorsuch concurrence: 1. "Administrative agencies must be able to point to 'clear congressional authorization' when they claim power to make decisions of vast 'economic and political significance." 2. "Doubtless, what qualifies as an important subject and what qualifies as details may be debated." P. 3 3. "Lawmaking power is vested in the people's representatives." 4. This is meant to be difficult - two houses and president/supermajority must agree 5. P5: danger of the executive branch taking over, "laws would more often bear the support only of the party currently in power." 6. "little would remain to stop agencies from moving into areas where state authority has traditionally predominated." 7. FN2, p7 - uncomfortable with power of the administrative state. a. "a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably understood to have granted." 8. Wants "to ensure that the government does 'not inadvertently cross constitutional lines.'" 9. Rule #1 a. "The doctrine applies when an agency claims the power to resolve a matter of great political significance." b. Exs: 1) Gonzales - physician-assisted suicide when states debating 2) NFIB v. OSHA - nationwide COVID vaccine mandate for most workers when states/Congress debating c. Another consideration: 1) Has Congress considered and rejected a similar proposal? 2) Evidence the agency trying to work around the legislative process?

1. Rule #2 a. "Agency must point to clear congressional authorization when it seeks to regulate a significant portion of the American economy" (quoting Utility Air) or require 'billions of dollars in spending' (quoting King v. Burwell) by private persons or entities" b. Exs: 1) Regulating tobacco products 2) Eliminating rate regulation in telecommunications industry 3) Subjecting private homes to Clean Air Act restrictions 4) COVID moratorium restriction c. Things to consider: 1) Industry complied with the Clean Power Plan anyway due to market forces and supported EPA in the case. 2. Rule #3 a. "Doctrine may apply when an agency seeks to 'intrude into an area that is the particular domain of state law.'" b. This goes hand in hand with federalism: "When an agency claims the power to regulate vast swaths of American life, it not only risks intruding on Congress's power, it also risks intruding on powers reserved to the States. See SWANC, 531 US, at 162, 174." A. Building off of WVA v. EPA concurrence - How do we know if there is a clear congressional statement? P13 1. Rule #2A - Look to the provision involved to see how it fits in overall statutory scheme a. No "oblique or elliptical language" or "elephants in mouseholes" 2. Rule #2B - Examine the age and focus of the statute in relation to the problem seeks to address a. Is the agency using an old statute to solve new, different problem? 3. Rule #2C - Examine the agency's past interpretations of the statute a. Is the agency trying to use a new and/or obscure part of the statute to justify its action? 4. Rule #2D - is there a mismatch between an agency's challenged action and its congressionally assigned mission and expertise? a. If the action is outside the agency's expertise, could assume Congress didn't mean to give the agency that power

1. US Army Corps of Engineers v. Hawkes, Inc. (2016) a. Homeowners weren't happy just with JD b. Is a jurisdictional determination a final agency action appealable under the APA? Yes c. Bennett v. Spear test - action must: 1) "mark the consummation of the agency's decision-making process" 2) "Be one by which rights or obligations have been determined, or from which legal consequences flow." a) Lasts for five years, sure seems like it. You can rely on it without fear of penalties coming against you. And if yes, you'll have to go through permit process. d. Is there an adequate alternative to APA Review in Court? 1) If you don't like it, can go forward without a permit, can argue then that you don't have a wetland in the following court proceeding. 2) Or: you can get a permit and then seek judicial review of the permit in court. 2. Section 404 and the corps a. When the corps say you need a permit, they have to decide if they can give you a permit b. Corps' project must comply with the 404(b)(1) guidelines c. Substantive environmental standards by which all section 404 permit applications are evaluated d. The guidelines are binding regulations and were published by the EPA at 40 CFR Part 230 on December 24, 1980 e. Fundamental precent - discharges of dredged or fill material into waters of the US, including wetlands, should not occur unless it can be demonstrated that such discharges, either individually or cumulatively, won't result in unacceptable adverse effects on the aquatic ecosystem. f. compliance restrictions of the guidelines: 1) discharges aren't permitted if there's a practicable alternative with less adverse impacts or one that is not water dependent. a) Practicable: "available and capable of being done consistent with costs constraints, existing technology, logistics and overall project purpose." b) Water dependency: when impact is within a special aquatic site, and water dependency is required to achieve project purpose c) Alternative analysis: an analysis that identifies the least environmental damaging practicable alternative that meets the project purpose (LEDPA). g. Compliance with the guidelines - other considerations 1) No discharge shall be permitted if it: a) Violates any applicable toxic effluent standard or prohibition (under section 307 of the CWA) (WDR/NPDES) b) Jeopardizes the continued existence of endangered or threatened species under ESA or results in likelihood destruction or adverse modification of designated critical habitat (ESA Compliance) c) There isn't sufficient info to determine compliance with the guidelines d) Violations of any applicable water quality standard (Federal WQ Standards and Section 401 WQ Certification state standards).

1. Section 404 and the EPA a. EPA can come in at any time and tell the corps to hold the phone, you can't issue that permit b. Section 404(c) authorizes the EPA to "prohibit, restrict, or deny" a location "as a disposal site for the discharge of dredged or fill material" when the discharge "will have an unacceptable adverse effect on municipal water supplies, shellfish....ON SLIDE 2. Addition of a pollutant a. Discharge of dredged material means: 1) Any addition of dredged material into, including redeposit of dredged material other than incidental fallback within, the waters of the US. The term includes, but is not limited to, the following: 2) i) the addition of dredged material to a specified discharge site located in waters of the US; 3) ii) the runoff or overflow, dissociated with a dredging operation, from a contained land or water disposal area; and 4) iii) any addition, including redeposit other than incidental ... ON SLIDE b. Incidental fallback 1) incidental fallback is the redeposit of small volumes of dredged material that is incidental to excavation activity in waters of the US when such material falls back to substantially the same place as the initial removal 2) exs of incidental fallback include soil that is disturbed when dirt is shoveled and the backspill that comes off a bucket when such small volume of soil or dirt falls into substantially the same place ON SLIDE c. Borden Ranch v. US Army Corps, 261 F.3d 810 (2001) 1) Activities that destroy the ecology of a wetland aren't immune from the CWA merely bc they don't involve the introduction of material brought in from somewhere else a) Here, property owner ripped up the bottom soil layer of a protected wetland, allowing the water that was trapped can now drain out. b) Prior to the deep ripping, the protective layer of soil was intact, holding the wetland in place. Afterwards, that soil was wrenched up, moved around, and redeposited somewhere else. c) Deep ripping, when undertaken in the context at issue here, can constitute a discharge of a pollutant under the CWA. d. US v. Deaton, 209 F.3d 331 (4th Cir. 2001) 1) Can sidecasting be an addition of a pollutant 2) Sidecasting = the deposit of dredging or excavated material from a wetland back into that same wetland 3) Property owners - in this situation nothing is being added, no net increase of material in the wetland. 4) "contrary to what the Deatons suggest, the statute doesn't prohibit the addition of material; it prohibits the "addition of any pollutant." The idea that there could be an addition of a pollutant without an addition of material seems to us entirely unremarkable, at least when an activity transforms some material from a nonpollutant into a pollutant, as occurred here.... Once [earth and vegetable matter] was removed [from the wetland], that material became "dredged spoil," a statutory pollutant and a type of material that up until then wasn't present on the Deaton property. It is of no consequence that what is now dredged spoil was previously present on the same property in the less threatening form of dirt and vegetation in an undisturbed state. What is important is that once that material was excavated from the wetland, its redeposit in that same wetland added a pollutant where none had been before.

A. Definition of solid waste - 42 USC section 6903(27) 1. "The term 'solid waste' means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities..." 2. After decide something is solid waste, have to decide if it is a hazardous waste a. RCRA defines a "hazardous waste" to be: 1) "a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may - a) "(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or b) (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed." RCRA § 1004(5), 42 U.S.C. § 6903. 3. What wastes are hazardous? a. EPA created a 2-pronged approach for determining which wastes are hazardous. 1) In 40 C.F.R. § 261.3(a)(2)(i), the EPA classifies materials that exhibit the characteristics identified in Subpart C as RCRA hazardous wastes- such materials are characteristic hazardous wastes. 2) In 40 C.F.R. § 261.3(a)(2)(ii), the EPA classifies materials listed in Subpart D as RCRA hazardous wastes- these are the listed hazardous wastes. b. A generator has burden of determining whether or not a waste they are generating is a hazardous waste c. Household wastes are excluded 1) Batteries, pharmaceuticals, etc. See notes p. 485-86

1. To be covered by RCRA, remember that a substance must be both a solid waste and a hazardous waste a. We have a spreadsheet to determine if RCRA applies. Begin with asking is the material a solid waste. Questions to ask to determine if the material is a solid waste: 1) Is it a material exempted from the solid waste regulations, including domestic sewage, irrigation returns flows, discharges pursuant to a NPDES permit, or certain nuclear materials? If so, then it's not a solid waste. 2) Is it being abandoned or disposed, or stored in lieu of being disposed? If so, then it's a solid waste 3) Is it an "in process" material being returned to an "ongoing manufacturing or industrial process?" If so, then it's not a solid waste. 4) Is it a secondary material being recycled? If so, and the following types of recycling occur, it's solid waste: a) Burning for energy recovery b) Used to make a fuel c) Applied to the land d) Used to make a product applied to the land e) Some types of reclamation 5) Is it being speculatively accumulated prior to being recycled? If so, then it's a solid waste. b. Next question is whether the material is a hazardous waste. Questions to ask to determine this: 1) Does it fit within a category of listed hazardous waste? IF so, it's a hazardous waste. 2) Is it a mixture including a listed hazardous waste or a material derived from a listed hazardous waste? If so, it's a hazardous waste. 3) Does it meet the criteria for identification of characteristic hazardous waste? If so, it is a hazardous waste.

A. Listing - section 4 1. APA section 553(e Rulemaking: (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. 2. Flowchart of the process: a. Listing petition. 1) Around/within ninety days: 4(b)(3)(A) Substantial Information Determination 2) Within twelve months: 4(b)(3)(B) Initial listing decision. There are then options: a) Listing not warranted b) Listing warranted but precluded; if this is the case, then within another twelve, months, there will be another 4(b)(3)(B) Initial Listing Decision. c) Listing warranted 3. You can petition to have a species listed under the ESA. 4. Process: a. Get petition. b. In about ninety days, see if they have enough info. c. Within twelve months, make a decision to list or not. Make one of three decisions: 1) Listing warranted 2) Listing warranted but precluded - don't have resources to protect them right now 3) Listing not warranted 5. Ways you'd argue to list: (a)(1). a. Text: 1) The Secretary shall by regulation . . . determine whether any species is an endangered species or a threatened species because of any of the following factors: 2) (A) the present or threatened destruction, modification, or curtailment of its habitat or range; 3) (B) overutilization for commercial, recreational, scientific, or educational purposes; 4) (C) disease or predation; 5) (D) the inadequacy of existing regulatory mechanisms; or 6) (E) other natural or manmade factors affecting its continued existence.

1. To make decisions, use basis in (b). supposed to use best commercial data. a. Text 1) b) Basis for determinations a) (1)(A) The Secretary shall make determinations required by subsection (a)(1) of this section solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species . . . . b. Lotta court cases about what scientific, commercial data they use. 2. Effects a. Once a species is listed, the agency can designate critical habitat and must develop and implement a recovery plan. b. Section 7 consultation applies by statute to all endangered and threatened species. c. The take prohibition under Section 9 applies to endangered animals by statute, and can be applied to threatened animals by regulation. d. Notes 1) Critical habitat doesn't always happen 2) Section 9 applies to all of us - can't do anything to kill, harass, etc. we could all be liable here. A. Emperor Penguin ESA Listing 1. Impacts of the listing: a. Potentially requiring consultation for fed actions like harvesting Antarctic marine living resources and scientific research activities b. Promoting international cooperation on conservation strategies c. Increasing funding for conservation programs 2. Based on loss of ice in antarctica 3. Think: they don't even live in the US. Why should US list it: US doesn't exist in a vacuum. Habitat piece - what actions could we take if they're dying bc losing sea ice? Maybe reduce our emissions, our contribution to the problem.

1. "Any Addition" a. 402 permits (if something is already in the water, you doing something to change what's already there isn't an addition. By making it hotter, that's not a pollutant. No pollutant if it's already there in the water) 1) NWF v. Gorsuch - water coming from a dam that is warmer and has more sediment is not the addition of the pollutant 2) NWF v. Consumer Powers - fish gets chewed up by fish in the turbine of the dam. 6th circuit. Says no pollutant bc healthy fish are upstream from the dam, so the fish guts downstream aren't added 3) LA Cnty. Flood control District v. NRDC - when pollutants are discharged from one part of a waterway into another part of the same waterway through dams of other structures like culverts there is no addition b. 404 permits (if you dig up a wetland, you don't bring in any extra dirt, the fact of you digging up the dirt, it going in a different way, dirt transforms itself into a pollutant) 1) US v. Deaton, 209 Deaton - the statute refers to pollutants, not new materials. "What is important is that once that material was excavated from the wetland, its redeposit in that same wetland added a pollutant where non had been before." 2) Borden Ranch - property owner "deep rips" property - pokes a hole on the bottom of a protected wetland to drain it. "While it is true, that in so doing, no new material has been 'added,' a 'pollutant' has certainly been added." 3) However, de minimus "incidental fallback" not regulated. Ex if you plant a tree, the small amount of earth you displace doesn't need a permit

1. Water Transfers Rule, 73 Fed. Reg. 33897 a. EPA' long-established position was that water transfers that didn't involve an intervening industrial, municipal, or commercial use didn't require an NPDES permit bc such transfers don't constitute an addition of pollutants into the receiving waterway. b. 2008 Water Transfers Rule 1) EPA formalized its position that water transfers are exempt from NPDES permitting - "an activity that conveys or connects waters of the U.S. without subjecting the transferred water to intervening industrial, municipal, or commercial use." 2) EPA clarified that such transfers didn't constitute a "discharge of pollutants," which would subject those transfers to coverage under the NPDES permitting program bc the transfers aren't "any addition of any pollutant to navigable waters from any point source." c. Challenges have upheld the rule 1) 2017 - second circuit reversed the district court's ruling that vacated the 2008 water transfers rule, upheld the rule as a valid exercise of deference to agency expertise embodied in a rule, thereby reinstating the rule.

A. Jurisdictional requirements to either get a 402 of 404 permit 1. 402/404 permit is needed or: a. Addition of any pollutant b. To navigable waters (waters of the US) 1) We're using the regulatory definition of this - navigable for regulatory purposes a) Currently used/susceptible b) Ordinary condition c) Highways of commerce (trade AND travel) d) Customary modes e) Continued highway with other states/countries 2) Alt definition: navigable for admiralty purposes; navigable for title purposes c. From any point source B. U.S. v. Riverside Bayview Homes, Inc. (1985) 1. Should navigable waters include wetlands adjacent to truly navigable waters? 2. Court defers to the agencies a. Hard to know where wet and dry begins - where does lake end, the wetland begin? The two are connected, mixed together b. Deferred to corps ecological judgment that adjacent wetlands are "inseparably bound up" with the waters to which they are adjacent c. Broad objective of CWA is to maintain and improving water quality and protecting aquatic ecosystems d. What does "navigable" mean in the context of the CWA? 1) We can stretch it...

A. 1986 WOTUS Rule 1. Traditional interstate navigable waters 2. "all interstate waters including interstate wetlands," 3. "All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sand flats, wetlands, sloughs, prairie potholds, wet meadows, playa lakes, or natural ponds the use, degradation or destruction of which could affect interstate or foreign commerce," 4. "tributaries of such waters," 5. "Wetlands adjacent to such waters and tributaries" (other than waters that are themselves wetlands) a. The regulation defines "adjacent" wetlands as "Those bordering, continuous to or neighboring" waters of the US b. It specifically provides that "wetlands separated form other waters of the US by man-made dikes or barriers, natural river berms, beach dunes and the like are adjacent lands." 6. NOTE: a. Interpretation that CWA includes adjacent wetlands wouldn't come under WVA v. EPA bc it's not a new and radical interpretation - they've been interpreting it this way for a while B. Solid Waste Agency of N. Cook Cnty. V. U.S. Army Corps of Engineers 1. What about isolated intrastate ponds used by migratory birds? a. Migratory bird Rule goes too far b. What about the treaty clause? 1) Note 2, p314. The treaty clause = migratory bird treaty act. After this case, people say that should've argued not under the commerce clause, but as a way to live up to what we said we'd do under this treaty. We don't know how the ct would've ruled in that situation. 2. What does the court say about navigability? a. It needs to mean something...it's there, so you have to give it some meaning b. Introduces the concept of significant nexus - that is how we should look at non-navigable waters and if they are covered by the act. 1) Do they have a significant nexus to a truly navigable water. Build on this concept in Rapanos, don't really say anything else here. 3. In short: small ponds don't get covered.

a. Nitrates and the Des Moines Water Works 1) Des Moines water works sued three Iowa drainage districts over high levels of nitrates in its water supply 2) Sought order compelling drainage districts to obtain NPDES permits and limit nitrate discharges 3) Iowa district court dismissed lawsuit in March 2017 b. Nutrient pollution regulation under SDWA ON SLIDE c. Nitrates also caused blue baby syndrome 1) Babies can't handle the amount of nitrogen like adults; it eats up all the oxygen in their bodies. Baby starts suffocating. 2) This is a big public health issue d. Iowa court dismissed not on the merits - don't know what the results would be, if they really would need a permit. 1) Good potential exam question. Pipes is not the usual stormwater runoff that is exempted by the act. the point source piece is what's up for debate. 1. Lack of funding and compliance: Jackson, MS a. City wastewater treatment plants had a series of unlawful discharges from 2009-2012 b. 2012 settlement agreement for past and ongoing violations. Required the city to: 1) Develop and implement plans to improve operations at the city's wastewater treatment plants; 2) Eliminate SSOs; and 3) Minimize prohibited bypasses within approximately 18 years (2930) c. Penalties: city was assessed a $437,916 civil penalty and agreed to spend an additional $875,000 on a supplemental environmental project in low income areas in the city. 1) The total compliance action costs was estimated at 400 million. d. Jackson seeking to renegotiate: 1) By 2018 city official claim the estimated costs of compliance had almost doubled to 600-800 million 2) March 2021 semi-annual report: the city reported that, due to lack of funding for the Consent Decree Program, several project tasks have been deferred for a period of time or until additional funding can be secured. Applications for the supplemental environmental project are no longer being accepted dur to lack of funding, despite over $700,000 remaining in the project's escrow account (Semi-Annual Report) (we don't have the money to set up the programs to pay people)

A. 404 Program 1. 404 Dredge and fill permit a. Regulates the discharge of dredged or fill material into the waters of the US, including jurisdictional wetlands 1) Wetlands - an area inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances support vegetation typically adapted for saturated soil conditions b. Covers all discharges of dredged or fill material 1) Covers temporary or permanent discharges c. What is dredge and fill? 1) Dredged material: a) Any material excavated from waters of the US 2) Fill material: a) Any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a water body or wetland with the intent to affect site hydrology; includes rock, soil, dirt, or similar material. b) Happens when filling in a wetland 2. 404 permits jurisdictional determinations - how do you determine if you need a 404 permit? a. Initial step in the permit application process to identify and delineate bodies of water and wetlands subject to CWA (and the rivers and harbors act) b. Provides important information to a landowner or investor for planning purposes or carrying out certain activities on a given parcel of land c. Corps uses a multi-parameter approach defined in Technical Report Y-87-1, Corps of Engineers Wetlands Delineation Manual, dated January 1987, and supplemental guidance when making wetland determinations d. Generally requires positive evidence of hydrophytic vegetation, hydric soils, and wetlands hydrology for some portion of the growing season for a determination that an area is a federally-regulated wetland. 3. Jurisdictional determination a. Approved JD is: 1) An official corps determination that jurisdictional waters of the US are either present or absent on a particular site 2) Is valid for five years 3) Can be appealed through the Corps' administrative appeal process

I. Administrative Law A. Hierarchy of authority 1. Constitution 2. Statute a. Has to be linked to a part of the const 3. Administrative lawmaking (regulation and orders) B. The rise of agencies 1. Started about the time of the new deal 2. What were some of the arguments for having administrative state? a. We would have experts in the agencies who knew basically what they were talking about - congressmen don't really know about regulating smokestacks. Scientists do. b. Congress passes a law, then defers power to the admins 3. What are some of the criticisms against the admin state? a. Policy 1) A lot of people in congress don't like admin state - think it's taking away powers from congress. Don't like that unelected people have that much power. b. Constitutional 1) That makes the exec branch legislative (admin is from exec branch) 2) Separation of powers problem 4. What limits are there on Congress's delegation of rulemaking to agencies? a. There is a line, agencies aren't supposed to be crossing it.

