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Environmental Law
Rutgers University, Newark School of Law
Gold, Steve C.

ENVIRONMENTAL REGULATION VIEWS: (1) anthropocentric: human-centered, all environmental regulation ultimately about human beings and values, (2) biocentric: life-centered, (3) ecocentric: ecosystem-centered, (4) geocentric: earth-centered; (2) to (4) see value in protecting environment for itself.
CL CHALLENGES: (1) CC power to enact federal statutes regulating interstate commerce, (2) 10A federal cannot force states to participate in cooperative federalism, (3) 11A SC recent interpretations make it increasingly difficult for federal courts to entertain suits by members of public against states that have violated environmental laws, (4) SOP.

STATE PROTECTION: (1) local values & priorities (jurisdictions value goods differently; i.e. employment over clean      air), (2) tailor to local conditions (allow states to tailor approach to environmental protection based on what works and on unique circumstances (geography, politics, demographics); state legislatures may be better equipped than federal at      tailoring), (3) laboratories (encourage experimentation at state level, potentially enabling more flexible, cutting-edge      solutions to environmental problems that may not be feasibly applied at federal level).

FEDERAL PROTECTION: (1) regulation expensive for states to implement (expensive to gather/process scientific data;     cheaper/easier to centralize collection, dissemination, application), (2) compliance often expensive and burdensome for     regulated entities, (3) environmental degradation is legitimately national problem involving national PW.

PROBLEMS: (1) race to the bottom: states refuse to enact excessive environmental requirements for fear of losing         job/income-providing companies, (2) tragedy of the commons: unregulated, unchecked use of common environment            leads to degradation; in absence of regulation or controlling mechanisms each individual seeks to maximize own gain        from commons, leading users to overwhelm system and destroy commons, (3) free-access: if property commonly           held and people weigh private benefits against private costs, will overexploit common resources when given free             access, (4) public goods problem: problem for free market due to free-riding (individual undertakes effort but benefits            even those who refuse to help) and transactions costs (costs of undertaking legal action; particularly high because of            public nature of injury), (5) uniformity: some issues so significant/widespread, must be regulated consistently across            states boundaries, particularly true when political boundaries not respected (i.e. AP, ETS).
FEDERAL STATUTES: fundamentals (1) statutory trigger, (2) basic definitions via agency interpretations, legal borrowing, legislative history, (3) major exceptions and exemptions, (4) major requirements, prohibitions, liabilities; implementation (1) rulemaking to promulgate administrative regulations with force of law, (2) investigation and record-keeping by which federal agency oversees persons/industries regulated under statute, (3) enforcement (power to adjudicate violations of law within agency, impose administrative penalties on violators, refer cases to DOJ for civil/criminal prosecution in court).

MADISON v. DUCKTOWN (1904) TN company near GA border ran copper-smelting operation, burnt open-air piles of ore, produced      harmful sulfur smoke. • CBA favored Ducktown ($2M copper-smelting operation versus $1K affected farmland; copper is desirable      product; factory produces jobs, so shutting it down may inflict more harm than good); private nuisance action. P CL tends to be      reactive instead of proactive, making technology-forcing difficult, suggests legislature should be involved.

INTL PAPER v. OUELLETTE (1987) IPC dumped paper waste into NY/VT lake, VT lakeside residents brought private nuisance      action; IPC remove to federal court, move to dismiss on grounds of preemption. • Sources subject to only one standard of regulation      (that of own state), so VT nuisance law preempted but NY law not; CWA allows states to regulate more stringently than federal      minimum but does not permit sources to be subject to multiple/different regulatory standards.

ADMINISTRATIVE AGENCIES: (1) substantive environmental rulemaking technical, requires scientific expertise judges and legislators generally do not have, (2) more heavily-insulated from political process than legislatures, not as politically responsive to local conditions/concerns, allow focus on environment even when mission politically unpopular, (3) not outwardly political but still run according to considerations of political expediency (many agency heads politically appointed; agencies depend on political parties for info and budgetary allotments).

