Environmental Law Final

General and Restricted Use pesticides

General use is most desirable because a general use pesticide meets the standards set by EPA and can be sold in any quantity Restricted use pesticides have the potential to have an unreasonable impact Registration last 5 years and notice of cancellation will be published in the Federal Register if no request for renewal is received EPA occasionally grants conditional registration for less than 5 years when the pesticide is substantially similar to another EPA can deny registration but applicant has 30 days to address

Nuclear Energy's decline

½ nuclear generators in the U.S. were scheduled to be closed down between 2005 and 2015 Resurgence under George W. Bush; Cheney believed nuclear power should account for higher percentage of U.S. electricity In 2005, NRC certified the development of a new type of reactor - Advanced Passive Reactor Future of nuclear power remains uncertain due to public disapproval, safety concerns and high closing costs - resurgence under Obama administration before Fukishima As of early 2012, NRC has active applications for a total of 28 new reactors, although it is unknown how many of the proposed reactors will be built.

Oil issues

• Congress passed the Outer Continental Shelf Leasing Act to ensure that states can make decisions about development of submerged land off their shores • 1978 amendments to OCSLA require Secretary of the Interior to establish a 5-year leasing program • In 1990, Bush placed a 10-yr moratorium on new leases for the OCS; moratorium was extended by Clinton • In 2003, Senate voted to allow Interior to do exploratory drilling; in 2007, Bush proposed a 5-yr plan to open up 48 million acres on the outer continental shelf to oil and gas drilling • Coastal Zone Management Act (CZMA) provides financial assistance to states that balance energy development and environmental factors

Deepwater Horizon Spill

• The Deepwater Horizonoil spill is the largest marine spill in history, and was caused by an explosion on the Deepwater Horizonoffshore oil platform on April 20, 2010. • Most of the 126 workers on the platform were safely evacuated, and a search and rescue operation began for 11 missing workers. • The Deepwater Horizon sank in about 5,000 feet of water on April 22, 2010. On April 23, the U.S. Coast Guard suspended the search for missing workers who are all presumed dead. • After a series of failed efforts to plug the leak, BP said on July 15 that it had capped the well, stopping the flow of oil into the Gulf of Mexico for the first time in 86 days.

Fuel Standards

•As part of the Energy Policy and Conservation Act of 1975, car and light truck manufacturers are required to meet Corporate Average Fuel Economy (CAFÉ standards), but lobbying by the auto industry has kept fuel standards from increasing •Fuel standards have changed slightly for pickup trucks, minivans and SUVs (from 20.7 mpg standard), but have not changed for passenger cars - standard is 27.5 mpg

Exxon Valdez Litigation

•Baker v. Exxon, jury awarded $287 million for actual damages and $5 billion for punitive damages. The punitive damages amount was equal to a single year's profit by Exxon at that time. •Exxon appealed, punitive damages were reduced to $4 billion, Exxon appealed several times to reduce punitives and ultimately, in a decision issued June 25, 2008, Justice David Souter issued a judgment vacating the $2.5 billion award and remanding the case back to a lower court, finding that the damages were excessive with respect to maritime common law

Contaminated Sites

•Before CERCLA, the federal govt. could not do much about responding to a hazardous material spill or a site contaminated with hazardous material •Under CERCLA, there are removal actions to stabilize or clean up a hazardous site and remedial actions to provide permanent remedies

Carter's National Energy Plan facts

•Carter's NEP had 4 broad objectives • Institutional reform of federal energy planning • Greater energy efficiency through selective use of market forces and major expansion of regulatory policy • Increase federal spending on research and development of technology for energy conservation and productivity • To ensure that environmental protection and social equity would be important in these new programs

Oil Spills, Cleanup & Liability

•Coast Guard is charged with cleaning oil spills •President Carter ordered that all tankers over 20,000 tons be fitted with double hulls and bottoms - was not met by 1990 so Congress passed Oil Pollution Act - new target date for double hulls is 2015 •Additional liability is imposed by the Clean Water Ac

RCRA

•Criminal liability - must prove that the violator committed the act knowingly; not required for civil liability •Criminal actions can result in fines and imprisonment •EPA also may pursue civil action to obtain compliance with RCRA - including injunctive relief, fines and daily penalties for noncompliance

National Energy Policy Plans

•DOE has been drafting National Energy Policy Plans since its creation •Recent plans under Bush II have focused on greater reliance on fossil fuels •Bush's plan included opening up Alaska's Arctic National Wildlife Refuge for oil and gas drilling •Energy Tax Incentive Act of 2005 did provide some tax credits for energy efficient vehicles •Bush's 2001 National Energy Policy called for construction of over 1300-1900 new power plants

SOLID WASTE parameters

•EPA has EXEMPTED 3 kinds of materials from the definition of solid waste based on its subsequent use: •Directly in a production product •As a direct substitution for a commercial product •If it is returned to the production process as a feedstock •In all 3 cases the material must be used without reclamation

Avoiding pesticides tips

•Eat a variety of fruits and vegetables to minimize the potential of increased exposure to a single pesticide •Thoroughly wash all produce, even that which is labeled organic and that which you plan to peel •Wash your produce under running water rather than soaking or dunking it •Dry produce with a clean cloth towel or paper towel when possible. •Scrub firm fruits and vegetables, like melons and root vegetables •Discard the outer layer of leafy vegetables, such as lettuce or cabbage. •Peel fruits and vegetables when possible •Trim fat and skin from meat, poultry, and fish to minimize pesticide residue that may accumulate in the fat

Endangered Species Act

•Endangered Species Act was passed in 1973 stating: •Various species of fish, wildlife, and plants have been rendered extinct because of economic growth and development •Other species of fish, wildlife, and plants have become so depleted in numbers that they are in danger of or threatened with extinction •These species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value •ESA provides for entering into treaties to protect species on an international level •ESA directs the Secretary of the Interior to list species of plants and animals as threatened or endangered and the Secretary delegates that duty to the Fish and Wildlife Service for and the National Marine Fisheries Service (for marine species) •According to ESA, a species can be threatened or endangered because of: •Present or threatened destruction, modification or curtailment of its habitat or range •Overutilization for commercial recreation, scientific, or educational purposes •Inadequacy of existing statutory mechanisms •Other natural or manmade factors affecting its continued existence

What is a tort?

•Generally, tort refers to a common law cause of action to seek recovery when one party has been injured by another •Torts can be intentional or negligent •A growing area of legal liability for injuring others by releasing toxic substances is generically referred to as toxic torts

Hazardous Waste

•Hazardous Wastes are identified either by characteristic or by listing •Generator is responsible for determining whether it is producing solid waste and whether that waste has a hazardous characteristic of ignitability, corrosivity, reactivity, or toxicity •Solid wastes are also considered hazardous if EPA has listed them on 1 of 4 lists it developed to identify hazardous waste Under RCRA, hazardous waste needs to be tracked from the point of generation (cradle) to its ultimate fate (grave) Waste generator is responsible for identifying whether a material is a waste, and whether it is hazardous and must ensure that the waste is handled appropriately even after it leaves the facility Waste being sent off-site must be listed on a waste manifest, the manifest goes with the transporter •Waste manifests are provided by the transporter to the waste treatment, storage, or disposal facility (TSDF) •All hazardous waste TSDFs are required to obtain a permit; new TSDFs must obtain permit before they begin operating •Permitting process is complex and allows for public review - leads to Not in My Backyard (NIMBY) syndrome

Fuel Standards Recent developments

•In 2009, an agreement between the federal government, state regulators, and the auto industry established a National Program to implement these first fuel efficiency improvements in over 30 years and the first-ever global warming pollution standards for light-duty vehicles. •The agreement grew out of the new fuel efficiency standards passed by Congress in 2007, the Supreme Court's decision in Massachusetts v. EPA, which precipitated global warming pollution standards for vehicles under the Clean Air Act, and global warming pollution standards enacted in California and subsequently adopted by 13 other states and the D.C. •On May 19, 2009, President Barack Obama proposed rules requiring higher fuel-economy (and lower carbon dioxide emissions) standards for automobiles. Under the rules, new passenger vehicles and light trucks must average 35.5 miles per gallon by 2016. •NHTSA and EPA have issued a Joint Rules for Fuel Economy and Greenhouse Gas emissions regulations for model year 2017-2025 light-duty vehicles