A. Agency action 1. Agencies take a lot of actions 2. Administrative procedure act - law gives rules that admin has to follow 3. Under the APA, there's either rulemaking or adjudicating a. Then they each have formal and informal rulings/actions 1) Formal for rulemaking: has to be on the record. Is like a trial, where they go through and fix disputes 2) Informal for rulemaking: Notice and comment. Where most activity is. 3) Formal for rulemaking: has to be on the record. Trial-type procedures 4) Informal for adjudication: due process. Process you go through before you go to court - can challenge the EPA's ruling on something. 4. We're really worried about the informal piece. Them making the rules, and then us going in and challenging them. We have to have both parts before we can go to court. We have to go to the agency first. B. The right to Judicial review 1. The APA gave the US people the right to challenge under it. 2. People usually bring two claims: one under the environmental statute, one under the APA. C. "Final Agency Action" Doctrine 1. Similar to ripeness. When can you sue the agency - after the agency has finished their decision making 2. "Dual requirements for 'final agency action:'" a. That the action be final - ie, not tentative or interlocutory; and b. That the action be one from which "rights or obligations have been determined" or from which "legal consequences will flow." 3. Even if action is "final," may not be reviewable until put into action, causing tangible consequences. a. Criticism of West Virginia v. EPA: the action hadn't actually been in place before SCOTUS heard it. That's why people say it's an advisory opinion, the court shouldn't have taken it in the first place.

A. Trump admin New Regulations 1. ESA Regulations - Proposed changes a. Proposed rules published in the Federal Register on July 25, 2018 b. 60,000 comments c. Changes focused on three main areas: 1) Listing and Critical Habitat Designation a) Remove the phrase, "without reference to possible economic or other impacts of such determination" to listing regs b) Identify when designating critical habitat may not be prudent c) Revisions to designating unoccupied critical habitat 2) Prohibitions to threatened wildlife and plants a) Rescind FWS blanket rule 3) Section 7 Interagency Consultation a) Revise the definition of destruction or adverse modification A) "direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species." b) Other definitional changes and procedural changes to consultation d. Also sought input on other items not included in the proposed revised regulatory language 2. Took three main actions in these areas: a. Listing and critical habitat designation 1) Previous regs had said don't think about economic or other impacts. Trump removed this section. b. Prohibitions to threatened wildlife and plants 1) Wouldn't extend take to threatened species c. Section 7 interagency consultation 1) Not going to think about how the action itself looks at the one piece of critical habitat that's being affected by the habitat; will look at it all as a whole. Think of the whole critical habitat that was designated, not just the 40 acres that will be developed.

A. Biden proposed changes 1. Rescinding regulations that revised the FWS process for considering exclusions from critical habitat designations 2. Rescinding regulatory definition of habitat: The Services will propose to rescind the final rule that defined the term "habitat" for the purposes of critical habitat designation (85 FR 81411; December 16, 2020). A regulatory definition is not required for the Services to designate critical habitat in compliance with a 2018 Supreme Court decision. 3. Revising regulations for listing species and designating critical habitat: The Services will propose revising the final rule (84 FR 45020; August 27, 2019) to reinstate prior language affirming that listing determinations are made "without reference to possible economic or other impacts of such determination," along with other potential revisions also under discussion. 4. Revising regulations for interagency cooperation: The Services will propose revisions to the final rule (84 FR 44976; August 27, 2019) which revised the regulations governing section 7 consultation. The Services will propose to revise the definition of "effects of the action" and associated provisions to that portion of the rule, with other potential revisions also under discussion. 5. Reinstating protections for species listed as threatened under ESA: The FWS will propose to reinstate its "blanket 4(d) rule," which was withdrawn by the previous Administration (84 FR 44753; August 27, 2019). The blanket 4(d) rule establishes the default of automatically extending protections provided to endangered species to those listed as threatened, unless the FWS adopts a species-specific 4(d) rule.

1. Trump EPA (Response to the Clean Power Plan) a. Clean Power Plan was said to be in excess of its statutory authority under section 111(d). 1) Generation shifting should not have been considered as part of the BSER. 2) Agency interpreted section 111 as "limiting the BSER to those systems that can be put into operation at a building, structure, facility, or installation," such add-on controls and inherently lower-emitting processes/practices/designs. b. Clean Power Plan, rather than setting the standard "based on the application of equipment and practices at th level of an individual facility," had instead based it on "a shift in the energy generation mix at the grid level," not the sort of measure that has "a potential for application to an individual source." c. "the interpretative question raised" by the Clean Power Plan - "ie, whether a system of emission reduction can consist of generation-shifting measures" fell under the major question doctrine. 2. WVA v. EPA a. "the issue here is whether restructuring the nation's overall mix of electricity generation, to transition from 38% coal to 27% coal by 2030, can be the "best system of emission reduction" within the meaning of section 111. b. Issue #1 - Standing and Mootness 1) Was this even a case the court was supposed to be hearing in the first place? a) The clean power plan wasn't in place. EPA said it wasn't going to be put into place. Mootness: EPA has to prove that it's moot and can't go forward. Burden is heavy bc the case is based on a respondent's voluntary conduct. Kagan, in response, says: Ct has obstructed EPA from the beginning. Only point of this case is to tell the EPA what they can do in their next rule.

A. CAA - NAAQS 1. CAA Problems - questions to ask to figure out which program will apply a. Is the source a stationary or mobile source b. what kind of air pollutant is involved c. Is the source a new or existing source d. Is the source located in a prevention of significant deterioration (PSD) area (Meets NAAQS) or nonattainment area (doesn't meet NAAQS)? 2. What are NAAQS? NAAQS and SIPs - 5 steps: a. 1) what are the pollutants that we are or should be addressing under NAAQS? 1) These are criteria pollutants b. 2) set air quality standards for these pollutants 1) Primary and Secondary standards c. 3) Designate air quality control regions - "Air sheds" 1) Makes sense to regulate based on these regions a) It is easier to see if we are attaining the standards in each region than by looking at the nation as a whole 2) States designate these, but sometimes these go over state boundaries d. 4) Est a plan, general by the state writing the SIP for each Air Shed 1) If in 2 states, the states must cooperate with each other in establishing this. e. 5) Implement the SIP

1. Flow chart illustrating the process whereby the EPA administrator reviews and sets a new NAAQS. CASAC refers to the Clean Air Scientific Advisory Committee. a. Scientific peer review of published studies b. Scientific studies on health and environmental effects c. EPA "Criteria Document" - Extensive assessment of scientific studies 1) Leads to reviews by CASAC and the public d. EPA "Staff Paper" - interprets scientific data and identifies factors to consider in setting standards, including staff recommendations for standards 1) Review by CASAC and the public e. Administrator proposes new NAAQS f. Public hearings and comment on proposals g. Administrator promulgates NAAQS 2. NAAQS characteristics a. Set a goal for the concentration of air pollutants in the ambient air (air quality) - not the amount of emissions from sources 1) But do set goals for CAA programs that do regulate emissions b. Specify a concentration of air pollutants and time frame for averaging the concentrations, as concentrations can change 1) Makes determining compliance complicated c. Uniform National Standards - states can go more stringent d. Do get revised over time - new standards are phased in over time e. Protect the public health and welfare f. Whitman v. American Trucking Association (US 2001) Under CAA section 108(a), EPA may not consider economic costs in setting NAAQS

A. CAA - SIPs 1. Overview a. Purpose - ensure compliance with primary and secondary NAAQS 1) SIP is at a minimum "a plan which provides for implementation, maintenance, and enforcement of" NAAQS a) Once approved by EPA< SIP becomes federal law 2) But can cover sources and pollutants that aren't covered by a NAAQS a) These portions become state law - not federal law b. Once SIP is approved, state is primary CAA administrator 2. Post - NAAQS timeline a. Timeline breakdown 1) Action: determine which areas are in attainment, nonattainment, or unclassifiable a) Actor: state b) Timeline: initial designations due within one year c) 42 USC 7407(d)(A) 2) Action: finalize designations a) Actor: EPA b) Timeline: within two years of new NAAQS c) Citation: 42 USC 7407(D)(B) 3) Action: proposed state implementation plan - includes notice and comment a) Actor: state b) Timeline: within three years of new NAAQS c) Citation: 42 USC 7410(a) 4) Action: approve, partially approve, or disapprove state plan a) Conditional approval - EPA identifies enforceable measures state must take in one year b) Actor: EPA and state c) Timeline: EPA - within one year of state submitting plan. must approve if criteria are met. State - one year; if not met, turns into disapproval d) Citation: 42 USC 7410(k); 42 USC 7410(k)(2) - (4) 5) Action: bring nonattainment areas into attainment a) Actor: state b) Timeline: five years, with two one-year extensions (unless pollutant specific program) c) Citation: 42 USC 7502

a. Colville Tribal Enterprise Corp. EPA Letter, p203-05 1) Can restarting a shutdown facility be considered a new source? a) Permanent shutdown? b) Factors? 2) Tribe is thinking about buying a facility - tribe asks EPA if it'll be considered a new or old source bc it's been shut down for one year. a) We're under the two year presumption b) EPA gives v similar factors. Lookit intent of owner, facts and circumstances, why was it shut down, how did they handle shut down, if it was longer than two years, we'll presume it's permanent. 3) EPA gives a caveat: as long as they restart by x date, they won't have been shut down for two years. If you go past that date, our analysis will be different. b. Illinois Admin Code, p205-06 1) What are the reqs? 2) What is the baseline? c. Discussion 1) We're more than two years. If we're more than two years, it's on the plant to show EPA it wasn't permanently shut down. 2) Reason for shutting down: recession. 3) Their intent was to be temporary. EPA tells us if it's more than two years, we need to have something to show that this is a temporary shutdown - what actions did they take to make it so this is not a permanent shutdown. Facts say they let site fall into disrepair. 4) This is obviously a permanent shutdown. Outcome: no, big manufacturing, you can't use this offset, you have to find someone else to give you 1200 NOx to offset you.

A. CAA Wrap-up 1. Deference - what standards of review do courts use when ruling on agency actions? a. Administrative Procedure Act - 1946 1) Intros arbitrary and capricious standard for judicial review of final agency actions 2) Citizens to preserve Overton Park v. Volpe (401 U.S. 402), courts must first "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." b. Chevron Doctrine - from 1984 Supreme Court case Chevron v. NRDC 1) Court created two step test for agency regulations interpreting a statute. 2) 1) is the statute ambiguous? 2) If so, is the agency interpretation reasonable? c. Major Question Doctrine - from 2022 Supreme Court case WVA v. EPA 1) Administrative agencies must be able to point to 'clear congressional authorization' when they claim power to make decisions of vast 'economic and political significance.' 2) Ambiguity does not weigh in favor of the agencies. 2. How to regulate GHGs (green house gases) a. Train v. NRDC - Criteria Pollutants 1) Deals with criteria pollutants under the CAA 2) Remember the five steps for NAAQS and SIPS a) What are the pollutants that we are or should be addressing under NAAQS? A) These are criteria pollutants - only six of them b) 2) set air quality standards for these pollutants c) Designate air quality control regions - "Air sheds" A) Makes sense to regulate based on these regions. It is easier to see if we are attaining the standards in each region than by looking at the nation as a whole. B) States designate these, but sometimes these go over state boundaries. d) 4) establish a plan, general by the state writing the SIP for each air shed A) If in two states, the states must cooperate with each other in establishing this e) 5) implement the SIP 3) 108 - language for criteria pollutants a) a) air pollutant list; publication and reiviosn by Administrator; issuance of air quality criteria for air pollutants b) (1) For the purpose of establishing national primary and secondary ambient air quality standards, the Administrator shall within 30 days after December 31, 1970, publish, and shall from time to time thereafter revise, a list which includes each air pollutant c) (A) emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare; d) (B) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and e) (C) for which air quality criteria had not been issued before December 31, 1970 but for which he plans to issue air quality criteria under this section. 4) Criteria pollutants a) The standard: endanger public health or welfare; in ambient air form numerous/diverse sources; plans to issue air quality criteria b) Applicable programs: NAAQS, SIPS, new source review - nonattainment

A. NPDES /404 Statutory terms 1. 33 USC 1311(a) - except with a CWA permit (the discharge of any pollutant by any person shall be unlawful. 2. The three triggers for you needing to get a permit: 1362(12): a. "discharge of a pollutant" and the term "discharge of pollutants" each means (A) any addition of any pollutant to navigable waters from any points source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft 3. 1362(7) - The term "navigable waters" means the waters of the United States, including the territorial seas. B. CWA point source permits 1. Discharges from point sources permitted pursuant to two permits: a. 402 national Pollutant Discharge Elimination System (NPDES) permit: EPA/state agency - "discharge of a pollutant" b. 404 Dredge or Fill permit: Army Corps of Engineers/state agency - "discharge of dredge and fill material." 2. Permit needed for: a. Addition of any pollutant b. To navigable waters c. From any point source 3. Jurisdictional requirements mostly the same for 402 and 404 a. Some differences in "addition of any pollutant" b. 404 is more strict

A. CWA section 402 NPDES: EPA 1. NPDES is a license to discharge - must comply with the stricter of either: a. "technology based" reqs (defined by EPA) or b. "water quality based" reqs (defined by states) 2. Determines how much of a pollutant you can discharge 3. Monitoring and reporting reqs 4. Great at controlling industrial sources a. Wastewater treatment plants a focus - but funding an issue? b. New focus on stormwater 5. Ex: Combined Sewer Overflows (CSOs) a. Infrastructure where sewage is going to the bottom of the pipe, is supposed to flow to treatment plant. Storm water is supposed to flow to nearby creek. Problem: when it rains, so much can come in that it floods the poop, poop gets discharged into the creek with no new treatment at all. B. 404 Dredge and Fill permit - army corps of engineers 1. Regulates the discharge of dredged or fill material into the water of the US, including jurisdictional wetlands a. Wetlands: an area inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support vegetation typically adapted for saturated soil conditions 2. Covers all discharges of dredged or fill material a. Temporary or permanent discharges 3. Ex: The Sacketts - they're represented by the Pacific Legal Foundation a. Are very pro property rights b. EPA in 2012 or so came into conflict. They were going to build a house, gov said that's a wetland, can't build on there. Sacketts said look at our property, it's dry, this is not a wetland. c. NRDC view: they're close to Priest Lake. Gov argues that it's a wetland, it's adjacent to a non-navigable water that goes into a navigable water. So yes, it's governed by CWA.

1. Enforcement: may be subject to civil or criminal liability. a. Fed gov can enforce the statutes. Many of them also have Citizen Suit provisions that allow private citizens to bring lawsuits against alleged violators. b. Issues: 1) Is the provision enforceable 2) Does the government want to enforce 3) Do private parties have the ability to 2. Cooperative Federalism: federal statndards with state implementation. States can go stricter; ex: CA emission rules 3. Our reading asks why should we regulate at all a. Is something happening to the environment b. If yes, should we respond c. If yes, should the response be legal d. If yes, who should respond: 1) what legal tools should we use, 2) how intense of a response, 3) who do we place the burden on

A. Common Issues 1. Ethical Theories a. Protect Human Health b. Leopold's Land Ethic 1) We are part of an interdependent environment c. Baxter 1) Harm to another species is not enough - what is the benefit of the species to humans d. In-class notes 1) Enforcement: how are we going to enforce what's on the books. 2) Ethical theories: a) Protect human health - all we should care about is human health b) Leopold's Land Ethic - we are part of an interdependent environment c) Baxter - harm to another species is not enough - what is the benefit of the species to humans? 2. Standing a. Who gets to go to court to enforce against environmental harm? 3. Tragedy of the commons a. How do we best allocate common resources so that they are sustainably used? 4. Other trends a. Federal legislative stalemate 1) State power? b. The administrative state c. Emergence of climate change d. West Virginia v. EPA

A. Post-Rapanos: 2015 WOTUS Rule 1. Contains 8 categories of jurisdictional waters 2. Three jurisdictional by rule - traditionally NW, interstate waters, territorial seas 3. Impoundments of jurisdictional waters - jurisdictional by rule (aka, bright line rule) 4. "tributaries" and "adjacent" waters also jurisdictional by rule (Bright line) 5. Case by case: those waters found after a case-specific analysis to have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas, either alone or in combination with similarly situated waters in the region. B. 2020 WOTUS Rule 1. Repeals the 2015 rule 2. The four types of jurisdictional waters under the 2020 rule are: a. "territorial seas and traditional navigable waters; b. Perennial and intermittent tributaries that contribute surface water flow to such waters; c. Certain lakes, ponds, and impoundments of jurisdictional waters; and d. Wetlands adjacent to other jurisdictional waters."

