Environmental Law Exam 2

Impact Fees

Developers pay for access to existing infrastructure—roads, sewer, etc. or to extend existing infrastructure. Where do these costs end up?

Disclosure Laws

Disclosure laws are designed to provide information to public to enable their participation. Meant to provide transparency. NEPA and background-era of 1970s's and some say it was a mistaken act because required agencies to do an analysis of environmental impact before taking action. The court's interest is to make sure that agencies conduct a robust review of proposed major actions. EIS and EA.

Hazardous Waste Treatment Council v. EPA (1988, Reagan)

EPA promulgates use of BDAT (best demonstrated available technology) standards for pre-disposal treatment of hazardous wastes only after Congress had testified that an earlier EPA proposal of a two-prong approach of health based standards or BDAT would be allowable. Agency twists its policy to BDAT-only because key Congressional members had criticized two prong approach as being too weak. Council challenges the standard, believes that it is too rigorous. Council says that there may be situations where treatment is not needed—health based screenings are okay. Congress wants EPA to be strong, President does not. Agency is stuck in the middle.

Massachusetts v EPA (2007) (Bush)

EPA says that it lacks authority to regulate green house gasses from new motor vehicles. Sec. 202 of CAA—"EPA to set standards of any air pollutant.....which cause or contribute to air pollution reasonably anticipated to endanger public health, welfare." Court says CAA is clear—agency has the authority—very broad mandate. Is this a case of politics?

Permitting Standards

Harm-Based Standard: Gives people options as to how to prevent the harm Tech-Based Standard: Gives people flexibility with emission/effluent levels as long as technology is implemented to the standard.

Hazardous waste is regulated under RCRA

Hazardous waste is regulated if it meets one of these characteristics: is on the specific list Congress authorized EPA to create , is mixed with or derived from a listed waste or is derived from the treatment or disposal of a hazardous waste.

Inverse Condemnation

Indirect taking of private property through public uses—permissible public uses diminishes use/enjoyment of private property.

Marks v. Whitney

Issue of competing private property uses—Marks as a key tidelands (wetlands) owner cuts off access of adjacent owner, Whitney and threatens to fill them. Whitney has dual concerns—what are they? Whitney alleges public trust protections---issue of access and protection of a clear public resource. Whitney's claim serves as a key test to determine to what extent government can regulate uses of private lands. California Supreme Court affirms tidelands are subject to public trust. Property owner only acquires interest subject to public trust restrictions. Net result is restriction of private property uses. Obligation to we have as owners of private property to use private property wisely. What two competing interests is the court weighing in this case- public/private interests.

Eminent Domain

Judicial action to acquire property for public use. Must compensate. Main constitutional protection stems from 5th amendment.

Meghrig v. KFC Western

KFC owns a parcel, discovers petroleum contamination during construction, reports to EPA. KFC is ordered to commence cleanup, spends $211,000 for cleanup. KFC uses RCRA citizen suit provision to seek reimbursement for costs from former gas station owner.Court says KFC is barred from recovery because contamination is not an "imminent threat" -- RCRA does not specifically allow cost recovery for prior cleanups—only for requiring abatement and cleanup of imminent or actual harm through injunctive relief. RCRA is not a compensation for past cleanup costs statute. Contrasted with CERCLA.

Air Pollution Control Dist v. EPA

Kentucky challenges EPA's enforcement of CAA for failure to control impact of Indiana sources. Downwind states have a difficult burden-despite all their efforts, they can't control upwind pollution! EPA says only a small amount of air pollution came from Indiana plant. There is a forum for this discussion—interstate transport commission to mediate disputes. EPA was reluctant to require changes to Indiana SIP because they would be able to change their SIP in the next few years. Every 5 years, SIPs must be reviewed and revised.

EPA v. California

Key background case on evolution of CWA. Water Quality is protected through through the National Pollutant Discharge Elimination System (NPDES) permit process and states are allowed to assume delegated authority if program is approved by EPA. States must use the appropriate federal standard or be more protective. This case affirmed that a permit issued from a state with an approved state program does not have to obtain additional federal authorization. Doctrine of Federalism is reinforced.

Rapanos v U.S.

Key issue is what waters are subject to EPA jurisdiction. Look at whether they are navigable, waters of the US. Wetlands are in question in this case. Rapanos claims he filled 22 acres over 20 miles away from a navigable body Court is split—Scalia favors "permanent bodies of water or adjacent to a permanent body of water. Kennedy more deferential to Army Corps definition that looks at functions of wetlands and if there is a nexus between wetlands and navigable waters.Important because of extending protection to wetlands. Court says test is -"Is there a significant nexus between the wetland and a navigable body of water?" Left it open for interpretation as to what significant nexus was. Various draft rules have followed with no clear direction yet!

