ENSP 330 Final
Criminal Enforcement: Goals of environmental criminal (and civil) enforcement
Deterrence (specific [I don't want to repay that crime again] and general [I don't want to end up like that guy]) Promoting public health and safety Punishment of environmental criminals Restitution to victimes and remedial action to cleanup pollution Provide an incentive for environmental compliance
NEPA: List each step of the process
EIS if normally required for a project of this type Categorical exclusion for actions that do not normally require for an EIS - not expected to have significant impacts (these are sometimes overused; eg used in approval of BP's oil exploration well) Env. Assessment if can't decide. EA will return 1 of 2 results: FONSI (finding of no significant impact) or a requirement to do a full EIS
Clean Air Act: Whitman v American Trucking Association (2001, Supreme Court): significant results
EPA could not consider implementation costs in setting primary and secondary NAAQS (these are to be based solely on health, with an adequate margin of safety)
ESA: Section 7 guideline (make sure you know the important words!)
Each federal agency SHALL in CONSULTATION with... the secretary, insure that any ACTION... carried out by such agency... is not likely to JEOPARDIZE the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat
ESA: Listing and critical habitat designation under section 4
Endangered and threatened species are normally treated the same, but there is a provision in section 4 to put some special rules in effect for endangered species Listing to be based SOLELY on the best commercial and scientific data available (ie not based on economic basis) Critical habitat to be based on the best scientific data taking into consideration economic/national security/any other relevant impact(s)
Environmental Justice: Define environmental justice and the important terms within the defintion
Environmental Justice is the FAIR TREATMENT and MEANINGFUL INVOLVEMENT of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. Fair Treatment: No group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental, and commercial operations or policies Meaningful Involvement: People have an opportunity to participate in decisions about activities that may affect their environment and/or health; the public's contribution can influence the regulatory agency's decision; their concerns will be considered in the decision making process; the decision makers seek out and facilitate the involvement of those potentially affected
Criminal Enforcement: US v Exxon
Exxon had an oil spill in AK, which hurt the surrounding wildlife Exxon pleaded guilty to migratory bird treaty act offenses, CWA, and refuse act Faced fines of $125 mil, paid restitution of $100 mil
NEPA: What are the two main types of legal NEPA challenges?
Failure to perform an EIS EIS is inadequate
ESA: What is the "God Squad" exemption, and where was it used?
God Squad is a committee of seven different cabinet-level members which has the authority to allow the extinction by exempting a federal agency from Section 7 requirements (if 5/7 members vote to do so) In order to request an exemption: there must be no reasonable alternative to the agencies action; the benefits of the action must outweigh the benefits of an alternative action where the species is conserved; the action is of regional or national importance; neither the federal agency or the exemption applicant made irreversible commitment to the resources. Used unsuccessfully in TVA v Hill
ESA: Important background info
Has power to stop projects, not just slow them Protects threatened or endangered species against activities by anyone anywhere An action agency in ESA means the agency that is TAKING the action
ESA: Most common legal actions, and which section they are brought under
Improper listing or failure to list/designate critical habitat (section 4) Failure to consult and do full biological opinion (section 7) Challenge adequacy of the biological opinion (section 7)
Environmental Justice: How does NEPA use EJ?
In each NEPA analysis, there is a set of guidelines and items related to EJ that must be considered
NEPA: Strycker's Bay v Karlen (1983, Supreme Court): Background, significant results
Karlen was building low-income housing in Manhattan. Strycker's Bay (citizen group) sued, claiming that Karlen hadn't properly considered environmental impacts of the project under NEPA The Appellate Court found that NEPA required consideration of alternatives to the project Karlen completed EIS, claimed that there weren't acceptable alternatives because it would cause an unacceptable delay. Supreme Court agreed that NEPA was satisfied. o NEPA sets forth procedural duties, not substantive duties: You have to do the EIS, but you don't have to choose a specific action after the EIS. The only role for the Court is to be sure that the agency has CONSIDERED the environment in all stages of decision making - even if they ultimately make a poopy environmental decision
NEPA: Does NEPA work?
Launched environmental decade generally Successfully used to slow or stop projects that could be harmful to the environment Improved quality and transparency of agency decision-making Allows for multi-disciplinary agency cooperation Often, constructors are more worried about litigation than the quality of the analysis
NEPA: When is an EIS required?