A. Comparing 2015 and 2020 rules: 1. 2015 rule: a. Included based on their distance to regulated waters, usually regulating them when they were within 1500 feet of a regulated water b. Tributaries: regulated under previous rules without qualification. In 2015 rule: included waters that are characterized by the presence of physical indicators of flow - bed and banks and ordinary high water mark - and that contribute flow directly or indirectly to a traditional navigable water, and interstate water, or the territorial seas c. Wetlands: considered as a wetland as a WOTUS based on its location to regulated waters, including any wetland within 1500 feet of a regulated water 2. 2020 rule: a. Only includes lakes, ponds, and impoundments if it is a traditional navigable water, or contributes surface water flow to or is flooded by a jurisdictional water in a typical year. b. Tributaries: included if it flows to a jurisdictional water either perennially - meaning it has surface water flowing year round - or intermittently - meaning that it has a continuous flow "during certain times of the year and more than in direct response to precipitation." 1) Ephemeral waters - waters that only flow due to precipitation - are no included as a jurisdictional water 2) Snow example. c. Wetlands: only covering wetlands that abut the other jurisdictional waters 1) Defines "abut" as "when a wetland touches a territorial sea, traditional navigable water, tributary, or lake, pond, or impoundment of a jurisdictional water at least at one point or side." 2) Can still be a WOTUS if it is separated from a jurisdictional water by certain natural features like berms or banks, as well as similar artificial features if it "allows for a direct hydrological surface connection."

A. Critical Habitat designation 1. Based on best scientifical data, but can also look at economic impact 2. Text a. (b) Basis for determinations (2) The Secretary shall designate critical habitat . . . on the basis of the best scientific data available and after taking into consideration the economic impact . . . and any other relevant impact, of specifying any particular area as critical habitat. . . . 3. There are a bunch of species that don't have critical habitat. Look at are we destroying or harming the habitat. 4. What is critical habitat? a. Defined as: 1) "(i) the specific areas within the geographical area occupied by the species, at the time it is listed...on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and 2) (ii) specific areas outside the geographical area occupied by the species at the time it is listed...upon a determination by the Secretary that such areas are essential for the conservation of the species." b. ESA § 3(5)(A). Generally cannot include the entire geographic area that could be occupied by the species. c. Ii: people get worked up about it d. Factors 1) The designation must be based on the best scientific data, but the agency is required to consider the economic impacts of the designation. a) The agency must also consider any impact on national security and any other relevant impact. b) The agency also has the authority to exclude an area from critical habitat if "the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat," unless the exclusion "will result in the extinction of the species concerned." (16 U.S.C. § 1533(b)(2)). e. Effects 1) • When critical habitat is designated on private property, it does not directly limit the landowner's use of the property. 2) However, critical habitat is subject to Section 7 consultation. Thus, if a landowner seeks federal funding or a federal permit (such as a Clean Water Act permit) for an action that may affect designated critical habitat, the landowner would have to work with the agency through the Section 7 consultation process. f. Private landowners can do whatever they want unless they as the feds for something

A. Dusky Gopher Frog 1. Now he's only in MS. Fish and wildlife said they'd designate critical habitat outside of MS bc he could be there. Landowners didn't like this. 2. Timber co sued - wanted to clear a forest. Ct says no, frog could live there. Trump admin writes legislation says you can only designate where they're currently living. Should the frog be able to stop clearing in LA, where they don't currently live? B. Consultation - section 7 1. Section 7 consultation: a. Text 1) (a) Federal agency actions and consultations . . . 2) (2) Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (. . . "agency action") is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical. . . . b. Applies to all listed species and designated critical habitat 1) Looks at species as a whole c. Protects only against "federal" actions 1) any action authorized, funded, or carried out by such agency d. Protects only against jeopardy or adverse modification e. "Best available scientific and commercial data" f. Jeopardize the continued existence of = "to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 CFR § 402.02. g. Destruction or adverse modification = "a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species." 50 CFR § 402.02. 1) May include altering the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features. 2. Every fed agency in consultation with either FAW or Secretary have to make sure than any action they take doesn't not destroy or adversely modify critical habitat.

I. CERCLA - the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 A. Background 1. Est prohibitions and reqs concerning closed and abandoned hazardous waste sites 2. Provided for liability of persons responsible for releases of hazardous waste at these sites 3. Est a trust fund to provide for cleanup when no responsible party could be identified. B. CERCLA's major provisions est: 1. Liability for hazardous waste cleanup by the generator of the waste; 2. A system for EPA to rank hazardous waste sites 3. A national priorities list for the sites eligible for cleanup through Superfund 4. A national contingency plan that details the procedures to be followed to assess contamination at a site, the degree of hazard to public health or the environment, pathways for pollutant movement, alternatives to clean up a site, and the record of decision by EPA detailing how the site is to be remediated. C. What is a hazardous substance under CERCLA? 1. More specifically, section 101(14) of CERCLA defines the term hazardous substance to include: a. Hazardous waste under the RCRA b. Toxic water pollutants under CWA c. Hazardous air pollutants under the CAA d. Substances designed as hazardous substances under section 102 of CERCLA or section 311(b)(2)(A) of the CWA e. Certain "imminently hazardous chemicals" under the Toxic Substances COntral Act f. Doesn't include petroleum, including crude oil D. EPA, when we have a site that is in need of beign cleaned up, has a choice of actions. 1. Section 104 - clean up the site itself using Superfund funds and sue those who may be liable (PRPs) for cost recovery under section 107 2. Section 106 - issue a unilateral order to anyone liable under seciotn 107 for sites that present "imminent and substantial endangerment" 3. EPA uses the threat of either of these to settle

A. EPA Authority 1. Section 104 authorizes EPA to respond to releases or substantial threats of releases of: a. Hazardous substances b. Pollutants or contaminants which may present an imminent and substantial danger to the public health or welfare 1) Rare action 2) Requires EPA to make site-specific findings about the risks posed 3) Cannot order Potentially Responsible Parties (PRPs) to clean up or seek response costs B. Section 104 EPA cleanups 1. Superfund funds can only be used to clean up sites on the national priorities list (NPL) a. Sites meant to be the most contaminated in the country b. Sites listed through rulemaking c. Can be reviewed in the district courts and subject to a&c review 2. EPA's actiosn must be consistent with the National Contingency Plan (NCP) - 40 CFR part 300 a. Establishes procedural and substantive rules that govern EPA's response to actual or threatened contamination b. If the EPA seeks cost recovery, burden is on the PRP to show that EPA didn't comply with the NCP C. Removal v. Remediation 1. A removal action generally consists of short-term cleanup measures to contain, stabilize or mitigate a release of hazardous substances. a. Can include provision of alternative water supplies, temporary evacuation and housing for threatened individuals, security fencing, and other measures to limit access, and similar emergency activities. 2. A remedial action is a long-term permanent cleanup of a release of hazardous substances a. Can include, for instance, excavation of leaking containers, pumping and treating of groundwater, incineration of contaminated soil, and similar long term cleanup measures 3. Response action is the general term that CERCLA uses to refer to a removal action OR a remedial action. 4. Although not every cleanup will involve both removal and remedial actions, the cleanup process can be conceptually visualized on the following timeline: a. Release b. Response actions: 1) Removal action 2) Remedial action c. Clean site

A. Does NEPA apply? 1. Applies only to the federal government. statute is aimed at telling the feds they have to think about their certain actions. Trigger for when it is applying to the agency: "major fed action significantly affecting the quality of the human environment." a. Listed in NEPA section 2: 1) The Congress authorizes and directs that, to the fullest extent possible: (2) All agencies of the Federal Government shall . . . 2) (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— 3) (i) The environmental impact of the proposed action . . . . b. The trigger: "major fed actional significantly affecting the quality of the human environment." 2. What actions are covered: a. Yes, covered: 1) Project development and implementation 2) Is an agency issuing regulations 3) Is an agency preparing land use plans 4) Is an agency issuing fed permits and licenses 5) Is there fed funding for state and private projects (For CAA, CWA, etc) b. No/maybe covered: 1) Substantive law exempts action from NEPA review 2) Ministerial/nondiscretionary duties (narrowly interpreted) 3) Actions that are designed to protect the environmental a) Cts split on this. 3. What is "federal?" a. CEQ regulations - agency actions that are "potentially subject to fed control and responsibility" b. Cts have interpreted this broadly - if a qualifying action by fed agency NEPA applies c. But what extent of the project is fed? 1) Does NEPA apply to the entire project or just the fed piece? 2) Entire project - fed action is necessarily prerequisite to approval/implementation of entire/substantial part of the project 3) Federal piece - discrete and separable piece of the project. 4) Unknown - the space in between the two.

A. First question: is an Environmental Impact Statement (EIS) needed? 1. This comes from NEPA section 102. Trigger is: major fed action that is significantly affecting the quality of the human environment. If answer is yes, then you need an EIS. If no, then you can comply with NEPA a couple of different ways. 2. Flowchart a. Proposed action. Is there a significant impact? 1) No: categorical exclusion a) Coordination, analysis and documentation A) Agency decision 2) Yes: notice of intent and scoping a) Notice of intent and scoping A) Draft EIS I) Final EIS Record of decision (ROD) Agency decision 3) Unsure: environmental assessment (is like a mini EIS) a) If no - finding of no significant impact (FONSI) A) Agency decision b) If yes: go to notice of intent and scoping. A) Draft EIS I) Final EIS Record of decision (ROD) Agency decision 3. What does it mean to "significantly affect the human environment?" a. Not defined by NEPA (there is no definitions section) b. Significantly used to be defined, it no longer is. 1) It used to say that you should think about it in terms of context and intensity c. CEQ regulations do define other terms. d. What does this mean for us: on exam, you say "it's not currently defined. Cts haven't wrestled with that, previous cts have when it talked about context and intensity." e. 40 CFR section 1509.1(g) 1) Biden has gone back, tried to create definitions again 2) Cumulative effects: big debates on how to use this definition. 3) The history component of the text comes into play quite a bit. 4) General note: NEPA is more about just think about the environmental impacts of your action. And if you're still ok with it, we still want you to think about it.

1. Problem questions: P107 a. Can the company sue EPA to challenge the rule setting the emissions standard? If so, in what court should the co bring suit? 1) NO, they failed to follow the notice-comment process. Not within the time frame. Also: past the sixty days. Rule was issued two years ago. 2) Where would they sue: DC Circuit b. Can the co sue EPA to challenge EPA's letter? If so, in what court should the company bring suit? 1) No - there's been no enforcement. There has been no final agency decision. 2) Again - would go in DC Circuit within 60 days c. If the co sues EPA, what would the co have to show in order to prevail? What arguments might the co make to satisfy this burden? How likely is the co to prevail, based on the info you have at hand? What additional info might be relevant? 1) Co would likely have to go against Chevron deference. Would have to show a procedural error. If challenging EPA rule itself - will lose, bc filed too late, didn't offer arguments during the public comment period. d. If the co cannot sue EPA to challenge the rule, how else might the co be able to protect its interests? 1) Lobby legislatures to have he standard changed in the actual legislation. Try to sell internationally. Petition them to change their rule (EPA) e. If EPA initiates an enforcement action against the co for violations of the emissions standards, can the co argue in its defense that the standards were arbitrary and capricious as applied to the new excavator 1) No, you can't. can't challenge the rule itself in an enforcement action.

A. General notes 1. Federal regulations are published on the federal register - you can go to their website. B. Overview of Administrative process 1. How to challenge certain EPA actions? a. Say you wanna challenge a rulemaking, don't like, for ex, a final ruling that the EPA makes. 1) Must file petition within sixty days in DC circuit. a) In WVA case: filed the same day - Bc they knew they wouldn't rescind the rule b. First, if EPA says they want to get 50k in fines against you, proceed to administrative court c. to challenge ALJ's action, must file an appeal within 45 days with EPA's Environmental Appeals Board. d. Aka: If don't like that: Then you can get in a court of law, based on what is in the Administrative Record.

1. American Mining Congress v. US EPA, 824 F.2d 1177, 1181 (DC Cir. 1987) a. Solid waste = discarded material b. Can discarded material include materials destined for reuse in an industry's ongoing production process? c. Exs 1) Petroleum - create complex mix of hydrocarbons; distill crude oil. Sometimes the material isn't usable, has to start their process all over again. Keep at it until it is usable. 2) Mining d. EPA said that discarded materials included materials destined for reuse, even when it was part of an ongoing process like petroleum refining. e. Ct focuses on the term "other discarded material" 1) EPA: discarded materials includes maerials destined for reuse in an industry's ongoing production process 2) Petitioners: RCRA is limited to controlling materials that are discarded or intended for discard. In-process secondary materials shouldn't be covered f. Issue: how was congress using "discarded" 1) In its ordinary sense - "disposed of" or "abandoned?" 2) Or broader? g. Think: what is the purpose of RCRA. 1) Ct says congress passed it to cut down on the generation of hazardous waste. To regulate immediate reuse is going against congress's purpose, bc they wanted to encourage industries to do that very same thing, to try to reuse materials. h. "It seems clear that EPA need not regulate 'spent materials' that are recycled and reused in an ongoing manufacturing or industrial process. These materials haven't yet become part of the waste disposal problem; rather, they're destined for beneficial reuse or recycling in a continuous process by the generating industry itself." i. "Immediate" Reuse 1) What counts as immediate reuse? 2) The AMC test asks several questions: a) Are the materials destined for immediate reuse in an ongoing manufacturing or industrial process b) Are the materials being reused by the generating industry itself c) Have the materials become part of the waste disposal problem. d) One and two HAVE to be met. Three is more of a policy consideration - can wiggle their way out of it if you have a friendly judge. See AMC I, 824 F.2d at 1186. 3) How quickly must the material be reused? a) Facts: in stell production, crushed limestone (calcium carbonate) is added to the furnace to remove impurities from the molten metal. The limestone chemically interacts with those impurities to form slag, which then floats to the surface of the molten steel. Steel workers remove the slag from the steel and send it to be processed separately. Specifically, steel producers "cure" the slag for six months. They then sell the hardened slag to the construction industry for roadbuilding and other construction uses. A) Question: is the slag a "solid waste" under RCRA? If we say it's under RCRA, what we're saying is when it's treated, transported, or stored, it always has to meet RCRA standards. Ct here said no, it should be solid waste. Not immediate reuse - sits there for six months. That's not an immediate reuse. Steel industry isn't the industry that will reuse it. Slag has become part of the waste disposal problem bc has to store, treat it for six months. So yes, it's regulated. b) AMC II - Wastewater Sludge - Facts: smelting operations produce large volumes of wastewater that the smelting co must treat before discharging it. As part of the treatment process, the wastewater is stored in impoundments, producing sludges. Smelting cos may or may not use these sludges in their future operations A) Are the sludges that result from wastewater treatment 'solid wastes' for purposes of RCRA, even though the smelting co may eventually reuse those sludges in its ongoing processes? Yes, it's solid waste. Not part of manufacturing process, part of treating wastewater. Is part of the waste disposal problem.

A. Hazardous Wastes 1. Step 1 - is it a solid waste. Step 2 - if it is a solid waste, is it a hazardous waste 2. RCRA defines a "hazardous waste" to be: a. "a solid waste, or combination of solid wastes, which bc of its quantity, concentration, or physical, chemical, or infectious characteristics may: 1) A) Cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness ; or 2) B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed." RCRA section 1004(5), 42 USC section 6903. 3. Assuming that the following otherwise qualify as discarded materials, which of the following substances are probably hazardous wastes: a. Dioxin, an extremely carcinogenic (cancer causing chemical, a waste in paper processing). Yes, regulate it b. E. coli, a microscopic organism found in animal waste, which can cause disease in humans. Tricky, bc the poop is the solid waste. c. Pure water. No, don't regulate. d. Creosote, a toxic chemical used to waterproof wood. Yes, regulate. e. Ordinary, uncontaminated sand in limited quantities. No, don't regulate. f. Concentrated hydrochloric acid, used in many industrial processes. Yes, regulate. 4. What wastes are hazardous? a. EPA created a two-pronged approach for determining which wastes are hazardous. 1) In 40 CFR section 261.3(a)(2)(i), the EPA classifies materials that exhibit the characteristics identified in Subpart C as RCRA hazardous wastes - such materials are characteristic hazardous wastes 2) In 40 CFR section 261.3(a)(2)(ii), the EPA classifies materials listed in subpart D as RCRA hazardous wastes - these are the listed hazardous wastes b. A generator has the burden of determining whether or not a waste they are generating is a hazardous waste. c. Household wastes are excluded (Batteries, pharmaceuticals, etc.)

A. Section 106 unilateral orders - EPA can issue them under 106 1. Orders are limited to sites that may present an imminent and substantial endangerment a. Is there a risk of serious harm? b. Will the release/threatened release expose the environment/people to the substance, putting them at risk? 2. Section 133(h) - prohibits courts from "preenforcement review" a. Recipients of orders cannot challenge them in court b. Can comply and seek reimbursement from the fund 1) Needs to show it wasn't liable or EPA's order was a&c c. Not comply and face sanctions 1) Up to 37,500 if willfully violates order without just cause 2) Punitive damages up to three times EPA's clean up cost if noncompliance is without sufficient cause B. Section 104 and 106 recap 1. When EPA receives notice that there's been a release of hazardous substances, there are two general approaches it can take to respond to the release. EPA can either: a. Use its authority under section 106 of CERCLA to order liable parties to respond to the release, OR use Superfund monies under section 104 to respond to the release and sue liable parties under section 107 to recover its response costs 2. Since there are often many phases to a cleanup of a release of hazardous substances, most cases will involve a combination of those two approaches. a. For instance, EPA may undertake a removal action under its Section 104 authority, sue liable parties under Section 107 to recover the removal costs, and then order liable parties, under Section 106, to undertake a remedial action. 3. Recovering costs under section 107 a. Government: 1) Section 107(a)(4)(A) authorizes the federal gov, state govs, and Indian tribes to recover response costs that aren't inconsistent with the National contingency plan a) The burden is on the challenger to demonstrate that the gov's costs are inconsistent with the NCP b) The government doesn't have to demonstrate consistency with NCP b. Private parties: 1) Section 107(a)(4)(B) authorizes the award of necessary costs of response incurred by private parties consistent with the NCP a) The bop for private parties under section 107(a)(4)(B) is different than the burden of proof for fed and state govs and Indian tribes. b) The bop is on the plaintiff to demonstrate that its response costs are consistent with the NCP under 107(a)(4)(B). c. In summary: 1) Response costs incurred by the fed, state govs or tribes are recoverable unless challengers can demonstrate that the costs are inconsistent with the NCP 2) Response costs incurred by private parties are recoverable if the private parties can demonstrate that the costs are necessary costs of response, and were incurred consistent with the NCP

A. Liability under CERCLA 1. Principles of CERCLA liability a. Strict - a PRP is liable without proof of fault b. Joint and several - a PRP is liable for all costs at a site unless it can prove the divisibility defense c. Retroactive - a PRP is liable for activities that occurred before CERCLA was enacted 2. There are affirmative defenses. 3. Types of potentially responsible parties (PRPs)/people liable under CERCLA include: a. Current owner or current operators of a piece of property b. Anyone who owned or operated the site/facility at the time of disposal c. Anyone who arranged for the disposal or treatment d. Transporters can only be liable if they were involved in the site selection process B. CERCLA Jurisdiction 1. Happens when we have either: a. A release or threatened release of 1) Any uncontrolled presence of any of these substances in the environment a) Doesn't need to go into the groundwater, etc 2) Any substantial threat of a release also qualifies b. Of a hazardous substance 1) Any hazardous substance in any amount, concentration is covered 2) No petroleum c. From a facility 1) Any place where a hazardous substance has come to be located. 2. Principles of CERCLA liability a. Strict: a PRP is liable without proof of fault b. Joint and several: A PRP is liable for all costs at a site unless it can prove the divisibility defense c. Retroactive: A PRP is liable for activities that occurred before CERCLA was enacted d. BUT: 1) There are affirmative defenses e. Hypos 1) A co owns a factory which released a hazardous substance into the osil in 1920, decades before CERCLA's enactment. Is the co liable? a) Yes. It's reactive. Doesn't matter what time the release happened. You're liable under CERCLA 2) A co receives receives a delivery of boxes labeled as containing salt but, in fact, containing a hazardous substance. The co has no use for what it believes is salt and sends the boxes to a landfill. Is the co liable: a) Yes. Strict liability. 3) A co disposes a chemical universally believed to be inert and safe. A decade later, sceintists discover that the chemical is toxic and EPA lists it as a hazardous substance. Is the co liable for disposal of the chemical before its toxicity was known? a) Yes. Retractive. 4) A real estate development co buys a vacant lot which, unbeknownst to the co, was contaminated by hazardous substances by a prior owner. Is the co liable? a) Yes. Strict liability. Requires no evidence of fault. Might have an affirmative defense though.

