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Environmental Law
University of Wyoming School of Law
Kalen, Sam

Environmental Law – Kalen – Spring 2012
 
For Exam:
·         What is the trigger? (e.g. – major federal action that significantly affects the human environment)
o   Does the statute apply here? (has the trigger occurred?)
§  What are the relevant definitions?
§  What are the relevant exclusions?
o   NO – does NOT apply; OR
o   YES – does apply
§  What does the act require or prohibit
§  What happens if the statute is violated
 
Different Approaches:
·         Common Law: A liability regime, with possibility of injunctive relief
·         Statutory Liability: A liability regime (criminal, civil) with possibility for injunctive relief
·         Prohibitions
·         Controls on Emissions
o   Setting concentration levels
o   Setting levels based on ambient standards
o   Setting levels based on technology
 
Tragedy of the commons:
·         Main thrust is population control
·         Individual self-interest does not work when we have commons (avoid over-exploitation)
·         Privatization: the owner has both the costs and the benefits
·         Regulation: outside agency force appropriate behavior
·         Collective behavior theory and self-interest: might work for small groups with common interest
·         Prisoner’s dilemma – each person acts to maximize their own self-interest (not the interest of the group)
 
How we stop/limit
·         Health based standards
o   Science/risk assessment/ cost&benefit
·         Technology based standards
o   Not mandating technology, but finding the best technology and holding everyone else to the same pollution reduction/limit/standard
·         Technology forcing standards
o   Not looking at existing technologies, but what a regulatory agency decides could be produced
 
Key element of environmental law – UNCERTAINTY
·         All of our programs deal with risk and uncertainty
 
Common law actions to protect the environment
·         Can common law courts effectively address env problems?
o   General principle of the use of property
 
Common law remedies:
·         Opitons:
o   No legal remedy
o   Compensated injunction
o   Damages under a liability rule
o   Injunctions
Types of common law actions
·         Strict liability (not going to see this because would shut down too many industries):
o   Inherently dangerous activities
o   Abnormally dangerous conduct
·         Negligence
o   Breach
o   Of a legal duty (how do we know if a legal duty was owed?)
o   That causes (actually and proximately)
o   Damages
·         Trespass (intereference with exclusive possession)
o   Intentional
o   Physical invasion
o   Of someone else’s real property
·         Nuisance
o   Unreasonable interference with someone else’s use of enjoyment of his/her real property
o   PRIVATE or PUBLIC
§  Public=offenses against the State (a group of individuals affected, community affected, and brought by gov’t or private parties with special harm)
 
Limitations on private nuisance as envt’l law
OR. Dept. of Envt’l Q v. Chemical Waste Storage
·         OR passes stricter envt’l laws re: hazardous waste disposal. The corporation that was disposing of the waste decided it would be too expensive to continue and dissolved, leaving a shell corp.
·         Was NOT a nuisance or trespass (P’s had burden here and could not overcome)
o   Too far away from any humans for smell/toxins to affect anyone
·         P have to wait for harm to occur before could prove claim
·         Court then gets to balance harms
 
Boomer v. Atlantic Cement
·         Cement company employs the best technology available to control dust emissions. Was also the biggest cement factory in the U.S. and provided many jobs.
·         No question that the P’s were harmed and the harm was caused by the cement factory
·         Court holds that the cement factory must pay off the P’s or be shut down
o   BUT, no consideration of the environment in general. Only concerned with the immediate area
o   Company could purchase the right to pollute
 
Johnson v. Paynesville Farmers
·         Trespass – Odors & particulate matter (now easier to go after odors and particulate matters)
o   Trespass only requires proof of interference w/ use and enjoyment
§  Looking as a viable cause of action in the future
·         Attny’s allege violations of statutes and add common law claims
·         Adjacent farmers’ pesticides drifted onto the crops of organic farmers (who cant use pesticides)
 
Class actions
·         Common law cases from fracing operations, hog farms, and coal fired power plants
 
 
RCRA
Trigger 1: Is there “sold waste”? – If yes, go to trigger #2; if no, RCRA does not apply
Trigger 2: Is the waste hazardous waste?
·         No, then Subtitle D
·         Yes, then Subtitle C
Relevant Definitions:
·         Solid Waste (any discarded material that has not been excluded by regulation or variance)
o   Any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities
o   Does not have to be solid
o   Does not have to be waste (only has to be discarded material):
§  Abandoned; recycled; considered inherently waste like; a military munitions
·         Abandoned if: (1) disposed of; (2) burned or incinerated; (3) accumulated, stored, or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned, or incinerated.
Relevant Exclusions:
·         Wastes that other statutes (notably the Clean Water Act) already regulated
 