Major Federal action significantly affecting the quality of the human environment (major federal action including fed. approval of private projects, significance, human environment*) *each of these is explained in-depth on individual slides
ESA: Name the conservation statutes
Marine Mammal Protection Act Migratory Bird Treaty Act (brings criminal charges) Lacey Act: Prohibits trade in wildlife, fish, or plants that have been illegally taken, possessed, transported, or sold Convention on International Trade in Endangered Species (CITES): International act, enforced in US through CITES ESA
Clean Air Act: What is the connection between the mercury rule and the Clean Power Plan?
Mercury from EGUs is regulated as a hazardous air pollutant under section 112(b) of CAA Section 111(d) of House's CAA of 1990 state that no air pollutant can be regulated if it is emitted from a source category which is regulated under section 112 Section 111(d) of Senate's CAA of 1990 state that no air pollutant can be regulated if it is regulated under 112(b) The House version presents a legal problem insofar as regulating GHG emissions from power plants because power plants are already regulated under the mercury rule
Civil Enforcement: What are all the requirements found in every environmental law?
Monitoring, reporting, civil and criminal penalties
NEPA: General guidelines
NEPA is a process for federal agency decision making - didn't establish a regulatory framework, but required all federal agencies to consider the env. implications of their decisions. Requires an EIS for major federal actions significantly affecting quality of the human environment Measures environmental impact and alternatives NEPA is the precursor to format of EPA, precursor to environmental decade, established council on environmental quality Point of an EIS is to provide more transparency - very helpful when citizens want to bring suits against polluters
Compare/contrast ESA v NEPA
NEPA is just procedural, while ESA is procedural AND substantive In NEPA, the action agency makes all the decisions, and in ESA action agency makes decision on action, but wildlife agencies determine jeopardy NEPA is a cool analysis, while ESA acts on moral outrage NEPA applies to fed agencies/actions, ESA applies to federal and private conduct NEPA produces an EA or EIS, ESA produces a BA or Biological Opinion
NEPA: Relationship to a changing climate
NEPA requires assessment of direct, indirect, and cumulative effects As such, CEQ issued draft guidance in 2014, with additions that agencies should consider GHG emissions and action's effects of climate change (such as sea level rise). As of now, agencies don't need to actually follow guidance when performing their EIS Guidance has controversy: Agencies, industry, and Congress don't like it because nobody wants the guidance to be mandatory
NEPA: What are examples of what has to be considered when determining whether or not a project is significant?
National v site specific, short v long-term impacts Severity of the impact Beneficial and harmful impacts Public health and safety Unique characteristics of the area Effects likely to be highly controversial Uncertain/unknown risks Precedent for future actions Cumulative impact Effects on endangered species
NEPA: Does compliance with other environmental statutes satisfy NEPA?
No - it is necessary to measure the CUMULATIVE impacts of a specific project, not just the parts of the whole
NEPA: Does a builder have to reject a project if it will harm the environment?
No - they just have to consider the environmental implications before building
Environmental Justice: What federal law mandates Environmental Justice?
No formal law - the strongest defense is the executive order, followed by a Title VI complaint under the 1964 civil rights act, and filing a complaint with EPA's office of civil rights
Clean Air Act: Ozone NAAQS [Ozone group please add as necessary]
Ozone is the most difficult pollutant to control - EPA lowered allowable concentration from 75 ppb to 70 ppb Industry argues that this isn't achievable Env. groups say that there are negative health effects when concentration is anything higher that 60 ppb
Clean Air Act: Michigan v EPA (2015, Supreme Court): significant results
Produced the mercury rule: regulation of mercury emissions as hazardous air pollutants by EGUs (power plants), under section 112 of CAA Court initially rejected mercury rule because the EPA "unreasonably refused" to consider costs in determining whether it was appropriate to regulate electric utility steam generating units Consideration at later stages is not sufficient Justice Thomas, in a concurring opinion, wrote that the Courts may be taking Chevron deference too far and could cause fed. agencies to have an unconstitutional delegation of legislative power
Criminal Enforcement: Most common environmental crimes
RCRA, CWA, Title 18 of US code (conspiracy, false statements, fraud)
Criminal Enforcement: US v Recht
Recht was a dry cleaning company - had a hazmat spill and didn't alert the authorities - cleaned up the spill with kitty litter, and threw it in a dumpster, which two boys got into (and later died) Pled no contest to RCRA - knowing endangerment. Sentenced to $1.5 mil fine and 27 months in jail
Clean Air Act: What are the main standards of the CPP, and what are the main arguments against it?
