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Environmental Law
University of Illinois School of Law
Rowell, Kristen Arden

Arden Rowell for Environmental Law in Spring 2014

Class Notes

Tuesday, January 21, 2014

8:50 AM

Monday, 27 Jan 2014

recap: class 1

· environmental law – relationship w/ science & policy

· types of environmental problems

o pollution

o overuse of natural resources

o ecosystem degradation

· Lazarus: distinctive characteristics of environmental injury

o irreversible/continuing

o physically distant

o temporally distinct

o uncertainty/risk

o multiple causes

o noneconomic/nonhuman character

o geographically broad

Tuesday, 3 Feb 2014

· environmental § summary: Feb 24th (can turn in an updated version on the 1st) or April 1st

o digital submission

· admin law’s role in environmental law key questions

o understand cultural & environmental changes that led to a shift from CL → admin law

· policy implications

§ difficulty in finding appropriate remedies

§ challenges in court handling difficult causation questions (no specialized courts)

§ complexities in multiple claims in multiple jurisdictions

§ handling harm after the fact

§ often harms were uncertain and latent

· string of disasters

§ smog disasters

o review/build basic admin law toolkit

· what is admin law?

§ law governing org &functioning of admin agencies + law governing relationship b/t agencies & the branches of gov’t

· agencies = units of gov’t created by §s

· Congress empowers agencies

· Executive controls agencies

· Judiciary reviews quasi-legislative rulemaking, executive enforcing, & quasi-judicial adjudicating

o understand the basic structure behind how courts review agency decision-making

Tuesday, 4 Feb 2014

· Overton Park

o when will a court review agency action

· APA § 701: almost always but unless…

o how a court reviews agency procedure

· APA § 706: arbitrary & capricious review = procedural review (documented & through), as opposed to a substantive analysis

o how a court reviews the substance of agency decisions

· Chevron Doctrine

Monday, 10 Feb 2014

· teaching assistant: Carolina Van Moorsel

o carolina.vanmoorsel@gmail.com

· AEP v. Connecticut

o no fed CL claim against greenhouse gas emissions due to congressional/EPA preemption

o possibly a state CL claim may exist

· should there be a public nuisance tort for GHG emissions

o

yes

no

internalization of cost

inconsistency of diff decisions

supplement for enforcement & agency decision making

generalized harms deserve legislative process

quicker

injunctive relief inconsistent w/ compensation theory

redress form

agencies have specialized K

maintaining institutional functions

maintaining institutional functions

Tuesday, 11 Feb 2014

· where do pure CL regimes struggle?

o air pollution: smog disasters

o toxics: pesticide & human health

o water & industry: river fires & oil spills

o waste storage: (Love Canal)

· orientation to admin law

o relationships of the 3 diff branches & agencies

o key APA provisions: 701 (availability of judicial review) & 706(2)(A) (arbitrary & capricious review)

o how do courts review agency §ory interpretation: 2-step Chevron standard (Bubble standard for source under the CAA)

· given admin solutions, what is left for CL?

o Hurd v. Johnston debate

o no fed CL tort for GHG

· understanding §ory goals

o land ethics

Monday, 17 Feb 2014

· how stringent should environmental standards be?

o effects-based standards

· identifying a desired effect & describing them as the objective

o technology-based standards

· identify a tech that will serve the goal & requiring/prohibiting the tech

o cost-benefit standards

· comparing costs & benefits to see what level of stringency i

k management

§ regulators make decisions about whether and how much to reduce a risk

Tuesday, 25 Feb 2014

· NSPS

o key elements

· tech chosen must be the best system of emission reduction

· costs must be taken into account

· tech chosen must have been adequately demonstrated

Monday, 3 Mar 2014

· feasibility as a principle; tech v. economic concerns

· applying economic feasibility principles

o understand the relationship b/t §ory language, role of cost in the analysis, and tech required

o common themes in tech-based regimes

· 2 step process of analyzing feasibility constraints:

o technical/technological/feasibility

· is this reduction possible? (or will it be possible, under tech forcing §s)

o economic feasibility

· will this lead to widespread plant shutdowns?

· tech-based standards: common structures

o new v. existing tech

o new v. existing sources

o clean v. dirty areas

o progression of increasingly stringent requirement

o more stringent requirements for “hazardous” substances

· tech-based standards: common issues

o def of categories using tech

o achievability w/in categories

o current availability v. future availability

o role of cost

Tuesday, 4 Mar 2014

· cost-benefit approaches

o some thoughts about math

o overview of CBA & its discounting

o reading §s for cost-benefit language

· TSCA

o judicial review of agency CBAs: corrosion proof fittings

· reasons agencies use CBA

o statutory mandates

o executive orders

o from a policy perspective, can give them a principle for deciding how much to regulate