Environmental law 2
Cooperative federalism
Dynamic balance of federal standard setting and state implementation - like state implementation plans
State Implementation Plan (SIP)
Each State shall, after reasonable notice and public hearings, adopt and submit to the Administrator,within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof) under section 7409 of this title for any air pollutant, a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) within such State.(2)Each implementation plan submitted by a State under this chapter shall be adopted by the State after reasonable notice and public hearing. Each such plan shall-(A) include enforceable emission limitations and other control measures, means, or techniques(including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet thelicable requirements of this
EPA v. Homer City Generation
Facts: Clean Air Act case, concerns upwind/downwind states, discusses Good Neighbor Provision and the Transport Rule (binds upwind states based on pollution in downwind states as upwind states have the benefit of a reduction in air pollution that gets passed along to the downwind states). A group of state, local, and other entities brought suit challenging that Transport Rule on the basis that it violated principles of federalism by messing with the states' abilities to create their own SIPs. The DC circuit court sided with them, but the Supreme Court reversed their decision. Issue: Does the Transport Rule and the way the EPA has promulgated it violate principles of federalism, taking away power from the states to make their own SIPs? What does the text of the Clean Air Act indicate? Holding: No - the way it is complies with the statute's language just fine. If the EPA finds a SIP to be inadequate they have a responsibility to replace it with a FIP, at any time within two years unless the state corrects the deficiency. As a result, they not only have to worry about over control, but also under control.
major sources
For the PSD program - a major source is one that has the potential to emit 250 tons per year of a regulated pollutant or at least 100 tpy of a regulated pollutant if the source is one of 28 categories For the nonattainment program - major source is one that has the potential to emit at least 10 to 100 tpy of the non attainment pollutant depending on the severity of pollution in the area
Section 505 CWA Citizen Suits
Gives citizens standing to bring suit against anyone who violates an effluent standard or order and also against EPA for failure to perform nondiscretionary duty
point source pollution
Pollutants discharged from a single identifiable location (e.g., pipes, ditches, channels, sewers, tunnels, containers of various types).
Section 404 of CWA
Requires permits to be obtained thru US Army Corps of Engineers for the disposal of dredged or fill material unless it occurs as part of normal farming operations or as part of the maintenance of dams and other water control structures
Primary NAAQS
Set to protect public health from air pollution, with adequate margin of safety
Attainment Area
Term used by the EPA to indicate that a given area is in compliance with air quality standards. Subject to PSD
NRDC V EPA
The Environmental Protection Agency has the authority under the Clean Water Act to prohibit bypasses. Bypass=the diversion of waste streams from a treatment facility
Friends of the Everglades
The Environmental Protection Agency's water-transfer rule does not require an NPDES permit to transfer polluted water from one body of water to another.
Total Maximum Daily Load (TMDL)
The amount of particular pollutants that a water body can receive from both point and nonpoint sources and still meet water quality standards.
GOOD NEIGHBOR PROVISION
The movement of air pollutants across state lines, known as interstate transport, has made it difficult for some downwind states to attain federal ozone and fine particulate matter (PM2.5) standards, partly because states lack authority to limit emissions from other states. The Clean Air Act's "Good Neighbor" provision (Section 110(a)(2)(D)) seeks to address this issue and requires states to prohibit emissions that significantly contribute to another state's air quality problems. It requires each state's implementation plan (SIP)—a collection of air quality regulations and documents—to prohibit emissions that either "significantly contribute" to nonattainment or "interfere with maintenance" of federal air quality standards in another state. The act also authorizes states to petition EPA to issue a finding that emissions from "any major source or group of stationary sources" violate the Good Neighbor provision (Section 126(b)).
Navigable Waters
Those bodies of water which are capable of being used for public transportation.
nonpoint source
a widely spread source of pollution that is difficult to link to a specific point of origin
Title V - Operating Permits
an air pollution control program, based on federal law, designed to standardize air quality permits and the permitting process for major sources of air emissions across the country. major sources are required to obtain an operating permit.
blue sky goals
art 2 section 7 fl constitution - It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise and for the conservation and protection of natural resources.
nonattainment areas
fails to meet NAAQS
sustainability
meeting the needs of the present without compromising the ability of future generations to meet their own needs
NAAQS
national ambient air quality standards - list which includes air pollutants, emissions of which which may be injurious to the public health and welfare, presence of which results from numerous or diverse mobile or stationary sources
NPDES
national pollutant discharge elimination system. Before Clean water act, expands EPA control. Still require a permit to dump in navigable waterways, streams and intrastate lakes, coastal waterway, freshwater wetlands.