Causation

•In any legal theory of liability for injury by toxic substances, the plaintiff must establish that the defendant's conduct/product caused the plaintiff's harm •Proof is difficult - difficult to link the toxic substance definitively with the physical problem plaintiff suffered •Enterprise or market share theory

Potentially Responsible Parties

•Liability of PRPs is retroactive, so that companies are responsible for their hazardous substances regardless of the time of disposal (or whether they were in compliance at the time of the disposal) •Courts have extended Superfund liability broadly to ensure that Superfund is replenished •CERCLA does not replace common liability under toxic tort laws

UNDERGROUND STORAGE TANK PROGRAM

•Most Underground Storage Tanks (USTs) in the U.S. are gasoline tanks, sometimes other flammable industrial chemicals •Leaks in USTs can contaminate groundwater •EPA specifically regulates USTs and in 1998, completed a comprehensive review of UST Regulations •The Energy Policy Act of 2005 included the Underground Storage Tanks Compliance Act which strengthened control of USTs •Amendments include periodic inspections of tanks, training requirements for operators and protections for drinking water

Toxic Torts theories

•Most common theories are negligence and strict product liability

Brownfields

•New industry is reluctant to site facilities in preexisting industrial sites because of the wide net of liability under CERCLA •EPA has encouraged redevelopment of contaminated sites through its Brownfield Economic Redevelopment Initiative •EPA may agree to a covenant not to sue a prospective developer to allay liability concerns

Theory of Strict Product Liability

•One who sells any product in a defective condition, unreasonably dangerous, to the user or consumer or to his property is subject to liability for the physical harm caused if: •The seller is engaged in the business of selling such a product •It is expected to reach the consumer without substantial change in the condition in which it is sold

Energy Sources - Petroleum & Natural Gas

•Petroleum and Natural Gas supply over 2/3 of our energy needs •Natural gas produces fewer pollutants and constitutes about 30% of domestic energy production - reserves sufficient to last 20-40 yrs •Strategic Petroleum Reserves temporarily protects US if foreign oil were to become unavailabl

Clinton Energy Policy

•President Clinton signed a series of Executive Orders with goals of reductions in greenhouse gases and energy consumption and solar energy for federal facilities •Clinton's plan included voluntary programs like Energy Star, Green Power Partnership - a program encouraging the use of green power in homes and businesses

How to determine Hazardous Waste

•RCRA specifies solid waste will be considered hazardous waste if: •It causes or significantly contributes to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or •It poses a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed

Reagan/Bush Energy Policy

•Reagan and Bush administration's position that energy was abundant •Reagan tried to abolish the Dept. of Energy, was only able to reduce DOE's authority, reduce spending for conservation, research for renewable energy sources •Kuwait War brought some attention to our dependence on foreign oil again and renewed interest in national energy policy • Bush introduced National Energy Strategy (NES) in 1991 -focused on energy security, energy and economic efficiency, future energy supplies, environmental quality, and expanding scientific research and education • As part of NES, Bush issued an Executive Order on Federal Energy Management •Energy use in federal buildings was to be reduced by 20% by 2000 •Gas use in govt. fleets was to be reduced by 10% by 1995 •All federal agencies had to secure alternative fuel vehicles by 1995

SARA facts

•State and local govts are required to develop emergency response and preparedness plans •Every state must have an emergency response commission •Each local planning committee is required to prepare comprehensive emergency response plans •Toxic Release Inventory (TRI) is made available on EPA's web site to give the public info about risk from chemicals

Strict Product Liability definition

•Strict product liability is a form of strict liability applicable when consumers are injured by products containing toxic substances

Superfund facts

•The Hazardous Substances Response Trust Fund, or Superfund, was established in 1980 to finance emergency response and remedial response activities •The fund was intended to be a rotating fund - funds incurred in cleanup would be recovered from responsible parties (potentially responsible parties - PRPs)

How does a species become listed under the ESA

•The process is cumbersome, complex, and generally poorly understood. It can happen two different ways: •through the petition process or •through the candidate assessment process.

Fischer v. Johns-Manville Corporation

•Trial court awarded the Plaintiff damages for exposure 40 years earlier •Appellate court found that Johns-Manville's conduct "knowingly and deliberately" subjected the plaintiff and other asbestos workers to serious health hazards with disregard for their safety and wellbeing

Energy Consumption facts

•US consumes about ¼ of the world's energy production •Residential energy use accounts for 21% of total primary energy demand •Commercial energy use accounts for 1/3 of our energy demands •Transportation accounts for over ¼

ECOSEnvironmental Conservation Online System

•USFWS database: ECOS Environmental Conservation Online System - a website database that allows you to check species status by common or scientific name and you can also check by state, geographic region or critical habitat

NATIONAL PRIORITIES LIST (NPL)

•Under CERCLA, contaminated sites are scored on the basis of potential exposure to surface water, groundwater, air and soil •Sites scoring high enough are listed on the National Priorities List (NPL) •Only NPL sites are eligible for remedial action •EPA is not obligated to clean up sites in any particular order

When does a defective condition become "unreasonably dangerous?"

•Varies by state court interpretation •Consumer expectations test - if more dangerous than the reasonable consumer would expect it to be then unreasonably dangerous •Feasible alternatives test - were there other less dangerous feasible alternatives available?

Risk Assessment

- process of characterizing potentially adverse consequences, preliminary to risk management

Risk Management

- process of making policy decisions based on assessed risk

Why have people been advocating for TSCA reform

-Every year, around 4 billion pounds of toxic chemicals are released by American industries. -In 2011 alone, 16 new chemicals accounted for nearly 1 million pounds. There is far too little testing of these substances: Only a fraction of the nearly 3,000 high-production-volume (HPV) chemicals — chemicals that have an annual production run of at least one million pounds — have been studied for their potential toxicity. -According to the EPA, the agency has "only been able to require testing on a little more than 200 existing chemicals" out of the 62,000 that have been introduced since the TSCA's enactment

Lucas v South Carolina Coastal Council

1986 - David Lucas paid $975,000 for 2 residential lots on Isle of Palms, SC 1988 - South Carolina enacted Beachfront Management Act Act barred Lucas from building houses on the property SC State Court found that the Act rendered Lucas' property valueless Question is whether the Act accomplished a regulatory taking The Fifth Amendment provides in part, "nor shall private property be taken for public use, without just compensation." When government regulation of private property "goes too far" and deprives the landowner of the value of his land through enactment of a statute, promulgation of a regulation, refusal to issue a permit, or declaration of land as a wetland, as endangered species habitat or as unsuitable for mining, such a taking also may be compensable. This is known as a REGULATORY TAKING or INVERSE CONDEMNATION. In Lucas v. South Carolina Coastal Council, the Supreme Court ruled that a regulation that forbade construction on the owner's land thus depriving him of all economically beneficial uses constituted a per se taking unless the proscribed use interests were not part of the title originally. In other words, a law or decree with the effect of depriving all economically beneficial use must do no more than duplicate the result that could have been achieved in the courts under the law of nuisance.

Toxic substances according to OSHA

According to OSHA, toxic substances are defined as those chemicals which are capable of causing harm. In this definition, the term chemicals includes dusts, mixtures, and common materials such as paints, fuels, and solvents.

Regulation of Publics Lands

Agencies responsible are Bureau of Land Management, Fish and Wildlife Service, Forest Service and National Park Service Early homestead acts gave land to those who were willing to develop The Forest Reserve Act of 1891 - President was authorized to set aside land for national forests In 1964, Congress passed the Wilderness Act which created the National Wilderness Preservation System - once land is designated a wilderness, its use is restricted Over 109 million acres have been designated as wilderness areas, the highest level of conservation protection for federal lands Federal Land Policy and Management Act was passed in 1976 Requires Secretary of Interior to take any action necessary to prevent unnecessary degradation of the lands Requires Bureau of Land Management to prepare plans for the 450 million acres of land it administers - similar plans are required for USDA under the National Forest Management Act The Forest and Rangelands Renewable Resource Planning Act of 1974 and the Public Rangelands Act of 1978 govern the use of rangelands The Healthy Forests Restoration Act of 2003 was signed by Pres. Bush in the name of fire prevention Act reduces some of the requirements that must be met before logging in certain forests Only forests owned by federal government are covered by forest regulations

Estuary

An estuary is a body of water formed where freshwater from rivers and streams flows into the ocean, mixing with the seawater. Estuaries and the lands surrounding them are places of transition from land to sea, and from freshwater to saltwater. (www.epa.gov) Estuaries are the most productive water bodies in the world. They are located at the lower end of a river and are subject to tidal fluctuations

Asbestos

CACTAA •Six minerals are defined by the EPA as "asbestos" including chrysotile, amosite, crocidolite, tremolite, anthophyllite and actinolite. •Asbestos and all commercial forms of asbestos (including chrysotile asbestos) are known to be human carcinogens based on sufficient evidence of carcinogenicity in humans.