Regulation of GHGs as air pollutants from stationary sources EPA sets emission goal, states choose how to meet it. Puts controls on emissions and substitution with clean energy sources (natural gas, wind, solar), demand- side efficiency. Currently CPP has been stayed by Supreme Court due to: legislative glitch, EPA going beyond the fence, power struggle between federal/state authority
Difference between risk avoidance and risk reduction
Risk avoidance is telling people to avoid the risk (ie "Don't eat the fish") Risk reduction is lowering the actual risk (ie reducing mercury emissions in the water to lower mercury levels in fish)
ESA: Agencies in Charge
Secretary of Interior (USFWS) Secretary of Commerce (NMFS)
ESA: Steps
Section 4 listing process Section 7 consultation process (applies to fed agencies/actions) Section 9 take prohibition (applies to fed agencies AND private parties) Section 10 habitat conservation plans Civil and Criminal penalties (fines and jail time)
Environmental Justice: Title VI of Civil Rights Act of 1964. Main points of section 601 and 602?
Section 601 says you can't discriminate. Requires INTENTIONAL discrimination. Section 602 says that the government can withhold federal funds for projects if they are found to be discriminatory. Section 602 allows proof of unintentional discrimination Only section 601 can be used in Title VI suits - higher burden of proof
ESA: Section 9 take prohibition; name prohibition, define major terms within prohibition
Section 9 prohibits any "person" from TAKING, selling, importing, or exporting any protected species Take: Harass, HARM, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct Harm (as defined by USFWS): Significant habitat modification that kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding, or sheltering
Clean Air Act: How many criteria air pollutants are listed under CAA?
Six. We probably won't get tested on names, but they are: carbon monoxide, sulfur dioxide, nitrogen oxides, lead, ozone, and particulate matter.
Clean Air Act: Health-based standards
Solely based on what is required to achieve a health or environment related goal (NAAQS) No cost considered - usually involves criteria air pollutants
Criminal Enforcement: What makes an environmental case criminal
Sufficiency of the evidence to establish violation (for civil to establish someone as guilty, only need a preponderance of evidence - 51% sure they did it; for criminal, it needs to be beyond a reasonable doubt) Seriousness of the the environmental harm Seriousness of public health risk Deliberateness Deceptive conduct and false statements History of noncompliance/repetitive violations Failure to meet core regulatory requirements
NEPA: Contents of an EIS
Summary of proposed action Purpose and need for action Description and comparison of the alternatives Description of the affected environment Analysis of the environmental consequences and alternatives Outcome: Record of Decision (this is the document people sue over)
ESA: Babbitt v Sweet Home (1995, Supreme Court)
Sweet Home was a group dependent on logging. Endangered species lived where they were logging. USFWS expanded the definition of harm to include habitat modification (such as logging where ESA-protected species live) Supreme Court upheld USFWS' definition of harm using Chevron deference Intent of ESA is to give broad protections to species
ESA: TVA v Hill (1978, Supreme Court): Background, significant outcomes
TVA was building the Tellico Dam (with fed $$); after construction started, ESA was passed and the snail darter was listed. It was found that completion of the dam would wipe out snail darter populations Supreme Court upheld that the ESA required a permanent injunction, for at least as long as the darter was on the endangered species list Supreme Court found that the completion of the project required actions to be 'carried out', which was prohibited under ESA ESA Section 7 is an "affirmative command" that "admits of no exception" ESA was meant to "halt the trend toward species extinction whatever the cost" (species could have unknown uses; value is incalculable) Endangered species are prioritized over the primary mission of federal agencies TVA tried to use God Squad exemption, denied. In 1980 an appropriations rider exempted the dam from the ESA so it got built
Clean Air Act: Technology-based standards
Ties the regulatory standards to the capabilities of tech. - based on what is achievable (mercury rule; newer CAA provisions moving in this direction) Costs considered - usually involves HAPs
ESA: Examples of section 9 take
Timber harvesting in bird habitat Gillnets and lobster traps harming whales Lighting causing harm to loggerhead turtles/breeding
Civil Enforcement: How are CWA civil penalties calculated?
