U'S' Environmental Law and NGOs

1
U.S. Environmental Law and NGOs

• Amy Albus

2
Legal Standing

• Injury in Fact a personal stake in a controversy
• Causation the injury is traceable to the action
  challenged.
• Redressibility available relief
• Zone of Interests the interest claimed is an
  interest the statute is intended to protect.

3
Storm King Mountain
4
Storm King Mountain

• 1960s - Consolidated Edison (Con Ed) proposed the
  building of a hydroelectric power plant at Storm
  King Mountain to provide electricity for New York
  City region .
• Scenic Hudson Preservation Conference was formed
  to object

5
Storm King Mountain

• Scenic Hudson intervened in the FPC licensing
  proceedings
• March 1965 FPC grants the license, refusing to
  accept Scenic Hudsons arguments about aesthetic
  damage and calling the evidence of harm to the
  fisheries irrelevant
• Scenic Hudson I Court of Appeals holds that
  Scenic Hudson has standing to sue based on harm
  to non-economic interests
• FPC approved the Storm King project for the
  second time and Scenic Hudson sued again
• Scenic Hudson II (1971) holding FPC followed
  the required legal procedures.
• Scenic Hudson III (1974) Scenic Hudson sues
  again fisheries data was grossly incorrect.
  Holding new licensing hearing must be held
• Settlement - The parties came to a negotiated
  agreement in December 1980 (Hudson River Peace
  Treaty). Con Ed gave up its Storm King license
  and donated land there to create a park.

6
U.S. Statutory Law

• NEPA - 1970
• EIS or EA
• APA
• Sets requirements for agency procedures
• Public participation
• Rulemaking and adjudication
• Sets standards for judicial review
• Clean Air Act, Clean Water Act etc

7
Role of the Environmental Protection Agency

• 1. Draft and Enforce Regulations
• 2. Provide Financial Assistance to Non-Profit
  Organizations, State Environmental programs and
  Educational Institutions
• 3. Conduct Environmental Research
• 4. Offer Environmental Education and promote
  voluntary prevention and conservation programs

8
EPA Homepage
9
EPA Main Topics
10
Methods of Regulation

• Quality-Based Controls
• Focus is on maintaining the overall quality of
  the environment
• Difficult to identify the cause of the problem

• Behavior-Based Controls
• Focus is on changing the behavior of particular
  actors
• Disproportional Blame is placed on
  easily-identifiable actors

PROBLEMS

• Cap and Trade Programs

11
Quality Based Example- Clean Water Act -

• Set a Water Quality Standard
• If Water Quality decreases, find out who is to
  blame and prosecute

FACTORY
12
Behavior Based Example

• Prohibition of Certain Behaviors ie Buying Lead
  Tackle

Lead in Fish
Lead Poisoning in People
Lead Fishing Tackle
Use and Sale of Lead Tackle FORBIDDEN
13
Cap-and-Trade Programs

• Set a CAP - Determine the safe amount of
  pollution that can be released into the
  environment. Identify Polluters and divide up the
  allowable amount of pollution among them as
  credits.
• Allow Polluters to TRADE pollution credits
• i.e. if each polluter is given 10 credits and
  Industry A does not need its 10, it can sell them
  to Industry B, which needs more than its 10.
• Monitor environmental quality AND the behavior of
  the Polluters

14
Cap-and-Trade Example

• Problem 5 Factories and 150 parts Acid Rain
• Solution Reduce Sulfur Dioxide Emissions
• Cap Acceptable level of Sulfur Dioxide 100
  parts

40 parts
30 parts
20 parts
20 parts
50 parts
Factory A
Factory C
Factory E
10 parts
10 credits

Factory B
Factory D
15
EPA Compliance and Enforcement

• Civil Enforcement
• Criminal Enforcement
• Alternative Dispute Resolution
• Partnerships and incentives to voluntarily
  improve the quality of the environment

16
Negotiation and Settlement

• Agrum/Royster-Clark
• Manufactures Nitric Acid
• Agram expanded the plant in the 1990s WITHOUT
  obtaining the necessary permit
• EPA sent Notice of Violation citing excess NOx
  emissions
• Settlement requirements
• Payment of a 750,000 fine
• Installation of state-of-the art controls to
  lower NOx emissions