CERCLA/SUPERFUND

CERCLA/SUPERFUND •Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) was passed in 1980 •CERCLA provides mechanisms for reacting to emergency situations and to chronic hazardous material releases •Superfund Amendments and Reauthorization Act of 1986 (SARA) includes 3 subtitles: •Subtitle A - emergency planning •Subtitle B - hazardous chemical reporting •Subtitle C - public access to facility information

Acts that regulate toxins

CWA, CAA

Solar Energy

Can be used in one centralized location or in individual locations Must be sufficient year-round sunlight California and Texas are only states with utilities generating solar power Solar thermal plants use collectors to focus sunlight on pipes that carry oil-based heat-transfer fluid that produces steam that drives a turbine to generate electricity

Energy Sources - Coal

Coal is our most plentiful fossil fuel, constituting approximately 90% of US hydrocarbon reserves Coal supplies 25% of our total energy needs Coal generates 34% of our electric power - primary source for electric power generation Coal fired power plants contribute an estimated 96% of sulfur dioxide emissions, 99% of mercury emissions, 93% of nitrogen oxide emissions, and 88% of carbon monoxide emissions Coal mining can have negative environmental effects; Carter enacted Surface Mining Control and Reclamation Act to force mining industry to return land to a level of productivity equal or greater to before mining

Hazardous Identification Methods

Comparisons of molecular structures • Comparisons to known carcinogens Short-term studies • Effects in single cell organisms • If mutation, further study Animal bioassay data • Looking for consistent positive results among both sexes and strains and species Epidemiological data • Looking for positive association between exposure and disease - limited reactive vs. proactive method

Damages

Compensatory damages compensate the plaintiff for medical bills, lost wages, pain and suffering and are designed to put the plaintiff back in the position they would have been in if they had never been exposed to the toxic substance Punitive damages punish the defendant when their conduct was "extremely egregious" or "willful and wanton" Punitive damages deter others and encourage compliance with testing

Pesticide Registration

Conditional Registration - less than 5 yr. • When pesticide is substantially similar to a currently used pesticide • No significant harm would result from the pesticide • Conditional registration can be granted for time needed to submit data Reregistration applies to pesticides registered before November 1984 because those usually do not meet today's standards EPA can cancel a pesticide's registration if it poses an unreasonable risk • Issues of disposal, reimbursement • Dumping on foreign markets - food source for U.S.

Sources of Energy - Nuclear

Development of nuclear energy as a fuel began in 1950's Ideally Uranium ore is mined, processed, used in nuclear reactors, reprocessed, and used again in nuclear reactors - in a closed, continuous cycle Accidents at Three Mile Island and Chernobyl, and recently, in Japan at Fukushima, have alerted people to problems in nuclear industry There are 61 commercially operating nuclear power plants with 99 nuclear reactors in 30 states in the United States. 35 of these plants have two or more reactors. Nuclear power provides 19-20% of our country's electricity

Food safety (pesticides)

EPA is required to set tolerance levels for pesticide residue on food through the Federal Food, Drug and Cosmetics Act (FFDCA) Tolerances are enforced by FDA and USDA/Food Safety Inspection Service for meat, poultry, and some egg products FDA is responsible for food packaging Inconsistencies between FIFRA and FFDCA led to the passage of The Food Quality Protection Act in 1996

Toxic Substances Control Act Premanufacturing Notice

EPA receives between 1,000-2,000 PMNs per year PMN contains information about chemical name, identity, molecular structure, trade names, byproducts and details about maximum quantities to be manufactured, where it will be manufactured EPA publishes notice of receipt of all PMNs (within 5 days of receipt) EPA has 45 days to take action to limit production; EPA must select "least burdensome control" Manufacturer can do as it proposed within expiration of a 90 day period (unless EPA takes action to restrict)

EPAct

EPAct • The Energy Policy Act (EPAct) is a comprehensive law that was passed in 1992 - addresses issues such as renewable fuels, energy and the environment and global climate change • EPAct attempts to provide a coherent energy policy for the U.S. • EPAct clause allows mortgage incentives for energy efficient homes • EPAct's goal was to reduce oil vulnerability but in 2008, US still imported 57% of crude oil and petroleum products • Energy Policy Act of 2005- attempted to build on EPAct by providing tax incentives and subsidies

Oil Pollution Act of 1990

Each responsible party is liable for removal costs, damage to natural resources, damages for injury to or economic losses from destruction of real or personal property and lost profits because of the injury or destruction of property or natural resources Measure of damages includes the cost of restoring, rehabilitating, rejecting or acquiring the equivalent of the damaged resources; the diminution in value of those resources pending restoration and reasonable cost of assessing those damages •Liability limits increased to $10 million for ships weighing more than 3,000 gross tons and $75 million for offshore facilities •Act banned Exxon Valdez - vessels that have spilled more than 1 million gallons of oil after 1989 - from entering Prince William Sound •Still largest amount of oil and gas enters environment through runoff - runoff is equivalent to Valdez spilling every 8 months

Food safety laws

FQPA created a single, health-based standard for all pesticide residues in food EPA must also explicitly address infants and children FQPA mandates that pesticides be tested for endocrine disruption potential The Food Quality Protection Act (FQPA) of 1996 directs the Secretary of Agriculture to collect pesticide residue data on commodities most frequently consumed by infants and children. The AMS Pesticide Data Program (PDP) provides pesticide residue monitoring to support this requirement. PDP is a voluntary program for monitoring residues in the nation's food supply. Since FQPA was passed, PDP has focused its residue data collection activities on foods highly consumed by infants and children.

Renewable Fuels

Fossil fuels (coal, natural gas and oil) are formed from decaying prehistoric plants and animals Renewable fuels are sources of energy that are continuously renewed Renewable Fuels: ◦Hydropower ◦Solar Power ◦Wind ◦Biomass ◦Burning of waste for steam Renewable energy sources provided about 10% of our total energy consumption in 2015; 25% of that is from hydropower Benefits of renewable energy ◦Less polluting ◦Available domestically ◦Not depleted

Toxic Substances

Generally, toxic refers to something directly harmful to humans but the Toxic Substances Control Act does not specifically define "toxic"

Inverse Condemnation

Inverse condemnation means that a property has been so over-regulated that the government may have well condemned it, so the term "inverse" condemnation. Often, an affected property owner will ask a court to force the government to commence condemnation proceedings.

