Transcript EPA - Economics

Environmental
Law
Chapter 18
Federal Environmental
Regulation
• During 1960’s environment became major issue
• Since 1970, explosion of federal regulation
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Created Environmental Protection Agency (EPA)
Clean Air Act
Clean Water Act
Toxic Substances Control Act
Resource Conservation and Recovery Act
The Superfund
Species Protection
Global Environmental Issues
See Exhibit 18.1
Pollution and the Common
Law
• Nuisance Law
– Private nuisance: used to
protest interferences with
rights – either public (a
right held in common by
the community) or private
• Trespass
– physical invasion
• Often hard to
distinguish trespass and
nuisance
Negligence, Strict
Liability and Pollution
• Negligence
– Failure to use reasonable care to prevent
pollution from causing a foreseeable
injury.
• Strict Liability for Abnormally
Dangerous Activities
– Applied to businesses producing toxic
chemicals or emitting toxic pollutants.
– Courts look at the location of a business
relative to population centers.
Water Rights and
Pollution
• No common law right to pollute water
• Most states rely on riparian water law
– People living along streams & bodies of
waters have right to use reasonable amounts
of water, but must allow water to flow
downstream in usable form.
– Therefore, there is no right to use and pollute
water that later affects downstream users.
– Nuisance and other common-law rights used
in the enforcement of riparian water rights.
• Western states have variety of other water rights.
Whalen v. Union Bag & Paper Co.
• Whalen used a creek to water livestock and plants. UB&P
built a pulp mill upstream and polluted the creek.
• Whalen sued for damages & an injunction to stop the
pollution.
• The trial court awarded $312/year and issued an injunction.
• Appellate court reduced damages to $100/per year &
eliminated injunction. Whalen appealed to NY Appeals
Court.
• The NY appeals court ruled that the injunction could not be
eliminated simply because it would cause great expense
for UB&P as compared to the slight damage done to
Whalen.
• The NY court of appeals reinstated the injunction and
awarded costs to Whalen.
Clean Air Act 1970,
Amended in 1977 and 1990
• EPA establishes National Ambient Air Quality Standards
(NAAQS)
– NAAQS established when air pollution “may
reasonably be anticipated to endanger public health
and welfare”
– Each state develops a State Implementation Plan (SIP)
(long, very detailed) which must include:
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enforceable emission limits
schedules and timetables for compliance
measures for monitoring air quality & emissions
adequate resources for implementing and enforcing SIP
Clean Air Act Permit System
• Clean air areas (better than NAAQS)
• Called attainment areas or prevention of significant
deterioration (PSD) areas
• only slight increase allowed (maximum allowable
increase)
• can construct in PSD only if:
– agree to Best Available Control Technology (BACT)
– won’t exceed maximum allowable increase
• Dirty air area
• nonattainment areas –more restrictions than for PSD
areas
• emissions offset policy has three requirements for
construction
– use Lowest Achievable Emissions Rate (LAER)
technology
– any other plants they own meet SIP requirements
– pollution from new plant must be offset by more than
1 to 1 from other plants in area
– when plant operates air quality should improve
– state laws are expanding requirements for new
projects
Mobile Sources of
Pollution
• Vehicles are a primary source of pollution that
affects the ozone
• The law imposes direct controls on certain
emissions
• State Implementation Plans (SIPs) impose tougher
standards
– Vehicle emission inspections
– Vapor recovery systems at gas stations
– Reformulated gasoline
– Alternative fuel sources
– Forced carpooling considered
American Trucking
Association v. EPA
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Congress gave California permission to regulate emissions from in-use
non-road mobile sources of pollution.
Applies to engines that run transportation refrigeration units (TRUs).
Other states may follow California’s rule or adopt no rule at all.
EPA must approve proposed CA regulation unless EPA finds standard
unjustified given air conditions in CA (or compliance cost is too high).
California Air Resources Board Plan: To reduce particulate matter
emissions from diesel TRU engines by 75% by 2010 and 85% by 2020.
2009: Rule began – applied to trucks based in and operating in CA.
TRU owners must replace an old engine with new compliant one.
EPA reviewed & approved standard, finding cost was not unreasonable.
The American Trucking Association (ATA) challenged EPA’s decision as
arbitrary and capricious.
(Continued)
American Trucking Association v.
EPA, cont.
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HELD: ATA’s petition for review denied.
Regulation of mobile pollution sources: States and EPA share responsibility.
Mobile engines are either 1) new on-road, 2) new non-road 3) in-use on-road,
and 4) in-use non-road.
ATA argues that California’s rules is de facto national rule because trucks
passing through CA are subject to the rule.
– That precludes other states from not following CA’s lead – contravention of those
other states’ rights under the Act.
