Transcript Chapter 17 Powerpoint

Chapter
17
Environmental Laws
And Pollution Control
McGraw-Hill/Irwin
Copyright © 2005 by The McGraw-Hill Companies, Inc. All rights reserved.
Government’s
Regulation Of Itself
 National Environmental Policy
Act (1970)
 Environmental Impact
Statement- Scoping
 EIS Criticisms
• Fails To Consider Economic
•
•
•
•
Injury
Considers Too Many Alternatives
Too Descriptive/Not Analytical
Document Of Compliance
Process Limits Usefulness
17-2
Environmental
Impact Statement
Requirements
Major Action
Federal Action
Human Environment
Detailed Statement
Environmental
Impact
Statement
Examines
Adverse Environmental Effects
Irreversible Commitment Of
Resources
Alternatives To Proposed Action
17-3
Environmental Issues
 Gov’t Regulation Of Itself
• National Environmental Act (NEPA) (1969)
 Regulates Governmental Decisions affecting the
Environment
 Establishes policy goals
 Imposes duties on federal agencies
• Requires Environmental Impact Statements (EIS) Prior to
Actions Affecting Quality of the Human Environment (see box,
p. 510)
 Sets up Council on Environmental Quality
 Provides for federally funded studies and projects
• State Environmental Policy Acts (e.g. CAMA)
17-4
Environmental Issues
 Gov’t Regulation Of Itself
• National Environmental Act (NEPA) (1969)
 The criticisms of the EIS process.
 a. Economic injury caused by abandoning or delaying projects.
 b. Lack of consideration of economic reasonableness.
 c. That environmental factors are often so complex that the EIS
process may amount to little more than guesswork.
17-5
Environmental Issues
 National Environmental Act (NEPA)
 METROPOLITAN EDISON CO. v. PEOPLE AGAINST NUCLEAR ENERGY
 103 S.Ct. 1556 (1983)
 FACTS: Residents (PANE) near the Three Mile Island nuclear plants
challenged the Nuclear Regulatory Commission's decision to restart
one of the plants. The plant had been closed for refueling at the time
the other plant suffered a serious accident. The residents contended
that the Commission failed to consider the psychological harm that
reopening the plant and exposing the community to the risk of nuclear
accident might cause.
 ISSUE:Does the National Environmental Policy Act (NEPA) require an
agency to evaluate the psychological effects of the risk of a nuclear
power plant accident?
17-6
Environmental Issues
National Environmental Act (NEPA)
METROPOLITAN EDISON CO. v. PEOPLE AGAINST NUCLEAR ENERGY
 103 S.Ct. 1556 (1983)
 DECISION: No.
 REASONS:
• 1. Where an agency action significantly affects the quality of the human
environment, NEPA requires preparation of an environmental impact
statement (EIS).
• 2. NEPA does not require the agency to consider every effect of proposed
action but only the effect on the environment.
• 3. Congress intended the term environment to mean "physical
environment.”
• 4. A "risk" of an accident is not an affect on the physical
environment.
17-7
Environmental Issues
 Petitioners brought this action against the Federal
Energy Regulatory Commission contending that the
Commission violated NEPA by failing to prepare an
EIS before it issued a preliminary permit for the
Clavey-Wards Ferry hydroelectric project. Held: No
EIS was required. The preliminary permit did not
authorize ground-breaking or other activities that
might significantly affect the environment. Sierra
Club v. FERC, 22 ERC 2024 (1985).
17-8
Environmental Issues
 The Sierra Club sued to enjoin the Department of Interior
from issuing mining leases on federal lands in the
"Northern Great Plains" region until the department had
prepared an EIS on the entire region. Held: NEPA
requires an EIS only when a recommendation or report on
a proposal for major federal action has been prepared. In
this instance, there was no recommendation or report on a
proposal for major federal action in the region. Several
preliminary studies of individual states in the region did not
constitute a "plan" that would require the preparation of
an EIS. Kleppe v. Sierra Club, 427 U.S. 390 (1976).