A. STATUTE ABBREVIATIONS 1. CAA 109, 42 USC 7409 = National Ambient Air Quality Standards (NAAQS) a. EPA establishes uniform national standards for criteria pollutants 2. CAA 110, 42 USC 7410 = State Implementation Plans (SIPS) a. States develop plans to bring air quality into compliance with NAAQS 3. CAA 111, 42 USC 7411 = New Source Performance Standards (NSPS) a. EPA establishes standards of performance for categories of new stationary sources that significantly contribute to harmful air pollution, modifications included 4. CAA 112, 42 USC 7412 = National Emissions Standards for Hazardous Air Pollutants (NESHAPs) a. EPA sets technology-based limits on emissions of hazardous air pollutants for new and existing sources 5. CAA 165, 42 USC 7475 = New Source Review (NSR) 6. Ajor new stationary sources of air pollution, modifications included 7. CAA 202, 42 USC 7521 = Mobile Sources a. EPA sets emissions standards for to limit harmful pollution from mobile sources. 8. 42 USC 7602(g) = CAA generally - EPA may interpret narrower a. "air pollutant" - any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive...substance or matter which is emitted into or otherwise enters the ambient air 9. CAA 108, 42 USC 7408 = NAAQS, SIPs, New Source review - nonattainment a. Criteria pollutans: endanger public health or welfare; in ambient air from numerous/diverse sources; plans to issue AQC 10. CAA 111, 42 USC 7411(b)(1)(A) = NSPS a. "Air pollution which may reasonably be anticipated to endanger public health and welfare" 11. CAA 112, 42 USC 7412 = NESHAPs a. "hazardous air pollutant" 12. CAA 169, 42 USC 7479(a) = New Source Review - PSD a. Sources that emit "air pollutants" - EPA interprets as an air pollutant regulated under other CAA programs besides NESHAP 1) Programs: New Source Review - PSD 13. CAA 202, 42 USC 7521(a)(1) a. Pollutant type: Pollutants that endanger public health and welfare 1) Programs: mobile sources

A. More simplified CAA breakdown 1. Stationary sources a. Criteria pollutants 1) New and existing source standards NAAQS, SIPs, etc 2) AND other pollutants depending on the program b. Hazardous air pollutants 1) National emissions standards for hazardous air pollutants 2) Source categories and emissions standards c. All of stationary sources go into Title V Operating Permits. 2. Mobile sources a. Emissions standards B. Stationary sources 1. Defined as (general): "major stationary source" and "major emitting facility" means any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant - 7602(j) a. NSPS: "stationary source" means any building, structure, facility, or installation which emits or may emit any air pollutant. Nothing in subchapter II of this chapter relating to nonroad engines shall be construed to apply to stationary internal combustion engines. 7411.

A. Clean Water Act definition 1. "discharge of a pollutant" and the term "discharge of pollutants" each means: a. A) any addition of any pollutant ON SLIDE B. Pollutant 1. Pollutant "means dredged spoil solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. 2. There are some pretty big exceptions for agricultural. a. You don't need a permit every year to dig up, replant your crops. b. Everyday farming activities are exempt c. Runoff from a farm is exempt d. But if a farmer is somehow funneling stormwater from his field and funneling it then into US waters, that becomes a point source, the agricultural waste can be considered a pollutant, and you'll need a permit.

A. National Cotton Council of America v. U.S. EPA (6th Cir. 2009) 1. What is being challenged? a. EPA said that any pesticide that was applied in accordance with FIFRA did not need to be regulated with a permit under the CWA. This gets challenged. 2. Do we have: a. Point source b. Navigable waters c. Addition of a pollutant 1) Chemical pesticides 2) Biological pesticides 3. EPA said waste doesn't include pesticides. Chemical Waste is something that is left over, doesn't have a use. Pesticides do. Would make no sense to treat bio pesticides different than chemical pesticides, so we're also going to treat bio the same as chemical under the statute. a. EPA concedes that if there's more residue that's needed that's remaining in the water, that chemical residue does count as a pollutant under the CWA. 1) AKA: It needs to be waste to be a pollutant. A pesticide that's being applied to kill pests isn't waste. But if there are extra pesticides that are applied, more than is needed, we can see that that residue is a waste, could therefore fit in the definition of chemical waste. 2) Problem: we don't know what's waste until after it's discharged. Pollutant isn't coming into being until the discharge is happening. So the timing is wrong, doesn't let it fall under the clean water definition. 4. Ct says: EPA, that argument is garbage. That timing argument is too much. It goes against the purpose of the act. a. How will we ever really know? There's no way that a farmer will knowingly use more pesticides than is needed - they have to pay for that. 1) We won't know until it's already a problem. Can't say whether they would need a permit until they've already done it. b. On biological materials: 1) You can't treat chemical and bio pesticides differently. Congress said "chemical waste" and "biological materials." If they wanted to treat them the same way, they'd have used the same word. Pesticide is always a bio material. Bio materials are pollutants, you'll need a permit.

1. Compare 402 permits a. NWF v. Gorsuch - 693 F2d 156 (D.C. Cir. 1986) - water coming from a dam that is warmer and has more sediment is not the addition of the pollutant b. NWF v. Consumer Power, 862 F2d 580 (6th Cir. 1988) - fish gets chewed up by fish in the turbine of the dam. 6th Cir. Says no pollutant bc healthy fish are upstream from the dam, so the fish guts downstream aren't added. c. LA County Flood Control District v. NRDC, 133 S.Ct. 710 (2013) - when pollutants are discharged from one part of a waterway into another part of the same waterway through dams or other structures like culverts, there is no addition. 2. Normal Farming Exception a. Discharges "from normal farming...and ranching activities, such as plowing" are not subject to the CWA. 33 USC section 1344(f)(1)(A). b. Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it wasn't previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. 33 USC section 1344(f)(2) 1) Known as recapture provision because asserting j back from the exception c. Borden Ranch v. US Army Corps, 261 F.3d 810 (2001) 1) Converting ranch lands to vineyards not normal farming - fits within the section 404 recapture provisions a) Bringing land into a use to which it wasn't previously subject b) Not merely substituting one wetland crop for another "Although the corps cannot regulate a farmer who desires "merely to change from one wetland crop to another," activities that require "substantial hydrological alterations" require a permit" (quoting U.S. v. Akers, 785 F.2d 814, 820 (9th Cir. 1986)).

A. Nonpoint Source Pollution 1. Case Ex - the Sacketts a. In 2004, the Sacketts bought a vacant lot near Priest Lake, Idaho, and obtained local permits to build a home. When the Sacketts started the construction process, the EPA ordered them to stop work. 1) Months later, sent the Sacketts a compliance order claiming the porperyt contained a wetland that couldn't be filled without a federal permit. 2) EPA prohibited the Sacketts from constructing their home, demanded constly restoration work, and required a three-year monitoring program, during which the property was to be left untouched. 3) The agency also threatened the Sacketts with fines of up to 75k per day if they didn't obey the order. b. 2012 - SCOTUS rules that EPA compliance orders can be challenged in court under the APA c. 2015 - SCOTUS - compliance order is A &, C, gets remanded d. 2019 - district court - wetland e. AUG. 25, 2021- 9th CIRCUIT- WETLAND UNDER RAPANOS, EPA/CORPS Rule f. ON EXAM 2. Point source needs permits. Program for point source is set up by EPA. States can ask to run the program themselves. That's why sometimes the permit comes from EPA, sometimes states. Nonpoint source program was left up wholly to the states. Land use is traditionally a state power anyway. a. Source osf pollution in US rivers: 1) Nonpoint source pollution: 65% 2) Other: 9% 3) Industry: 9% 4) Municipalities: 17% b. This is crazy that nonpoint sources comprise so much of the pollution

1. Federal Implementation Plans a. Federal Implementation Plans (FIPs) may exist 1) SIP not submitted or inadequate, or 2) State chooses not to administer a part of the CAA (like the New Source Review program) b. EPA must promulgate within two years of missed deadline/incomplete submission 1) States can step in during this time to submit a complete SIP 2. SIP Revisions a. Revisions are required 1) Revised NAAWS - state will revise SIP if NAAWS revision may affect if the state is in attainment of the NAAQS 2) "SIP Call" a) Action by EPA if SIP is inadequate to meet NAAQS or otherwise doesn't comply with the CAA b. Revisions usually only apply to portions of a SIP c. EPA must publish/revise every 3 years "a comprehensive document for each state setting forth all requirements of the [SIP]" 42 USC 7410(h) 3. Enforcement and sanctions a. You can challenge EPA's approval of a SIP 1) Must file petition within sixty days of EPA's final action in the US court of appeals in the circuit will the SIP will apply b. Can challenge for state's failure to implement the SIP 1) Interested parties can file suit under the CAA citizen suit provisions c. Sanctions if states fails to submit a plan/plan doesn't include required elements 1) These can include a FIP, increased requirements for offsets, barring federal transportation aid.

A. Offsets 1. Problem 3.2 a. Whether the Illinois Environmental Protection Agency, the sate agency charged with implementing the CAA in Illinois, should issue a permit for a new source of nitrogen oxides emissions in the Chicago area b. The problem specifically focuses on the req that new sources in nonattainment areas obtain emissions offsets from existing sources in the area 1) Broad issue: why are offsets important? 2) Narrow issue: are offsets available in this hypo c. Chicago area designted as marginal nonattainment for 2008 8-hour ozone standard d. Refinery opened in 1960s 1) At peak production in 2005, emitted 1400 tons of NOx, an ozone precursor 2) Stops production in 2009 due to recession 3) Intent was to remain facility if conditions improve, but site has fallen into disrepair 4) Potential buyers have walked away due to cost to bring back to operable condition. 5) Has filed annual emissions reports with state as required, reporting 0 emissions e. Big City Manufacturing opening a new facility - will emit 1,200 NOx. Reaches deal with refinery to pay 24m for offsets f. Can Big City Manufacturing use the offset from the refinery? Has the refinery been temporarily or permanently closed? g. First steps 1) Look to the statute - p193-96 a) Section 172 - SIP reqs for nonattainment areas A) No mention of offsets B) Notes permit req in section 173 b) Section 173 - requires offsets for new sources 2) What do the regulations say? P196-98 a) Condition 3 and 4 b) Emission reduction credits from Shutdowns and Curtailments.

I. Review A. Question 2 1. Part A: tell her three diff statutes were involved: CWA section 404 (wet and dry part of the time is a red herring - we're in an area that's clearly WOTUS, so it's not like a wetland). We're going to be affecting a truly navigable water. Digging in the area to put in the racks is creating dredge and soil. Say that you know 402 exists, spend a sentence saying why you don't think it applies. Say 404 definitely applies, here's why. Bc we have this fed action, think of both NEPA and ESA, bc we have an endangered species. a. Say: this is a fed action, is the issuing of a permit, agencies would need to think if it would significantly affect the environment to trigger the need for a EIS. Army corps would do that analysis, bc they'd be issuing the permit. Then say if you think the EIS would be needed, why or why not. Make a conclusion. b. We have threatened species, we have fed permit. Section 7 consultation - modification of critical habitat. No habitat here is designated, but it also means dealing with species. Corps has to think if the acts would result in jeopardizing the species as a whole. B. Part B: this is about take under section 9. Section 9 take includes all these different actions, includes harm and harass definition. Thinking about facts here, we're told the act could impact when they were feeding on the eggs - that's an essential life pattern that could rise to harm and harassment, which could make them liable. Section 9 applies to everyone, so they'd face liability, even for non-lethal actions.

A. Part C: administrative law piece. Are there pieces in this process of either CWA, NEPA, ESA where there was a comment area where Steve could have commented and challenged what agencies were doing. If there's a draft opinion, could he have commented. Will that affect a lawsuit, if he hasn't responded. Also: he's a member of an org. think about standing for a lawsuit. Think if he himself has standing based as an individual, whether his org could bring the suit instead. Go through the three prongs of standing for an individual, then think whether there'd be org standing. What does the civil suit provision of ESA say (we didn't cover this). For us be thinking if someone can bring a lawsuit: is there something in admin record that shows they didn't bring a challenge on admin level. If they could, do they have standing, does an org have standing. If suit goes forward, suit will be based on administrative record. B. Question 3 1. Climate change, how best we should be taking it 2. Part A: carbon dioxide and mobile sources, cars is regulated. could they make the same determination of GHG as a criteria pollutant under CAA - haven't done this, have declined to do this. SCOTUS says you can't regulate climate change under the CAA. Also: WVA v. EPA says EPA you cannot use this section to regulate climate change under this section of the act. 3. Part B: opinion question. NEPA - think about cumulative eimpacts, foreseeability; says must consider cumulative impacts of yorua actions, are they reasonably foreseeable. Does climate change fit well within those provisions. As a policy, should fed gov be trying to use NEPA to impact cc. 4. Part C: should we stay out of this bc we have other countries that are doing other stuff. C. Question 1 1. Is seeping going into groundwater, meeting the Maui test for going into groundwater? Second piece: CERCLA. Leaching is a act under CERCLA - that will probably trigger CERCLA liability as well. ask if the groundwater is going into a navigable water, so that we can regulate under CWA, or not. Last paragraph: setting up chain of who is liable under CERCLA. 2. Part A: do facts mean that 402 discharge has happened? Can say there's two diff permit systems. 402 is in play here, bc we potentially have a discharged pollutant from a point source into a navigable water. SAY if we have all of these three elements or not. Don't skip over any of them. 3. Part B: assume there's liability. What do they need to do in the adminsitrativ eprocess of publishing a proposed decree, what would they have to do. Would need standing. Are we likely to win that lawsuit. Talk about discretion ct gives to agency actions. Consider major questions doctrine. Normally we think about a and c standard. If we have a regulation, think Chevron. WVA as the new kind of analysis the ct has instituted. Three different discretions we'd need to talk about. 4. Part C: straight-up CERCLA. Ask what steps can EPA take. They could clean up themselves, can issue an order to tell Guam to clean it up. National priority list should trigger us to talk about what they can do under CERCLA. 5. Part D: cost recovery under CERCLA. D. CAA Question: structure it in a way for us to tell her about 1) is it a mobile or stationary source. We mostly focused on stationary sources, except for gg designation under mobile. 2) what's the pollutant in play - is it a criteria pollutant, where we'll have air quality standards, vs is it a hazardous air pollutant. Gg gas exemption: here's the ones that have been covered, aren't covered under the act. Might be tested on: whether or not the source is doing a modification enough that it'll trigger one of the new source program reviews. Go back to charts, tables in slides to try to look at what's being triggered by everything. Focus on what pollutants are triggered what types of review under the act, how new and existing sources are treated differently. If we say a major modification will move you into the new source side, reach you at a new designation under the act. If have a fed action, definitely think if NEPA, ESA come into play. Know if statutes have citizen suit provisions. NEPA doesn't have one, so could only use APA. But the other ones we talked about all have citizen suit provisions you could use to get into court.

A. Review of Statutory Implementation 1. Normally, we have an arbitrary and capricious standard; an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be attributed to a difference in view or the product of agency expertise. - Motor Vehicles Manufacturers Ass'n v. State Farm 2. But: depends on what instrument the agency determination is made in. a. If they went through notice and comment rulemaking (aka, where the EPA says the CAA says x), they're supposed to use the Chevron Doctrine, which has been established law since 1984. 1) From Chevron v. NRDC 2) "We first ask 'whether congressional intent is clear,' and if so, 'that is the end of the matter'" 3) If we find the statute silent or ambiguous.... 4) Aka: Chevron deference applies to agency interpretation of statute in a regulation. 5) Mead - applies "when it appears that Congress delegated the authority to the agency...and that the agency interpretation was made "in exercise of that authority." 6) Two step test for Chevron: a) Step 1: is the statute clear b) Step 2: if the statutory language is ambiguous, is the agency interpretation reasonable? b. But now also Major Questions Doctrine because of West Virginia v. EPA. c. THESE TWO WILL BE ON FINAL

A. Policies and Standards that are adopted during informal procedures are afforded Skidmore Deference 1. If EPA hasn't gone through notice and comment (public can't comment on what they're doing, agency just did it all on their own), those are supposed to get Skidmore deference, which isn't as high as Chevron Deference. 2. Skidmore Deference a. Policies and standards adopted through informal procedures 1) Ie: handbooks, manuals, other agency documents that do not go through notice and comment rulemaking. b. These are entitled to respect, but not as much as Chevron deference c. Weight of deference depends on: 1) Thoroughness evident in the agency's consideration 2) Validity of the agency's reasoning 3) Consistency with prior pronouncements 4) "All those factors which give it the power to persuade, if lacking the power to control" a) Aka: anything else in the agency's decision making that persuades us as a court B. Agency interpreting its own regulation = Auer Deference 1. Applies to an agency's interpretation of its own ambiguous regulation 2. The agency's interpretation does "not need to be the only possible reading of a regulation - or even the best one." - Decker 3. Agency interpretation stands unless it is "plainly erroneous" - Auer 4. Scalia dissent, 568 U.S. 597 (2013). Decker v. Northwest Environmental Defense Center a. Does this deference violate separation of powers 5. Recent cases pulling back on deference a. Decker v. Northwest Environmental Defense Center - 2013 - Scalia dissent b. King v. Burwell - 2015 c. Michigan v. EPA - 2013 d. Gorsuch factor - deference is "no less than a judge made doctrine for the abdication of the judicial duty." - Gutierrez-Brizela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) 1) Non environmental e. WVA v. EPA 1) Gorsuch concurrence gives his view of what the major questions doctrine is

A. Trespass 1. A person is liable for trespass if he "enters land in the possession of the other, or causes a thing or a third person to do so." a. Restatement (Second) of Torts section 158(a) 2. Some courts hold that trespass is limited to invasions of physical, tangible objects, not airborne particles such as dust or air pollutants. a. See, eg, Adams v. Cleveland-Cliffs Iron Co., 602 N.W.2d 215 (Mich. Ct. App. 1999). 3. Other courts allow claims for trespass based on airborne pollution but impose additional requirements on such suits, such as a showing of substantial damage. a. See, eg, Williams v. Oeder, 659 N.E.2d 379 (Ohio App. 1995) 4. What might an ex of this look like: a. Your seeds being scattered onto a neighbor's property b. You releasing your pet python into the wild. c. You keep gators on your farm, gators leave the farm and eat other people's animals. 1) Argument: gators are wildlife. There are just a lot of gators on this farm. B. Nuisance 1. A D's conduct is a nuisance only if it causes significant harm to the plaintiff and is either: a. "(a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities." b. Restatement (second of Torts section 821F, 822 2. A D's conduct is unreasonable if the harm it causes outweighs its benefits. a. Id. section 826(a) 3. Factors relevant to evaluating the harm to the P include: a. The extent of the harm, b. The character of the harm, c. Whether the P could avoid the harm d. Id. section 827 4. Factors relevant to evaluating the benefits of the D's conduct include: a. The social value of the conduct b. Its suitability to the location, and c. The D's ability to prevent harming the P d. Id. section 828 5. A stinky pig farm would count as a nuisance. Owner would argue that we all like cheap bacon.

