Environmental Law and Policy, 4th
Authors:
Salzman, James E. / Thompson Jr., Barton H.
Edition:
4th
Copyright Date:
2014
20 chapters
have results for environmental law
Chapter 3 The Practice of Environmental Protection 79 results (showing 5 best matches)
- Moreover, as many environmental law students find in their first few classes, environmental law can be quite complex and ambiguous. In some areas, particularly the field of hazardous waste law, the regulations can be dauntingly opaque. To be sure, many of these criticisms represent industry lobbying for more lenient treatment or weaker standards, but simply dismissing such critiques as industry whining misses the point that the system of environmental law raises compliance barriers all on its own. Consider, for example, that there are over 11,000 pages of federal environmental law, not to mention state and local laws, and the number of environmental provisions is growing.
- Since the 1970s, environmental protection has progressed from reliance on the common law, to reliance on prescriptive regulatory commands, to reliance on market instruments and information. In comparison to other areas of the law such as torts, property, or even corporate law, however, environmental law is still a very young field, just over 40 years old. While the current structure and approach to environmental protection offers clear advantages over its predecessors, the entire field remains remarkably dynamic and in flux, with major reforms proposed in Congress virtually every year. Environmental law is surely contentious, as well, and widespread criticism has prompted many of these proposed reforms.
- In order to understand the practice of environmental law one must first grasp the broader legal framework within which it operates. While media-specific statutes such as the Clean Air Act or resource-specific laws such as the Endangered Species Act determine what regulated parties may or may not do, these operate within more general constraints on what the government is allowed to do. Administrative law sets the parameters for how agencies may implement these statutes and constitutional law sets the limits of governmental authority. Vast subjects in themselves, the remaining sections of this chapter provide a brief primer on the roles of administrative and constitutional law in environmental protection, as well as the unique role of non-state actors in the environmental field and their use of citizen suits to shape environmental law.
- The American environmental movement has played an essential role in the passage and implementation of effective environmental laws. Few political scientists would have predicted that the federal government would pass as strong laws as it has. Industrial opponents of environmental laws are typically well organized and can afford to invest substantial resources to defeat or weaken legislation. Few members of the general public, by contrast, have a sufficient enough interest in any particular piece of environmental legislation to devote equivalent resources to ensuring the legislation’s passage. When asked to participate in a collective lobbying effort, moreover, many member of the public may be tempted to decline, presuming that they can “free ride” on the lobbying efforts of other members of the public.
- The major environmental organizations in the United States have found effective means of overcoming these “collective action” obstacles. Environmental groups have raised substantial money from the public both by framing environmental issues in moral terms and by perfecting mass mailing campaigns. Although many people still free ride on others’ donations, environmental groups have used their limited resources efficiently. Unlike industrial lobbyists, environmental organizations have been able to focus their resources entirely on environmental issues. Through coordinated lobbying campaigns, the organizations have provided Congress and state legislatures with valuable scientific and legal expertise. Through member communications and skilled use of the media, environmental organizations also have mobilized voters. As a result, the imprint of environmental organizations can be found throughout environmental law. The Natural Resources Defense Council, for example, helped pass the Clean...
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Preface 5 results
- In many environmental law books, the important concepts and issues underlying the regulatory schemes can get lost amid a myriad of legal details. The purpose of this book is to provide a conceptual overview of environmental law and policy in a concise, readable style. The book covers all of the major environmental statutes and cases, but from a broader and more policy oriented perspective than traditional casebooks, hornbooks, treatises, and student guides. Our goal is to introduce the reader to the major themes and frameworks of environmental law, not to overburden the reader with minutiae. The book should be useful as a basic text for courses and seminars on environmental law and policy, as a readable and stimulating supplement to traditional law school casebooks, and as a primer for professionals wishing a quick, user-friendly survey of environmental law.
- Environmental law is critically important and endlessly fascinating. To see its importance, just imagine the United States today without federal regulation of air and water quality, pesticide use, and solid waste disposal. No matter how far the nation has come in addressing environmental issues, there remains much to do. Federal and state laws have only begun to address such important environmental issues as global climate change, non-point water pollution, indoor air pollution, groundwater depletion, and over-fishing. Scientific uncertainty, risk tradeoffs, cognitive biases, and fundamental policy disagreements, moreover, make it extremely difficult to agree on solutions to many of these remaining problems. Environmental law already has picked the low hanging fruit. The remaining problems continue to challenge even the wisest and most patient policy experts.