17-9
Environmental Issues
 According to the 9th Cir., the U.S. Forest Service decision not to
prepare an EIS prior to granting a special use permit for the
construction of a road through the Angeles National Forest violates
NEPA. The road passes directly through an area occupied by a
herd of desert bighorn sheep protected under state and federal law.
Applying a reasonableness test, the court ruled that the
environmental assessment failed to consider adequately the impact
upon the sheep of the proposed action. The assessment contained
no estimate of the volume of traffic likely to pass along the road and
ignored other factors essential to an informed decision on whether
the project might have significant environmental impacts and thus
require an EIS. Foundation for North American Wild Sheep v.
Dept. of Agriculture, 12 ELR 20968 (1982).
17-10
Environmental Issues
 Gov’t Regulation Of Business (see chart p.509)
•
•
•
•
•
•
•
•
•
Solid Waste Disposal Act (1965)
Clean Air Act (1970) & Amendments
Clean Water Act (1972) & Amendments
Marine Protection, Research and Sanctuaries Act (1972)
Pesticide Control Acts (1972 & 1973)
Safe Drinking Water Act (1974)
Toxic Substances Control Act (1976)
Resource Conservation and Recovery Act (1976)
Comprehensive Environmental Response and Liability Act
(1980)
• Other Federal, State & Local statutes, regulations & ordinances
17-11
Environmental Issues
 Suits by Private Individuals & NGOs
• Citizen Enforcement Provisions (to overcome issue
of standing)
•
•
•
•
•
•
Public Nuisance
Private Nuisance
Trespass
Negligence
Strict Liability
Public Trust Doctrine
17-12
Federal Environmental
Protection Laws
Resource
Conservation,
Toxic Substance
(1976)
Clean Air
(1970)
Solid Waste
Disposal
(1965)
National
Environmental
Policy
(1969)
Insecticide,
Fungicide
(1973)
Clean Air
Amendments
(1990)
Safe Water
Drinking
(1974)
Clean Water, Marine
Protection,
Pesticide Control
(1972)
Environmental
Response
(1980)
17-13
Government’s Regulation
Of Business
 Environmental Protection
Agency (1970)
 Pollution
• Air
• Water
• Endangered Species
• Pesticide
• Solid Waste
• Toxic/Hazardous Substances
17-14
Air Pollution
 Clean Air Act & Amendments- Air Quality
Standards
 That the Clean Air Act directs the EPA administrator to establish air
quality standards and to see that these standards are achieved
according to a timetable.
 Government regulation under the Clean Air Act is a joint federal and
state effort.
Discuss the responsibilities of both the federal
government and the states.
 Primary (Public Health) & Secondary Standards
 Air Pollution Sources

• Stationary
• Mobile (Transportation)
• Technology Forcing
Compliance Waivers/Variances
17-15
Air Pollution
 Clean Air Act
 Whitman v. American Trucking Associations, Inc.
 531 U.S. 457 (2001)
 FACTS: The EPA set revised ambient air quality standards
(NAAQS) for ozone and particulate matter. Several trucking
associations (respondents) challenged the standards under
Section 109(b)(1) of the Clean Air Act (CAA), arguing that the
standards failed to take implementation costs adequately into
account.
 ISSUE: Does Section 109(b)(1) require that standards set under
this section take into account implementation costs?
17-16
Air Pollution
 Clean Air Act
 Whitman v. American Trucking Associations, Inc.
 531 U.S. 457 (2001)
 DECISION: No.
 REASONS:
• 1. “The text of § 109(b)(1), interpreted in its statutory and
historical context and with appreciation for its importance to
the CAA as a whole, unambiguously bars cost considerations
from the NAAQS-setting process….”
• 2. The respondents’ arguments are “lengthy, spirited, but
ultimately unsuccessful….”
17-17
Air Pollution
• In 1998, the seven biggest manufacturers of
heavy diesel engines agreed to pay over $1
billion to cover fines, investments in cleaner
engines, and other corrective actions to settle
Clean Air Act violations.