A. Public Nuisance 1. "A public nuisance is an unreasonable interference with a right common to the general public." a. Restatement second of torts section 821B 2. Are the impacts of the alleged action limited to the Ps? Or are others impacted as well? 3. With a lot of climate change cases, tort is brought as public nuisance B. Baltimore Climate Change Lawsuit 1. Lawsuit targets 21 U.S. and foreign energy companies that extract, produce, distribute or sell fossil fuels. Seeks monetary damages. a. Argues that their activities contribute to emissions of carbon dioxide and other so-called greenhouse gases linked to climate change b. An important port city, Baltimore noted that it is vulnerable to sea-level rise and flooding driven by climate change. 2. Issue: feds say that climate change is a political question 3. Initial legal question - should the case be heard in federal or state court? a. Baltimore wants state court b. Energy companies want federal c. Federal district court denies request to move to federal. d. 4th circuit said couldn't review the decision, but SCOTUS disagreed. 4. What's going to happen if each state decides each case differently? Goes to SCOTUS, SCOTUS would have to make decision.

A. If solid waste = discarded material, what is discarded material? 1. FACT SITUATION: Mosquitoes on the East Coast of the United States are increasingly likely to carry the West Nile Virus disease, which can kill human beings. To combat this disease threat, the City of New York undertook an insecticide spraying program to kill mosquito larvae. Citizens of New York who objected to the spraying claimed that the City would violate RCRA because the sprayed insecticide would be "discarded material" that the City had improperly disposed of. QUESTION: Is the sprayed insecticide "discarded material" for RCRA purposes as soon as the City of New York sprays it? a. Is the insecticide discarded material for RCRA purposes as soon as the city sprays it? 1) No, it's doing what it's supposed to do. Turns into a waste only if things are left over. 2. Remington Arms co owns and operates a trap and skeet shooting club in Connecticut, where patrons shoot at clay targets flung into the air by spring-loaded machines. The rifles used lead shot ammunition. The shooting club is adjacent to Long Island Sound, and "after nearly seventy years of use, close to 2400 tons of lead shot, five million pounds, and 11 million pounds of clay target fragments were deposited on land and in the adjacent waters of Long Island Sound. QUESTION: are the accumulated lead shot and fragments of clay targets "discarded materials" for RCRA purposes? a. Yes. The lead gets into the birds. It's already been put to its intended use, it's not being "used" in its current position. At what point after it was fired does the lead become discarded? Court didn't give bright line rule. Lapse of time is important. 3. Facts: various military unites in the department of defense used various places in Puerto Rico for target practice. In such target practice, military personnel fire ordnance towards "Live Impact Areas." Residents of the areas surrounding these areas claim that the department of defense is violating RCRA bc the ordnance is solid waste that the department of defense discards as soon as the ordnance explodes on impact. a. Question: is the exploded ordnance "solid waste" for RCRA purposes? If so, when does it become "solid waste?" 1) Becomes waste when it blows up - changes its form and function. Ct here says it has to be discarded material. It's not discarded til after it meets its intended purpose. Probably not yet a regulated waste. But in time it will be considered waste.

A. Recycling 1. "Secondary material" - p456 a. In order for a recycled maerial to be considered a solid waste under RCRA, it must be a 1) secondary material and 2) recycled in a prohibited fashion. 1) "secondary material" = material that potentially can be solid and hazardous waste when recycled." 50 Fed. Reg. 614, 616 n.4 2) EPA regulations on secondary materials are ambiguous 3) Four primary types: A) Spent material B) Sludge C) By-products D) Scrap metal

A. General notes 1. Remember our hierarchy. Statutes must be based on some element of const. regulations, which are made by agencies, must be based upon something in the statute. B. For all suits brought under APA: 1. What is the standard of review? a. "The reviewing court shall— . . . b. (2) hold unlawful and set aside agency action, findings, and conclusions found to be . . . (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . . ." - APA section 706

A. Review of Statutory Interpretation 1. Depends on what... 2. Chevron Doctrine a. Notice and comment rulemaking b. Chevron v. NRDC (U.S. 1984) 1) But now also Major Questions Doctrine post WV v. EPA (US 2022) c. Applies to agency interpretation of a statute in a regulation d. Mead applies "when it appears that Congress delegated the authority to the agency...and that the agency interpretation" was made "in exercise of that authority" e. Supposed to do two things (two step test): 1) Is the statute clear? 2) If the statutory language is ambiguous, is the agency interpretation reasonable a) V deferential to the agency 3. Other deference: Skidmore deference a. Informal agency decision making (handbooks, manuals) b. Policies and standards adopted through informal procedures 1) Ie: handbooks, manuals, other agency docs that don't go through notice and comment rulemaking c. These are "entitled to respect" - but not as much as Chevron deference d. Weight of deference depends on: 1) Thoroughness evidence in the agency's consideration 2) Validity of he agency's reasoning 3) Consistency with prior pronouncements 4) "all those factors which give it the power to persuade, if lacking the power to control."

A. Section 7 Incidental Take Permits 1. Section 7(B)(4) a. If after consultation . . . the Secretary concludes that— 1) (A) the agency action [or reasonable and prudent alternative thereto] will not violate such subsection; 2) (B) the taking of an endangered species or a threatened species incidental to the agency action will not violate such subsection; . . . 3) (C) the Secretary shall provide the federal agency and the applicant . . . with a written statement that— a) (i) specifies the impact of such incidental taking on the species, b) (ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact . . . and c) (iv) sets forth the terms and conditions . . . that must be complied with by the Federal agency or applicant . . . . 2. Aquaculture operations and Take of Red Knots a. BiOp's Incidental Take Statement (ITS) allows the structural aquaculture industry to impact red knot to a certain extent. b. Distinguishes between lethal and non-lethal takes: 1) Lethal Takes: a) Allows 315 lethal takes from harassment or harm over the ten-year life span of the BiOp. b) Not split up among individual oyster farms. 2) Non-Lethal Takes: a) ITS allocates non-lethal takes to certain farms- 644 to one farm and 641 to another. c. Notes 1) In red knot ex: a) Permit said that oyster farmers would interfere with the birds, but they were allowed a certain level of takes b) Problem: really hard to track non-lethal takes.

A. Section 10 Permits 1. Text a. The Secretary may permit, under such terms and conditions as he shall prescribe— 1) (A) Any act otherwise prohibited by section 1538 [§9] for scientific purposes or to enhance the propagation or survival of the affected species . . . or 2) (B) Any taking otherwise prohibited by [§9(a)(1)(b)] . . . if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. 3) NOTE: Section (9(a)(1)(b) refers to "it is unlawful for any person to take any endangered species of fish or wildlife within the US or the territorial sea of the US" b. (A) No permit may be issued by the Secretary authorizing any taking . . . unless the applicant therefor submits . . . a conservation plan that specifies— 1) (i) the impact which will likely result from such taking; 2) (ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps; 3) (iii) [alternatives considered] 4) (iv) such other measures that the Secretary may require as being necessary or appropriate . . . . c. (B) If the Secretary finds, after opportunity for public comment . . . that— 1) (i) the taking will be incidental; 2) (ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking; 3) (iii) the applicant will ensure that adequate funding for the plan will be provided; 4) (iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and 5) (v) the measures . . Required under . . . (A)(iv) will be met . . . 6) the Secretary shall issue the permit. . . . 2. Secretary can allow for incidental takes. Aka, is another mechanism to allow harm to a listed species. If the agency says they'll allow for an incidental take, you have to have a conservation plan in place to say what your impact will be, how you'll minimize it, etc. 3. Process: after public comment, the secretary can issue the permit if five findings are made.

I. Common law Tort claims A. Causation 1. Every common law claim would have to prove causation in order to succeed. 2. Causation in a toxic tort action has two aspects: general causation and specific causation 3. To establish general causation, a plaintiff must show the toxin is capable of causing injuries like that suffered by the plaintiff under circumstances similar to the plaitniff's exposure. 4. To establish specific causation, a plaintiff must show that the toxin released or manufactured by the defendant caused the plaintiff's injury. B. Negligence 1. The elements of a negligence claim are: a. Duty b. Breach c. Causation d. Damages 2. A defendant generally breaches a duty by not exercising reasonable care a. Restatement (third) of Torts: Physical and Emotional Harm section 3 3. Factors to consider in deciding whether the D exercised reasonable care include: a. The foreseeable likelihood that the conduct would cause harm, b. The foreseeable severity of the harm, and c. The burden of taking precautions to reduce the risk of harm. Id.

A. Strict liability for abnormally dangerous activities 1. A defendant that engages in an "abnormally dangerous activity" may be strictly liable for harm caused by the activity a. Restatement (second) of Torts section 519 2. Whether an activity is considered "abnormally dangerous" depends on factors such as: a. The likelihood of harm b. The extent of harm c. The inability to eliminate the risk through reasonable care d. The unusualness of the activity e. The inappropriateness of the activity to the location; and f. The extent to which the activity's danger outweighs its value to the community. 1) Id. section 520. 3. In-class notes a. Might this include nuclear power plants b. Might this include Jackson MS? This is probably more like negligence, due to the way they run the city c. Contrast to Flint: what they did there was they switched the water source, which changed the water chemistry, but they didn't change the old metal pipes. That might be more of an abnormally dangerous activity d. Deepwater horizon was inherently dangerous bc they were ignoring safety regulations to a ridiculous level.

1. Consultation types a. Can start with Informal consultation: § 7(a)(3) 1) → Biological assessment § 7(c) 2) T/E species may be present? 3) Likely to be affected by federal action? b. Formal consultation: § 7(a)(2) 1) Avoid irreversible/irretrievable commitment of resources ) 2) → Biological Opinion (BiOp) § 7(b)(3)(A) 3) → Reasonable & Prudent Alternatives (RPAs) c. Notes 1) Call up FAW, ask if there are any endangered species where you want to do an action (ex: army corps of engineers) 4) Formal consultations: Supposed to act before project gets too far gone. RPAs if there is something that will affect the species. 2. Section 7(b)(4) a. If after consultation . . . the Secretary concludes that— 1) (A) the agency action [or reasonable and prudent alternative thereto] will not violate such subsection; 2) (B) the taking of an endangered species or a threatened species incidental to the agency action will not violate such subsection; . . . 3) (C) the Secretary shall provide the federal agency and the applicant . . . with a written statement that— a) (i) specifies the impact of such incidental taking on the species, b) (ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact . . . and c) (iv) sets forth the terms and conditions . . . that must be complied with by the Federal agency or applicant . . . .

A. TVA v. Hill 1. "Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as institutionalized caution." 2. Dam would've completely wiped out fish's habitat. 3. We have to afford the species the highest priority. Aka: cts have recognized that the language of ESA is pretty absolute a. Ct said: if you're going to jeopardize, then the fed gov can't do what it wants to do. What's written in ESA is meant to be severe. b. Exception to the absolute-ness: God squad: head of natural resource agencies. Can get together at any time, say yes a dam will kill all the fish, we still think it should go forward. Is very rarely used. Can override consultation. 1) Here, god squad didn't exempt the dam, but Congress did. So that's another way to get around the ESA. 4. Tellico Dam aftermath a. Congress later exempted the dam from the law to allow the project to be completed b. TVA worked to transplant the snail darter to other rivers and streams c. Federal officials say the TVA also worked to improve water flows and increase oxygen in more than 300 miles of river downstream from their dams. 1) These steps helped boost the fish's recovery, allowing the snail darter to recolonize in Tennessee waterways. d. Its population has since been expanded to Alabama, Georgia and Mississippi. e. Downgraded to threatened in 1984 f. Removed from protection 2021

A. Consultation Types (consultation looks at the species as a whole, not just one animal) 1. Agencies can start by doing a more informal process, a biological assessment. They may, may not go through the informal consultation. Under ESA, if either action ill jeopardize the likelihood of species' survival or adversely hurt habitat, have to go through formal consultation. 2. Corps is supposed to do NEPA analysis at the same time as their ESA analysis. 3. Informal consultation: section 7(a)(3) a. Threatened/Endangered species may be present? b. Likely to be affected by federal action? 4. Formal consultation: section 7(a)(2) a. Avoid irreversible/irretrievable commitment of resources b. Biological Opinion (BiOp) section 7(b)(3)(A) c. Are supposed to look through Reasonable and prudent alternatives (RPAs) 5. Red Knot ex a. The bird is this bird that flies from south America into the arctic circle every year. when they're on that path, they have some important stop over places, one of which is in southern NJ. That same part of NJ has been designated an aqua-culture zone (farming of fish). 1) NJ was trying to streamline permits for oyster farmers. b. Oysters and Red Knots 1) Delaware Bay, NJ is home to a Aquaculture Development Zone- ADZs have streamlined permitting for aquaculture development in areas with minimum user conflicts. 2) Delaware Bay is also a vital stopover point for Red Knots. a) 2015- listed as a threatened species under the ESA. b) Activities impacting the red knot potentially subject to Section 7 consultation and Section 9 take. c. NJ ADZ Corp permit 1) Triggered Section 7 consultation. 2) Resulted in a Programmatic Biological Opinion a) Contains Conservation Measures- CMs: b) Limit gear placement, farm work hours, and access to all farms. c) Resulted in one farm closure and the targeted relocation of a second. 3) BiOp has served as a lighting rod for conflict between the aquaculture community and shorebird conservation groups 4) State itself was getting the permit, they told the corps that they would be putting down racks and moving around in the tidal area, they'd need a 404 permit. That meant they ahd to go through section 7 consultation. That resulted in a Programmatic Biological Opinion. This contained conservation measures. Said yes can get permit, but have to limit placement, have to limit the farmwork hours to when birds aren't trying to feed, so we can limit to impact on red knots. 5) Triggered section 7 consultation 6) Resulted in a programmatic Biological Opinion a) Contains Conservation Measures - CMs: A) Limit gear placement, farm work hours, and access to all farms B) Resulting in one farm closure and the targeted relocation of a second b) BiOp has served as a lightning rod for conflict between the aquaculture community and shorebird conservation groups

A. Take - Section 9 1. Take a. Incidental taking: x amount of takes will be allowed to happen before somebody gets sued. Allows some level of activity to continue, while still checking how many are killed. b. Under the ESA, Take means: 1) "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." a) Lethal and non-lethal takes b) Regulatory definitions for harass and harm A) does the action interfere with essential behavioral patterns B) Harass - an intentional or negligent act or omission which creates the likelihood of injury to wildlife C) Harm - an act which actually kills or injures wildlife. 2. Take prohibition a. Take always applies to endangered species, by statute b. Take applies to threatened species, by regulation c. Take applies: Against actions by any person d. Take applies to: Individual members of species B. Section 4(D) Rules 1. Section 4D of the act states: "Whenever any species is listed as a THREATENED species, the Secretary may by regulation prohibit with respect to any threatened species any act prohibited...with respect to endangered species." 2. 4D rules a. Section 4D of the act states- Whenever any species is listed as a threatened species...The Secretary may by regulation prohibit with respect to any threatened species any act prohibited...with respect to endangered species. b. This includes the take prohibition. 1) FWS has issued a blanket prohibition- the take prohibition applies to all listed species 2) NMFS does this on a case by case basis. c. To undo the blanket prohibition, FWS has to issue another 4D rule.

I. Constitutional Law A. Congress is limited to passing laws based on the power it has in the const B. Interstate commerce clause 1. Three broad categories of activity congress can regulate a. Everything they has to be linked to one of those three. 2. Clean Water Act cases 3. ESA cases C. Property clause 1. Management of federal land and waters D. Treaty clause/necessary and proper clause 1. Missouri v. Holland 2. Bond v. US E. State Authority 1. 10th amendment police power - reserves to the states power not delegated to the fed gov a. Regulate for general welfare/public morals, health and safety 2. Limits on state action: a. Dormant commerce Clause 1) Says that the states can't take actions that will infringe on interstate commerce. 2) States can't discriminate against one state to benefit themselves b. Supremacy Clause 1) Says fed law reigns supreme; state law can't go below what the fed environmental statutes say c. Preemption 1) When fed law displaces whatever common law is in place. d. Cooperative Federalism 1) The fed gov makes standards, states have the ability to take over the programs, run them themselves.

A. Takings 1. "Nor shall private property be taken for public use, without just compensation." US Const, article V 2. Gov can't take private property for public use without just compensation. 3. Whole body of law called regulatory takings a. Penn Central transportation Co. v. NY 1) Test: a) Economic impact of the regulation b) Interference with distinct investment-backed expectations c) Character of the governmental action d) "this court focuses...both on the character of the action and on the nature and interference with rights in the parcel as a whole - here, the city tax block designated as the landmark site..." 4. How this comes up in EL: gov designates your property as endangered species habitat, or say it's a rare wetland, and as a result you can't do x with your property. a. Since Penn Central case: looking at those three factors, cts rarely say that land owner you're right, there was a taking. If only fifty feet are affected by a regulation, doesn't matter, you have to look at the regulation's effect on the whole piece of property. 5. Only time the cts will say you have a taking: when you can show that all eco beneficial use of the property was taken away by the regulation. a. Penn Central Transportation Co. v. NY (1978) 1) Economic impact of the regulation 2) Interference with distinct investment-backed expectations 3) Character of the governmental action 4) ". . . [T]his Court focuses . . . both on the character of the action and on the nature and interference with rights in the parcel as a whole—here, the city tax block designated as the landmark site. . . . b. Lucas v. S. Carolina Coastal Council 1) Have to prove there's no other use of your property bc of the regulation 2) "When the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with." •"Any limitation so severe . . . must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership. . . ." c. Palazzolo v. Rhode Island 1) Look at: a) Economic impact of the regulation b) Interference with distinct investment-backed expectations c) Character of governmental action 2) "[The state court's holdings] together amount to a single, sweeping rule: A purchaser or a successive title holder . . . is deemed to have notice of an earlier-enacted restriction and is barred from claiming that it effects a taking." 3) "The State may not put so potent a Hobbesian stick into the Lockean bundle. . . ." d. TRPA v. Tahoe Regional Planning Agency 1) "Logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, bc the property will recover value as soon as the prohibition is lifted." 2) Aka: if your use is temporary affected, not a total taking.