US v. NEPACCO

NEPACCO (its disposal processes) was "less than a responsible manufacturer" of chemical disinfectant—large number of barrels of its waste by products had been shipped to a farm for disposal in a trench. Government files complaint against manufacturer NEPACCO, plant owner Syntex Agribusiness, and Michaels, Lee and Mills because they saw a way to get rich quick. Remedy being sought was injunctive relief and costs cleanup. What happened to NEPACCO that really prompted actions against the three company officials directly involved in these practices?

Large Scale National Planning

NLUPA—bill drafted in 1970 as a complement to NEPA. Meant to urge states into creating statewide land use plans and inventorying all key land resources. Goal was to coordinate all state plans and federal grants ($) energized the process. Once approved, federal agencies would be bound by state plans. Politics diluted NLUPA—developers feared losing key opportunities within statewide planning restrictions. Failed.

NMU Heating Plant Case

NMU makes noble effort to convert to combo wood/coal/natural gas burning boiler system for heat/electricity. Local coal (not low sulphur) to be used. Lower costs for local coal. DEQ had done the PSD analysis and gave specific preference for use of coal over wood. Sierra Club sues and move is to protect a PSD area. Case involves a major modification of existing source in a PSD area—high air quality to be preserved. Must take most aggressive measures to protect! EPA tells DEQ to do more!

CERCLA- Comprehensive Environmental Response, Compensation and Liability Act (1980)

Nationwide attempt to solve massive cleanup problem with thousands of sites of contamination—many with unknown owners (orphan sites). Crisis at hand! Sparked by Love Canal issue, Kepone case in Hopewell, Va and Michigan DDT issue. Lack of corporate sector responsibility and general public awareness. Massive public outcry to cleanup - similar in gravity to air and water issues that led to other statutory fixes Very aggressive act based upon the need to cleanup massive amount of cleanup sites prompts application of strict, joint and several liability to bring all potential defendants to the table! Casts a broad net of liability to cover owner, operator of a facility--any person who transported to a facility or contracted with that facility. Significant liability for costs—cleanup, natural resources, adjacent property impacts. Liability—strict, joint and several? Congress leaves this decision to the Courts.

RCRA (Resource Conservation and Recovery Act)

Passed by Congress in 1976- 4 years prior to CERCLA and post-CWA and CAA passage. "Life cycle" (concerning the whole life of the waste) approach to regulation of hazardous wastes. *Not a cleanup statute, but a waste management statute*. States are authorized to run their own programs as approved by feds—under the condition that it meets federal standards. RCRA is meant to prevent contamination through record keeping and tracking shipments and permitting/regulation of disposal sites! RCRA does much more than CERCLA by supporting recycling, resource recovery actions and pro-active management of both hazardous and non-hazardous waste. RCRA more of a holistic approach, Congress not fully aware of massive cleanup problem of abandoned sites. Early experiences with RCRA began to reveal bigger problems, thus CERCLA ensues. CERCLA is broader, yet more focused "cleanup" statute, address historical spills of all types, not just at regulated sites like RCRA—Congress knew EPA needed more tools to tackle huge problem!

Clean Air Act (1970)

Passed to control both stationary and mobile sources of air pollution. Quality of air seen as a most visible health issue—secondary natural resource issue. CAA provides for limits for the permissible concentration of 6 criteria pollutants in the Ambient Air Standards are periodically reviewed and revised if they are not protective of public health. Makes distinction between stationary and mobile sources to control emissions. Also makes distinction between new and existing stationary sources. States are given the job of regulating most stationary sources while feds retain control over mobile sources. States are required to prepare plans (State Implementation Plan) to implement various pollution control measures to improve air quality to attain the federal standard or maintain the already good air quality. SIPs must be approved by the EPA for review to make sure that Federal minimums are met.

Defenders of Florrisant v. Park Land Development

Pending development of land that was about to be condemned for a federal sanctuary. Developers say they will bulldoze—convert to development. Huge archeological value v. development potential. Court reaches to protect land and its natural resources for a new reason—historical purposes (some recreational value) Court grants injunction against the sale and development—leads to national monument designation. What is the range of public trust protections? Extends to cultural, archeological resources as well. Here we are preserving historical/geological asset! Can we apply PTD to protect cultural/historical resources?Yes!