• In 2003, Alcoa and Archer Daniels Midland
agreed to settle federal air pollution complaints
by upgrading smelters at an estimated cost of
$700 million.
17-18
Air Quality Index
Air Quality Index
Levels Of Health
Concerns
Numerical
Value
Meaning
Good
0-50
Air quality is considered satisfactory
Air pollution poses little or no risk
Moderate
51-100
Air quality is acceptable, however,
for some pollutants there may be a
moderate health concern for some
Unhealthy For
Sensitive Groups
101-150
Sensitive groups may experience
health effects. The general public is
not likely to be affected
Unhealthy
151-200
Everyone may begin to experience
health effects. Sensitive groups may
experience more serious effects
Very Unhealthy
201-300
Health alert, everyone may
experience serious health effects
Hazardous
>300
Source: Environmental Protection Agency, FY2003 Annual Report.
Emergency health conditions.
Everyone likely affected.
17-19
Clean Air Act Trends
 Regulation- Point Source To
Bubble Concept (Complex as a
Whole)
 Emissions Reduction BankingMarket Rights?
 Prevention Of Significant
Deterioration- Permitting
Process/Smart Permits
17-20
Air Pollution
• Emissions Trading
• By 2003, worldwide trading of sulfur dioxide, a greenhouse gas, was
estimated at over $4 billion a year.
• From 1982 to 1992 carbon monoxide pollution declined 30 percent,
airborne sulfur dioxide declined 20 percent, and airborne lead
plummeted 89 percent, according to the EPA. But the EPA reported
that 2003 cars had an average fuel efficiency 6 percent below 1988
cars.
• The General Accounting Office estimated in 1999 that emissions
trading saves utility companies $3 billion annually over previous air
pollution approaches. Electric utility companies emitted in 1999 25%
fewer tons of sulfur dioxide while producing 41% more electricity.
17-21
Water Pollution
 Clean Water Act
 Navigable Waterways
 Goals & Enforcement
• No Discharge From Point Source
Without Permit
• Not Yet Reached- Non-Point Source
• Install
 First- Best Practicable Technology
 Second- Best Available Technology 17-22
Water Pollution
 Clean Water Act
 SOLID WASTE AGENCY v. UNITED STATES ARMYCORE
OF ENGINEERS
 531 U.S. 159 (2001)
 FACTS: Several towns in northern Illinois applied for a permit
to drain several ponds, some permanent and some seasonal, in
order to use them as a solid waste disposal site. The Army
Corps of Engineers denied the permit, citing § 404a of the Clean
Water Act and stating that to fill the ponds would unduly harm
various migratory waterfowl.
 ISSUE: Are these ponds part of the “navigable waters” of the
United States?
17-23
Water Pollution
 Clean Water Act
 SOLID WASTE AGENCY v. UNITED STATES ARMYCORE
OF ENGINEERS
 531 U.S. 159 (2001)
 DECISION: No.
 REASONS:
 1. Section 404(a) grants the Corps authority to issue permits “for the
discharge of dredged or fill material into the navigable waters at
specified disposal sites.”
 2. Although Congress may have intended to regulate some waters not
“’navigable’ under the classical understanding of that term,” isolated
ponds, some only seasonal are not navigable nor could they reasonably
be made so.
 3. The Corps’ interpretation of “navigable” exceeds its authority.
17-24
Water Pollution
 The Supreme Court has ruled that the EPA's
interpretation of the Clean Water Act must be
given deference. The Court held that neither
statutory language nor legislative history of the
act precluded EPA interpretation of the statute,
which prohibits modification of toxic pollutant
effluent limitations, as permitting the grant of
different variances for certain covered pollutions.
Chemical Manufacturers Association v. Natural
Resources Defense Council, Inc., 105 S.Ct. 1102
(1985).
17-25
Water Pollution
 Riverside Bayview Homes, Inc. began placing fill
materials on its property near the shores of Lake
St. Clair, Michigan.