A. Three paths to NEPA compliance 1. Flowchart a. Idea 1) Proposal a) Initial decision: A) Normally do EIS B) Categorical exclusion via 1508.4 C) Prepare Environmental Assessment to decide via 1508.9 I) Decide to prepare EIS via 1501.4, or II) Prepare FONSI 1501.4(e)/1508.13 2. Issue: does the army corps issuing a 404 permit or other authorizations require an EIS? 1) 2014 - issued more than 50,000 404 permits 2) EISs for all of the permits would be time-consuming and expensive a) If issues via a general permit (like Nationwide Permit 12), NEPA only occurs when the general permit is adopted 3) Usually prepared EA 4) Should they prepare an EIS? Must they? 5) Ocean Advocates v. US Army Corps - 9th Cir 2004 a) It's affirming that NEPA is a procedural statute. Agencies take a hard look, then give a good reason why they proceeding. Here, the agency didn't give a very convincing argument. Just said "BP said it was fine." b) Addition to an oil refinery dock c) NEPA is procedural A) Hard look B) "Convincing statement of reasons d) Deferential standard of judicial review for NEPA challenges e) Articulates a legal standard for determining when an EIS is necessary A) Agency must prepare an EIS unless it is sure that significant impacts won't occur f) EA can be set aside if the D's analysis is clearly unreasonable A) The role of uncertainty 6) Advocates for Transportation Alternatives, Inc. v. US Army Corps - D. Mass 2006 a) Restore commuter rail line in an area with historic properties/areas b) Impacts to historic sites are generally included in NEPA reviews c) Just bc those impacts exist doesn't necessarily mean they will count as significant d) Deference e) Shaking wouldn't be enough to actually create cracks in the historical buildings. Impact doesn't mean it's significant. 7) River Road Alliance, Inc. v. US Army Corps, 7th Cir. 1985 a) Temporary barge parking lot on a stretch of scenic part of MS River b) Focus on the standard of review - what question must the court answer c) Does it matter that the barges are ugly d) Can no longer go along that stretch of river and see pretty things. Question is NOT do we want to save this great view. Question is did the agency go through the procedure right. Aka, not supposed to be making substantive decisions for the agency. That's all we look at with NEPA.

A. Two things to think about with NEPA: what role should NEPA play in climate change, what role should NEPA play in environmental justice 1. Dakota Access Pipeline (DAPL) a. Lake Oahe, created when the army corps flooded thousands of acres of Sioux lands in the Dakoras by constructing the Oahe Dam on the Missouri River, provides several successor tribes of the Great Sioux Nation with water for drinking, industry, and sacred cultural practices 1) Water source for over 4200 people b. Passing beneath Lake Oahe's water, the Dakota Access Pipeline transports crude oil from North Dakota to Illinois 1) Nearly 1200 miles long, designed to move more than half a million gallons of crude oil from ND to IL each day c. Under the Mineral leasing act, 30 USC section 185, the pipeline couldn't traverse the fed owned land at the Oahe crossing site without an easement from the corps d. Was an EIS required for the easement? e. Tribe got upset bc it was originally supposed to go by Bismarck. They said that would ruin Bismarck's drinking water, so instead it would go under the lake and ruin the tribe's drinking water. f. Factual history 1) In June 2014, Dakota Access notified the corps that it intended to construct a portion of DAPL under Lake Oahe, just half a mile north of the Standing Rock Reservation 2) December 2015, the corps published Draft Environmental EA finding that the construction would have no significant environmental impact a) Tribes provided public comment objecting b) Department of the Interior requested that the corps prepare an EIS given the pipeline's potential impact on trust resources c) EPA registered its concern that the draft EA "lacked sufficient analysis of direct and indirect impacts to water resources." Requested additional info and mitigation in the EA rather than preparation an EIS 3) July 25, 2016, the corps published its final EA and a mitigated FONSI a) The Mitigated FONSI explained that, given the corps's adoption of various mitigation measures, including horizontal directional drilling, there was no significant impact. 4) Standing rock sued the corps for declaratory and injunctive relief under NEPA 5) District court denied the tribes' request for a preliminary injunction 6) Sept. 2016 - the departments of justice, interior, and the army immediately issued a joint statement explaining that the corps wouldn't issue an MLA easement until reconsider its decision 7) Jan. 18, 2017 - notice of intent to prepare an EIS 8) Jan 20, Trump takes office 9) Jan 24 - memorandum, the president directed the secretary of the army to expedite DAPL approvals and consider whether to rescind or modify the notice of intent to prepare an EIS 10) The corps granted the easement on Feb. 8, 2017 concluding EIS not necessary 11) This was a totally political situation 12) DAPL Lawsuit a) District court: Corps's decision not to issue an EIS violated NEPA by failing to adequately consider three issues: A) Whether the project's effects were likely to be "highly controversial" B) The impact of a hypothetical oil spill on the tribes' fishing and hunting rights C) And the environmental justice effects of the project b) Remedy: remand for an EIS and vacate the easement (no oil flows, but this gets stayed) c) DC Circuit: EIS needed, but easement isn't vacated (oil flows) d) "Highly controversial" parts: A) Protests weren't alone enough B) Concerns of pipeline and hazardous materials safety administration C) Operator's safety record D) Winter conditions E) Worse case discharge (if an oil spill happened, it would take out the water source; we're talking about how bad things would be if a pipe burst. Just think about a oil spill, not necessarily the worst spill ever. But even a small spill would screw their water source).

A. What Court do we go to? 1. Under the APA, we go to the district court that has og j when challenging an agency action. a. Federal smj 2. Statutory right of action a. APA gives different causes of action. 1) Judicial review of an action - 5 USC 702 2) Judicial review of inaction - 5 USC 706(1), 551(13 a) Comes into play when the agency is supposed to take an action they're mandated to do, and they haven't done it. b) To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall 1) compel agency action unlawfully withheld or unreasonably delayed - APA section 706(1) c) "[A] claim under §706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take" - Norton v. SUWA 3) Judicial review exceptions - 5 USC section 701(a) 4) Distinguish from citizen suits a) Ex from endangered species act: "[With certain exceptions] any person may commence a civil suit . . . b) To enjoin any person, including the United States . . . who is alleged to be in violation of any provision of this chapter . . . ; or c) Against the Secretary where there is alleged a failure . . . of the Secretary to perform any act or duty under . . . this title which is not discretionary with the Secretary." d) Ps like to bring citizen suits bc they can get attorney costs (from ESA: "The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party . . . . ")

A. What Evidence? 1. Administrative record = materials the agency considered when reaching its decision 2. In court: a. Agency cannot rely on info not in its record b. Court can't rely on info from challenger if it's outside the record c. Can't make arguments not made during the administrative process. B. What's the standard of review? 1. Arbitrary and capricious standard 2. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it couldn't be attributed to a difference in view or the product of agency expertise. 3. Court will generally defer to the agency under this standard. C. Citizens to Preserve Overton Park v. Volpe 1. Is about the arbitrary and capricious standard. 2. Wanted to change where I40 is; wanted it to go right through Overton Park. 3. Case goes through to things to interpret APA: looks at sections of the APA that said: a. "this chapter applies...except to the extent that statutes preclude judicial review; or agency action is committed to agency discretion by law." b. Ct said: "This is a very narrow exception. . . [I]t is applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply." 1) Unless on its face the statute says you can't sue, you can challenge the agency. c. "To make this finding, the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquire into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. . . ." d. "The lower courts based their review on the litigation affidavits that were presented. These affidavits were merely "post hoc" rationalizations." 1) Aka: agency, you can't add stuff to your record to make your decision look better.

A. Nonpoint Source program - the state piece of things. 1. Section 319 requires states to develop nonpoint source management programs 2. States with approved programs are eligible for federal grants to assist with implementation 3. Must identify waters that are impaired or threatened by nonpoint sources of pollution. 4. MS made the decision to call all waterways impaired, instead of looking at each body individually 5. States are supposed to develop total maximum daily loads a. CWA requires states to est water quality standards b. Waters not meeting these standards are considered impaired and "total maximum daily loads" must be developed. c. TMDLs set a pollution "budget" necessary to achieve state water quality standards. d. TMDLs must address and set allocations for both point source and nonpoint sources. e. Argument for federal oversight: what about rivers that constitute borders? Each state will have its own standards. B. TMDLs are like pieces of a pie - ex 1. Say ok we want 10ppm to be the TMDL for nitrogen. Agriculture you get 3, x industry you get 2, y factory you get 2.5, etc. C. Jurisdictional requirements 1. 402/404 permit is needed for: a. Addition of any pollutant b. To navigable waters (waters of the US) c. From any point source

A. What are navigable waters? 1. Three different tests for this a. Navigable for admiralty purposes b. Navigable for regulatory purposes (what we're concerned with - what can be navigable under the commerce clause) 1) Is it: a) Currently used or susceptible b) In its ordinary condition c) Highways of commerce (trade and travel) d) Using customary modes e) For continued highway with other states/countries 2) If so, meets fed j, we can cover it with the CWA c. Navigable for (state) title purposes 1) Based on time of statehood 2. Statute defines navigable waters as: a. Defined in the statue as "waters of the US" b. Since it is a statutory term, EPA/Army Corps of Engineers can define what "WOTUS" means through rulemaking c. Regulatory hook is the commerce Clause (what about treaty power?) 1) Federal j is not limitless 2) Different than the definition of navigability for public trust doctrine or admiralty 3) Agreement that the act's coverage should extend to more than truly navigable waters a) But how far has been a source of disagreement for decades

A. "Any addition" 1. 402 permits a. You need something additional to be added to the water b. NWF v. Gorsuch- 693 F2d 156 (DCCir 1986)- water coming from a dam that is warmer and has more sediment is not the addition of the pollutant c. NWF v. Consumer Powers, 862 F2d 580 (6th Cir 1988)- fish gets chewed up by fish in the turbine of the dam. 6th Cir. Says no pollutant because healthy fish are upstream from the dam, so the fish guts downstream aren't added. d. LA County Flood Control District v. NRDC, 133 SCt 710 (2013)- when pollutants are discharged from one part of a waterway into another part of the same waterway through dams or other structures like culverts there is no addition. 2. 404 permits a. Dirt that was already on the property, if you dredge it up, can count as pollutant b. US v. Deaton, 209 F3d 331 (4th Cir 2000)- the statute refers to pollutants, not new materials. "What is important is that once that material was excavated from the wetland, its redeposit in that same wetland added a pollutant where none had been before." c. Borden Ranch- 261 F3d 810 (9th Cir 2001)- property owner "deep rips" property- pokes a hole on the bottom of a protected wetland to drain it. "while it is true, that in so doing, no new material has been 'added,' a 'pollutant' has certainly been 'added.'" d. However, de minimis "incidental fallback" not regulated.

A. What does a permit actually look like 1. CWA section 402 NPDES: Basic Permitting structure a. Permit is a license to do something otherwise illegal b. No right to a permit, can be revoked c. NPDES is a license to discharge - must comply with the stricter of either: 1) "Technology based" requirements (defined by EPA) or 2) "Water quality based" reqs (defined by states) d. NPDES permit needed for (all three of these things are required for you to need a permit; if don't have one of them, don't need a permit): 1) ALL "point" sources 2) "discharging pollutants" 3) Into "Waters of the US" 2. Effect on local governments ON SLIDE 3. AG Exemption: Des Moines Water Works Litigation a. System of piping under farmland bc groundwater is so close to the surface. Drains groundwater out from under the farmland. When they do that, that's not technically waste water. But the ground water itself is polluted from the ag chemicals soaking through. Plumbing is maintained by the draining district. 1) Des Moines is getting increased nitrogen pollution in the surface water, where they pull their drinking water from. 2) Meaning: under the safe drinking water act, they're violating the standards for nitrates 3) Des Moines sues the drainage districts, says you need a CWA permit for the pipes under your fields, bc those are point sources. You're the one that should be paying for all this water pollution. 4) People were excited about this case bc it was challenging the ag exemptions for CWA

1. Baltimore Climate Change Lawsuit a. Lawsuit targets 21 US and foreign energy companies that extract, produce, distribute or sell fossil fuelds. Seek monetary ds. 1) Argues that their activities contribute to emissions of carbon dioxide and other so-called greenhouse gases linked to climate change 2) An important city, Baltimore noted that it's vulnerable to sea-level rise and flooding driven by climate change. b. How do we est standing? c. Does it matter that the D isn't EPA? 1) Redressability is different - cos here would just give the city money. They're not actually regulating. 2. Juliana v. US a. In 2015, 21 youth, and organizational plaintiff Earth Guardians, filed their constitutional climate lawsuit, Juliana v. United States, against the U.S. government. Their complaint asserts that, through the government's affirmative actions that cause climate change, it has: 1) violated the youngest generation's constitutional rights to life, liberty, and property 2) failed to protect essential public trust resources. How do we establish standing? Ct said you didn't have standing. Speculative.

I. Clean Air Act (CAA) A. CAA is notoriously complicated. We have a simplified map. Focuses on separating out criterial area pollutants, hazardous hair pollutants (type of stationary sources), and mobile sources 1. The simplified map: a. Stationary sources 1) Criteria air pollutants a) New major source A) New source performance standards PSD Area PSD New source review Title V Operating Permit Nonattainment new source review SIP regulation o Title V operating permit b) Existing major source A) PSD area Title V Operating Permit B) Nonattainment area SIP Regulation Title V Operating Permit 2) Hazardous air pollutants a) Major or area source A) National Emissions standards for hazardous air pollutants Title V Operating Permit b. Mobile sources 1) Emission standards 2) Fuels regulations

1. Question 2 - best way to allocate? a. There are different theories on how to do this: 1) Cost causation - what costs did you cause/how much of the cleanup did you do 2) Harm - what harms did you cause/what did you specifically contaminate (groundwater, or soil? Or both?) 3) Fault - who caused the release a) What was following regulations or best practices for the time? 4) Orphan shares? (one of the responsible parties has gone bankrupt. How do the other parties make up for that mission share) a) Proportion? b) Nexus? (aka you bought property from X, so you have a closer nexus to X than party B) 5) Equitable Gore factors under 113 a) The ability of the parties to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can be distinguished. b) The amount of the hazardous waste involved. c) The degree of toxicity of the hazardous waste involved. d) The degree of involvement by the parties in the generation, transportation, treatment, storage or disposal of the hazardous waste. e) The degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste. f) The degree of cooperation by the parties with federal, state or local officials to prevent any harm to the public health or the environment. 6) Recovering costs under section 107 a) Recoverable damages summary: section 107 of CERCLA imposes liability on persons for four categories of ds: A) Response costs incurred by the fed or state gov, or Indian tribes, UNLESS challenges can demonstrate that the costs are inconsistent with NEPA B) Response costs incurred by private parties IF the private parties can demonstrate that the costs are necessary costs of response, and were incurred consistent with the NCP

I. National Environmental Policy Act (NEPA) A. NEPA section 101 - lists its goals 1. In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may— 2. (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; 3. (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings; 4. (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; B. NEPA section 2 1. Purposes are: a. The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. 2. Only the establishment of the CEQ has proved to be mandatory 3. The only thing that is enforceable and mandatory in this section is the creation of the CEQ. Their whole job is to create regulations to implement NEPA. C. NEPA does NOT contain a "citizen suit" provision 1. Therefore, a statutory right of action must be found in the APA. 2. NEPA doesn't give more weight to environmental consideration - agencies simply have to follow the procedures to consider the environment. D. General notes 1. Cts just look at whether the CEQ does is reasonable. 2. NEPA is purely procedural. 3. NEPA has been successful in slowing down projects that people don't like. It's main success has been as a litigation tool to frustrate projects.

a. Water quality standards/TMDLs can increase stringency of 402 NPDES permits 1) Friends of Pinto Creek - ex on p390 a) Creek is home to fish, birds, and wildlife, some of which is protected. b) Creek is impaired for copper - doesn't meet state WQS. c) Company wants to operate a new copper mine and processing facility that will discharge into Pinto Creek - can it get a section 402 permit? A) EPA issued permit and Environmental Appeals Board denied review B) Implicates 40 CFR 122.4(i). d) Offsets cannot be used to avoid the provisions of section 122.4(i) A) Different than what we saw in CAA B) Other circuits have ruled differently e) In order for a regulator to issue a permit to a new source that will discharge a pollutant for which the waterway is impaired: A) There must be a TMDL in place B) Regulator must determine that the existing discharges are subject to compliance schedules designed to bring the water back into compliance C) Offsetting can be done in conjunction with compliance schedules

I. RCRA - Resource Conservation and Recovery Act A. RCRA - 42 USC section 6901-6992k 1. Also known as the Solid Waste Disposal Act 2. Comprehensive regulation of hazardous wastes. 3. "Cradle-to-grave" regulatory system. 4. Subtitle C: requires generators and transporters of hazardous waste and Treatment, Storage, and Disposal facilities (TSD facilities) to comply with a multitude of federal requirements to ensure that hazardous waste is properly handled, transported, stored, and disposed of. 5. Before RCRA's provisions apply to any given material, however, that material must be "solid waste." B. Purpose 1. Address the increasing problems of solid waste -- and especially hazardous waste -- treatment and disposal. 2. Congress declared a national policy "that, wherever feasible, the generation of hazardous waste is to be reduced or eliminated as expeditiously as possible. Waste that is nevertheless generated should be treated, stored, or disposed of so as to minimize the present and future threat to human health and the environment. C. Definition of solid waste - 42 USC section 6903(27) 1. "The term 'solid waste' means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities 2. Exemptions from solid waste - 42 USC section 6903(27) a. The term solid waste doesn't include: 1) Solid or dissolved material in domestic ewage 2) Solid or dissolved materials in irrigation return flows 3) Industrial discharges which are point sources subject to permits under section 1342 of Title 33 (NPDES permits) 4) Source, special nuclear, or byproduct material as defined by the atomic energy act of 1954 b. Why would Congress include these exemptions? 1) You're already being regulated, or, in contrast, we've already decided to not regulate you

1) Regulatory Reform? a) Temporary Drilling Moratorium b) Minerals Management Service (MMS) divided into three independent entities to better carry out its three missions: Ensuring the balanced and responsible development of energy resources on the Outer Continental Shelf (OCS); ensuring safe and environmentally responsible exploration and production and enforcing applicable rules and regulations; and ensuring a fair return to the taxpayer from offshore royalty and revenue collection and disbursement activities. c) New Safety Rules... d) NEPA Reform? 2) So much litigation a) BP created a $20 million compensation fund. b) Consolidated federal case in Louisiana- $7.8 billion c) November 2012 BP reached an agreement with the DOJ to plead guilty to 14 criminal charges, among them 11 counts of felony manslaughter, and violations of the Clean Water and Migratory Bird Treaty acts. The agreement carried penalties and fines amounting to more than $4.5 billion, of which nearly $1.26 billion would go to a discretionary fund overseen by the DOJ, some $2.4 billion to the National Fish and Wildlife Foundation (NFWF), and $350 million to the National Academy of Sciences (NAS). BP also agreed to pay more than half a billion dollars to the Securities and Exchange Commission for misleading its shareholders about the magnitude of the oil spill. The deal was approved in January 2013. d) Many more still going...