Lautenberg Chemical Safety

LCSA improves and strengthens TSCA by: Subjecting all new and existing chemicals to an EPA safety review Requiring EPA to focus on chemicals that are the highest priorities for full risk-based safety assessments Strengthening transparency and the quality of science used to make EPA decisions Expanding EPA's ability to require additional health and safety testing of chemicals Allowing industry to request that EPA conduct a safety assessment on a specific chemical Providing EPA with a full range of options to address the risks of substances including labeling requirements, use restrictions, phase-outs or other appropriate actions Setting aggressive and attainable timelines for EPA to complete its work Promoting cooperation between state and federal regulators while creating a strong national chemical regulatory system, ensuring interstate commerce is not disadvantaged Strengthening protections for the most vulnerable like infants, children and the elderly Protecting Confidential Business Information (CBI)

Primary waste management tool

Landfills •Waste in landfills may become hazardous or migrate to groundwater, surface water, or air •Alternatives are reduce, reuse, recycle waste - 75 % of waste is recyclable •Waste management figures from 2013 •52.8% in landfills •12.9% in incinerators •34.3% in recycling

Forests

Large source of biodiversity Regulate climate, reduce air pollution, absorb carbon dioxide, provide wildlife habitats, prevent erosion and filter over 2/3 of our water supply Source of recreation, timber, minerals, food, and raw materials for pharmaceuticals Forests cover about 33% of the U.S. Old-growth forests are particularly valuable to preservationists; trees are hundreds or thousands of years old Clear-cutting is used by timber industry more than selective cutting of trees - 2/3 of harvesting is done by clear-cutting Forests are managed by the Forest Service

Regulation of Wetlands

Main tool for preserving wetlands is Section 404 of Clean Water Act requires landowner seeking to add dredged or filled material to a wetland to obtain permit from Army Corps of Engineers Many states also require additional compliance with state regs

Regulation of Wetlands & Coastal Areas

Migratory Bird Rule prevents Corps of Engineers from issuing a permit to develop a wetland if it would disrupt migratory bird habitat Marine Protection, Research, and Sanctuaries Act of 1972 allows NOAA to designate areas as marine sanctuaries Coastal Zone Management Act of 1972 authorizes Congress to provide matching funds to coastal states to assist in developing management plans for coastal lands

Hydropower

Most popular renewable energy source - 6% of all electricity used in US and 48% from renewables Inexpensive and no air pollution Of 76,000 dams, more than 2500 are used to generate power Primary environmental impact is on fish - fish ladders or fish elevators or screens Low dissolved oxygen in water affects organisms downstream Dams are licensed by the Federal Energy Regulatory Commission (FERC) Global concern over environmental impacts led to World Commission on Dams Environmental groups argue that dams lead to an irreversible loss of species and ecosystems

Nuclear Energy Problems

Most troublesome problem is nuclear waste ◦High-level radioactive liquids created during reprocessing of reactor fuels ◦Transuranic wastes - byproducts of reactor fuel and military waste processing (most dangerous is plutonium 239 with a half-life of 24,000 years ◦Spent nuclear fuel - stored in cooling ponds at reactor sites - technology for recycling was not developed ◦Low-level radioactive waste - includes items that have become radioactive through exposure at reactor Decommissioning plants is much costlier than expected NRC allows plants to sit idle for up to 60 years before the owners must dismantle them; however maintaining a closed facility can cost up to $10 million/yr

Oil Spills

Oil Spills •In 1989, Exxon Valdez dumped 11.2 million gallons of oil into Alaska's Prince William Sound •Other small spills occur almost on a yearly basis •Only 30% of all birds and mammals exposed to oil spills survive longer than a year

TSCA Reform in 2016

On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act which amends the Toxic Substances Control Act (TSCA), the Nation's primary chemicals management law. The new law, which received bipartisan support in both the House and the Senate, includes much needed improvements such as: Mandatory requirement for EPA to evaluate existing chemicals with clear and enforceable deadlines; New risk-based safety standard; Increased public transparency for chemical information; and Consistent source of funding for EPA to carry out the responsibilities under the new law.

Coastal Zone Management Act

Plans must include 9 elements including Definition of permissable land uses in the zone that will impact coastal waters Definition of beach and plan for protection and access to public beaches Planning process for studying and controlling erosion In 1990, CZMA was amended to require each state to develop a nonpoint source pollution control program - Coastal Zone Reauthorization Amendment Act

How does the TSCA address chemicals

TSCA addresses old and new chemicals separately In 1979, EPA listed all chemicals used or produced in the U.S. between 1975-1979 and categorized those chemicals as high priority or not High priority chemicals were subject to further testing; no more than 50 chemicals can be listed as high priority within a 12 month period High priority list is updated every 6 months New chemicals are regulated separately under TSCA Premanufacturing notice (PMN) must be submitted 90 days before manufacture or importation of any new chemical for sale or use in commerce

TSCA Reform

TSCA has not been amended since it was enacted in 1976 Between 1976 and 2009, EPA only issued regulations to control 5 existing chemicals Currently over 84,000 chemicals listed on TSCA's Chemical Substance Inventory without EPA having much information of risk Many believe TSCA should be reformed

Three objectives of Toxic Substances Control Act

TSCA was enacted in 1976 with 3 objectives • Data on environmental effects of chemicals must be developed by industry • Government must have adequate authority to prevent unreasonable risk of injury to health or the environment, particularly imminent hazards • Government authority must be exercised so as to not create unnecessary barriers to technology

Nuclear Regulation

The Atomic Energy Act of 1954 protects human health and the environment from excessive exposure to radiation Nuclear Regulatory Commission (NRC) was created in 1978 and is responsible for regulating the nuclear industry The Nuclear Waste Policy Act of 1982 was passed to resolve the problem of siting and developing permanent repositories for high-level nuclear waste EPA has the authority to regulate high-level nuclear wastes, setting standards for radioactive emissions to protect the environment and human health Debate exists over whether NRC or EPA should regulate nuclear wastes

Food Quality Production Act

The Food Quality Protection Act (FQPA) of 1996 was the most comprehensive and historic overhaul of the Nation's pesticide and food safety laws in decades. The FQPA amended FIFRA and the Federal Food Drug, and Cosmetic Act (FFDCA) by fundamentally changing the way EPA regulates pesticides. Some of the major requirements include stricter safety standards, especially for infants and children, and a complete reassessment of all existing pesticide tolerances.

Public Trust Doctrine

The Public Trust Doctrine is a legal principle derived from English Common Law. The essence of the doctrine is that the waters of the state are a public resource owned by and available to all citizens equally for the purposes of navigation, conducting commerce, fishing, recreation and similar uses and that this trust is not invalidated by private ownership of the underlying land. The Public Trust Doctrine is a common-law doctrine of property law, customized by each state, which establishes public rights in navigable waters and on their shores. The doctrine is premised on the fact that such waters and shores have been used as common areas for food, travel, and commerce since time immemorial. In some states, public rights may also be exercised on private lands. The legal interest of the public is determined by balancing public and private rights and interests. A legal interest + held by the states + tidal and navigable freshwaters + for the benefit of the public = public trust doctrine

Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (RCRA) of 1976, which amended the Solid Waste Disposal Act, addresses solid (Subtitle D) and hazardous (Subtitle C) waste management activities. RCRA established the framework for a national system of solid waste control RCRA addresses hazardous and nonhazardous waste Solid waste includes solids, liquids and gases under RCRA Under 1984 Hazardous and Solid Waste Amendments (HSWA), each state is required to prepare a solid waste management plan and also implement a permit program for solid waste management facilities that receive hazardous waste

EMINENT DOMAIN

The U.S. government has the power, known as eminent domain, to force a citizen to sell. If your land is needed for a road, for example, you cannot, by refusing to sell, require the road to be built elsewhere. When your land is taken, you must receive its fair market value in exchange for your loss of its use.

What is the primary law to regulate toxic substances?

Toxic Substances Control Act

International regulation

UN's Food and Agriculture Organization created a voluntary procedure in 1989 • Country acting to ban a pesticide would report ban to UN/FAO • UN/FAO would report to importers • Importing nation notifies UN/FAO of intent to cease or continue receiving product Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Prior Informed Consent/PIC) - Treaty signed in 1998 that requires PIC parties to provide export notification PIC also created labeling criteria for exporting parties After receiving its 50th ratification, treaty went into effect in 2004 U.S. has not ratified PIC but has stricter requirements in place

Regulatory taking

Under the 5th and 14th Amendment of the US Constitution, our government can take private property for necessary government use as long as it pays the property owner "just compensation" Regulatory Taking refers to situations in which a regulation denies the property owner all "economically viable use of his land"

Wetlands

Wetland is an area covered with water all or part of the year Wetlands can be: Bogs Bottomland Hardwoods Fens Mangrove Swamps Marshes Swamps Prairie Potholes Playa Lakes Pocosins Vernal Pools Wet Meadows Wet Tundra - Alaska Benefits of Wetlands Coastal wetlands and estuaries prevent erosion of coastlines Provide food and habitat for many species, migratory birds Home to 31% of plant species 75 % of fish caught commercially, 80-90% of fish caught recreationally Improve quality of drinking water and prevent flooding Provide natural products for human use Wetland acreage is being lost, over ½ of U.S. wetlands have been lost since 18th century Coastal wetlands loss is due primarily due to development Inland wetlands are lost primarily by filling in for agricultural use

Endangered or Threatened?