17
Civil Action

• Martex Farms
• Grows and sells tropical fruits and plants
• Failed to
• display specific pesticide application
  information
• provide them with decontamination materials and
• provide handlers with personal protective
  equipment
• Jan 2005 EPA filed complaint alleging violating
  the worker protection provisions of U.S.
  pesticide laws
• Jan 2007 Administrative Law Judge rules in
  EPAs favor
• Ordered to pay 92,620 for the 170 violations of
  worker safety

18
Criminal Action

• Atlantic States Cast Iron Pipe Co.
• Charges
• Repeated discharge of oil into Delaware River
• Concealment of worker injuries from health and
  safety inspectors
• Maintenance of dangerous workplace
• Seven-month long jury trial
• Company four of five individuals were found
  guilty

19
EPA Overwhelmed

• 12 Major Environmental Statutes plus several
  other pieces of legislation
• Including Clean Water Act, Endangered Species
  Act, Clean Air Act, and CERCLA etc
• Multiple Roles
• Research
• Drafting Regulations
• Monitoring Compliance
• Negotiating Clean-up and Litigating
• Educating the Public

20
Pros and Cons of Environmental Public Interest
Litigation

• Pros
• Government Accountability
• Enforcement Assistance
• Cons
• Cost
• Risk of flooding the courts.
• Broad standing for all, including opponents of
  environmental protection.

21
Environmental Public Interest Law Firms

• Env. Defense Fund - 1967
• Citizens seek to ban use of DDT by the Suffolk
  County Mosquito Control Commission
• NRDC -1970
• Partnership between a group of Yale Law School
  students and the Scenic Hudson Preservation
  Conference

22
Assistance from NGOs

• Education Campaigns
• Partnerships for bettering the environment
• Formulation of Policies and Regulations
• Enforcement assistance

23
EIS must include

• Purpose of the proposed action
• Environmental impacts of the proposed action
• Range of alternatives
• Analysis of the affects of the alternatives.
• the relationship between short term uses of the
  environment and maintenance of long-term
  ecological productivity
• required resources and
• cumulative effects of implementing the proposed
  action.

24
EIS Procedure

• Announce Project Plan (1st Notice and Comment
  Period)
• Draft EIS
• 2nd Notice and Comment Period
• Final EIS and Proposed Action
• Record of Decision

25
Concerned Citizens Coalition of Stockton vs. City
of Stockton
City of Stockton
Concerned Citizens Coalition
Operations Management Intl, Inc Thames Water

• City decides that this contract is categorically
  exempt from the (state) requirements for
  preparing an EIS
• Several groups get together to file a lawsuit to
  overturn the water privatization contract
• Judge rules that the city abused its discretion
  in failing to consider the environmental impact
  such a contract may have
• City must reestablish control over the utility
  and do an EIR (EIS) before approving the project

26
Sierra Club vs. Johnson

• April 2006 Sierra Club petitions EPA and the
  Consumer Product Safety Commission (CPSC) to
  regulate use of lead in toy jewelry
• July 2006 EPA denies petition
• September 2006 Sierra Club files suit against
  EPA to compel rulemaking
• December 2006 CPSC votes to invoke a nationwide
  ban on toy jewelry containing more than 0.06
  lead
• January 2007 CPSC publishes notice of the
  regulation

27
(No Transcript)
28
Sierra Club vs. Rumsfeld
DoD fails to respond to lawsuit
Report due
January 2006
May 2006
July 2006
August 2006
September 2006

• Congress enacted DoD Authorization Act
  compelling study of the effect of wind energy on
  military readiness (radar operations)

Sierra Club files suit

• Sept 12 - 36 Representatives send letter to
  President Bush
• Sept 28 - Study released

29
NGOs Partner up

• Governments
• Crow Wing County Recycling Program
• Other Organizations
• Habitat for Humanity and MEI
• Businesses
• Environmental Defense and Fed Ex

30
Fed Ex

• August 2000 - FedEx Express and Environmental
  Defense team up to create fuel-efficient delivery
  trucks.
• May 2003 - FedEx Express agrees to purchase 20
  hybrid electric diesel delivery trucks using
  Eaton's innovative hybrid electric technology.
• March 2004 - The first two vehicles are used in
  Sacramento, CA.
• October 2004 - 10 hybrid delivery trucks
  introduced in New York City 4 in Tampa, FL 2 in
  Washington DC
• 2005 75 additional vehicles to be purchased