a. (after the first oil spill we got:) Coastal Zone Management Act (CMZA) 1) Goal: to encourage states to preserve, protect, develop and, where possible, restore and enhance valuable natural coastal resources by developing and implementing Coastal Zone Management Plans. a) "coastal zone," for coastal states- the coastal waters, the lands found in and under the coastal waters, and the adjacent shorelands (16U.S.C. § 1453(1)). b) Great Lakes- , to the international boundary between US and Canada and, in other areas, to the outer limit of state jurisdiction 2) Participation is voluntary, but grant funds available. 3) Consistency Provisions: a) Requires federal agency activities that have reasonably foreseeable effects on state coastal zones to be consistent to the maximum extent practicable with the enforceable policies of a coastal state's federally approved coastal management program (16 U.S.C. § 1456).

a. 40 CFR section 1508.1(g) 1) Text a) (b) Affecting means will or may have an effect on b) (g) Effects or impacts means changes to the human environment from the proposed action or alternatives that are reasonably foreseeable and include the following: A) (1) Direct effects, which are caused by the action and occur at the same time and place. B) (2) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. C) (3) Cumulative effects, which are effects on the environment that result from the incremental effects of the action when added to the effects of other past, present, and reasonably foreseeable actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative effects can result from individually minor but collectively significant actions taking place over a period of time. D) (4) Effects include ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effects will be beneficial. E) (m) Human environment means comprehensively the natural and physical environment and the relationship of present and future generations of Americans with that environment. (See also the definition of "effects" in paragraph (g) of this section.) F) (q) Major Federal action or action means an activity or decision subject to Federal control and responsibility G) (x) Proposal means a proposed action at a stage when an agency has a goal, is actively preparing to make a decision on one or more alternative means of accomplishing that goal, and can meaningfully evaluate its effects. A proposal may exist in fact as well as by agency declaration that one exists. H) (aa) Reasonably foreseeable means sufficiently likely to occur such that a person of ordinary prudence would take it into account in reaching a decision. 2) Ex: army corps gives a permit for a coastal development. That will destroy a wetland. Is it reasonable for the army corps to think that it will make it more susceptible to storm surges. What would a reasonably prudent person think.

a. 40 CFR 1501.3 - determine the appropriate level of NEPA review 1) This is the current regulation 2) Text a) (a) In assessing the appropriate level of NEPA review, Federal agencies should determine whether the proposed action: b) (1) Normally does not have significant effects and is categorically excluded (§ 1501.4); c) (2) Is not likely to have significant effects or the significance of the effects is unknown and is therefore appropriate for an environmental assessment (§ 1501.5); or d) [but see Ocean Advocates, p. 681] (3) Is likely to have significant effects and is therefore appropriate for an environmental impact statement (part 1502 of this chapter). e) (b) In considering whether the effects of the proposed action are significant, agencies shall analyze the potentially affected environment and degree of the effects of the action. Agencies should consider connected actions consistent with § 1501.9(e)(1). A) (1) In considering the potentially affected environment, agencies should consider, as appropriate to the specific action, the affected area (national, regional, or local) and its resources, such as listed species and designated critical habitat under the Endangered Species Act. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend only upon the effects in the local area. B) (2) In considering the degree of the effects, agencies should consider the following, as appropriate to the specific action: Both short- and long-term effects. (ii) Both beneficial and adverse effects. (iii) Effects on public health and safety. (iv) Effects that would violate Federal, State, Tribal, or local law protecting the environment. 3) Ocean Advocates case: ct says uncertainty is the reason to do an EIS, NOT a reason to NOT do an EIS. Whether this will hold throughout the Biden administration is tbd.

A. What goes into an EIS? 1. Flowchart a. Decision to prepare EIS - 1501.4(c) and (d) 1) Notice of intent a) Scoping - section 1508.25 A) Draft EIS (DEIS) section 1508.25 I) Public comment Final EIS (FEIS) section 1502.9(b) Record of decision (ROD) b. So: there are four different publications that have to go out in the fed register to get the EIS impelemented c. A typical final EIS would use the following outline: 1) Introduction 2) Purpose and need for the action a) Trump has changed the regulations to say "the statement shall briefly specify the underlying purpose and need for the proposed action. When an agency's statutory duty is to review an application for authorization, the agency shall base the purpose and need on the goals of the applicant and the agency's authority." b) Currently, the regulations say: "the statement shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternative including the proposed action." 3) Alternatives to the action a) Section 1502.14 A) Text I) The alternatives section should present the environmental impacts of the proposed action and the alternatives in comparative form based on the information and analysis presented in the sections on the affected environment (§ 1502.15) and the environmental consequences (§ 1502.16). In this section, agencies shall: II) (a) Evaluate reasonable alternatives to the proposed action, and, for alternatives that the agency eliminated from detailed study, briefly discuss the reasons for their elimination. III) (b) Discuss each alternative considered in detail, including the proposed action, so that reviewers may evaluate their comparative merits. IV) (c) Include the no action alternative. V) (d) Identify the agency's preferred alternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the final statement unless another law prohibits the expression of such a preference. VI) (e) Include appropriate mitigation measures not already included in the proposed action or alternatives. VII) (f) Limit their consideration to a reasonable number of alternatives.

a. Challenges to alternatives analysis 1) A court will weigh an alternatives analysis against a reasonableness standard, and under a deferential standard of review 2) Agencies have broad discretion to decide which alternative to analyze and what range is reasonable a) Regulations provide few concrete rules (other than the clear requirement of a no-action alternative) for measuring whether an alternatives analysis includes enough alternatives, or whether there is sufficient differentiation among those alternatives 3) That discretion isn't limitless, but challenges to agencies' alternatives analyses are generally hard to win.

1. Transporters - the second category of entities who are regulated under RCRA a. Mostly regulated under DOT standards under the Hazardous Materials Transportaiton Act 1) If compleis with all DOT regulations, are deemed in compliance with RCRA b. Reqs include: 1) Properly use a manifest 2) Properly transport 3) Take immediate action and notify federal authorities if a discharge 4) No permit under RCRA, but depending on waste, may need one from DOT c. EPA retains the authority to enforce the DOT rules 2. Third category regulated by RCRA: TSDFs (Treatment, storage, or disposal facility) a. Most stringent standards b. Two types of TSDs: 1) In the business of running RCRA facilities - such as waste management 2) Manufacturing TSDs - manufacturers who treat or store for more than 90/180 days at their facilities c. Facility- All contiguous land, and structures, other appurtenances, and improvements on the land, used for treating, storing, or disposing of hazardous waste, or for managing hazardous secondary materials prior to reclamation. A facility may consist of several treatment, storage, or disposal operational units (e.g., one or more landfills, surface impoundments, or combinations of them). d. 40 CFR 260.10 - Definitions 1) Treatment- any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to neutralize such waste, or so as to recover energy or material resources from the waste, or so as to render such waste non-hazardous, or less hazardous; safer to transport, store, or dispose of; or amenable for recovery, amenable for storage, or reduced in volume. 2) Storage- the holding of hazardous waste for a temporary period, at the end of which the hazardous waste is treated, disposed of, or stored elsewhere. 3) Disposal- the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. 4) Disposal Facility- a facility or part of a facility at which hazardous waste is intentionally placed into or on any land or water, and at which waste will remain after closure. 5) If a facility meets any of these definitions, it must meet the requirements of Part 264/265. e. They have five major requirements: 1) Permits 2) Facility standards a) Demanding and expensive 3) Groundwater monitoring - if you are a surface impoundment, landfill, or land treatment facility. Make sure you're not contaminating the groundwater under you. a) Demanding and expensive 4) Closure/post-closure 5) Financial responsibility a) Do you have insurance, can you pay if something bad happens.

a. Closure/post closure requirements - when ceasing your TSDF activities 1) In general, there are two options a) Clean closure - if you have an incinerator, you get all the hazardous wastes out, treat any contaminated equipment and make it as though the unit was never there in the first place. or if you are only storing, can siply send the drums off site and be on your merry way b) Closure as landfill, or dirty closure (closure leaving waste in place) - need to make the landfill leak-proof and monitor it for a while A) The monitoring is "post closure" B) Need to cover it and maintain the cap C) Need to get all the hazardous wastes as possible out of the impoundment D) Keep monitoring groundwater for at least thirty years I) EPA has the option of extending this post-closure requirement, which a lot facilities think EPA will do. II) Company has to monitor, even if the TSD is out of business (This is why there are the financial responsibility requirement- need to set aside money for closure and post-closure in a bankruptcy proof account) E) Need to have insurance. 2) Closure plans a) Closure plan needs to be completed within 90 days under any and all circumstances A) Sometimes a facility must amend their closure plan - I) Changes in operating plans or facility design affect their closure plan II) Changes in the expected year of closure III) Unexpected events required a modification of the closure plan (Sometimes something happens that makes you have to change from clean closure to dirty closure. Note: this will affect your financial responsibility). REVIEW THIS PART OF LECTURE - ON SLIDE 3) "Land ban" a) Introduced in 1984 RCRA amendments A) Pre-1984, almost all hazardous wastes went to landfills b) Very complicated A) In general, we want hazardous wastes to be treated with v strict standards before they are disposed of on land B) Rule - any land disposal of a hazardous waster is prohibited, unless EPA has authorized a particular form of disposal.

a. National Environmental Policy Act (NEPA) 1) Requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions. a) All federal agencies are to prepare detailed statements assessing the environmental impact of and alternatives to major federal actions significantly affecting the environment. b) These statements are commonly referred to as Environmental Impact Statements (EIS) and Environmental Assessments (EA). 2) Covers a broad range of actions covered by NEPA is broad and includes: a) making decisions on permit applications, b) adopting federal land management actions, and c) constructing highways and other publicly-owned facilities. 3) Evaluates the environmental and related social and economic effects of their proposed actions. Agencies also provide opportunities for public review and comment on those evaluations. b. Exxon Valez Oil Tanker Spill 1) Within days oil from the Exxon Valdez spread some 1,300 miles along the coast of what was pristine wilderness. 2) Total- @ 11 million gallons of oil 3) In the first days of the spill there was no oil recovery or clean-up equipment in the water. 4) Massive clean-up efforts involving thousands of people were undertaken. 5) Impact: a) Final death toll: 250,000 seabirds, Almost 3,000 sea otters, 300 harbor seals, 250 bald eagles, 22 killer whales, Billions of salmon eggs. b) Pacific herring population collapsed, bankrupting fishermen. c) Even today, killer whale and some seabird populations have not fully recovered. 6) Response: Oil Pollution Act of 1990 a) Streamlined and strengthened EPA's ability to prevent and respond to catastrophic oil spills. b) Created a trust fund financed by a tax on oil is available to clean up spills when the responsible party is incapable or unwilling to do so. c) Requires oil storage facilities and vessels to submit to the Federal government plans detailing how they will respond to large discharges. d) Requires the development of Area Contingency Plans to prepare and plan for oil spill response on a regional scale. e) EPA: Regulations for aboveground storage facilities f) Coast Guard: Regulations for oil tankers. g) Oil tankers now required to be double hulled. 7) Litigation (because we have rules now): a) State of Alaska sued Exxon over the spill, and the federal government indicted the company for violating the Clean Water Act. b) Exxon paid: $1 billion in settlements to the state and federal governments; $300 million in voluntary settlements with private parties c) A lawsuit was also filed against Exxon Mobil on behalf of more than 32,000 fishermen, native Alaskans and landowners. Initial award: $5 billion in punitive damages. In 2008: U.S. Supreme Court reduced it to $507.5 million.

a. Deepwater Horizon Oil Rig Explosion 1) On the night of April 20 a surge of natural gas blasted through a concrete core recently installed by contractor Halliburton in order to seal the well for later use. 2) The natural gas traveled up the Deepwater rig's riser to the platform, where it ignited, killing 11 workers and injuring 17. 3) The rig capsized and sank on the morning of April 22, rupturing the riser, through which drilling mud had been injected in order to counteract the upward pressure of oil and natural gas. Without any opposing force, oil began to discharge into the gulf. 4) Originally estimated by BP to be about 1,000 barrels per day—was thought by U.S. government officials to have peaked at more than 60,000 barrels per day. 5) Impact: a) Oil slick extended over more than 57,500 square miles (149,000 square km) of the Gulf of Mexico. b) To clean oil from the open water, 1.8 million gallons of dispersants—substances that emulsified the oil, thus allowing for easier metabolism by bacteria—were pumped directly into the leak and applied aerially to the slick. c) Booms to corral portions of the slick were deployed, and the contained oil was then siphoned off or burned. d) 11 deceased humans, 17 injured e) Drilling moratorium led to unemployment f) Economic impact to fisheries and tourism g) Injured all 21 species of dolphins and whales h) 167,000 sea turtles killed i) Killed 2- 5 million larval fish j) Some fish have documented injuries: For example in 2011, some red snapper and other fish caught in oiled areas had unusual lesions, rotting fins, or oil in their livers. Oil spill impacts have been documented in fish species such as southern flounder, redfish, and killifish. k) All 93 species of shore birds affected l) Damage to coral reefs

A. "Any addition of any pollutant...from any point source." 1. Statutory terms a. 33 USC 1311(a) - except with a CWA permit "the discharge of any pollutant by any person shall be unlawful." b. 1362(12) - "discharge of a pollutant" and the term "discharge of pollutants" each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft. c. 1362(7)-The term "navigable waters" means the waters of the United States, including the territorial seas. 2. Point source a. Point source "means any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well,d screte fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture." 3. Groundwater a. General rule: The Clean Water Act does not specifically apply to all groundwater 1) The Clean Water Act does require states to develop plans for non-point source discharges, such as irrigation flows and agricultural runoff b. But surface water and groundwater can be connected, and pollution into groundwater may end up in surface water. Application of the CWA to groundwater has been a source of contention and confusion for many years. 1) Question: Can pollutants that go into groundwater from a point source and make it to a navigable water be required to get a 402 permit?

a. Ground water cases - split opinions on the groundwater question 1) 4th and 9th circuits - yes a) "fairy traceable" b) Direct hydrological connection 2) 6th circuit - no a) Hydrological connection doesn't matter b) For a point source to discharge into navigable waters, it 1) must dump directly into those navigable waters, and 2) the pollutants aren't coming from a point source, as groundwater isn't a point source. 3) County of Maui, Hawaii v. Hawaii Wildlife Fund (2020) a) Government permit b) 9th circuit - fairly traceable - SCOTUS grants cert and EPA issues on interpretive rule. Test said even if the water traveled long and far before reaching the water, still needs to be proximate reason of the discharge c) Maui and US solicitor - point source must be the means of delivering. Don't need a permit. Ground water never covered by CWA. d) SCOTUS - somewhere between the two A) Need to balance state rights with environmental protection. Would defeat the CWA if an entity can discharge into groundwater five feet from surface water. B) Concerns with expanding the permitting system? C) "Functional Equivalent" test. D) Kavanaugh Concurrence - relies on Scalia in Rapanos. "First, the Court's interpretation of the Clean Water Act regarding pollution "from" point sources adheres to the interpretation set forth in Justice Scalia's plurality opinion in Rapanos ). The Clean Water Act requires a permit for "any addition of any pollutant to navigable waters from any point source." The key word is "from." The question in this case is whether the County of Maui needs a permit for its Lahaina Wastewater Reclamation Facility. No one disputes that pollutants originated at Maui's wastewater facility (a point source), and no one disputes that the pollutants ended up in the Pacific Ocean (a navigable water). Maui contends, however, that it does not need a permit. Maui says that the pollutants did not come "from" the Lahaina facility because the pollutants traveled through groundwater before reaching the ocean." "Justice Scalia's plurality opinion in Rapanos explained why Maui's interpretation of the Clean Water Act is incorrect. In that case, Justice Scalia stated that polluters could not "evade the permitting requirement of § 1342(a) simply by discharging their pollutants into noncovered intermittent watercourses that lie upstream of covered waters." Justice Scalia reasoned that the Clean Water Act does not merely "forbid the 'addition of any pollutant directly to navigable waters from any point source,' but rather the 'addition of any pollutant to navigable waters.' Thus, from the time of the CWA's enactment, lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates § 1311(a), even if the pollutants discharged from a point source do not emit 'directly into' covered waters, but pass 'through conveyances' in between.""

a. P199-201: CARE v. EPA - 4th Cir. 1981 1) Can change in paving operations serve as an offset? a) What are the details of the offset? b) Did EPA approve the SIP? c) What is the basis of the challenge? d) What does the 4th Cir rule? 2) In-class notes a) CARE is challenging an offset b) VA proposes an offset based on using a different paving. CARE says wait a minute VA, you've already been doing this, how can you claim it as an offset now. Your previous shift was just bc it was more expensive asphalt. This has nothing to do with air pollution, so how can it be claimed as an offset c) EPA proves the state plan; CARE says this plan was preexisting, you can't count it d) Ct says: we're going to side with the state. Reasoning: the preexisting program was only voluntary, it didn't have to happen, was just sort of a goal that the state was giving itself. So: now that it's been put in the SIP, can be an offset, bc there's a letter from AG saying you're going to do it, and it'll be federally enforceable.

a. In re Monroe Electric... EPA Administrator 1999 p. 201-03 1) Administrative decision 2) Deals with an operating permit for a plant in Louisiana under PSD New Source Review 3) What is the difference between temporary and permanent shutdown? a) Presumption? BOP? b) Factors? 4) Boilers were shut down for 11 years; og thought they'd just be down for 3 or 5. Plant keeps paying for their permit. Later say they want to restart, but it's treated as just restarting the factor, no new source review. 5) Citizens say: it's been shut down for 11 years, to us that's a new source, bc it's been emitting zero. 6) Is this a new source or not? 7) EPA says we have to decide if this is a temporary or permanent shutdown - they say: 1) whether a shutdown is permanent depends on the owner/operator's intent when they shut down. But: we have this presumption if it's been shut down for more than two years, that's a permanent shutdown. BOP is on owner/operator to provide it's not a permanent shutdown if we go past two year mark. 8) EPA says we have a list of factors as to when we look at operator's intent. Lookit how long it's been out of operation, reason for shutdown, statements by operator, has operator expressed a continuous intent to reopen, lookit activities during shutdown to see intent. LOOK THESE FACTORS UP 9) Offset can't come from a new source, can only come from an existing source.

