The Common Law

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Environmental Law
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Environmental Law Framework

• Common Law
• Nuisance, Negligence, and Strict Liability
• Boomer v. Atlantic Cement
• Are private tort lawsuits a good way to handle
  environmental pollution problems? Why or why
  not?
• Major statutes
• Clean Air Act (1970)(air pollution)
• Clean Water Act (1972)(water pollution)
• Resource Conservation and Recovery Act (RCRA,
  1976))(hazardous waste management).
• Superfund (hazardous waste cleanup)

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Framework, contd

• EPA oversees environmental policy
• Delegates authority to states
• Civil Penalties (CAA, CWA, RCRA)
• Maximum 25,000 per violation
• Each day of violation is a separate violation
• Criminal penalties (CAA, CWA, RCRA)
• Maximum of 50,000 per violation for first
  offense
• Jail
• Citizen enforcement

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Clean Air Act

• NAAQS national ambient air quality standards for
  conventional (I.e., non-toxic) pollutants
• SO2, NOx, ozone, Particulates, and others
• State Implementation Plans (SIPs) the EPA can
  produce its own plan of pollution reduction if a
  states plan is not implemented in a reasonable
  time.
• Whitman v. American Trucking

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Clean Air Act

• Permitting mixture of federal and SIP
  requirements. Permitting limits depend upon
• Whether youre a new source or an existing
  source. New source standards are more stringent
  than existing source standards.
• Whether youre in an area that complies with
  NAAQS or not. Standards in non-attainment areas
  are more stringent.
• Technology-based standards established by
  agency writing the permit but must meet
  EPA-established minimum standards.

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Acid Rain Additional Requirements for Coal-fired
Power Plants

• Caused by rain forming in and falling through
  polluted air. The effects are damaged crops,
  forests and lakes.
• Power plants have four options for meeting
  emissions standards
• (1) installing scrubbers,
• (2) using low-sulfur coal,
• (3) switching to alternative fuels (such as
  natural gas), or
• (4) trading emissions allowances.

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Clean Water Act

• The Clean Water Act passed in 1972 had two main
  goals
• To make all navigable water suitable for swimming
  and fishing by 1983.
• To eliminate the discharge of pollutants into
  navigable water by 1985.
• Established system for requiring permits to
  discharge pollutants from a point source.
• These goals have not yet been met.

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Clean Water Act (contd)

• Industrial Discharges/NPDES permits
• The CWA prohibits any single producer from
  discharging pollution into water without a permit
  from the EPA.
• Federal technology-based effluent standards
  set permit discharge limits by industrial
  category.
• The CWA requires states to set EPA-approved water
  quality-based permitting standards, which may be
  more stringent than technology-based standards.

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Waste Disposal

• Two major statutes regulate solid wastes
• The Resource Conservation and Recovery Act (RCRA)
  focuses on preventing solid waste disasters by
  regulating its production and disposal.
• The Comprehensive Environmental Response,
  Compensation, and Liability Act (also called the
  Superfund), focuses on cleaning up existing
  hazardous waste sites.

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Resource Conservation and Recovery Act

• RCRA establishes rules for treating both
  hazardous wastes and other forms of solid waste
  (such as ordinary garbage).
• The RCRA sets standards for new and existing
  landfills.
• cradle to grave monitoring of hazardous wastes

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Resource Conservation and Recovery Act

• Regulation of treatment, storage and disposal
  facilities (TSDs) is cumbersome and expensive
• Easy to become a TSD
• Treatment almost any change in substance
• Storage keeping wastes for gt 90 days

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CERCLA / The Superfund

• National Priorities List
• Potentially responsible parties (PRPs) Under
  CERCLA, the current owner or operator of a site
  on which hazardous wastes are found, the
  owner/operator at the time of disposal, or one
  who has transported wastes to the site, or who
  has arranged for the disposal of wastes that were
  released at the site, is liable for
• (1) the cost of cleaning up the site,
• (2) any damage done to natural resources, and
• (3) any required health assessments.

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CERCLA / The Superfund

• PRPs liability is
• Strict
• Joint and several, and
• Retroactive
• Allocating reponsibility
• Average cleanup cost approximately 35 million
• Average time elapsed from listing of site to
  cleanup 11 years

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• Hypothetical city landfill, inactive since
  1967, is leaking and is a Superfund site. PRPs
  include
• City (owner at the time of disposal)
• Smith Manufacturing (current owner / donee 1969)
• IBM and Corner Cleaners (generators, toxic
  chemicals in small amts)
• DuPont and Mom Pop Brake Repair (generator,
  non-toxics, large amts)
• Who should pay? If you were EPA, who would you
  go after?

What if Mom Pop were a wholly-owned
subsidiary of Exxon?
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U.S. v. Bestfoods (1998) 1957 Ott Chemical Co.
began manufacturing chemicals at plant 1965 CPC
International Inc. incorporated a wholly owned
subsidiary to buy Otts assets in exchange for
CPC stock 1972 CPC sold Ott to another
company. 1981 CPC and Ott named PRPs (among
many others)
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U.S. v. Bestfoods (1998) Is CPC an owner under
Superfund? An operator by virtue of its
ownership of Ott? Doesnt CPC manage Ott for
CPCs benefit? CPC shares directors and officers
with Ott for that purpose. Isnt that enough to
trigger operator liability?
Must CPC have managed the activities that caused
the release in order to trigger operator
liability? May CPC monitor those activities
without triggering liability?
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The "Gore factors" (1) the amount of hazardous
substances involved (2) the degree of toxicity
of the substances (3) the degree of involvement
by parties in the generation, transportation,
treatment, storage, or disposal of the
substances (4) the degree of care exercised by
the parties with respect to the substances and
(5) the degree of cooperation of the parties with
government officials to prevent any harm to
public health or the environment.
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Constitutional Limitations

• The Takings Clause
• 5th amendment
• Regulatory takings

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What is a taking for constitutional purposes?
5th Amendment Nor shall private property be
taken for public use without just
compensation. What is a physical taking? A
regulatory taking?

• Pa. Coal v. Mahon (1922)
• government could hardly go on if compensation
  were required for every diminution of property
  value caused by regulation
• if regulation goes too far it will be recognized
  as a taking

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In most regulatory takings cases, what sort of
analysis determines whether compensation is due?

• Penn Central v. City of NY (1978)
• No set formula is ad hoc, factual inquiry
• Economic impact on claimant
• Interference with distinct investment backed
  expectations
• Character of governmental action
• Legitimacy of public purpose

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Exactions Dolan v. City of Tigard (1994)
GOVT GOAL Drainage / impervious
surfaces Traffic congestion / parking
PERMIT CONDITION Dedicated public greenway Bike
path
Is there an essential nexus between these
conditions and the goals they are designed to
further? Are the conditions constitutional? If
not, why not?
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Lucas-type categorical takings Lucas v.
S.C.Coastal Council (1992)
1986 Lucas purchased lots for 975,000 to
develop high-end resort homes 1988 SC statute
prohibited construction on lots Trial court
determined that land now valueless (but had
nominal value) How did the court analyze this
problem? Did it use the Penn Central analysis?
If regulation leaves no economically beneficial
use of the property, then is a taking requiring
compensation. Was the land literally valueless?
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All takings cases (Penn Central type)
Lucas-type categorical takings
Exactions cases
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International Law -- TBA