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Court disagreed. This rule only applies in California.
If ATA’s members do not operate in CA, they need not comply.
EPA adequately considered costs of CA’s TRU rule.
Businesses can comply with about $2,000-$5000/unit.
EPA’s phased implementation helps to minimize costs.
EPA considered the cost and determined the rule reasonable.
Congress chose to permit California “to blaze its own trail with minimum
federal oversight.”
Toxic Pollutants
• 1990 amended Clean Air Act lists 191
substances declared as hazardous air
pollutants
• EPA sets maximum emission rates (MERs)
for each one
• General goal:
– 90% reduction in emissions for pollutants that
had been uncontrolled
– 75% reduction in cancer caused by air pollution
• The rules are highly technical.
Enforcement
• EPA has primary authority to enforce Clean Air Act &
other environmental statutes
• State agencies also are involved
• Citizens can bring citizens suits
• Environmental groups also bring citizens suits
• Recently more environmental offenses have been
criminally prosecuted
– Over 100 criminal indictments per year
• EPA and state agencies collect hundreds of millions of
dollars in fines each year
• Carrot-and-Stick Approach
– U.S. Sentencing Guidelines punishment for environmental crimes reduce
penalties imposed on a company if there is voluntary reporting of illegal
actions, cooperation w/investigations, educating workforce, etc.
Clean Water Act (CWA)
• 5 main elements:
– national effluent standards for
each industry
– water quality standards set by
states w/EPA approval
– discharge permit program to
enforce pollution limits
– special provisions for toxic
chemicals & oil spills
– construction grants and loans
for publicly owned treatment
works (POTWs)
• Passed in 1972,
amended in 1977 and
1986
• Unlawful to dump pollutants
• Objective: “restore and
in “navigable waters”
without permit
maintain the chemical,
all waters are under
physical and biological • Almost
EPA jurisdiction
integrity of Nation’s
waters.”
Point Source Pollution
Water pollution coming from a pipe (point source) – easiest to ID
Billions spent to treat – publically owned treatment works (POTWs)
States must designate intended use of all surface water
Water dumped into drinking areas must be cleaner than water in
recreation areas
Controlled with permit system – Industrial permits are under National
Pollutant Discharge Elimination System (NPDES)
Conventional pollutants (human waste) under best conventional
technology (cost effectiveness will be considered)
Toxic or unconventional pollution has tighter control under best
available technology that is the best control “capable of being
achieved.” (costs not so important)
Industrial Permits: If new plant or source of pollution created, even
tighter controls called new source performance standards (NSPS)
(use best technology existing to minimize pollution
Enforcement
• Permit system is a key to enforcement
• States have primary responsibility for enforcing
permits, subject to EPA monitoring and approval
• Operating without a permit or discharge more pollution
than allowed violates the law
• Firms must monitor their own performance and file
discharge monitoring reports (DMRs) (available for
public inspection)
• Lying about violations is more serious than admissions
• Serious violations can lead to criminal prosecution
• Citizen suits against polluters are common under the
Clean Water Act
Peconic Baykeeper v.
Suffolk County
• 1992: Suffolk County, NY found presence of mosquito-borne
disease – 1st time in 75 years; Several deaths occurred from West
Nile Virus – also cases of malaria
• Officials feared outbreak of encephalitis, a high fatality disease
• NY State Commissioner of Health declared public health threat
from Suffolk County mosquitoes
• County sprayed for mosquitoes
• Pesticides approved by EPA under FIFRA
• Aerosol mists sprayed from trucks and helicopters into stagnant
waters
• Environmental group, Peconic Baykeeper, and 2 individuals sued
County for violating the Clean Water Act
• District Court held for County
• Plaintiffs appealed
(Continued)
Peconic Baykeeper v.
Suffolk County, cont.
• District Court held spray applicators attached to trucks &
helicopters were not “point sources” – sources were “indirect”
and into the air
• Appeals court disagreed
• Point source is “any discernable, confined and discrete
conveyance . . . from which pollutants are or may be
discharged.
• Point source is broadly interpreted – embraces broadest
possible definition of pollutants that might enter U.S. waters
• Here spray apparatus attached to trucks & helicopters was the
source of discharge.
• Pesticides discharged “from” the source – not from the air
• HELD: Trucks and helicopters were point sources
• Environmental group wins.
Nonpoint Source Pollution
and Wetlands
• Nonpoint Source Pollution
– construction sites, run-off from street, mining
operations and agriculture, etc.