What does "endangered" mean? A species is listed under one of two categories, endangered or threatened, depending on its status and the degree of threat it faces. An "endangered" species is one that is in danger of extinction throughout all or a significant portion of its range. A "threatened" species is one that is likely to become endangered in the foreseeable future. To help conserve genetic diversity, the ESA defines "species" broadly to include subspecies and (for vertebrates) distinct populations.

UNEP

›Governing Council - delegates from 58 member states elected on a rotating basis by the General Assembly Responsible for promoting international cooperation in environmental matters and providing general policy guidance Annually reviews and approves allocation of money from the Environment Fund ›Environment Secretariat - 200 people and headed by UNEP's executive director Responsible for coordinating environmental programs, provides advisory services ›Environment Fund -$5 million from UN, $47.3 million from 110 members countries`

Public Lands

2 Approaches Utilitarians - focus on using resources sustainably Preservationists - focus on preserving wilderness areas as they are; nature has inherent value

Toxic substances according to EPA

According to EPA, a toxic substance is any chemical or mixture that may be harmful to the environment and to human health if inhaled, swallowed, or absorbed through the skin.

Air pollution

Air pollution generated in one part of the world can end up hundreds or thousands of miles from generation In 1979, Convention on Long Range Transboundary Air Pollution (LRTAP) was first legally binding instrument to deal with the problem

Trump Energy Policy

America First Energy Plan

ESA Protections

Among the conservation benefits authorized for threatened and endangered plants and animals under the ESA are: Protection from being jeopardized by Federal activities; restrictions on take and trafficking; A requirement that the FWS develop and implement recovery plans for listed species under U.S. jurisdiction; Authorization to seek land purchases or exchanges for important habitat; and Federal aid to State and Commonwealth conservation departments with cooperative endangered species agreements. Listing also lends greater recognition to a species' precarious status, encouraging conservation efforts by other agencies (foreign, Federal, State, and local), independent organizations, and concerned individuals. •Once a species is listed as endangered, it cannot be harassed, harmed, pursued, hunted, shot, wounded, killed, trapped, captured or collected •Violations can result in criminal sanctions •There has been litigation over the word "harm" and it has been broadly interpreted so that a private property owner may not develop land to modify the habitat of an endangered species to the extent that species may die

Wind Energy

Can only be used in appropriate climates In California, wind produces enough power for over 500,000 homes 30 states contain commercial wind farms Controversies are about location, aesthetics of wind farms, NIMBY, possible bird kills

People and ecosystems

Half of the world's wetlands were lost last century. Logging and conversion have shrunk world's forests by as much as half. Some 9 percent of the world's tree species are at risk of extinction; tropical deforestation may exceed 130,000 square km per year. Fishing fleets are 40 percent larger than the ocean can sustain. Nearly 70 percent of the world's major marine fish stocks are overfished or are being fished at their biological limit. Soil degradation has affected two-thirds of the world's agricultural lands in the last 50 years. Some 30 percent of the world's original forests have been converted to agriculture. Dams, diversions or canals fragment almost 60 percent of the world's largest rivers. Twenty percent of the world's freshwater fish are extinct, threatened or endangered.

Endangered Species Section 7

Section 7 of the ESA imposes on all federal agencies a duty to avoid acting in ways that might "jeopardize" the existence of any listed species. This is implemented through a requirement to "consult" if actions proposed or are about to authorize others to undertake may jeopardize a listed species. Agencies consult with the Fish and Wildlife Service (or National Marine Fisheries Service) to determine whether listed species are present and how to avoid the jeopardy.

TVA v. Hill

The 1978 decision in TVA v. Hill, the Court's first decision interpreting the Endangered Species Act, remains one of the most instructive cases in American environmental law The court affirmed an injunction that prohibited the Tennessee Valley Authority from completing the Tellico Dam because it would eliminate the snail darter's only known habitat. In TVA v. Hill, the Supreme Court resolved an intragovernmental dispute between TVA and the Interior Department as well as the claims of the local opponents of the dam

Recent Political Developments with ESA:

The Bush administration announced in August 2008 that it planned to streamline new regulations that would overhaul the Endangered Species Act. If adopted, the regulatory changes to Section 7 would give federal agencies the power to determine whether their own projects threaten endangered animals and plants, eliminating mandatory independent reviews by government scientists. Projects, including highways, power plants and dams, would only face independent review if an agency determined a negative or uncertain effect on endangered wildlife.

Endangered Species - Section 10

The other vitally important provision of ESA is Section 10, added by Congress when it amended the law in 1982 and allowing private parties to take listed species provided that the take is "incidental" to otherwise lawful activity and is accompanied by an approved "habitat conservation plan." Section 10 was developed by the Clinton Administration as a way of defusing political opposition to the ESA and as a way of allowing private land use developments to move forward. The preparation and review of "habitat conservation plans" (HCP) as a precursor to the issuance of "incidental take permits" (ITP) is a major business, involving developers, consultants, and agency personnel. ESA - Section 10 The permits allow development to occur on the theory that "the taking will not appreciably reduce the likelihood of the survival and recovery of the species" because of the efficacy of the measures for mitigation contained in the HCP. Although habitat conservation planning is becoming more proactive and is moving towards large scale bioregional ecosystem management experiments, many in the environmental community detest HCPs and ITPs and consider them little more than licenses to destroy listed species, slowly but surely.

Nongovernmental Organizations

The term, NGO, came into currency in 1945 because of the need for the UN to differentiate between participation rights for intergovernmental specialized agencies and those for international private organizations At the UN, virtually all types of private bodies can be recognized as NGOs. They only have to be independent from government control, not seeking to challenge governments either as a political party or by a narrow focus on human rights, non-profit-making and non-criminal The structures of NGOs vary considerably. They can be global hierarchies or a more loose federal arrangement. Alternatively, they may be based in a single country and operate transnationally More locally-based groups, referred to as grass-roots organizations or community based organizations, have become active at the global level

NONGOVERNMENTAL ORGANIZATIONS (NGO)

The term, NGO, came into currency in 1945 because of the need for the UN to differentiate between participation rights for intergovernmental specialized agencies and those for international private organizations At the UN, virtually all types of private bodies can be recognized as NGOs. They only have to be independent from government control, not seeking to challenge governments either as a political party or by a narrow focus on human rights, non-profit-making and non-criminal The structures of NGOs vary considerably. They can be global hierarchies, with either a relatively strong central authority or a more loose federal arrangement. Alternatively, they may be based in a single country and operate transnationally More locally-based groups, referred to as grass-roots organizations or community based organizations, have become active at the national or even the global level. Increasingly this occurs through the formation of coalitions. There are international umbrella NGOs, providing an institutional structure for different NGOs that do not share a common identity

Ocean Dumping

-London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) -Prohibits deliberate dumping of high-level radioactive waste at sea -Other waste is divided into annexes and regulated accordingly - some waste may be dumped with a "special permit"

Marine Pollution

-Marine Mammal Science Conference said pollution, not hunting, threatens whales most -State Responsibility for Marine Pollution obligates countries to prevent, reduce and control any significant pollution of the marine environment -International Convention for the Prevention of Pollution from Ships/(MARPOL) Convention - 1973 Treaty

Negligence

-Negligence elements: DFIC 1. Defendant owed a duty of care to the plaintiff 2. Defendant failed to meet this duty of care 3. Failure caused injury to the Plaintiff 4. Plaintiff suffered a compensable injury •In toxic tort cases, defendant has a duty to warn plaintiffs/general public of known or knowable dangers resulting from specific uses of the product

Paris Agreement

-Paris, 12 December 2015 - An historic agreement to combat climate change and unleash actions and investment towards a low carbon, resilient and sustainable future was agreed by 195 nations in Paris. -The Paris Agreement main aim is to keep a global temperature rise this century well below 2 degrees Celsius and to drive efforts to limit the temperature increase even further to 1.5 degrees Celsius above pre-industrial levels. -The 1.5 degree Celsius limit is a significantly safer defense line against the worst impacts of a changing climate.