Trials and settlements Max fine of $37,500/day Courts must consider: seriousness of the violation; economic benefit gained by violation; history of violations; good faith efforts to comply; economic impact of penalty on violator
Environmental Justice: Latin Americans for Social and Economic Development v Administrator of Federal Highway Admin (US Court of Appeals, Sixth Circuit)
US-Canada Bridge to be built (on US side) in low-income, minority neighborhood (Delray, in Detroit) "On appeal, the Community Groups contend that the FHA violated NEPA and principles of EJ by failing to take a "hard look" at alternative bridge proposals that would not be government-owned and/or not located in the minority, low-income community of Delray" This is an example of how EJ complaints can be brought under NEPA. However, EJ was not the sole complaint - other parts of NEPA had been done incorrectly Outcome: Lost the case ☹ Hard to question NEPA because it can be very subjective; in this case, the Court said adequate alternatives and EJ considerations had been factored into the analysis Court agreed that that EJ could be questioned under NEPA Court did not offer a definitive rule - the majority opinion essentially stated that uncertainty over EJ and NEPA remains
Criminal Enforcement: US v Allan Elias
o Used an old storage tank for fertilizer company. Tank had been used for cyanide, and there was still sludge left over. He had two guys go in without any protective gear with steam cleaners to break it up, the steam made the cyanide break up but also made it go into their lungs... one guy had permanent brain damage Elias convicted of knowing endangerment, illegal disposal of hazardous waste, and making false statement to OSHA Elias sentenced to 17 years in prison (at the time, longest sentence ever imposed for an environmental crime) Ordered to pay $6 million in restitution to the brain damaged guy and his family; overturned but ended up paying $3 million
Environmental Justice: What was the 1994 Clinton executive order? Has it been effective?
A mandate that federal agencies incorporate EJ in all of their work and programs through NEPA. Follow through is inconsistent among fed. agencies
NEPA: Calvert Cliffs Coordinating Committee v US Atomic Energy Commission (1971, DC Circuit): background, significant results
AEC aggressively encouraged electric utilities to build nuclear power plants. Baltimore gas and electric began construction of one in Calvert Cliffs without an EIS. AEC had required them to prepare a report, but that it didn't have to consider the report. CCCC argues that AEC's regulations violated NEPA bc they didn't require the agency independently to assess environmental impacts. Must consider impacts at every stage of the decision-making process Solidified the role of the courts in mandating compliance with procedural requirements of NEPA - required that a "hard look" must be taken Increased transparency and citizen participation Caused a decline in new nuclear for the next 18 months (this is probably just a fun fact... but it's still fun to know!)
ESA: American Burying Beetle (KXL); Name the: action agency; wildlife agency; type of document, who prepared it, and what triggered this; concerns of environmental groups; final outcome
Action Agency: US State Department Wildlife Agency: USFWS Document: BO, prepared by USFWS, triggered by ??? Final Outcome: No jeopardy Concerns of environmental groups: ???
Civil Enforcement: Levels of enforcement in environmental laws. Which is most common?
Administrative: fines - the vast majority of enforcement actions are administrative Civil: more severe fines, potential injunctions Criminal: jail time - very very small percentage of env. crimes are criminal
NEPA: What constitutes a federal action?
Adoption of rules and regulations Adoption of natural resource plans Adoption of programs that government is funding or carrying out to implement a specific policy Federal approval of federal or private construction projects
Environmental Justice: Alexander v. Sandoval (2001, Supreme Court)
Alabama declared English to be the official state language, and administered driving tests in English-only. Martha Sandoval brought a Title VI class action lawsuit. Title VI bars discrimination based upon race, color, or national origin Court ruled that no intentional discrimination had been shown, and because Title VI only reaches instances of intentional discrimination, they found in favor of Alabama
Clean Air Act: How does the definition of "air pollutant" allow for GHGs? Where are they regulated? Name the corresponding case.