ECONOMICS: traditional approach to monetize, weigh PHWE benefits against economic costs on common scale, modern approach recognizes inherent risks of environmental regulations (i.e. equally harmful alternatives); values: (1) direct use (goods; easy to value in USD since sold on open market), (2) indirect use (environmental processes that support direct uses; recreation: use of environment (i.e. photography, hiking)), (3) non-use (spiritual, aesthetic; existence: value attached to just knowing something exists, regardless of whether person actually plans to visit/use facets of environment)
RISK ASSESSMENT: process of IDing and quantifying risks, calculating risk individual will experience some sort of harm based on population’s exposure to cause of harm: (1) hazard identification: what may be of concern, what problems might it cause, (2) exposure assessment: estimate how much people/wildlife are exposed to, how many are exposed, (3) dose-response relationship: describe effects from exposure to given amount over given period (linear if negative effects get steadily worse with more concentrated and/or longer exposure; non-linear if small amounts cause no apparent problems until threshold exposure reached, with dramatic negative effects), (4) risk characterization: present standardized, comparable measurement of risk added as result of exposure.
PAYMENT SOURCES: (1) polluter pays externalities/damages caused by its pollution, ensuring costs of production reflect costs of environmental damage; if carried through to all factors of production, result would be efficient allocation of resources, (2) beneficiary pays by attracting non-beneficiary sources to participate since former cannot compel latter to comply, (3) Coase Theorem: each principle, were bargaining costless, would lead to efficient allocation of resources since would eliminate undesirable externality aspects of the situation (does not consider: unequal bargaining power, irrational actors, intrinsic values, knowledge gaps, distributive effects).

ADMINISTRATIVE PROCEDURE ACT (APA)

GENERAL: if no procedures in environmental statute, agency uses default procedures of federal APA; applies to each authority of USG, whether or not within or subject to review by another agency; exempts several federal authorities from provisions (Congress, federal courts, military authority in wartime), not explicitly exempt President (SC made exemption determination); provides public with several provisions for acquiring info about and from federal government.

PROCESS: (1) rulemaking where agencies write regulations of general applicability and future effect (rules to guide many regulated entities in shaping future behavior to comply with federal statute; include procedural rules to govern own internal procedures, interpretive rules to suggest how to interpret ambiguous provisions, policy statements/guidance documents to inform general public how agency intends to apply statute/regulations to various behavior/activities), (2) adjudicationprocedures determine how statute involved applies to individual persons/businesses based on particular facts, ends with agency issuing administrative order of some kind, (3) judicial review gives public access to federal courts to challenge agency actions (P must suffer legal wrong or be adversely affected by agency action within meaning of relevant statute, must seek relief other than monetary damages).

INFORMAL RULEMAKING: (1) advance notice of proposed rulemaking (optional), (2) notice of proposed rulemaking     (§553(b)), (3) comment (§553(c)), (4) rule, (5) effective, (6) implementation, enforcement.

JUDICIAL REVIEW: limitation on agency actions; sources: USC, statutes, §701 to 706; who: §702 (legally wronged,     adversely affected/aggrieved), what: §704 (final agency action, reviewable by statute), when: other substantive statute,     where: §703 (court of competent jurist), why: §706 (A/C, abuse of discretion, contrary to law).

APPLICATION: (1) does statute agency is implementing specify procedures for agency to follow, (2) if yes, agency must follow those procedures; if no, APA procedures apply (rulemaking usually informal (notice/comment), adjudication usually formal (trial-like)). P APA Judicial Review provisions apply to all (even agency’s own procedures).

NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)

BASICS: imposes procedural (not substantive) requirements on USG and federal agencies (not individuals); established Council on Environmental Quality (CEQ) to write regulations on proper interpretation/implementation; no citizen suit provision, so interested citizens must use APA to challenge federal agency’s compliance with NEPA; agency to allow public comment and review during entire NEPA process.