The Army Corps of
Engineers filed suit to enjoin this placement
without a permit. Held: The Corps properly
interpreted "navigable waters" to include all
freshwater wetlands adjacent to other covered
waters. U.S. v. Riverside Bayview Homes, 54 LW
4027 (1985).
17-26
Water Pollution
 In 2001, Koch Industries was fined $20 million
after pleading guilty to releasing 91 metric tons
of toxic benzene into waste streams.
 In 2002, Georgia Pacific agreed to pay some
$10.1 million to clean up the Fox River in
Wisconsin following illegal discharge of toxic
PCBs.
17-27
Endangered Species Act
 Species Disappearing
• Natural Causations
• Human Effects
 Considerations
• Destruction Of Habitat- Critical
• Disease/Predation
• Commercial/Recreational Activity
• Other Natural/Manmade Factors
17-28
Endangered Species Act
 BABBIT v. SWEET HOME CHAPTER OF COMMUNITIES FOR A
GREATER OREGON
 515 U.S. 687 (1995)
 FACTS: Small landowners, logging companies, and families dependent on the
forest products industry in the Pacific Northwest and in the Southeast sued the
Secretary of the Interior. They challenged the validity of the Secretary’s
regulation defining the word harm in the Endangered Species Act (ESA) to
include habitat modification and degradation. They alleged that application
of the “harm” regulation to the red-cockaded woodpecker and the northern
spotted owl had injured them economically. When the Court of Appeals ruled
that the Secretary’s regulation was invalid, the Secretary petitioned the
Supreme Court to hear the case.
 ISSUE: Did the Secretary of the Interior exceed his authority in defining the
word harm in the ESA to include habitat modification and degradation?
17-29
Endangered Species Act
 BABBIT v. SWEET HOME CHAPTER OF COMMUNITIES FOR A
GREATER OREGON
 515 U.S. 687 (1995)
 Decision: No
 Reasons:
 1. Ordinary understanding of the word “harm”.
 2. Broad purpose of the act.
 3. Congressional intent to prohibit indirect takings.
17-30
Endangered Species Act
 In 1998 a 20-year research effort concluded
that over one-tenth of the planet’s plant
species were threatened with extinction. In
the United States some 29 percent of plants
(16,000 species) were threatened. The study
maintained that loss of habitat and
competition from human introduction of
non-native species were the two main
reasons for the threats.
17-31
Pesticide Control
 Pesticides Dangerous To
Wildlife & Humans
 Federal Insecticide, Fungicide,
& Rodenticide Act (1947)
 Federal Environmental
Pesticide Control Act (1972)
 Pesticides Must
• Be Registered/Properly Labeled
• Meet Claims Of Effectiveness
• No Adverse Effects
17-32
Pesticide Control
Regulation of pesticides takes place at
the federal level. Regulation consists
of a regulation process backed up by
the power to ban and limit the use of
pesticides.
Pesticide runoff into waterways is a
major environmental problem.
17-33
Solid Waste Disposal
 Clean Air Act
 Noise Control Act (1972)
 Solid Waste Disposal Act
(1965)
• Promotes Research
• Technical/Financial Assistance
17-34
Composition Of
Landfill By Volume
6%
1%
10%
Paper
Misc.
13%
50%
Organic
Plastic
Metal
Glass
20%
17-35
Toxic/Hazardous
Substances
 Toxic Substances Control Act (1976)
• Evaluate Chemicals Before
Economically Important
• Substantial Risk Of Injury
 The control of toxic chemicals may be divided into
regulation of their use, regulation of their disposal, and
regulation of their cleanup.
 Resource Conservation & Recovery
Act (1976)
• Determine If Waste Hazardous
• Waste Properly Transported
• Manifest System- Proper Disposal
17-36
Superfund
 Comprehensive Environmental
Response Compensation, &
Liability Act (CERCLA)(1980)
• Hazardous Release Requires
Gov’t Notification
• Gov’t Order Responsible Parties
To Clean Up
 Responsible PartiesRemediation
• Current/Former
Operators/Owners
• Waste Transporters
17-37
Superfund
UNITED STATES v. BEST FOODS
524 U.S. 51 (1998)
 FACTS: The United States sued CPC International, Inc., under
CERCLA to recover the costs of hazardous waste generated by
the now defunct Ott Chemical Co. (Ott II). Ott II had been a
wholly-owned subsidiary of CPC, its parent corporation. The
federal district court ruled that CPC was an “operator” of the
hazardous waste facility that Ott II owned. The court of appeals
reversed and the Supreme Court granted certiorari.