- The book is divided into four parts. Part I introduces the major themes and issues that cross-cut environmental law, such as scientific uncertainty, market failures, and problems of scale. Part I also covers major legal concepts in the environmental field such as enforcement, standing, citizen suits, takings, the commerce clause, and administrative procedure. Later chapters use the themes and conceptual framework introduced in Part I to integrate the discussions of individual statutes into a broader portrait of the law. Part II offers overviews of each of the major federal pollution statutes. As in the rest of the book, the focus is on the ideas and debates underlying the statutes. International ...examines a number of issues concerning the protection and use of natural resources, including the public trust doctrine, two of the major natural resource statutes—the Endangered Species Act and section 404 of the Clean Water Act—and energy. Part IV addresses environmental impact...
- We are grateful for the helpful review of chapters by Craig Oren, John Applebaum, Alex Klass, Bill Cohen, Bill Funk, Craig Oren, Ralph Cavanagh, and David Driesen; the substantive contributions of Lewis Grossman, Josh Eagle, Durwood Zaelke and David Hunter; the hospitality of Andy Beattie at the Key Centre for Biodiversity and Donna Craig and Michael Jeffery at the Macquarie Centre for Environmental Law; the creation of diagrams by Robert Starner; and the student research assistance of Sean Roberts, David Wright, George Quinton, Jimmy Michaels and Ben Jacobs. Some of the text on ozone depletion and climate change was adapted from material in David Hunter, James Salzman, and Durwood Zaelke, International Environmental Law and Policy (4 ed., 2011) and some of the text on enforcement from J.B. Ruhl, John Nagle, James Salzman and Alexandra Klass, Practice and Policy in Environmental Law (2 ...are indebted to our colleagues in law schools throughout the nation, who have helped develop the...
- In the fourth edition, we have thoroughly updated the chapters and made two significant additions. To provide students a deeper understanding of how environmental law works in practice, we have added a new Chapter 4 on Enforcement. We have also added a series of in-depth problem exercises throughout the book describing a legal or policy conflicts and asking students to identify and assess solutions. To assist teachers using the book in their classroom, the accompanying Teacher’s Manual has been revised to reflect these changes. We hope this book conveys the excitement that we have long felt in teaching in this area.
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Chapter 4 Enforcement 57 results (showing 5 best matches)
- Should Congress add citizen suit provisions to other federal laws (e.g., tax laws, drug laws, or immigration laws)? Are there aspects of environmental law that make citizen suits particularly appropriate in the environmental context?
- Up to this point, we have focused on the government’s role in enforcement, but environmental organizations have played an equally important role in enforcing environmental law through litigation. As explained in Chapter 3, environmental groups can obtain judicial review under the Administrative Procedure Act when EPA or other federal agencies take administrative actions that are inconsistent with the law or facts. Under provisions in most federal environmental statutes, environmental organizations also can typically bring enforcement actions when the federal and state governments do not do so.
- Should Congress encourage citizen suits by allowing courts to award civil penalties to environmental groups or individuals who successfully sue a company for violating an environmental law? Should the government pay bounties to groups or individuals who provide the government with information showing that a company is violating an environmental law and leading to the company’s conviction? What are the downsides to creating such incentives for citizen suits?
- What role should environmental groups and private individuals play in enforcing environmental laws? If the government uses its prosecutorial discretion not to seek an injunction or penalty against a company that has violated the Clean Water Act, should an environmental group be able to sue? Why might this lead to inefficient environmental policy?
- In an era of tight and shrinking government budgets, how much should we spend on environmental enforcement? Given that speeding causes more deaths than violations of environmental laws, should more resources be dedicated to traffic enforcement than environmental enforcement? Do you think that cost-benefit analysis should determine how we spend scarce enforcement resources?
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Chapter 1 An Introduction to Environmental Law and Policy 25 results (showing 5 best matches)
- Opposition to environmental law has become more strident and partisan. In the 2012 presidential campaign, three of the major Republican candidates openly called for the abolition of the Environmental Protection Agency. Many Republican members of Congress, as well as some Democrats, have successfully campaigned on platforms opposed to environmental laws, criticizing them as “job-killing,” too costly, or otherwise ill conceived. Environmental groups, meanwhile, are complaining that the administration has not moved fast enough. However the current political dynamic plays out, environmental law and policy will surely remain at the forefront of the public debate, an exciting, important, and complex field.
- The simplest definition of “environmental law and policy” might read: “the use of public authority to protect the natural environment and human health from the impacts of pollution and development.” While accurate, this definition suffers from two fatal flaws—(1) it’s deadly boring and (2) it fails to capture why environmental law matters.
