Environmental Law Outline

Environmental Law Outline

I. Regulatory Legislation
A) Environmental Statutes: A Historical Perspective
-There are 6 stages in the history of Environmental Law:
1) The common law and conservation era, pre-1945
2) Federal assistance for state problems, 1945-1962
3) The rise of the modern environmental movement, 1962-1970
4) Erecting the federal regulatory infrastructure, 1970-1980
5) Extending and refining regulatory strategies, 1980-1990
6) Regulatory recoil and reinvention, 1991-present

-Very often in environmental actions you do not have to show causation and the burden is shifted.
-Common law environmental actions are in private nuisance, public nuisance, and trespass.
-The environmental explosion took place in the 1970’s with the enactment of the “National Environmental Policy Act” (NEPA), signed in 1970.
B) The Impact of Regulatory Legislation on Common Law Actions
-Federal common law of nuisance in water, was pre-empted by the Clean Water Act for state common law

International Paper Co. v. Ouellette- Ouellette lived on Lake Champlain. The paper co. is across the lake in NY. The paper co. is giving off an odor. Ouellette sues under state nuisance law. *The court says state law is pre- empted because it would override both federal and source state law. The plaintiff can sue under federal law, under source state law for violating the permit, or wait for the next permit to come up and challenge its standards.
C) Environmental Federalism
-There are three ways that the government achieves environmental goals:
1) Provide federal assistance to encourage states to adopt environmental standards of their own.
2) Cooperative federalism- under this model federal agencies establish national environmental standards and states may opt to assume responsibility for administering them or to leave implementation to federal authorities. *This is the predominant approach*
3) Preemption of state law. This has been used sparingly and is used for products that are distributed nationally. This does establish uniformity.
*The most popular approach to regulation is through incentives*

New York v. United States- the plaintiff says that federal government regulation of the disposal of radioactive waste amounts to “commandeering the legislative process of the states by directly compelling them to enact and enforce the program. The act says that the states must follow the program or take title to the waste and be responsible for the damage caused by it. The court says that this violates the 10th Amendment and state sovereignty. If this is allowed then political accountability is skewed because state officials are on the hook.

1) Oil Pollution Act of 1990 (OPA 1990)
-liability is unlimited if the spill is willful, otherwise it is limited
-state oil spill liability is not pre-empted in the statute
-the bigger the vessel, ship, the earlier it has to be retired
*Only ship owners are liable under the act
D) The Regulatory Process
*If challenging an agency rule the court gives deference to the agency. You must show that it is arbitrary and capricious*

Chevron U.S.A. v. Natural Resource Defense Council- Chevron challenged the ruling of the agency. *The court said that if the agency’s interpretation is reasonable then the court will give it deference.
II. Waste Management and Pollution Prevention
A) Resource Conservation and Recovery Act (RCRA)
-This Act is meant to regulate hazardous waste from “cradle to grave” by requiring identification, tracking, and minimum standards for treatment, storage, and disposal for operators and facilities.
-Targets of the statute are generators of hazardous waste, transporters of hazardous waste, and operators of treatment storage disposal facilities (TSD)
*TSD’s are the most regulated under the statute. They must get permits
-Problems with the statute are that complying with it is very expensive so generators are trying to find loop holes in the statute. Also, it relies on generators to determine hazardous waste

*Waste is hazardous in two ways:
1) It displays one of the four hazardous characteristics
-ignitable
-coercive
-toxic
-reactive
2) Its on the EPA list

B) The RCRA Regulatory Program
-the rule of thumb is that if a waste is listed, it cannot become a non-hazardous waste by mixing it
-the only way to get something off the list is to petition to get it off the list
*waste mixed with or derived from hazardous waste, is a hazardous waste

1) What Substances are “So