No Spray Coalition v. City of NY
·         A material is not discarded until after it has served its intended purpose
·         West Nile pesticide mosquito spray is not being “discarded” when sprayed into the air with the design of effecting their intended purpose: reaching and killing mosquitoes and their larvae
 
Water Keeper Alliance v. U.S. DOD
·         Issue: whether as soon as ordinance is fired and makes contact w/ land it is “discarded material?”
·         G/R – Munitions NOT considered discarded material immediately upon being fired for RCRA purposes
o   Even munitions that were not exploded are used to measure accuracy
·         Holding: Munitions must accumulate for an unspecified amount of time before they can be considered discarded material and thus solid waste
 
American Mining Congress v. U.S. EPA – RECYCLING
·         G/R – recycled materials are solid wastes subject to RCRA
·         Meaning of “other discarded material” in RCRA. EPA promulgates “Closed loop” exception to recycling solid wastes. Ps argue the EPA only has authority to regulate materials that are discarded or intended for discard (here, Ps argue nothing has been discarded). Petroleum and mining industry believe they use closed loop methods which are currently being regulated by the EPA as solid wastes
·         Issue – meaning of “discarded”
o   Materials no longer useful in their original capacity though destined for immediate reuse in another phase of the industry’s ongoing production process
o   IF RCRA is triggered, it would require the industries to obtain a permit to reuse these materials which will be very expensive and time consuming
·         D.C. Cir.:
o   Congress encouraged the search for and use of alternatives to existing methods of disposal (including recycling) and protecting the environment by regulating hazardous wastes
o   Here, the materials are destined for IMMEDIATE beneficial reuse or recycling in a continuous and ONGOING process by the generating industry itself, and have yet to become part of the waste disposal problem. (NOT waste stored that may at some time in the future be reclaimed)
§  BUT, stored materials destined for eventual reuse are not RCRA solid wastes because those materials have not yet been “discarded.” Association of battery recyclers
·         EPA’s authority extends only to materials that are truly discarded, disposed of, thrown away, or abandoned
 
EPA considers waste to be speculatively accumulated waste if:
o   There is no viable market for those materials; OR
o   The regulated entity has not used 75% of the accumulated materials within a calendar year
 
Sham recycling if: secondary material is effective for the claimed use; if secondary material is used in excess of the amount necessary;

e would be treated to minimize the short and long term threats to human health and environment posed by toxic and hazardous constituents. Alternatively, land disposal of hazardous wastes would be allowed if the EPA could find no migration of hazardous constituents from the facility will occur after disposal.
·         The EPA has a broad scope of authority to regulate & enforce. Court upheld EPA’s treatment standards requiring treatment to below the level that would have made the waste hazardous in the first place.
o   Meghrig v. KFC – when there is a site with hazardous materials, can only make former owners clean up if the site currently (RIGHT NOW) presents a imminent and substantial danger
§  If you clean up first, then cant go back after the former owners
CERCLA
Trigger: Is there a release (or threatened release) of hazardous substances from a facility which caused Plaintiff to incur response costs and Defendant is one of 4 classes of PRPs?
·         YES: cleanup process begins
o   Facility owner or operator reports release
o   Site gets listed on the National Priority List (NPL)
o   EPA identifies Potentially Responsible Parties (PRPs) who are liable for the site
o   EPA decides whether §104 or the PRPs will clean the site
o   Governments recover cleanup costs and/or PRPs divide up liability
 
Relevant Definitions:
·         Release – broadly defined to be any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (includes abandonment or discard of barrels, containers, and other closed receptacles containing hazardous substances)
·         Hazardous Substances – defined largely through other statutes:
o   Oil and associated pollutants (CWA)
o   Hazardous wastes (RCRA)
o   Toxic pollutants (CWA)
o   Hazardous air pollutants (CAA)
o   Imminently hazardous chemicals (TSCA)
·         Facility – (any place a hazardous substance has come to be found – Kalen)
o   Any building, structure, pipe, pipeline, well, pit, lagoon, landfill, storage container, motor vehicle, airport, etc…
o   Any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located
·         Incur Response Costs
·         1 of 4 classes of Potentially Responsible Parties
o   Current owners and operators (doesn’t matter when release occurred)
o   Past owners and operators who owned the site at the time of disposal
o   Arrangers (someone who generated this substance and arranged for it to be delivered to the facility)
o   Transporters (person who actually transports the substance to the facility)
 
Relevant Exclusions:
·         Hazardous Substances – does NOT include:
o   petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance
o   natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas)
 
CERCLA §107
·         Liable for 4 types of costs (no damages):
o   Government response costs (gov. clean and recovers money)
o   PRP response costs (a PRP cleans and recovers from other PRPs)
o   Natural resource damage (Recovering for value of lost wildlife and resources, e.g., BP oil spill)
o   Health assessment & monitoring (but no health costs that you suffered, e.g, kid died)