Bersani v. EPA

Pyramid shopping center seeks permit to fill a wetland for a new mall in Attleboro, Masschusetts. Both EPA and ACE are involved in regulation of wetlands (EPA has primary control)—can't discharge fill materials in wetland, unless there is no practicable alternative. Presumption is that there are alternatives available. Is it practicable to require developer to purchase another parcel? Court says the law requires this analysis. Court says that Pyramid had other options at time of purchase—could have avoided use of wetland. What had to happen? "Buyer beware!" Is it fair to tell developer now that you had the chance to buy an alternate site that now is no longer available-Agency responded that the shopping center had other options but rejected alternatives for business reasons.

Smart Growth

Recognition by both planning officials and developers that we can do a better job of utilizing space. Use existing infrastructure better, maintain open spaces and utilize cluster developments. Key incentives to support smart growth—financial assistance, tax incentives to head in one direction, not prohibit but encourage! Urban greenways/trails are a big asset! Strategy is to direct grants, funding, regulatory benefits to direct desired growth.

ISTEA (intermodal surface transportation efficiency act and Trails in Michigan)

Refreshing new focus on both land and water trails in Michigan. Snyder commits to making Michigan number one trail state. Both motorized and non-motorized uses ISTEA helps in ways similar to CZMA—how so? New Pure Michigan Trails package will help to support trail towns and communities that promote green space through trails.

Roadblock Laws

Regulation to prohibit use due to inherently dangerous nature of activity. Endangered Species Act is model federal law. States have similar ESA laws. Courts have been sympathetic over the years to essence of the law—because law is so clear. Michigan's best known roadblock law is its invasive species law written by the legislature but control was given over to the DEQ, DNR, and other agencies because they have more knowledge. Roadblock laws have greater utility as canary in coal mine indicator—we not just protect species but help to focus on harmful human behaviors.

Regulatory Takings

Regulations restrict uses of private property—two tests—no viable economic use and three prong test—character of action, economic impact, impact on investment expectations.

Public Trust Doctrine

Rooted in ancient Roman and English law to protect public access/uses of key surface waters. Based in the philosophy that *the government and its citizens collectively owe a responsibility to provide public access to a healthy natural resource base for future generations.* PTD applies in a number of natural resource settings to help guide societal behaviors and has evolved through case law to a point of being called a "judicial doctrine." Not specifically rooted in the US Constitution.Referenced mutiple times in state and federal law and specifically referenced in multiple state constitutions. Its evolution comes from case law and has risen to status because of work of people like Joseph Sax. Not a readily used principle until the 1970's! What happened then? See it in three legal settings—(1) cant diminish or reduce the resource (2) protecting against the sale of resource, (3)guarding against change of uses that would threaten the resource-all focused on ensuring reasonable continued access to the resource. Must have a trustee, body or corpus of the trust, and a beneficiary.

Gould v. Greylock

Scenic mountaintop with public access on publicly owned land. State creates a public commission to manage access to mountain, eventually agrees to contract with an authority to allow construction of ski resort that has for profit motive. Citizen group complains about maintaining natural vistas, aesthetics. Court says this resource is a public resource—can't convert or dilute its use! Although statutes were somewhat vague and general, court says that move to a ski resort type operation clearly steps beyond bounds contemplated when the commission was created.

Burlington Northern v. US

Shell is generator of chemicals, B&B chemical is distributor and land is owned by Burlington RR. All three involved in contamination of the site. Case focuses on how to apportion claims for liability under CERCLA. All who either own, manage or controls use of property can be liable either jointly or severally. Once plaintiff makes prima facie case for multiple defendants, burden rests with defendants to fight their way out of potential for full liability. Here, court concludes that RR met their burden. Formula was .19 x .45. x .66=____. Shell was let off the hook because they employed measures to make sure that their chemicals were properly stored. B & B was let off the hook because they went bankrupt. The orphan shares from B & B were covered by taxpayers. If no other responsible party, government will be left holding the bag for remaining cleanup cost!