MARPOL convention

-Pollution by Oil -Noxious Liquid Substances Carried in Bulk -Harmful Substances Carried in Packages -Ship Sewage -Ship Garbage -Air Pollution from Ships OHNSGA

CITES

-Species are listed under Appendices I, II, and III -Appendix I - species are endangered and trade in these species will be authorized under only the most extraordinary circumstances -Appendix II - species are not now threatened but may become threatened if traded -Appendix III - A nation protects within its jurisdiction and seeks cooperation from other nations to protec -In US, CITES is implemented through the Endangered Species Act -There are significant enforcement issues with CITES

Regulation of Wetlands & Coastal Areas

1975 - Ramsar Convention - international treaty with 152 parties - wetlands are designated as of international importance and country must take steps to conserve and protect the wetland Swampbuster Bill - any persons who produce crops on wetlands that were converted after 1985 will be ineligible for federal farm benefits President Bush announced "no net loss" policy for wetlands in 1989 - no loss unless unavoidable; revised plan in 2003 - focus on quality of restored wetlands not quantity National Estuary Program - under 1987 CWA Amendments - EPA issues grants after conservation and management plan for estuaries are developed - 28 estuaries in program

Air Pollution

1987 Helsinki Protocol dealt with emissions of sulfur compounds ◦Parties agreed to reduce annual emissions by 30% of 1980 levels by 1993 ◦Additional reductions would be determined by individual countries ◦Oslo Protocol of 1998 further refined Helsinki Protocol Sofia Protocol called for reductions in nitrogen oxides to below 1987 levels by 1994 and to develop national emissions standards for new sources of nitrogen oxide emissions The U.S. chose to use 1978 level rather than the 1987 level The Geneva Protocol addressed problems of volatile organic compound (VOC) emissions The Geneva Protocol required parties to reduce VOC emissions by 30% of 1984-1990 levels by 1999 The Geneva Protocol addressed problems of volatile organic compound (VOC) emissions The Geneva Protocol required parties to reduce VOC emissions by 30% of 1984-1990 levels by 1999 Most recent addition to LRTAP is Gothenburg Protocol (1999) which sets emission limits by 2010 for sulfur, nitrogen oxides, VOCs, and ammonia There are 20 countries, including the U.S., who are parties to the Gothenburg Protoco

The Global Commons

Areas of the Earth that cannot easily be partitioned and belong to no one, but preserve and maintain lives of us all According to UNEP, international law identifies four global commons: the High Seas; the Atmosphere; Antarctica; and, Outer Space

The global commons

Areas of the Earth that cannot easily be partitioned and belong to no one, but preserve and maintain lives of us all According to UNEP, international law identifies four global commons: the High Seas; the Atmosphere; Antarctica; and, Outer Space.

Loss of biological diversity

At least 2/3 of all land-dwelling species inhabit the tropical rain forests which are being rapidly destroyed Estimates of species loss range from 4,004 to 17,500 species per year

Agenda 21

Blueprint for Sustainable Development Addresses diverse issues such as hazardous waste, human health, and ocean pollution Includes program to aid Third World countries clean up pollution and replant forests at an estimated cost of $125 billion per year

Biomass energy

Burning organic matter to generate energy ◦Wood ◦Agricultural waste ◦Municipal garbage ◦Grains ◦Animal Manure EPA works with landfills to capture methane gas (greenhouse gas) generated from landfill waste DOE has a biomass program - BioPower Program

Preservation of Biological Diversity

Convention on International Trade in Species of Endangered Wild Fauna and Flora (CITES) has been characterized as most successful of all treaties Ratified by 178 nations, CITES is designed to prohibit international trafficking in endangered wildlife species and products

Sources of International Environmental Law`

Conventional international environmental law is rooted in UN Conference on the Human Environment in Stockholm in 1972 This meeting produced the Stockholm Declaration which contained 26 principles and 109 recommendations Customary Law is defined by Article 38 of the statute of the International Court of Justice as having its source in state practice, in the "general principles of law that are recognized by civilian nations, and in the judicial decisions and teachings of respected jurists" Customary law is analogous to common law

International law- sources

Derived from: ›Treaties/Agreements entered into by nation- states ›Principles from long-standing practices - Customary Law ›Intergovernmental Agencies ›Nongovernmental Organizations (NGOs)

European Union

EU is a group of 28 European nations EU first began to address environmental policy in 1972 No EU nation-state can set up environmental standards that would keep another member from competing in its markets EU acts as a negotiator for its member states but member states individually ratify treaties unless they give EU express authority to ratify

International Law Enforcement

Enforcement presents great difficulty UN Security Council is primary source of enforcement of international law UN has International Court of Justice - it only decides cases submitted by parties who agree to be there

What act regulates pesticides

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) which was passed in 1947

LRTAP

Fundamental principles include protecting humans and the environment from air pollution by: limiting, reducing, and preventing long-range transboundary air pollution; developing policies and strategies to combat air pollution; and sharing information on methods of air pollution reduction

ENVIRONMENTALISM AND TRADE

General Agreement on Tariffs and Trade (GATT) - 103 nation agreement - cover international trade in goods Key environmental provision states that nations have the right to enact environmental, health and safety legislation they choose, as long as "necessary" and "least trade restrictive" US has lost 2 environmental law battles under GATT by GATT trade judge panel

Global Environmental Facility

Global Environmental Facility was established in 1991 to finance projects focused on environmental protection GEF identifies 4 globally critical areas ›Biodiversity loss ›Climate change ›Degradation of international waters ›Ozone depletion

Customary Law Principles

Good neighborliness - no state is entitled to use its land in a way that would infringe on the rights of others Duty of Due Diligence - obligation to protect the rights of other states Equitable utilization of shared resources - reasonable use of shared resources Duty to Inform and Cooperate - ex. existence of a minefield

Hydrogen fuel

Hydrogen is derived from methane and petroleum but could be derived from water, biomass and other renewable sources Pres. Bush planned to allocate $1.2 billion as part of his energy policy to develop hydrogen as a fuel Resurgence of interest in US and abroad: 2015 EU initiative: the London Mayor's Office and others launched a $51.6 million project to develop hydrogen fuel cell-powered electric cars and hydrogen refueling stations across five EU states

International Union for Conservation of Nature

IUCN, International Union for Conservation of Nature, founded in 1948 as the world's first global environmental organization - helps the world find pragmatic solutions to most pressing environment and development challenges The IUCN Red List of Threatened Species™ is widely recognized as the most comprehensive, objective global approach for evaluating the conservation status of plant and animal species. From its small beginning, The IUCN Red List has grown in size and complexity and now plays an increasingly prominent role in guiding conservation activities of governments, NGOs and scientific institution

The Montreal Protocol

In 1974, Nature published research by two scientists unveiling the link between man-made chemicals and the degradation of the Earth's ozone layer—the shield that protects all life from harmful ultraviolet radiation. In 1989, the Montreal Protocol came into force and began the long task of repairing the ozone layer by phasing out ozone-depleting substances. In 2014, a report by UNEP and the World Meteorological Organization confirmed that the ozone layer is healing and will return to pre-1980 levels by mid-century, demonstrating that a long-term commitment to tackling environmental challenges brings benefits to human health and economic prosperity that outweigh initial investment

ESA under Obama Administration

Interior Secretary Ken Salazar rescinded the ESA regulation issued by the Bush administration, which eliminated the long-standing "Section 7 consultation" requirement for scrutiny of any proposed activities that might harm a listed species. "By rolling back this 11th hour regulation, we are ensuring that threatened and endangered species continue to receive the full protection of the law," Salazar said. During Obama's presidency, 29 species recovered enough to be taken off the endangered species list, more than under all four presidents before him (George H. W. Bush did not delist any species). And 340 were added, far more than under his predecessor, George W. Bush. But the Endangered Species Act itself has changed during the Obama years, and critics say that despite the impressive numbers, it's actually become more business-friendly and less effective at protecting wildlife. The latest change came in October, when a core part of the law, the citizen petitioning process, was changed. Anyone can ask the federal government to consider listing a species, but the new rule requires petitioners to first notify the states in which the species is found. In the past, environmental groups have petitioned for hundreds of species at a time, a useful strategy if many species in an ecosystem faced the same threats. Now, they must file for one at a time. Recent developments: 7 of Hawaii's yellow-faced bees were listed as endangered in response to years of concern over these specific pollinators Only one type of bee managed to reach the Hawaiian islands on its own and evolved into 63 known species - now in danger of extinction The rusty patched bumble bee gained federal protection after the Trump administration removed its hold on listing the species as endangered. The listing, the first time a bumble bee species in the U.S has received protection under the Endangered Species Act, follows an 87% decline in the species population since the late 1990s, according to the U.S. Fish and Wildlife Service (FWS). Rusty patched bumble bees now remain in just 13 states, down from 28.