 ISSUE: Can CPC be an “operator” under CERCLA of the
hazardous waste facility?
17-38
Superfund
 UNITED STATES v. BEST FOODS
 524 U.S. 51 (1998)
 DECISION: Yes.
 REASONS:
• 1. A general rule is that a parent corporation is not liable for the acts
of its subsidiaries, but
• 2. Under CERCLA an “operator” of a facility is liable for improper
disposal of hazardous waste.
• 3. CPC’s environmental affairs director was “deeply involved” in
environmental issues at Ott II.
• 4. This raises “an issue of CPC’s operation of the facility through
William’s actions and the court of appeals judgment is vacated.
17-39
Superfund
 A number of states have passed
environmental cleanup laws, including
New York, California, Ohio, New Jersey,
Illinois, Wisconsin, and Arkansas. These
laws supplement federal law and are
implicitly forcing property buyers to factor
potential cleanup costs into their purchase
prices.
17-40
Superfund
 Alcan Aluminum Ltd. was one of twenty alleged
polluters of a certain site. Only Alcan refused to settle
with the government. Under joint and several liability
the government ordered Alcan to pay the remaining
$474,000 of the $1.3 million it would take to clean up
the site. Alcan went to court. Held by CA3: The
district judge erred in requiring Alcan to pay the
remaining balance of the clean-up costs without
determining whether it was responsible for such a large
portion of the damages. U.S. v. Alcan, 91-5481 (CA3).
17-41
Superfund
The owners of Vineland Chemical
Co. improperly disposed of water
containing arsenic. Held by D. N.J.:
The owners must pay penalties of
$1,223,000 and face liability for
clean up that could approach $66
million. United States v. Vineland
Chemical Co. (4/30/90).
17-42
Superfund
 The chemical supplier of a wood processing plant helped build part of the plant
and furnished the plant with a toxic chemical used in wood processing. When the
EPA forced the plant owner to clean up its plant site under Superfund, the owner
sued the chemical supplier for contribution. Held by the Seventh Circuit:
Superfund imposes clean-up liability on any party who was "owner" or
"operator" of a site at the time hazardous wastes were deposited. Looking at the
law of independent contractors and joint venturers, the court concluded that the
chemical supplier was neither an owner nor an operator. Edward Hines Lumber
Co. v. Vulcan Materials Co., 861 F.2d 155 (1988). In U.S. v. Fleet Factors Corp.
(12/22/88) the Eleventh Circuit ruled that a lender who had a security interest in a
fabric printing firm was not an owner or operator even though customers of the
firm made payments directly to the lender. U.S. v. Aceto Agriculture Chemicals
Corp. ruled that pesticide manufacturers that hired a pesticide formulation
facility to process their pesticides were liable for clean up costs because they
"arranged for" and "contributed to" handling and disposal of hazardous wastes.
(CA8, 4/25/89).
17-43
Superfund Cost Recoveries
$3.5
In $ Billions
$3.0
$2.5
$2.0
$1.5
$1.0
$0.5
$0.0
1998
1999
Source: Environmental Protection Agency, FY2003 Annual Report.
2000
2001
2002
2003
17-44
Business Proposed
Reforms To Superfund
 Prorate Liability
 Exempt Small
Contributors Of Waste
 Site Cleanup Meet
Health & Safety
Standards
17-45
Suits By
Private Individuals
Citizen Enforcement
 Tort Theories
• Nuisance- Public v. Private
• Other
Trespass
Negligence
• Strict Liability
17-46
Suits By
Private Individuals
 The plaintiff Friends of the Earth sued
defendant incinerator company for
allegedly discharging illegal mercury
discharge into the North Tyger River. Held
by Supreme Court: Friends of the Earth is
an appropriate plaintiff with standing to sue
because it alleged that its members suffered
“injury in fact” by being denied the
recreational and aesthetic values of the
river. Friends of the Earth v. Laidlow
Environmental Services, 528 U.S. 167
17-47
(2000).
