Environmental Regulation of Business Outline

                                                                   I.            Environmental Regulation of Business
                                                                                                                                II.            Profs. Miano & Wise
                                                                                                                                                    III.            Spring 2010
 IV.            Introduction to Environmental Law
·         What environmental lawyers do
o    Compliance counseling
o    Respond to agency inspections
o    Rulemaking
o    Lobbying
o    Litigation
o    Permitting
·         Environmental law
o    Laws have a basis in either:
§ Protection of environment
§ Protection of human health
o    Endangered Species Act (ESA) – Protects endangered/threatened species
o    Clean Air Act – limits discharges into the air
§ Probably the most complicated environmental statute
o    Unintended consequences – water regulation: let’s burn it instead! -> air emissions-> air regulation -> scrubbing, then dumping the crud -> waste problem
o    OSHA – regulates work exposures
o    Substance-specific regulations –
§ e.g. RCRA – cradle to grave regulation of hazardous waste from “point of generation”
§ Toxic Substances Control Act (ToSCA)
·         Requires registration + notification to manufacture/use certain chemicals
·         e.g. PCB – chemical with incredible insulation policies; asbestos
§ Federal Pesticide, Fungicide, Rodenticide thingy Act
o    Superfund – retroactive liability: the person who made the mess when it was legal is now responsible for cleaning it up
§ Joint and several liability
o    Emergency Planning and Community Right to Know Act
§ If you use/dispose of certain types of chemicals in certain amounts, it must be reported to the federal government
§ Precipitated by Bhopal disaster in India
·         Agencies:
o    EPA
o    State DEPs/EPAs
o    Bureau of Land Management (Interior)
o    Department of Fish and Wildlife (Interior)
o    Agencies put out guidance on interpetation of statute or how they will implement it
·         Statutory interpretation: 3 methods:
o    Intentionalism
o    Textualism
o    Purpose
·         BedRoc Limited, LLC v. United States
o    Government gave away land grants (1919 Pittman Act), retained rights to “valuable minerals”
o    Dude sold sand/gravel from his land, US claimed these were valuable minerals
o    Court looked at statutory language – sand/gravel is a mineral, but not valuable
o    So dude wins
o    Dissent: language is not clear, so intent and policy should be examined
·         Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.
o    Clean Air Act: EPA used “bubble” to regulate factories with multiple buildings instead of regulating each mini-source
o    This case is important for the analysis
o    Is statutory language clear? If so, you’re done
o    If language is not clear or leaves room for agency to improvise, then a different analysis applies:
                                       i.            Is agency’s interpretation a permissible construction of the statute?
                                     ii.            Was it abitrary and capricious or manifestly contrary to statutory language?
                                    iii.            Court gives deference to the agency’s interpretation because the agency, like Congress, is part of a political branch
   ·            NEPA – National Environmental Policy Act
o    Signed in 1970 by Tricky Dick
o    Short act, huge impact
o    4332 – operative provision
·         All agencies of federal gov’t shall… basically, any time an agency takes a major action (including recommendations, policies, etc.) that significantly affects quality of human environment,
·         Agency must undertake detailed analysis and provide environmental impact statement (EIS) (inc. adverse effects and alternatives)
o    Teleco Dam case – huge dam proposed, NEPA kicked in because federal government was permitting it. Tiny endangered fish found.
o    Can also be triggered by federal funding
o    Calbert Cliffs case – NEPA is a procedural, not substantive law
o    First step: EA (environmental assessment) – preliminary study when something is a major federal action, determines whether it will ave significant environmental impact
·         FOSI – finding of no significant impact – lawsuits often happen after this
o    ROD (record of decision)
o    Then EIS
o    Then public comment period (moratorium)
Delegation – when the federal government delegates responsibility for enforcement to the states and local agencies
State must have its own legally enforceable program
Cannot be conflicting provisions in state law
Must be state enforcement program up to snuff
Result?
State becomes primary enforcer. If state sucks, EPA can step back in
Overfiling – EPA can file case on top of the state’s
States get federal money
    V.            Clean Water Act
·         REFUSE Act – 1899 – meant to protect navigability
·         1948 – changed focus from navigation to water quality
·         1972 – existing laws strengthened and renamed Clean Water Act, strengthened again in 1987
o    Imposes limits on discharges into “waters”