An air pollutant includes "any physical, chemical, biological, radioactive... substance or material which is emitted into or otherwise enters the ambient air " as well as any precursors to the formation of any air pollutant. If an air pollutant may reasonably be anticipated to endanger public health or welfare, the CAA authorizes the EPA to regulate. GHGs have been determined to endanger public health and welfare (2009 endangerment finding). GHGs are regulated through CAA for mobile sources (Mass v EPA, 2007, SC)
ESA: Steps in section 7 compliance
Are endangered/threatened species present? If so, Biological Assessment by Action Agency to determine whether there will be an adverse effect on species (similar to NEPA's EA) If not likely to effect, all steps are completed If may effect, but not likely to adversely effect - informal consultation with FWS or NMFS (most are informal) If may effect and likely to adversely effect - formal consultation with FWS or NMFS; they give a biological opinion - either no jeopardy or jeopardy (must find reasonable and prudent alternatives)
Clean Air Act: Dates of enactment/significant amendments; purpose; method of implementation
CAA of 1963, CAA Amendments of 1970, CAA Amendments of 1990 (this is the year that the House and Senate passed two diff. versions of section 111(d)) Purpose is to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population EPA sets NAAQS, states submit SIPs to EPA to show how they will achieve NAAQS ("system of shared responsibility")
Civil Enforcement: Sierra Club v Cedar Point Oil
Citizen suit against oil company for discharging produced water into Galveston Bay without a permit Court first started at maximum penalty of 25,000/day for each day of discharge, and worked backward from that point Violation was found to be moderately serious (effect of discharge AND lack of monitoring/reporting of said discharge) Found the economic benefit gained by Cedar Point for noncompliance (186 thousand) Cedar Point had NOT demonstrated good faith in trying to find an environmentally-friendly solution to its water disposal Court assessed cedar point's financial position FINAL: Court determined that 25 million was inappropriate, but that cedar point could at least afford to pay back in damages the amount it had saved; therefore assessed a penalty of 186 thousand Sierra Club tried to bring the suit to the appellate court to charge Cedar Point more $, but the court's assessment of penalties is "highly discretionary"
Civil Enforcement: Who can assist the government with civil enforcement?
Citizens (civil suits) Dischargers (voluntary compliance or audits in a cooperative model)
Clean Air Act: In what case did the Court find that the EPA determination that its regulation of greenhouse gas emissions from new motor vehicles under CAA also triggered permit requirements for stationary sources of greenhouse gas emissions? Was this permissible? What was the outcome?
Coalition for Responsible Regulation v EPA (2014, Supreme Court) No (unanimous) - While the Massachusetts decision found that CAA did account for GHGs to be defined as air pollutants, it does not require the EPA to include GHGs every time the Act uses the term "air pollutant." Because there are tens of thousands of regulated air pollutant sources, this would not be a reasonable requirement of the EPA. BUT the EPA is within its bounds to regulate GHGs as air pollutants at its discretion The Court found that EPA's ruling was consistent with Mass v EPA
Criminal Enforcement: US v Royal Caribbean Cruise Line
Coast Guard kept finding "orphan" oil stains off the coast of FL. Found out that it was RCCL. Oil gets mixed up in the bilge, but the bilge has to be pumped regularly. They are supposed to get an oil/water separator to ensure that no oil gets pumped out into the water. RCCL had installed bypass pipes to send bilge stuff straight into the water instead of running it through the oil/gas separator. RCCL was noncooperative, eventually pled guilty to 1,001 violations, sentenced to $9 mil fine and 5 year probation RCCL kept dumping, pled guilty to 21 count in 6 different US courts, sentenced to additional $18 mil in criminal fines
ESA: Case Study - Klamath Basin
Conflict over overallocated water resources - CA farmers need water for ag, chinook salmon need water in the basin to breed Fight centers around species protection v private property rights/water for farms ESA section 7 in operation Uncertainty over science http://www.abqjournal.com/752458/officials-sign-unusual-pact-to-tear-down-klamath-dams.html
What is the difference between the threshold for "contribute" vs. "cause"
Contribute requires a lower threshold than cause (GHG emissions must only cause OR contribute to GHG pollution to be considered a danger to public health and welfare)
Clean Air Act: Massachusetts v EPA (2007, Supreme Court): key background points, significant results
Court determined that CAA REQUIRES EPA to regulated if it makes an endangerment finding for a pollutant (section 202 states that the EPA SHALL prescribe regulations for pollutants which endanger public health and welfare) The EPA argued policy-based reasons (scientific uncertainty, econ. implications, piecemeal approach) for why it was not regulating GHGs. Court determined that the EPA needed to make a reasoned explanation based on science (endangerment finding or finding of no endangerment) if it wanted to avoid regulation EPA released an endangerment finding in 2009: GHGs may reasonably be anticipated to endanger public health AND welfare via climate change EPA found that emissions from motor vehicles cause or contribute to GHG pollution and therefore to climate change Tailpipe rule (regulation of GHG emissions from motor vehicles)