A. Contractual Clauses 1. What if A and B have a k that says A will indemnify B under CERCLA? What does that mean in terms of joint and several liability? 2. Section 107(e)(1) of CERCLA provides that "no indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a relaee or threat of release under this section, to any other person the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section." 3. Section 107(e) has been interpreted to mean that parties can enter into agreements to allocate liability among themselves, but that they will be fully liable to the gov, regardless of those ks. 1) Aka, you may be liable via k law, but EPA can go after whoever they want. They can't say EPA won't come after B, but can say to B that if EPA goes after them, they'll pay for it. B. Affirmative defenses - p598 1. Hardly ever come into play 2. There are four of them: a. Act of god 1) Doesn't include things that are foreseeable (even like hurricanes?). Must show you took are the reasonable steps someone should've taken to protect against a release in order to claim act of god. b. Act of war 1) Act of war is if your facility gets bombed. Pretty limited, narrow construction. c. Lender defense 1) Lender has loan on the property - if they don't play any role of managing the property, even though they have an ownership interest, not liable d. Municipal solid waste exemption 1) If you send something off to the dump, you shouldn't be liable. e. Third party defense - section 107(b)(3) 1) A D can avoid liability when it can demonstrate, by a preponderance of the evidence, that the release or threat of release was caused solely by a third party other than an employee or agent of the D, or than one whose act or omission occurs in connection with a contractual relationship with the D 2) Must al establish by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned; and (b) he took precautions against foreseeable acts or omissions of the third party and the consequences that could foreseeably result from those acts or omissions.

a. Innocent landowner defense 1) D must satisfy the normal prerequisites for the third party defense 2) Must also demonstrate, by a preponderance of the evidence, either that: a) The D acquired the property by inheritance or bequest; b) The D is a government entity which acquired the property involuntarily or through exercise of eminent domain (ex, it's left to you in a will); or c) At the time the D acquired the facility, the D did not know and had no reason to know that hny hazardous substance which is the subject of the release was disposed of on, in, or at the facility. 3) The court will look at the following factors to determine if the D undertook, at the time of acquisition, all appropriate inquiry into the previous ownership and use of the property consistent with good commercial or customary practice in an effort to minimize liability: a) Any specialized knowledge or experience on the part of the D b) The relationship of the purchase price to the value of property if uncontaminated c) Commonly known or reasonably ascertainable info about the property d) The obviousness of the presence or likely presence of contamination at the property e) The ability to detect such contamination by appropriate inspection b. Bona fide purchasers - if you do these things, you can buy the property, clean it up, and not be liable for any harm 1) Meant to encourage cleanup of Brownfields 2) Prospective - only applies to purchases after 2002 3) Statute contains elements that must be met a) Acquired property after "all disposals of hazardous substnaces" b) "all appropriate inquiry" c) Make all legally required notices with regard to discovery or release of any hazardous substances d) Exercise appropriate care with any found hazardous substances, take steps to stop continuing releases, prevent threatened releases, and prevent/limit exposure to existing releases e) Fully cooperate, assist, provide access to those authorized to conduct response actions f) Comply with land use restrictions as part of response action/can't impeded effectiveness of any controls g) Comply with all EPA information requests under 104(e) h) Can't be potentially affiliated with anyone potentially liable (familial, corporate relationships)

A. Rapanos v. U.S. (2006) 1. Case involves Wetlands adjacent to non-navigable tributary 2. Plurality opinion - no majority, it's a mess a. Scalia plurality (4) 1) Basis of 2020 rule adopted by Trump 2) Federalism - land use is a state role 3) Commerce clause - need a clearer statement from Congress to "push the envelope" 4) Decides based on Chevron deference's step 1 - his is the only plausible reading of the statute a) Does not include seasonal streams b) Impact on the western US? 5) Says that the statute says "waters." 6) Looks at Cambridge dictionary definition: a) A clear liquid, without color or taste, that falls from the sky as rain and is necessary for animal and plant life b) 2) an area of water, such as the ocean, a lake, or a swimming pool 7) If congress had wanted us to regulate all water, would have said "water." By saying "waters," they were focused on bodies of water. Says that applying this definition to that long list in the 1986 rule stretches the statute like crazy. 8) His test: says there are two different things he wants in a waterway: permanent standing or flowing waters (problem: seasonal streams or rivers, even though they have a huge impact on waters, on collecting pollution when it is flowing) creating a geological feature (ASK HER ABOUT THIS TEST DON"T THINK I GOT IT RIGHT)

a. Kennedy Concurrence (1) 1) Basis of 2015 rule adopted by Obama 2) Navigable can be extended beyond truly navigable 3) Description of wetlands 4) Why Scalia test has flaws: a) Kennedy also addresses state's rights. He says 33 states have filed a brief supporting the agency's assertion of j. they say that helps their own water policies. b) Dismissive of the role of wetlands (regulation is needed - cites the gulf dead zone). Wetlands can affect tributaries, which affects the navigable water. Look at the science of it. You're dismissing science too much. As to gulf dead zone: it's a combo of a lot of states - that screams we need federal intervention to protect all these small waterways going in the MS, so we don't have that dead zone. c) Plurality reading is just too narrow - doesn't think it is the only interpretation. (we need to go to step 2 of Chevron) d) Doesn't give proper deference to other branches of government (aka the agencies and congress can help figure this out too. And if congress wanted to fix these nebulous definitions, they would - but they've let the agencies be figuring it out) - over reach by the judiciary 5) Significant nexus test a) There is a significant nexus if the wetlands "either alone or in combination with similarly situated wetlands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable." b) Aligns with the purpose of the CWA c) Must assess on a case by case basis d) Criticism: what kind of notice could small local landowners have that they have a water that's covered by the CWA? e) Maybe could generalize, but not at issue here f) This is our test as well. b. Dissent (4) - finds corps interpretation reasonable. Says that they would give j in all situations. 1) Question: does a manmade berm separating a wetland from an adjacent tributary make a difference? 2) Snarky second purpose - these regulations are twenty years old, practices are thirty years old - why now? Congress hasn't seen fit to change them a) Sacketts trying to do the same thing this erm 3) Both other opinions fail to honor precedent and long established Corps practice 4) Corps interpretation is quintessential reasonable interpretation - middle 313 5) Jurisdiction if either test is met a) Some courts have used significant nexus, others have said jurisdiction if either test is met. c. Courts follow Kennedy or a combo of Kennedy/Scalia 1) No courts followed solely Scalia

b. Lead v. GHG 1) NRDC v. Train a) "While the literal language of section 108(a)(1)(C) is somewhat ambiguous, this ambiguity is resolved when this section is placed in the context of the act as a whole and in its legislative history. The deliberate inclusion of a specific timetable for the attainment of ambient air quality standards incorporated by congress in sections 108-10 would become an exercise in futility if the administrator could avoid listing pollutants simply by choosing not to issue air quality criteria b) Something that meets the endangerment test in the statute has to be added 2) GHG denial a) 108(a)(1)(3) can't be ignored - if can't set a NAAQS for GHG, then we can't list it b) Train is pre-Chevron. Clause is ambiguous, and under Chevron, defer.

a. Mass. V. EPA - looks at whether we can regulate GHG under the Mobile Sources Program 1) Question: does the EPA have to list GHG. They were petitioned to do so, that triggered a lawsuit. 2) Section 202 - Mobile Sources a) Except as otherwise provided in subsection (b) - b) (1) The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. Such standards shall be applicable to such vehicles and engines for their useful life (as determined under subsection (d), relating to useful life of vehicles for purposes of certification), whether such vehicles and engines are designed as complete systems or incorporate devices to prevent or control such pollution. 3) 108 v. 202 air pollutant language a) 108 - emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated ot endanger public health or welfare b) 202 - mission of any air pollutant from any class or classes of new motor vehicles or new motor vehicles engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. 4) Why did EPA deny the rulemaking petition? 5) Is Carbon dioxide an air pollutant under the CAA? a) Statutory language of 202. EPA relies on "judgment" language to say they didn't need to make that determination. Ct says the statutory text includes wide, sweeping types of pollutants. The definition embraces all airborne compounds. b) GHG can fit within definition of 202, which means EPA got it wrong.

a. Rule #2 1) What is the justice saying? We are gonna get rid of other deferences. Usually would've given Chevron deference, but we won't do that here. Didn't get rid of Chevron, but the major questions doctrine is an exception. 2) "Agency must point to clear congressional authorization when it seeks to regulate a significant portion of the American economy" (quoting Utility Air) or require "billions of dollars in spending (quoting King v. Burwell) by private persons or entities" 3) Exs: a) Regulating tobacco products b) Eliminating rate regulation in telecommunications industry c) Subjecting private homes to Clean Air Act restrictions d) COVID moratorium restriction 4) Things to consider: a) Industry complied with the Clean Power Plan anyway due to market forces and supported EPA in the case. 5) How do we know if there is a clear congressional statement? P13 a) Rule #2A - look to the provision involved to see how it fits in the overall statutory scheme A) No "oblique or elliptical language" or "elephants in mouseholes" b) Rule #2B - Examine the age and focus of the statute in relation to problem seeks to address A) Is the agency using an old statute to solve new, different problem? c) Rule #2C - Examine the agency's past interpretations of the statute A) Is the agency trying to use a new and/or obscure part of the statute to justify its action? d) Rule #2D - is there a mismatch between an agency's challenged action and its congressionally assigned mission and expertise? A) If the action is outside the agency's expertise, could assume Congress didn't mean to give the agency that power. B) Ex: CDC's covid eviction moratorium - CDC doesn't deal with real estate. That's not their specialty

a. Rule #3 1) "Doctrine may apply when an agency seeks to 'intrude into an area that is the particular domain of state law." 2) This goes hand in hand with federalism: a) "When an agency claims the power to regulate vast swaths of American life, it not only risks intruding on Congress's power, it also risks intruding on powers reserved to the States." See SWANC, 5311 U.S., at 162, 174. 3) Aka: if agency is trying to take a lot of power, they're going to be suspect. A. Problem - Challenging an EPA Rule 1. Clean Air Act Sec. 307 (42 USC 7607) Administrative Proceedings and Judicial Review, p108-111. a. This provision has a lot of v similar qualities with the APA: 1) Judicial review limited to "final action" 2) Rulemaking must use notice and comment process 3) Judicial review of EPA rule limited to administrative record 4) Only arguments raised during public comment (a comment made in the federal register) can be made in a court challenge 5) Arbitrary and capricious standard b. Differences from APA 1) Petitions for review filed in Ct of appeals (not district court) 2) Petitions for review of EPA actions "based on a determination of nationwide scope or effect" MUST be in the DC circuit 3) Short statute of limitations - 60 days 4) EPA actions can't be collaterally attacked in subsequent enforcement proceedings c. Takeaway: you have to be ready to go the second something is finalized.

1. Ex: Oil Spills a. In-class notes 1) Example - oil spills 2) Submerged Lands Act - 1953. Argument between state, fed govs on who had rights to petroleum deposits off shore. States were saying they should have rights, feds said no, we own the ocean. In 1953 congress passed this act. They said that states generally get three nautical miles off the coastline of your states. If there's an oil deposit in that area, states that's yours. 3) Spurred by states wanting rights to petroleum deposits off their coasts 4) Federal law that recognized the title of the states to submerged navigable lands within their boundaries at the time they entered the union 5) Includes navibable waterways, such as rivers, as well as marine water within the state's boundaries 6) Generally three geographical miles (almost exactly three nautical miles or 5.6km from the coastline) (SCOTUS - gulf coast of FL and TX get ten nautical miles bc they were sovereign nations at one time) 7) Santa Barbara Oil Spill of 1969. Spurs writing of big environmental law statutes. Spewed three million gallons of crude oil, creating an oil slick 35 miles long along CA's coat. Caused by inadequate safety precautions taken by Unocal (formerly Union Oil) (received a waiver from the US Geological Survey. Built a protective casing around the drilling hole... 8) Regulatory response to santa Barbara oil spill: NEPA says feds don't give a safety waiver without thinking about it first. 9) Exxon Valdez oil spill: oil spill in AK. 10) Response to the oil spills: oil pollution of 1990. Embedded in the CWA. 11) After the most recent oil spill, people thought that we'd get a new statute. There basically was no response. Got moratorium, MMS, new safety rules (some). No NEPA reform.

a. Submerged Lands Act - 1953 1) Spurred by states wanting rights to petroleum deposits off their coasts 2) Federal law that recognized the title of the states to submerged navigable lands within their boundaries at the time they entered the Union. 3) Includes navigable waterways, such as rivers, as well as marine waters within the state's boundaries 4) Generally three geographical miles (almost exactly 3 nautical miles or 5.6 kilometers) from the coastline. a) US Supreme Court- Gulf coast of FL and TX get 10 nautical miles b. Santa Barbara Oil Spills 1) Spewed 3-million gallons of crude oil, creating an oil slick 35 miles long along California's coast. 2) Caused by inadequate safety precautions taken by Unocal (formerly Union Oil). a) Received a waiver from the U.S. Geological Survey b) Built a protective casing around the drilling hole that was 61 feet short of the federal minimum requirements at the time. 3) At the time, was the worst oil spill in US history. a) Explosion cracked the sea floor in five places b) Crude oil spewed out of the rupture at a rate of 1,000 gallons an hour for a month before it could be slowed. 4) Regulatory response a) National Environmental Policy Act (NEPA) passed soon after- requires federal agencies to consider the environmental impacts of their actions b) Coastal Zone Management Act (CZMA) - 1972- gave states opportunity to comment on/object to federal projects in their coastal zones c) New federal policies established after the spill required offshore oil platform operators to pay unlimited amounts toward oil spill cleanup costs, along with penalties of up to $35 million d) Federal moratorium on drilling off coast of CA. e) CA instituted a 3 -year moratorium on offshore drilling - @ 20 leases still exist today in state waters

1. Three different situations on how water quality standards themselves can translate into controls on specific sources: a. 401 certifications 1) Gives states the ability to preclude fed agencies from issuing permits of licenses involving discharges to navigable waters when the state is worried the activities may compromise state water quality standards 2) A diff kind of cooperative federalism - states putting a check on the fed gov 3) States waive this ability by declining to exercise it. 4) Ex: PUD No. 1 of Jefferson Cnty. V. Washington Dept. of Ecology, 511 US 700 (1994) a) City and local utility district want to build a hydroelectric dam on Dosewallips river in WA. A) Would be just outside Olympic Nat'l park B) Would leave minimum flow in the river between 65 and 155 cfs depending on the seas C) Based on state's studies, state thinks salmon and steelhead need 100-200 cfs depending on the season b) Can WA state use its 401 authority to condition the project's permit to maintain minimum stream flows to protect salmon and steelhead? A) City says this has nothing to do with the water the dam would be discharging. We need a 402 permit. We think the state is overstepping with this condition. c) SCOTUS upholds states' ability to base the condition they imposed on fed licenses on narrative designated uses A) Argument was this should be limied to quantitative water quality criteria B) Can address water quality as well as water quality C) State 401 certification should address the activities of the applicant, not just the discharge That empowers the state to demand like compensatory mitigation on another portion of the site Conditions must be included in the relevant permit. D) Give states a lot of power to control the whole project to protect their water quality. 5) State water quality standards a) The CWA requires states to est WQSs, which si a two step process: A) First, the state designates a specific use for the water, which becomes the goal use to be attained for the waterbody (ex: the use of the waterbody could be designated for drinking water, wildlife habitat, swimming, or fishing) B) Using the EPA's WQC as guidance, the state then sets its own water quality criteria that, if emt, will protect the designated use of the waterbody b) Once they do that, they then have to make a 303d list of every water body in the state that's not meeting the stae WQS A) To est WQSs, a state designates a specific use for the water and then sets water quality criteria to attain that goal use Waterbodies that don't meet WQSs are considered "impaired" and identified on a list usually referred to as the "303(d) List." For these impaired waterbodies, the state must take steps to improve the water's quality, including addressing NPS pollution The state does this by establishing a total maximum daily load (TMDL)

a. TMDLs 1) A TMDL is essentially the amount of a pollutant that can enter a water body and still allow it to meet its WQSs under the CWA a) Places a maximum threshold loan (daily, monthly, seasonal) on individual pollutants that may enter a watershed and not cause impairment b) Look at impacts on watter bodies from specific pollutants (eg sediment, metals, pesticides, nutrients, etc); consider seasonal variations; and account for background level of pollutants c) Designated use and size of the water body matter; that'll affect the TMDL. Can discharge more into the MS river than the Tallahatchie. The bigger the body, generally the bigger the load that can go in. 2) The TMDL splits up the allowable amount of the pollutant entered into an impaired water way into: a) Point sources = waste load allocations (WLAs) b) NPSs = loan allocations (Las) c) Will also account for a margin of error and natural background levels of the pollutant 3) Enforcement - WLAs can be enforced through NPDES permits, LAs aren't enforceable against NPS polluters. a) This fact heightens the importance of a state's section 319 program. b) Ex: say the TMDL for nitrogem is 10 ppm. Industry produces 2, city produces 1.5, MOS produces I, factory produces 2.25, agriculture produces 3 4) Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002) a) Garcia river only has nonpoint source pollution - can a TMDL be set for it? A) EPA says yes. Had forced CA to list segments with only NPS on its impaired list and established a TMDL b) Private landowners - purchased harvested timber land, regrew forest and wanted to harvest again A) Bc of the TMDL, have to have measures costing 750k c) Court determines that section 303(d) empowers EPA to develop, and to require the states to develop, TMDLs for waterbodies that are polluted solely by nonpoint source pollution A) Chevron deference - 9th Cir basically just said EPA's interpretation of the act was reasonable. B) Federalism - is the EPA stepping into the state's role? No - state, it's totally in your power to set the TMDL. Don't just whine bc you don't want to do that.

c) CAA 111(d) - is a way to regulate existing sources under this new source program A) Once EPA has elected to set an NSPS for new and modified sources in a given source category for a pollutant, section 111(d) calls for regulation of existing sources with certain exceptions. Pollutant can't be covered by NAAQS or HAPs "operates as a gap-filler". American Lung Assn. v. EPA, 985 F. 3d 914, 932 (CADC 2021). B) EPA decides the amount of pollution reduction that must ultimately be achieved by again determining "the best system of emission reduction . . . that has been adequately demonstrated for [existing covered] facilities." 40 CFR §60.22(b)(5) (2021); C) The States then submit plans containing the emissions restrictions that they intend to adopt and enforce in order not to exceed the permissible level of pollution established by EPA.

d) Clean Power Plan A) What was the degree of emission limitation achievable through the application" of BSER (the 3 steps). 42 U. S. C. §7411(a)(1)? EPA projected that by 2030, it would be feasible to have coal provide 27% of national electricity generation, down from 38% in 2014. Based on a "reasonable amount" of generation shifting Resulted in numerical emissions ceilings so strict that no existing coal plant would have been able to achieve them without engaging in 1 of the 3 steps Billions in compliance costs Energy Information Administration - 10% higher electricity costs and would reduce GDP by a trillion of 2009 dollars by 2040. e) Holding: 111(d) doesn't authorize what they did under the clean power plan. A) "The issue here is whether restructuring the Nation's overall mix of electricity generation, to transition from 38% coal to 27% coal by 2030, can be the "best system of emission reduction" within the meaning of Section 111." p. 16 B) 111(d) "did not clearly authorize the EPA to engage in a 'generation-shifting approach' to the production of energy in this country." Under the court's reasoning, only Congress can authorize an action of such legal and economic consequence. C) Under 111(d) EPA lacks the authority to require coal-fired power plants to shift to wind, solar, and other cleaner fuel sources