PROCESS: Notice (§1505.6) > Scoping (§1501.7) > DEIS (§1502.9(a)) – Agency Comments (§1502.25) >> Public Review & Comment (§1503.1) > FEIS (§1502.9(b)) – SEIS (§1502.9(c)) >> ROD (§1505.2) > FAA > Implementation

IMPLEMENTATION: (1) has agency categorically excluded this type of action, (2) if yes, EIS not required unless unusual circumstances; if no, does this type of action normally require EIS, (3) if yes, EIS probably required, although agency may still first prepare EA; if no, agency will prepare EA, (4) according to EA, is this a major federal action that will significantly affect quality of human environment, (5) if yes, EIS requir

(1) clarify/promote consistent practices for use of CatEx, (2) provide EA guidance, especially for minimum statutory/regulatory requirements for short EA, (3) develop methods to engage federal/state/local/tribal partners and public in NEPA process (training, Citizens Guide), (4) provide guidance on programmatic analyses and tiering, (5) integrated NEPA process with environmental management systems.

CALVERT CLIFFS v. US ATOMIC ENERGY COMMN (COADC 1971) Calvert is local environmental group, argued AEC regulations violated NEPA since did not require independent assessment of EI. • Incompliant with NEPA since only considered EIS conclusions if parties raised specific challenge during license process, treated EIS more as mere paperwork. P NEPA has judicially enforceable duties (individuals can use NEPA for judiciary to tell executive what to do). P §102(2)(C) requires all federal agencies to consider NEPA to fullest extent possible, thus must consider environmental issues at every important stage of decision-making process. PNEPA procedural provisions require strict standard of compliance. PNEPA substantive policy flexible, discretionary, only reversed if A/C.

VT YANKEE NUCLEAR POWER v. NRDC (1978) AEC licensing VT NPP, prepared EIS, considered other energy-generating PP as alternatives but found NPP most environmentally-friendly. NRDC sued to prevent licensing, argued insufficient since failed to consider energy conservation as alternative. • EIS met NEPA; AEC should have brought conservation info earlier. PAgency need only consider some alternatives to meet NEPA. PPursuant to APA, within discretion of agency how to interpret NEPA. PSOA bounded by feasibility; based on how well-understood existing alternatives are at time of EIS.

STRYCKER’S BAY NEIGHB COUN v. NYC (1980) HUD project to build low-income housing in UWS, considered relevant factors and alternatives, found relocating project would result in unacceptable delay. • Assessment acceptable since HUD considered EI. P Once agency renders decision pursuant to NEPA procedural requirements, court’s only role to insure agency considered environmental consequences. PNo specific rules on how agency should weigh factors influencing their decision.

METCALF v. DALEY (COA9 2000) IWC banned whale taking (aboriginal subsistence exception); US designated as ES, removed from list, informed IWC of Makah subsistence interest, intended to submit future formal proposal requesting 5 whale quota, formal agreement between NOAA and Makah subject to adequate statement of need, quota ultimately approved. • Though US prepared EA, did so after signing two binding agreements; thus, prepared too late, failed to take ‘hard look’ at EI of actions. P EA must be prepared early enough to serve practically as important contribution to decision-making process. PNEPA does not require agency officials be subjectively impartial, only that projects be objectively evaluated. PAgency to prepare NEPA documents before any irreversible/irretrievable commitment of resources.

MAYAGUEZANOS v. US (COA1 1999): Freighter with high-level nuclear waste passed PR/Hispaniola. • No MFA since US has not exercised potential power over EEZ regarding nuclear waste transport; no requirement US regulate NW shipments through EEZ nor immediately evident it would even have such authority if so chose. PGenerally not NEPA MFA: (1) governmental action where failure to act not otherwise subject to review under APA or other laws, (2) federal approval of private party action where approval not required for party to go forward.

HANLY (COA2 1972) GSA proposed construction of two buildings (offices, jail) in Manhattan; COA instructed GSA to consider jail EI; GSA EA concluded no significant EI. PNEPA must be construed to include protection of quality of life for city residents (noise, traffic, crime, congestion). P Proposal agency is party authorized to make threshold determination whether action significantly affects quality of HE. PTwo-Factor ‘Significantly’ Test: (1) extent to which MFA will cause adverse EE in excess of those created by existing uses