Select Page

Environmental Law
University of Toledo School of Law
Kilbert, Kenneth

Kilbert Environmental Fall 2011

1) CL Remedies

a) Private Actor- need special injury- harm suffered not shared w/gen. public.


i) Significant interference w/public health or safety,

ii) Illegal, or

iii) Continuing in nature or has lasting, significant effect.

c) Private Nuisance: private party seeks relief b/c interference w/land use & enjoyment

i) Significant harm,

ii) Intent AND

iii) Unreasonable

iv) RELIEF: injunctions or damages

(1) Injunction- BALANCING TEST àBalance hardship on company WITH harms of private owner

(2) Conditional Injunction:

(a) Grant injunction, but lift if co. pays damages to injured

(b) Reasonable time to comply

d) Public Nuisance:

i) Elements:

(1) Private party or gov’t seeks relief

(2) For unreasonable interferences

(3) W/right common to public (e.g., public land, health/safety).

ii) Must prove they are cause & source.

iii) Not going to balance interests of one sovereign against another.

e) Trespass:

i) Physical invasion of P’s property.

ii) Don’t need significant harm

iii) Available in air pollution, but generally requires some physical manifestations.

f) Impact of Regulatory Legislation on CL Actions:

i) Federal CL nuisance action preempted by CWA & CAA


(1) Express- by federal statute

(2) Implied-

(a) If fed statute occupies field, or

(b) If state law conflicts w/fed statute.

g) Standing to sue to enforce environmental regulations:

i) Individual must make 3 showings:

(1) Injury in fact- Concrete, actual, & imminent injury. Not generalized grievance.

(2) Causation- Must be fairly traceable to D’s actions.

(3) Redressability- injury must be likely to be redressed by favorable decision.

ii) Organizations must show:

(1) A member must meet individual elements

(2) Relief germane to organization’s purpose

(3) Participation of member not required.

iii) MA v. EPA à States entitled to SPECIAL SOLICITUDE in standing analysis.

h) Federal-State Regulations:

i) Provide financial

ii) Cooperative Federalism

iii) Preemption-

iv) 10th – CC doesn’t allow fed to force states to regulate on their behalf of w/o giving alt.

i) Commerce Clause- CC Still effective under environmental regulations

i) Lopez- can regulate: 1) channels, 2) activities threatening instrumentalities of commerce, & 3) activities substantially related to interstate commerce.

j) Regulatory Options:

i) Think in context of 3 components:


(2) BASIS for CONTROLS- Health, technology, or balanced

(3) TYPES of regulation?

ii) “Sheen test” to determine harmful quantity of oil spills.

(1) CWA § 311- prohibited discharges of oil that “may be harmful”

(2) EPA is allowed to create inquiry which avoids elaborate inquiries.

2) The Regulatory Process:

a) Agency Actions Per Administrative Procedure Act (APA):

i) Rulemaking:

(1) Process of issuing rules (aka regulations)

(a) Give public notice in Fed Register of proposed rulemaking actions.

(b) Provide opportunity for public comments, AND

(c) Publication of final rules in Fed Register w/statement of basis & purpose.

(2) Quasi-legislative

ii) Adjudication:

(1) Other final decisions (orders, permits)

(2) Quasi-judicial

(3) Typically for EPA, Admin. Law Judge (ALJ) then Environ. Appeals Board (EAB)

b) Reforming rulemaking-

i) Negotiated rulemaking: parties w/interest in rule negotiate rules.

(1) Criteria for Success:

(a) Power to affect decision & incentive to bargain,

(b) Small # of parties,

(c) Ready for decision & firm deadline,

(d) Potential benefit to all parties,

(e) Issue not fundamental value conflict b/w parties,

(f) > 1 issue involved, and

(g) Agency should commit to propose product of negotiations.

ii) Interim stds. based on reduced info. thresholds.

iii) Guidance Documents: don’t have to go through notice & comment

iv) Reinventing Regulations: allow exception or waivers if D exceeds some other area

c) Presidential Oversight of Rulemaking:

i) Intra-executive contacts may take place during & after public comment period

ii) Cannot tell agency to cut regs. w/o comment or explanations if unsupported by record

d) Judicial Review:

i) Scope of Review: Generally limited to ADMINISTRATIVE RECORD.

ii) Std of Review: Generally DEFERENTIAL to EPA

(1) Arbitrary & capricious

(a) Give “hard look” into decisions

(i) Must be so unreasonable as to be arbitrary

(ii) No rational connection b/w facts & decision

(b) Interpretations such as those in policy statements, agency manuals, & enforcement guidelines, all of which lack force of law. Cogent admin. interpretations not the products of formal rulemaking still warrant respect.


(a) Is statute clear and unambiguous?

(b) If so, is agency’s interpretation of statute reasonable AND permissible?

(i) Defer

ructural support. à storage does NOT make facility TSD

(6) Surface Impoundment- natural depression, man-made excavation or diked area formed primarily of earthen materials (may line w/man-made materials), designed to hold accumulation of liquid wastes (pits, ponds, & lagoons). à triggers TSD

(a) Weddle Memo Test- evaluate basin as if it were out of ground & filled to capacity, would storage device hold up?

(7) Hazardous & Solid Waste Amendments (1984)

(a) Deadlines for Part B permit apps & interim status compliance certification

(b) Corrective Action: see below

(c) Land bans: Ban to phase in & prohibit disposal of HW in land fills

b) Key SUB-chapters of RCRA:

i) Subchapter C – Hazardous waste – ID, cradle to grave

ii) Subchapter D – Non-hazardous solid waste – requires EPA to establish guidelines for state solid waste management plans, classify facilities.

iii) Subchapter I – Underground Storage Tanks (USTs)

(1) Petroleum regulated (not technically HW, but still controlled)

(2) Notify EPA & EPA issues stds. to meet in order to continue using tanks.

c) WASTES: cradle to grave tracking system of these wastes

i) Hazardous Waste Classification:

(1) Hazardous Waste: §1004(5) subset of solid which b/c of quantity, concentration, or characteristics may pose a substantial threat to public health

(2) Characteristic – exhibits ANY ONE of those 4 – it is hazardous

(a) Ignitable – catches on fire

(b) Corrosive – real acidic or real base

(c) Reactive- explosive

(d) Toxic (Toxic Characteristic Leaching Procedure [TCLP] test )

(3) Listed – if it is listed % described – might not hurt you at all but its listed

(a) “F” non-specific wastes (from any industry)

(b) “K” industry-specific wastes

(c) “P” and “U” discarded chemicals wastes

(4) Mixture Rule: any mixture of listed HW w/another solid waste is itself HW.

(5) Derived From Rule: wastes derived from T, S, or D of a listed waste is HW.

(a) Ex. listed waste & TSD burns it, ash = listed HW– it was derived from