Suits By
Private Individuals
 In Gwaltney v. Chesapeake Bay Foundation, Inc. the U.S.
Supreme Court ruled that the citizen enforcement provision
of the Clean Water Act conferred no jurisdiction over
"wholly past violations," but did convey jurisdiction based
on good faith allegations of "continuous" or "intermittent"
violations. 108 S.Ct. 376 (1987). The significance of this case
is that it may reduce (or eliminate) the possibility of a citizen
suit arising from a one-time, past violation of the act.
Already Gwaltney has inspired new litigation interpreting
that case. See, e.g, Public Interest Research Group v. CarterWallace, Inc., 56 LW 2621 (1988).
17-48
Suits By
Private Individuals
 Plaintiffs sued a lead company to recover for damage to their agricultural
property from accumulations of lead particulates and sulfur oxide deposits.
The circuit court rendered judgment for the lead company, and the land
owners appealed to the Alabama Supreme Court. Held: (a) Compliance with
the Alabama Air Pollution Control Act did not protect defendant from
liability for damages caused by pollutants coming from its smelter; (b) the
fact that because of its closeness to the lead plant, plaintiffs' property had a
higher value as commercial property than as residential or farm property did
not bar recovery; (c) if an intrusion interferes with the right to exclusive
possession of property, the law of trespass applies but if the intrusion is to the
interest in use and enjoyment, the law of nuisance applies (i.e., in this case if
there were merely discomfort and annoyance to the plaintiffs, the action
would lie in nuisance, whereas if particles accumulated that caused damage to
the property itself, then trespass would lie. The court pointed out that both
causes of action might be present.) Borland v. Sanders Lead Co., 369 So.2d
523 (1979).
17-49
Ethical Considerations
 Areas of Concern?
• Waste & Pollution
• Use of Natural Resources
• Preservation of Environmentally Sensitive Areas
• Preservation of Biodiversity
 Consider Endangered Species Act, Noah/Ark, Note: Under Jewish
Law: The medieval Jewish commentator Nahmanides explained the
biblical injunction against slaughtering a cow and her calf on the
same day (Leviticus 22:28) and the taking of a bird with her young
(Deuteronomy 22:6). "Scripture will not permit a destructive act that
will cause the extinction of a species, even though it has permitted
the ritual slaughtering of that species (for food). And he who kills
mother and sons in one day, or takes them while they are free to fly
away, is considered as if he destroyed that species." The Sefer Hahinukh offers a similar explanation, stating that there is divine
providence for each species and that God desires them to be
perpetuated.
Sustainability
 Sustainability - the ability to meet
the needs of the present without
compromising the ability of
future generations to meet their
own needs. (see Phil. 2:4)
 Interface Corporation Example
 Polluter’s Dilemma
Faith Perspectives on the
Environment
 Do Christians/Jews/Muslims
have a moral duty to care for the
environment?
Faith Perspectives on the
Environment
• What is the world’s oldest
profession?
Faith Perspectives on the
Environment
 Caretaker
 See Gen. 2:15 (“Dress & Keep”)
• Dress(abad, Heb.) = Work, Serve, Labor for
• Keep (shamar, Heb.) = Keep, Guard, Treasure, Preserve,
Protect, Retain, Save, Watch Over, Celebrate
• Jewish prohibition known as bal tashhit, 'do not destroy' is
based by the Rabbis on the biblical injunction not to
destroy fruit-bearing trees (Deut. 20: 19), but it is extended
by them to include wasting anything that can be used for
the benefit of mankind.
• See also Ezek. 34:18, Anti-pollution scripture?
 Takes into account the moral principle of
stewardship/trusteeship (see Lev. 25:23-24).