COP 21- Paris Nov 30-Dec 11, 2015

International political response to climate change began at the Rio Earth Summit in 1992, where the 'Rio Convention' included the adoption of the UN Framework Convention on Climate Change (UNFCCC). This convention set out a framework for action aimed at stabilizing atmospheric concentrations of greenhouse gases (GHGs) to avoid "dangerous anthropogenic interference with the climate system." The UNFCCC which entered into force on 21 March 1994, now has a membership of 195 parties. -The main objective of the annual Conference of Parties (COP) is to review the UNFCCC's implementation. -The main objective of the annual Conference of Parties (COP) is to review the UNFCCC's implementation. The first COP took place in Berlin in 1995 and significant meetings since then have included COP3 where the Kyoto Protocol was adopted, COP11 where the Montreal Action Plan was produced, COP15 in Copenhagen where an agreement to succeed Kyoto Protocol was unfortunately not realized and COP17 in Durban where the Green Climate Fund was created. -In 2015 COP21, also known as the 2015 Paris Climate Conference, met for the first time in over 20 years of UN negotiations, aim to achieve a legally binding and universal agreement on climate, with the aim of keeping global warming below 2°C. -An agreement was reached in Paris on December 12, 2015

The Future

Internationally, NGOs are working with the UN to promote sustainable development in the Third World and developing countries In the United States, there are numerous public interest groups and environmental law firms & attorneys that are taking on the environmental issues that we have covered locally, nationally and globally

Lujan v. Defenders of Wildlife

Issue of Standing under Endangered Species Act Plaintiffs did not have standing to bring suit under the Endangered Species Act, because the threat of a species' extinction alone did not establish an individual and nonspeculative private injury.

Aftermath of TVA v. Hill

Looking back, one can see the snail darter controversy as a watershed movement in the ebb and flow of the environmental movement. Conservative forces managed to turn the snail darter episode to their own purposes. Environmentalists were ridiculed as activists who cynically used a fish no one cared about to stop economic progress.

International Environmental Law

Many of the issues we have discussed can only be effectively addressed globally ›Climate change ›Biodiversity, Preservation of critical habitat ›Ocean Pollution

Basel Convention Objectives

Minimize the generation of hazardous wastes Dispose of wastes as close to the source as possible Reduce the movement of hazardous waste

Hazardous Waste Facts

More developed countries ship their wastes to less developed countries Countries are running out of storage space for hazardous waste Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal - main source of international law on hazardous waste Basel Convention has 168 parties and went into effect in 1992 U.S., Haiti and Afghanistan have signed but not ratified the Basel Convention and are not parties to it

International Environmental Law Institutions

Most influential intergovernmental organization is the UN which was established in 1945 UN Environmental Program (UNEP) was created by UN General Assembly to effectuate worldwide environmental policies (www.unep.org) UNEP has 3 entities ›Governing Council ›Environment Secretariat ›Environment Fund

Debt for Nature Swaps

New way to protect biodiversity is a contractual arrangement called debt for nature swaps - when conservation parks or sustainable use areas are set aside and legally protected in exchange for cancellation of a portion of that nation's foreign debt First used in Bolivia in 1987 by Conservation International (CI) CI, Nature Conservancy and World Wildlife Federation are most involved In 2006, for example, the United States has concluded a debt-for-nature swap with Paraguay. The more than seven million dollar write-off will fund conservation of the Atlantic Forest of Alto Parana. France also signed a debt-for-nature swap with Cameroon under which $25 million will be invested in people and in nature in the Congo River Basin. In 2013, the U.S. government agreed to redirect $31.8 million in debt payments owed to the US Agency for International Development (USAID) by the Philippines to establish a conservation fund for endangered rainforests across the Asian archipelago

Current Status of Paris Agreement

On 5 October 2016, the threshold for entry into force of the Paris Agreement was achieved when at least 55 Parties to the Convention accounting in total for at least an estimated 55 % of the total global greenhouse gas emissions deposited their instruments of ratification. The Paris Agreement entered into force on 4 November 2016. US and China have ratified but future of US uncertain

Population

One of the most severe problems globally is overpopulation World's population is increasing at the rate of 86 million per year World population is estimated to reach 7,500,000,000 on April 24, 2017 UN predicts world population will peak at 11 billion in 2200 Population stresses environment and resources such as food and water

Overpopulation

Overpopulation occurs when a population's density exceeds the capacity of the environment to supply the health requirements of an individual, according to the EPA. World's fastest growing population - Africa. US is the only developed country where large population increases are still projected, mostly because of immigration. Nearly 3/5 of the 4.8 billion people in developing countries lack basic sanitation, almost 1/3 have no access to clean water, 1/4 lack adequate housing, and 1/5 lack access to modern health services.

Destruction of the Ozone Layer

Ozone layer is part of global commons In 1987, 24 nations and EC signed Montreal Protocol on Substances That Deplete the Ozone Layer A Multilateral Fund was set up in conjunction with the treaty to aid developing nations in transitioning from ozone-depleting chemicals

Persistent Organic Pollutants (POPs)

Particularly problematic ◦Resist degradation ◦Bioaccumulate ◦Highly toxic to people and animals ◦Ability to travel long distances DDT found in tissues of penguins though not used anywhere near habitats LRTAP, Basel Convention and Rotterdam Convention secondarily address POPs Stockholm Convention on POPs went into effect in 2003 - US has signed but not ratified

Estuary Restoration Act of 2000

Passed as part of Estuaries and Clean Waters Act Goal - Restore 1 million acres of estuary habitat by 2010 Established Estuary Habitat Restoration Counci

Recent Developments in pesticide regulation

Pesticide Environmental Stewardship Program (PESP) - 1994 voluntary cooperative program by EPA, USDA and FDA (r&d, grants & education) Under FIFRA, at least 34 registrations canceled and 60 toxic inert ingredients eliminated EPA began investigating and evaluating inert ingredients in 1997

Pesticides Definition

Pesticides are a special category of toxic substances and are regulated separately Pesticides - any substances used to kill rodents, insects, fungi, bacteria and weeds Approximately 165 pesticidal chemicals are classified by EPA as known, probable or possible carcinogens

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)

Pesticides were the first toxic substances to cause public concern and they were first to be regulated FIFRA was enacted in 1947 All pesticides must be registered and labeled before they can be distributed in the U.S. EPA will register pesticides if: • The pesticide's composition warrants the proposed claims for it • It is properly labeled • It will perform its function without unreasonable risks to people and environment • It will not cause unreasonable risk to the environment What is unreasonable risk?