- While every field jealously claims for itself primacy as “the most important area of the law,” environmental law has as good a claim on that title as any. Why should we care about environmental law? Because, taken together, the challenges to environmental quality have a critical influence on where we live, our quality of life and, perhaps most important, the kind of world our children and their children will live in. These things matter. Consider how sea level rise will affect a coastal community, what soil erosion means to a farming community, what the collapse of a fishery does to a fishing community, and how long it will take to reverse these impacts, if they even can be reversed.
- Over 20 million people participated in the first Earth Day in 1970, and pollution control was firmly set on the national political scene. Creation of the Environmental Protection Agency and enactment of the Clean Air Act in 1970 was closely followed by the Clean Water Act in 1972, as President Richard Nixon and presidential candidate Senator Edmund Muskie competed with one another for the newly important environmental vote. The Resource Conservation and Recovery Act followed in 1976 and Superfund in 1980. Events such as Love Canal and the nuclear accident at Three Mile Island ensured that the public interest in environmental issues remained high. Taken together, these laws and those that have followed are known as the era of “modern environmental law.” In contrast to earlier regulation of pollution, all of these laws established uniform, tough, national standards.
- Environmental interest has grown and subsided over this period, as has opposition to environmental protection. Indeed, environmental law has undergone constant change since the 1970s. Growing partisanship over environmental issues, slowed the pace of new federal legislation in the late 1990s and the first decade of the 20th century. The result has been legislative stagnation. Congress refused to ratify the Kyoto Protocol or pass domestic climate change legislation. When Barack Obama took his second oath of office in January 2013, almost two decades had passed since the last significant amendments to major federal environmental legislation—the 1990 Clean Air Act Amendments (which reduced emissions of sulfur dioxide contributing to acid rain), the 1996 Food Quality Protect Act (which strengthened the Federal Insecticide, Fungicide, and Rodenticide Act), and the 1996 Safe Drinking Water Act Amendments.
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Chapter 2 Perspectives on Environmental Law and Policy 71 results (showing 5 best matches)
- Thus to someone new to environmental law, it may seem odd that our wildlife conservation laws protect endangered species that most people would squash if found crawling in their kitchens. It may give pause to realize that our natural resource management laws protect parks and refuges that no one you know will ever visit. The simplest explanation of these observations is that there clearly is something at stake in the environmental field beyond classic protection of human health and economic interests. The underlying perspectives that drive environmental attitudes are explored in the next section.
- In seeking to provide client counsel, all too often environmental lawyers look first to the law rather than to the problem itself. To be sure, the law creates the framework within which environmental problems are resolved. But one cannot intelligently apply the law without also understanding the forces that created the problem in the first place. Consider, for example, the seemingly different threats posed in the newspaper headlines described in the introduction to Chapter 1—climate change, protection of an endangered species’ habitat, air pollution, and fracking. All of these stories share a similar trait, of course, since they directly relate to environmental protection. But the similarities run far deeper. While the actors, the location, and the nature of the concerns are quite different in the particulars, the causes of the environmental problems may be understood as simple variants on common themes.
- This section introduces the basic themes that run throughout environmental law and policy—the themes of scientific uncertainty, market failure, mismatched scale, cognitive biases, and nontraditional interests. It is no exaggeration to say that these resonate throughout the entire field of environmental law and policy, irrespective of the particular issue. Understanding their implications is a critical first step in understanding the field and resolving environmental conflicts.
- Although environmental justice discussions have focused on the siting of industrial and waste facilities, environmental justice also provides a framework for addressing environmental policy more broadly. Many advocates of environmental justice, for example, observe that the law provides greater protection for environmental amenities of importance to affluent white populations, such as biodiversity, than threats of far greater concern to rural poor, such as pesticide exposure. The Endangered Species Act thus does not consider cost in protecting endangered species; but the Federal Insecticide, Fungicide, and Rodenticide Act permits cost to be considered in deciding whether to allow pesticides to be used in the United States.
- Neo-classical economists have long advocated a very different approach that balances the costs and benefits of contemplated environmental policies. In the eyes of economists, environmental problems are the result of market failures, and the goal of the law should be to correct these failures. No rational person would pay more for a product than the product is worth to her. Neither should the government regulate an environmental problem if the cost of the regulation exceeds the benefits to society. Such a regulation would unjustifiably waste society’s resources even though some people might benefit from the regulation.