US v. Wade

Site of a large fire that uncovered significant disposal problem with RR tank cars and drums containing over 50 hazardous substances. One of first cases pursued under both CERCLA and RCRA because it invokes strict liability. US seeks injunctive relief for cleanup and for dollar costs—against Wade (owns land), ABM Disposal (disposal company), multiple generators of waste. See the linkage? Case is excerpted here and focuses only on Wade as owner—Wade claims US did not show causal relationship—must show direct link between defendant's actions and contamination. Court finds that US met its burden-"the site contained the same kind of hazardous substances that was found in the generator's waste." Circumstantial evidence—do tort claims allow this to help show causation? Under what doctrine is this made easier? Relatively light burden to meet and then larger burden shifts to defendant at that point to show otherwise. Relaxed burden of proof—almost "status liability." Court claims that Congress intended this lighter burden for plaintiff for a reason—what was it?

Illinois Central Rail Road v. Illinois

State of Illinois grants EXTENSIVE bottomland ownership to RR along Lake Michigan for development and railroad use-$. Court says that the state has an obligation to act as public trustee for the people and that this grant violates public trust role. Grant is null and void—tough for courts to do because the state has abdicated its role as trustee - courts need to act as watchdogs when a broadly used public resource is converted to a narrower use, $-based use. Balancing Test here-- Not so much here! Why—there was little public good in the new RR!

Agency Actions

The third source of environmental law—agency rules and decisions. Agencies act as an extension of both Executive and Legislative branches—rules, orders, op memos. Evolution of Administrative/Agency process—began as a way to control actions of the agencies and morphed into APA and case law. Inclusion of the public hearing and comment is important! Challenging agency actions—Typically courts is to defer to agency if supported in fact and a reasonable interpretation of law. Why would we challenge? No clear authorization, step beyond the bounds of law and failure to act.

Mono Lake

Theme of water diversion and the need to feed continual thirst for water for development v. need to protect public resources. Fed by five streams (stocked with snowmelt). Water use in the west is rooted in private property rights. Economic needs of LA now imperils a public resource. LA had sought to lock up appropriated water uses to feed development (appropriation v reasonable use?) Water law in west allows for determination of priority of uses. Development will increase tax base. Court looks at common law application of PTD to navigable waters and stretches it to non navigable waters (the five streams) that feed navigable waters can be protected as well. End result after years of compromise and revised plans a hybrid system.

Critical Areas Designation

This tool allows state and locals to say "hands off" to key sensitive areas. Roadblock approach. Wetlands, Critical Dunes, Natural Rivers, Environmental Areas, Biodiversity Areas, State Land Reserve, Watersheds and drinking water sources, Trails and parks can also serve to protect.

Coastal Zone Management Act

Took lessons from failed NLUPA and focused them in single area of land use planning--Coastal Zone Management—CZMA. States, federal government and locals all work together to protect a resource (salt and fresh water coasts) that cuts beyond state boundaries—perfect example is Great Lakes. All state coastal zone plans must be consistent with federal objectives. If they meet criteria, grant $ follow! Helps to restrict development and protect vital natural resources through a coordinated plan—federal agencies are bound by state plans. Wetlands are part of coastal zone areas. CZMA works because of public awareness of need to protect these specific vital areas.

Norton v. Southern Utah Wilderness Alliance

Under FLPMA, Bureau of Land Management must inventory and plan their WSA lands. BLM designates Wilderness Study Areas in land use plan that would be off limits to ORV's, proposes designation to Congress, but until Congress acts, must "preserve" those lands. Prohibition is not in effect. Why? SUWA sues - says BLM had not acted to protect lands by permitting ORV access. BLM has a duty and they shirked it. Court says that action of BLM requiring outright prohibition of ORV is not required, BLM was only directed to make a plan and until Congress acts to confirm designations, agency plans are not enforceable—not subject to review because a plan is not a specific reviewable action. Court defers to agency actions. Does not want to meddle into agency actions.

Transfer of Development Rights

Allows flexibility to develop—developer is given options to build in other areas.

Cluster Development

Allows for a centralized access to transportation, green spaces, parks, schools. Smaller parcels are acceptable because of common access.

Whitman v American Trucking Association (2001)

American Trucking Association challenges EPA's setting of NAAQS—claims that protecting public health is a more complicated analysis—more factors than just air pollution! Out of work, bad health results! Claims that EPA did not fully consider economic costs associated with standards. We've heard this argument before! Sup. Court says that Congress was very explicit in their intent (standards must protect public health) and that EPA is bound to follow. EPA had not acted outside the bounds of the statute.