public health standard
particulate standard is an example - setting a standard for what is allowed or not allowed based on public health data
BACT (Best Available Control Technology)
pollution control standard mandated by the United States Clean Air Act, which is used to determine which air pollution control technology will be used to control a specific pollutant to a specific limit. Factors such as energy consumption, total source emission, regional environmental impact, and economic costs. emission limitation based on the maximum degree of reduction of each pollutant that is "achievable... through application of production processes and available methods, systems, or techniques, incl. fuel cleaning, clean fuels, or treatment, or innovative fuel combustion techniques - determined on a case by case basis, taking into account environmental, economic, energy impacts and other costs
Iron triangle/Cozy triangle-
refers to relationships Legislative (subject matter experts, make policy), bureaucracy (agencies, EPA etc), interest groups and/or industry (operate within the policies created by legislature, they want policy that helps them)
command-and-control policy
regulatory strategy where government sets a requirement and then enforces individual and corporate actions to be consistent with meeting the requirement.
Secondary NAAQS
requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air
what is environmental law intended to do?
resolve environmental conflicts
technology standard
setting a standard for what is allowed or not allowed based on best available technology
what is the purpose of regulation?
to protect the public health, safety, and welfare. often a substitute for the free market. comes from the delegation of power by law from congress to an agency
NAVIGABLE WATERS
waters of the united states. the state holds the title to the lands under the navigable waters. it is a title held in trust for the people of the State that they can enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the interference or obstruction of private parties
Utility Air Regulatory Group v. EPA
(1) Environmental Protection Agency regulations that set greenhouse-gas emission standards for new motor vehicles do not automatically trigger permitting requirements under the Clean Air Act for stationary sources that emit greenhouses gases. (2) A federal agency's statutory interpretation is not entitled to judicial deference if the agency rewrites clear statutory terms. Facts: EPA promulgated regulations for greenhouse-gas emissions from motor vehicles. They then decided there should be similar regulations for all major sources including stationary sources. UARG brought suit challenging this. Issue: Was it permissible for the EPA to determine that its motor-vehicle greenhouse gases regulations should automatically trigger similar regulations for stationary source greenhouse gas emissions? Holding: EPA did exceed its statutory authority pursuant to the CAA in part in deciding that the regulations were automatically triggered, but their decision to require BACT for greenhouse gases emitted by sources subject to PSD review was generally a permissible application of the Chevron test. There was no evidence that EPA overstepped in terms of applying BACT to greenhouse gases.
NAAQs
(l)National primary ambient air quality standards [are] ambient air quality standards. . .which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health. Such primary standards may be revised in the same manner as promulgated.(2) Any national secondary ambient air quality standard prescribed under subsection (a)of this section shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air.
Whitman
- Clean Air Act §109 requires EPA to set: Primary NAAQS at the level "which in the judgment of the Administrator...and allowing an adequate margin of safety, are requisite to protect the public health" Secondary NAAQS at the level "which in the judgment of the Administrator...is requisite to protect the public welfare" Constitutional challenge - nondelegation doctrine and separation of powers Concern was: no Congressional guidelines and agency was Congress can't give an open-ended power to the agency to make their own laws - violates separation of power SCOTUS said - CAA gives direction in language of the CAA [see language above] - it is not an open-ended delegation of power. This is within the scope of the discretion and well-within the nondelegation doctrine scheme (1) When Congress confers decision making authority to agencies, it must set forth in a legislative act an intelligible principle to which the person or body authorized to act is directed to conform; and (2) Under § 109 of the Clean Air Act, the EPA Administrator may not consider implementation costs in setting national ambient air quality standards. Section 109(a) of the Clean Air Act (CAA) requires the Administrator of the Environmental Protection Agency (EPA) (defendant) to promulgate National Ambient Air Quality Standards (NAAQS) for certain air pollutants. Section 109(b)(1) of the CAA directs the EPA to set ambient air quality standards, the attainment and maintenance of which in the judgment of the Administrator are necessary to protect the public health. In July 1997, the Administrator revised the NAAQS for particulate matter and ozone. The American Trucking Associations, Inc. and others (plaintiffs) challenged the new standard in federal court. The U.S. Court of Appeals for the District of Columbia found that § 109(b)(1) of the CAA delegated legislative power to the Administrator in contravention of Article I, § 1 of the United States Constitution because the EPA had interpreted the CAA to provide no "intelligible principle" to guide the agency's exercise of authority. The appellate court further held that Whitman is prohibited from considering the costs of implementation in setting NAAQS under the CAA. The appellate court remanded the NAAQS to the EPA. The case then came before the United States Supreme Court. (1) Does § 109(b)(1) of the CAA delegate legislative power to the Administrator of the EPA? and (2) Under § 109 of the Clean Air Act, may the EPA Administrator consider implementation costs in setting national ambient air quality standards? 