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Chapter 10 Wetlands, Endangered Species, & the Public Trust 37 results (showing 5 best matches)
- also demonstrates the immense importance of the ESA in protecting natural resources. The ESA is one of the few federal laws in the natural resources field with real teeth. NEPA, as discussed in Chapter 12, is purely procedural. Environmental groups wishing to derail or modify a proposed federal action thus will typically look to see if the action might menace a listed species. Opponents of the ESA often accuse environmental groups of using the ESA for “ulterior” purposes. The opponents are correct that environmental groups often invoke the ESA to try to kill a project that they oppose primarily for other reasons. Unfortunately, there is no federal law outlawing federal actions that are, to use Cecil Andrus’ phrase, “ill-conceived,” so environmental groups often are forced to turn to the ESA for help. For better or worse, the ESA remains the strongest tool that environmental groups have to help shape natural resource policy in the United States.
- is one of the most famous environmental cases of the twentieth century and offers a number of useful lessons. Environmentalists for years had been trying to block the Tennessee Valley Authority (TVA) from building the Tellico Dam. The dam promised little hydroelectricity or other benefits, yet would destroy the last free flowing stretch of the Little Tennessee River and flood a beautiful valley rich in farmland and sacred Indian sites. No law, however, proscribed a dam because its environmental and social costs outweighed its economic benefits. The National Environmental Policy Act, described in Chapter 12, required TVA to examine the environmental costs but imposed no substantive mandates. Stopping the dam seemed a lost cause until an ichthyologist discovered snail darters, a previously unknown species of perch about three inches long, just downstream from the dam site. After the FWS listed the species as endangered, several individuals (including University of Tennessee law...
- Some commentators have urged courts to use the public trust doctrine even more aggressively to protect environmental resources. Fearing that developers, timber companies, mining companies, and other commercial interests enjoy undue influence in many state legislatures (a fear supported by political science studies), these commentators have argued that the public trust doctrine is essential to safeguard the public’s interest in preservation. Although people are interested, like navigable waters and soils underneath them.” Shouldn’t the public trust doctrine therefore also apply today as a shield against threats to national parks, forests, wetlands, wildlife, and other environmental resources? Courts, however, have shown little interest in extending the public trust doctrine beyond its traditional amphibious setting, although one federal district court in the early 1970s suggested in dictum that national parks are subject to a common-law public trust.
- In one short chapter, we cannot even begin to summarize all of the laws governing the nation’s resources. This Chapter therefore focuses on three of the most important state and federal means of protecting environmentally sensitive land and water—the public trust doctrine, section 404 of the Clean Water Act, and the Endangered Species Act. The public trust doctrine provides that state governments own navigable waterways and tidelands in trust for the common use of the public. Beginning in the 1970s, environmental advocates turned to the public trust doctrine as one means of forcing the government to protect these and other resources against development threats. Section 404 of the Clean Water Act and the Endangered Species Act, in turn, are perhaps the most powerful federal laws in the nation’s current arsenal of natural resource protections.
- Some environmental scholars have argued that courts should extend the public trust doctrine to protect environmental resources other than tidelands and navigable waterways. Do you agree? If courts were to expand the reach of the doctrine, how should they decide what additional resources to protect? Should the public trust doctrine apply to (a) Yosemite National Park, (b) the Gettysburg National Military Park, or (c) the last remaining habitat of an endangered woodpecker?
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Chapter 12 The National Environmental Policy Act 36 results (showing 5 best matches)
- Passed in 1969, the National Environmental Policy Act (NEPA) was the first major statute of the modern era of environmental law. A trail-blazer, NEPA took a fundamentally different approach than the patchwork laws that had preceded it and the more prescriptive national pollution statutes that would follow. NEPA does not seek to ensure environmental protection through technology-forcing standards or market instruments, nor does it mandate conservation of endangered species or wetlands. Rather, NEPA relies on information, forcing agencies to consider the environmental impacts of their proposed actions and alternatives. This approach reflects a New Deal faith in agency management—the belief that a bureaucracy will do the right thing if it considers the proper issues. Without question, NEPA’s influence has been far-reaching, with its progeny in the statute books of 19 states (including CEQA in California, SEQR in New York, and SEPA in Washington state) as well as over 130 nations around...
- National Organization for the Reform of Marijuana Laws (NORML) v. U.S. Dep’t of State
- Not all federal actions trigger NEPA. As noted above, actions mandated by some environmental statutes or taken by the EPA need not comply with NEPA. More problematic, however, have been recent efforts to exempt certain activities that clearly do have environmental impacts from NEPA’s coverage.
- The most difficult choices surrounding NEPA application involve national security. As a result of the increased concern with national security following the attacks of September 11th, there has been a vigorous debate over whether the Department of Defense’s compliance with environmental laws compromises military readiness. The claim that NEPA indirectly weakens national security is a powerful charge and raises difficult trade-offs. Should the military be given special exemptions from NEPA and, if so, under what circumstances?