Land Use Planning

Another tool in environmental protection. Lack of planning impacts air, land, water! Can be planning at a variety of levels—state, county, township, city or village. Planning at national level not easy, because different areas have different needs and locals are involved in planning. Private and public lands involved. Land conservancies are big players! Often pits developers v. local public officials. 1. Begins with taking an inventory of the resources in the area. Meet with DEQ Field Office and the US Geological Survey. Citizen input is important as well. 2. Then deciding what you want to protect. Public and buisnesses should be involved in this. 3. Then deciding what tools to use--can be done through ordinance, land preservation acquisitions—easements, purchases. Partnership with DNR, local land conservancies can help. 4. Mandating or voluntary approaches or combination—zoning ordinances, easements, purchases. 5. Enforcement and Revisions of Plans are important. 6. Coordinating local plans is a key because resources don't have political boundaries.

Euclidean Zoning

Best-known type of zoning— clear uses outlined and notice provided. Approved by US Supreme Court in Euclid case. Key issue is that planning impacts private property issues—Court says okay with key components of notice, exceptions, appeals process. Key Fifth Amendment issue—can't deprive private property rights without due process. Not typically too flexible unless variances/exceptions process is effective.

EPA Priority and Cleanup Standards

CERCLA gives EPA the authority to prioritize sites for cleanup through the NPL in terms of hazard. States may submit sites for NPL consideration. Allows EPA to use risk assessment to evaluate impact on public and environment because money is limited. Can specify the type of remedial actions—based upon a balancing test, can include cost-effectiveness, with an emphasis on long term effectiveness and permanence. Cleanup to varying degrees! Staggering costs of "Cadillac Cleanups!" Choices between a quick cleanup or more thorough cleanup.

US v. Best Foods Corporation, CPC INTL

CPC International Company in Muskegon owned a subsidiary (Ott II) that had earlier caused contamination from a chemical plant. To what degree a parent company can be held liable for prior actions of its subsidiary? Parent companies can be linked if there was some direct control over subsidiary—not just form, but actual overlap in control. CERCLA liability is not just ownership, but also operation! Court suspects direct control and remands the case for more investigation. Key question to ask here is was the parent company in control of the actions of the subsidiary company.

Clean Water Act (1972)

CWA enacted after CAA and it created a 5-year permit with the intention of regular review and the potential for changing requirements. Vehicle for controlling releases —NPDES (National Pollutant Discharge Elimination System) permits. Clean up and protect waters of the US with specific standards based on the quality of the waters. The CWA made it unlawful to discharge any pollutant to the surface waters unless a permit was obtained. It is generally applicable to industrial facilities and municipal wastewater treatment facilities known as point sources. CWA set water quality standards for allowable discharges, but states are free to develop their own water quality standards to accommodate state conditions as long as the EPA has approved the state's NPDES permit program. Mecury, PCB's, Benzopyrene, etc and many more.... Example—key rivers and streams in Michigan—Blue Ribbon Trout streams and Natural Rivers get special attention.

Paepke v Building Commission

Competing public uses—parks and schools. Court affirms that public's use of parkland can be diverted to another public use—public trust specifically applied, but opposite result. Why? Property was deeded to the City for purposes of park land—does this deed restriction make trust responsibilities even clearer? Court gives great deference to application of PTD in this case, but ultimately concludes that public schools serves a legitimate public interest. No profit, commercial incentive here! Conflict with one of our tenets of PTD—can't convert one public use for another.

CERCLA and Administrative Orders

Congress gives EPA broad authority to order cleanups, to conduct cleanups and then to recover for costs incurred. To set cleanup standards, to order emergency cleanup or abatement measures. To enjoin certain activities which threaten public health or natural resources. Failure to follow orders is costly—up to $25,000 per day per violation! EPA's preference is consent agreements because a company is willing to cooperate quickly. Usually an order forces a consent agreement. Some have alleged due process violations—no right to challenge the order until it has been followed to protect resources.

Kleppe v. New Mexico

Congress passes Free-roaming Horses and Burros act (FRHB) to protect horses/burros on public lands. Burros were on federal property near where private landowner grazed his cattle. Landowner complains, but BLM says no issue—these are federal lands. Despite this, burros were rounded up and sold under state law. BLM wants return of sold public animals pursuant to FRHB act. Court says federal law supersedes state law and BLM acted accordingly in declaring burros public property. Burros can't be sold! "Part of the natural system of public lands." Overriding principle in this case to support national land management laws is the Constitution's granting of supremacy clause giving power to the federal government.

Corporate veil protection

Corporations are often formed to provide protection for individuals—allows them to have own identity and action apart from their members. Corporate veil protection is important to allow for corporations to thrive economically and to encourage business activity. Yet CERCLA wants to expose bad actors—can hide behind this corporate veil.