1) No. In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency. When Congress confers decision making authority to agencies, it must set forth in a legislative act an intelligible principle to which the person or body authorized to act is directed to conform. An agency may not cure an unlawful delegation of legislative power by adopting a limited construction of the statute because doing so is itself an exercise of unlawful legislative authority. The degree of agency discretion that is acceptable depends upon the scope of the power that Congress has conferred. Here, the text of § 109(b)(1) of the CAA places limits on the EPA's discretion that are similar to those that this Court has approved in earlier cases. Additionally, the scope of discretion that this statutory provision allows for falls within the outer limits of this Court's nondelegation cases. Accordingly, the lower court's decision is reversed, and the case is remanded for reinterpretation that would avoid a supposed delegation of legislative power. (2) No. Section 109(b)(1) of the CAA instructs the EPA to set primary ambient air quality standards, NAAQS, "the attainment and maintenance of which are requisite to protect the public health with an adequate margin of safety." However, the appellate court in Lead Industries Assn., Inc. v. EPA, 647 F.2d 1130 (D.C.Cir.1980), held that economic considerations may play no role in the promulgation of NAAQS under the CAA. Instead, the EPA identifies the maximum airborne concentration of a pollutant that the public health can tolerate, decrease that concentration to provide an "adequate" margin of safety, and then set the standard at that level. Plaintiffs contend that economic costs of implementing stringent NAAQS can cause detrimental effects on the public health. Although plaintiffs' claims may have some validity, the plain and unambiguous text of § 109(b)(1) make clear that cost considerations do not enter the decision-making process for establishment of NAAQS. The judgment of the court of appeals is affirmed on that point.
NEDA v EPA
- To protect particularly sensitive individuals, the Environmental Protection Agency administrator has the discretion under the Clean Air Act to set standards for levels of pollutants at levels below those that caused adverse health effects in studies. - the EPA administrator has the discretion under the Clean Air Act to set standards for levels of pollutants at levels below those that caused adverse health effects in studies. - - The Clean Air Act requires the EPA administrator to set National Ambient Air Quality Standards for pollutants needed to protect the public health and allows an adequate margin of safety. - Accordingly, the EPA administrator has the authority to set conservative standards to achieve the margin of safety. - Here, the EPA considered a number of sources in arriving at the new sulfur dioxide standard. Notably, the clinical study examined only mild to moderate asthmatics, so the EPA could reasonably conclude that more vulnerable asthmatics would be affected at lower levels. - The EPA administrator acted within her broad discretion under the Clean Air Act, and her rulemaking was not arbitrary and capricious.
Criteria Pollutants
. Carbon Monoxide (CO). Lead (Pb). Nitrogen Dioxide (NOr). Ozone (Or). Particulate Pollution. Sulfur Dioxide (SOr)
nonmajor source
?
TMDL (Total Maximum Daily Load)
A TMDL is the calculation of the maximum amount of a pollutant allowed to enter a waterbody so that the waterbody will meet and continue to meet water quality standards for that particular pollutant. A TMDL determines a pollutant reduction target and allocates load reductions necessary to the source(s) of the pollutant.
regulatory capture
A situation in which bureaucrats favor the interests of the groups or corporations they are supposed to regulate at the expense of the general public.
US v GM
An AMOC issued under the VOC portion of the Texas SIP is an implementation of the SIP, not a modification. AMOCs do not result in any change in the level of emissions emanating from a specific source; instead, an AMOC merely alters the method of control used to achieve compliance. There is no allegation that GM has not complied with the AMOC issued to it by the TACB; hence, any allegation that GM violated the Texas SIP must be made with reference to the standards applicable to GM under the AMOC.
process of promulgating a regulation
Analyze the problem - study the origins, impact and magnitude of the problem Identify options - consider available options for addressing the problem Publish proposal - draft a proposed regulation to be published in the Federal Register Review public comments - review and evaluate all the comments received Issue Regulation - after approval by senior management the EPA administrator reviews the regulation and decides whether it should be issued
purpose of environmental policy
Blessings of environment should be used and enjoyed in the present and by future generations A sustainable society should be created so that pressure by human activity is minimized and mitigated •Science, ethics, and economics SHOULD inform policy •Addresses the issues of fairness and resource use