Transboundary pollution

Principle 21 of the Stockholm Declaration States have the sovereign right to exploit their own resources pursuant to their environmental principles, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other state Restatement (Third) of the Foreign Relations Law of the U.S.: 1)A state may bring a claim against another state for violation of an international obligation through diplomatic channels or through any procedure to which the two states agreed 2)A state may bring claims for violations of international obligations resulting in injury to its nationalsUN General Assembly requested the ILC report on liability for transboundary pollution when acts causing injury were not illegal per se 4 duties were imposed on nations ◦To prevent transboundary harm ◦To inform other nations of accidents that may cause harm ◦To enter into negotiations to handle or negotiate in good faith ◦When harm has resulted, liability should be determined

Madrid Protocol

Protocol on Environmental Protection to the Antarctic, also known as Madrid Protocol, was created in 1991 to designate Antartica as a natural reserve Requires environmental impact assessments, waste management plans, prevention of marine pollution plans, and an environmental emergency plan before any activity is approved

Registration, Evaluation, Authorization, Restriction of Chemicals

REACH is a 2006 regulation of the EU, adopted for the protection of human health and the environment from the risks that can be posed by chemicals, while enhancing the competitiveness of the EU chemicals industry Promotes alternative methods for the hazard assessment of substances in order to reduce the number of tests on animals

Geothermal energy

Refers to use of heat trapped within the earth Hydrothermal energy is most common form - natural hot water reservoirs are tapped for their energy

Climate Change

Rio Summit in 1992 - many nations were falling short of targeted reductions by 2000 To address noncompliance, nations met in Kyoto in 1997 and parties to the convention agreed that they would reduce collective emissions of 6 greenhouse gases by average of 5% from 1990 levels by 2008-2012

Rio Summit

Rio Summit/Earth Summit - in 1992, delegates from 172 nations met to address worldwide environmental issues 5 Documents came out of the Rio Summit ›Agenda 21 ›Rio Declaration ›Biodiversity Agreement ›Forest Protection ›Climate Change

Endangered Species - Section 11

Section 11 of ESA deals with enforcement of the statute. It provides both civil and criminal penalties for knowing violations of the law. It authorizes citizen suits against any person alleged to be in violation of the ESA and against the Secretary (of Interior or Commerce, as appropriate) for failure to perform a nondiscretionary duty imposed by the law, such as listing of a species when evidence allegedly shows that it is clearly in danger.

Endangered Species Section 4

Section 4 of the ESA is known as the listing provision. The process of listing a species as threatened or endangered is supposed to be accompanied by "critical habitat designation," although designation accompanies less than 10% of all listing decisions.

Endangered Species - Section 9

Section 9 of the ESA makes it illegal for "any person" to import, take, possess, sell, deliver, or carry a listed species. Section 9 has been called the most powerful piece of wildlife legislation in the world. Most of the legal interest focuses on the term "take," which is broadly defined to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" a listed species.

Rio Declaration

Statement containing 27 principles that call for a link between environmental protection and development. Outlines rights of poor nations to develop in responsible ways

Rio Summit- Forests and Climate Change

Statement of principles called for sustainable forest management Agreement to reduce greenhouse gases that was followed by Kyoto Protocol and now Paris Agreement Treaties: https://treaties.un.org

US Supreme Court Rapanos and Carabell Wetlands Case

Such takings, which amount to eminent domain by the back door, were in the spotlight at the Supreme Court in 2006, when oral argument took place on a pair of cases emanating from Michigan. The first involves developer, John Rapanos, who has been fined millions of dollars for filling in three parcels of property alleged to contain wetlands.

Basel Convention facts

TPECFEI Hazardous Wastes are defined as toxic, poisonous, explosive, corrosive, flammable, eco-toxic, or infectious Parties may indicate whether they will accept certain forms of hazardous waste if exported to them Importing countries are bound to decline hazardous waste if they cannot dispose of it properly; less-developed countries cannot accept All parties must dispose of hazardous waste in an "environmentally sound manner" "Environmentally sound manner" Takes all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such waste

TVA v. Hill

The Court held that Congress enacted the Endangered Species Act to "halt and reverse the trend towards species extinction, whatever the cost," and prohibited the dam's completion. Congress later exempted the dam from the act and the dam was completed, but by then, snail darter populations had been discovered in other locations.

THE FUTURE - MORE NGO INVOLVEMENT

The Nature Conservancy has brokered the largest debt-for-nature swap under the Tropical Forest Conservation Act — a deal that will secure long-term, science-based conservation for Costa Rica's tropical forests: The United States will forgive $26 million in debt owed to it by Costa Rica. This move will in turn provide necessary funds that will be used to finance forest conservation in Costa Rica over the next 16 years, protecting one of the world's richest natural treasures for future generations.

United Nations

The United Nations is an international organization founded in 1945 after the Second World War by 51 countries committed to maintaining international peace and security, developing friendly relations among nations and promoting social progress, better living standards and human rights Now 193 member nations

World Bank

The World Bank is one of the primary sources of funding for projects in developing countries In 1987, an environmental department was established and borrowers were asked to prepare an environmental issues paper for each loan

Impact of pesticides on humans

The average citizen encounters 10 to 13 different pesticides everyday through food and drink. Pesticides are found in the fat cells of every human tested, in most rivers, in 90% of wells, and in the majority of groundwater. The American Academy of Pediatrics links pesticides to cancer and a handful of neurological conditions such as ADHD and autism.

Water Treaties

The history of international water treaties dates as far back as 2500 BC, when the two Sumerian city-states of Lagash and Umma crafted an agreement ending a water dispute along the Tigris River - often said to be the first treaty of any kind. Since then, a large body of water treaties has emerged. More than 3,600 treaties related to international water resources have been drawn up since 805 AD. The majority of these deal with navigation and boundary demarcation. The focus in the last century has shifted away from navigation towards the use, development, protection and conservation of water resources.

Kyoto Protocol

The major feature of the Kyoto Protocol was that it sets binding targets for 37 industrialized countries and the European community for reducing greenhouse gas (GHG) emissions These amount to an average of five per cent against 1990 levels over the five-year period 2008-2012. Kyoto Protocol became effective in 2004 when Russia ratified the treaty 192 countries have ratified the treaty U.S. signed in 1998 but it was not ratified under President Bush Allows international emissions trading - allows countries in developing world to use emission reductions to contribute to their compliance with greenhouse gas reduction More controversial aspect of treaty is developing countries are not bound by emission target

Regulatory Takings

The second involves developers June and Keith Carabell, who were prevented from building a 112-unit condo complex in suburban Detroit after regulators determined it might jeopardize the "navigable waters" of the United States.

International environmental law- solving problems

Transboundary Pollution When pollution generated in one nation is transported to another nation When 2 countries share a common resource and one contaminates that resource

Biodiversity

UN Convention on Biological Diversity - requires signatory nations to establish policies to slow plant and animal species loss First President Bush opposed on grounds that it would not adequately protect biotechnology Clinton signed treaty after drawing up interpretive language to protect US patents, battle for ratification still in Congress 192 nations and the EU have ratified The US has signed, but not ratified the treaty. Addition to the Convention - Biosafety Protocol - protects biotechnology interests - US still not a party

World Commission on Environment and Development

WCED was created by General Assembly in 1983 to formulate long-term strategies to attain sustainable development by 2000 and beyond Sustainability has become important focus in global community Pres. Gorbachev founded Green Cross International in 1993 to work towards a sustainable future

Snail Darter

When the Tennessee Valley Authority (TVA) was nearing the completion of its Tellico Dam in 1973, scientists discovered a previously unknown species, the snail darter (Percina tanasi). The dam's completion would have eradicated the only known population of the species.

ESA Numbers

•As of April 18, 2017, 1652 US species are listed as endangered or threatened and 2325 species listed total (US and foreign) •29 species have been proposed for listing • •Only 78 species have ever been delisted

Listing as Result of Court Order

•Due to a recent court order (3/08), bald eagles in the Sonoran Desert of central Arizona are again protected as "threatened" under the Endangered Species Act. The U.S. Fish and Wildlife Service will soon publish an emergency interim rule in the Federal Register to comply with the court order. •FWS had decided not to list in response to a petition and on January 5, 2007, the petitioners filed a legal challenge against the Service's 90-day finding decision.

Northern spotted owl case

•In 1980s, the Forest Service discovered that population of northern spotted owls was dwindling due to destruction of habitat by logging •Forest Service knew that listing the owl would stop logging in the Northwest so they set aside habitats in old growth forests - environmentalists said this wasn't enough •In 1992, in response to court orders, the Fish and Wildlife Service designated 6.9 million acres in Oregon, Washington and California as critical habitat for the owls •In 1993, President Clinton called a summit on the issue which resulted in the creation of the National Forest Plan

ESA Section 7

•Section 7 requires all federal agencies to take actions necessary to ensure that activities authorized, funded, or carried out by them do not jeopardize the continued existence of endangered or threatened species •Section 7 has been a powerful tool to protect habitat which is vital to protecting the species

Global Extinction

•Species extinction is occurring at about 50 times the normal background rate •Leading causes of extinction include habitat loss or degradation, exploitation and the introduction of nonnative invasive species •The World Conservation Union estimates that approximately 24% of all mammal species and 12% of all bird species will face extinction during the 21st century