– difficult to solve technologically – political issues
– expensive to treat
– no easy way to capture contaminated water to
treat it
– Cities have old-fashioned storm water-sewage
systems – same pipes carry runoff & sewage
• Wetlands
– formerly destroyed, are now protected
– problem: they breed mosquitoes
– use permit system
– permit to dredge or fill wetlands may require
restoration to wetlands
– mitigation banking: construction project ”buys”
other wetlands or restores wetlands in exchange
for the right to fill some wetlands
Land Pollution – Heavy
Regulation
• Toxic Substance Control Act
passed in 1976 (TSCA)
– EPA controls, tracks chemicals
– Biotechnology monitored
– Manipulation of
biological processes to
produce chemicals of
living organisms for
commercial use
• Pesticides
– Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA)
– Most are toxic, some extremely
so
– States can also regulate
• Registration of pesticide
good for 5 years if:
– product does what it
claims it will
– registration material
accurate, label
accurate on proper
product use
– will do what it should
w/out “unreasonable
adverse effects on the
environment”
Resource Conservation
and Recovery Act
• Covers toxic substances in
market or at disposal
– transportation, storage,
treatment and disposal
• Old procedure
– out of sight, out of mind
• Now must have permit from
EPA to run treatment,
storage and disposal sites
(TSD)
• Hazardous wastes defined
– Ignitability; reactivity; toxicity
• Manifest system
– TSD sites must keep
manifest
– waste must be
packaged and labeled
appropriately
– identifies origin,
shipping route and
final destination
– provides “cradle to
grave” control over
hazardous waste
Superfund
• Clean up old hazardous waste sites
• Since may have many responsible parties for a site, they can be
held liable
– current owners
– prior owners at time of waste disposal
– waste generator who arranged for disposal at site
– transporter who selected site
• Joint and several liability
• Most Superfund money is spent on legal and engineering costs
rather than actual clean up.
• Owners can be responsible for cleanup of toxic waste they did
not generate,
– Is resulting in a movement toward an environmental audit of
property prior to its purchase
• EPA is responsible for cleanups at federal facilities.
• Because of potential liability, some property is abandoned
(brownfields) & not used productively – no one wants to have
to clean the site.
Species Protection
Habitat Protection
• 1973 Endangered Species Act (ESA)
• Covers all species, not just humans
• Fish and Wildlife Service (FWS) of Department of Interior
primarily responsible for ESA
• Little federal $ to accomplish goals, so usually activity is blocked
or altered – very controversial area as well
• Secretary of Interior declares species of animal or plant life
“endangered” and establishes the “critical areas of habitat” of
such species that is listed
• “Endangered” means any species which is in danger of
extinction throughout all or a significant portion of its range
• Federal court stopped logging on federal land in Washington,
Oregon and California to protect habitat of spotted owl at cost of
$25 - $50 billion
Babbitt v. Sweet Home Chapter
of Communities for a Great Oregon
(in text)
• Logging and other activities have the possibility of
harming the spotted owl.
• Private landowners and logging companies challenged
Secretary of Interior’s definition of the word “harm” in the
Endangered Species Act, stating that the Secretary went
beyond what Congress intended in the Act.
• The court of appeals agreed, and the Interior Secretary
and the Fish & Wildlife Service (FWS) appealed.
• HELD: Judgment reversed. The U.S. Supreme Court
stated that Congress gave broad interpretive power to the
Secretary when it enacted the Endangered Species Act.
Global Environmental
Issues
• Ozone
– Chlorofluorocarbons
(CFCs) are “eating”
ozone layer which
protects earth from
ultraviolet radiation
– Producers of CFCs
agreed to phase out
production in the
Montreal Protocol
• International Cooperation
– CFC production control
– Montreal Protocol provided
• Global Warming
fund, set up by wealthier
– Looked at by
nations, to pay poorer nations
developed nations but
to sign agreement to ban CFCs
as yet not a major
unified approach
Massachusetts v. EPA
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12 states, local government & private organizations sued EPA.
Said EPA did not live up to Clean Air Act obligation to regulate greenhouse
gases resulting from vehicle emissions.
EPA said regulations were sufficient. Appeals court agreed.
Plaintiffs appealed.
EPA is to protect Massachusetts and others from emissions of motor vehicle
engines.
Harms from such emissions are well recognized.
Already environmental changes such as global retreat of mountain glaciers,
reduction in snow-cover, earlier spring melting of rivers/lakes, rise of sea
levels, etc. are occurring.
EPA says the motor vehicles do not contribute significantly to injuries.
Problem lies w/developing nations’ industrial pollution.
S. Ct. HELD: EPA has the statutory authority (and duty) to regulate the
emission of gasses form motor vehicles.
Risk of catastrophic harm, though remote, is real.
Regulating vehicle emissions will not by itself reverse global warming, but
that does not mean the court lacks jurisdiction to decide that EPA has a duty
to slow or reduce it.