- NEPA requires that all federal agencies create an environmental impact statement (EIS) on a “recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” Preparing an EIS is a considerable undertaking. Occasionally reaching the size of a large textbook, the EIS analyzes the environmental impacts across a range of proposed actions. This analysis considers both unavoidable adverse impacts and mitigation alternatives. For example, concerned over the amount of traffic in Yosemite Valley, the National Park Service might propose building a series of large parking lots throughout the Valley. Before undertaking this action, the Park Service must first prepare an EIS that considers not only the environmental impacts from this approach but also the impacts from a range of other actions—perhaps charging additional car fees to enter the Valley, a light-rail system, a tradable permit system for entry, or...
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Chapter 8 Regulating Toxic Substances 14 results (showing 5 best matches)
- This Problem Exercise is based on a case study written by Mary Decker for the Stanford Law School Environmental and Natural Resources Law and Policy Program under the editorial guidance of Professor Thompson.
- An eclectic collection of federal environmental statutes addresses toxic substances. As discussed in the last two chapters, the Clean Air Act and the Clean Water Act include special provisions regulating toxic and other “hazardous” pollutants. The Resource Conservation and Recovery Act (“RCRA”) and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), which are the subjects of the next chapter, focus on the proper disposal of hazardous waste in land-based facilities and the clean-up of land contaminated by hazardous substances. A number of statutes regulate particular categories of substances. For example, the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) governs agricultural chemicals, while the ...of toxic substances permitted in drinking water. Finally, the Toxic Substances Control Act (“TSCA”) serves as a “catch all” statute that regulates the production, sale, and use of toxic substances not regulated otherwise by federal law...
- The regulation of toxic substances has generated tremendous controversy, in large part because it poses some of the most difficult policy questions to be found in the environmental field, or in any regulatory field for that matter. Given that life is not risk free, should the government be concerned about the extremely low levels of risk posed by some toxic substances? If some risks are too small to regulate, what should be the trigger point for regulation? How should the law deal with scientific uncertainty? How much money should society invest to get a better sense of the risks posed by particular substances? And if significant uncertainty remains after all the scientific studies have been conducted, should the government err in favor of the economy or of protecting human health?
- The Clean Air Act and the Clean Water Act both focus on “conventional” pollutants—industrial and other by-products that are discharged in large quantities and pose known health problems. But from the earliest days of the modern environmental movement, “toxic” substances—products and by-products presenting a potential risk of serious harm at even low levels of exposure—have often generated greater attention and concern. Rachel Carson’s famous best seller, , which helped launch the modern environmental era, dealt not with particulate air pollution or with fecal coliform in the nation’s water but with the grave dangers that pesticides such as DDT present to humans and other animals. Most people today are worried far more about the potential risks from toxic substances such as lead and asbestos than they are about the chronic side effects of carbon monoxide or particulates.
- Critics also raise the traditional concerns with using economic efficiency to guide environmental policy that Chapter 2 discussed. Is the appropriate level of toxic exposure an economic question or a moral one? As a society, are we willing (and do we have the right) to expose people to harmful substances if it means more jobs, more consumer products, and a higher gross domestic product? Even if we believe that the goal of environmental policy should be to maximize utility, can society impose a health risk on one individual in order to make others better off? Although each of us trades off risk and wealth every day (e.g., by buying a cheaper car that is not as safe), that is a very different decision than choosing as a society to accept interpersonal tradeoffs. How, moreover, can the government determine the overall utility of permitting farmers to use a pesticide that can cause cancer in humans? To many people, health risks are incommensurate with economic benefits; there is no...
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Chapter 9 Waste Management 34 results (showing 5 best matches)
- The sections that follow explain the structure of CERCLA, but as you read them it is important to keep in mind the challenges described above. In understanding CERCLA, one needs to consider not only the problems Congress was trying to address but the options they didn’t choose, for the law could have looked very different and, in fact, has been evolving since its passage. In this regard, it is interesting to note that, while U.S. environmental laws such as the Clean Air Act and the National Environmental Policy Act have served as admirable models for laws in many other countries,
- Despite its broad scope, it is important to note what RCRA does not cover. Consider the solid wastes involved in a typical manufacturing operation. The environmental impacts of the raw material inputs and product outputs are regulated, if at all, by other statutes such as TSCA and FIFRA (discussed in Chapter 8). The Occupational Safety and Health Administration regulates occupational exposure to contaminants during the process. RCRA, then, covers only the waste stream, a narrow subset of the total environmental impacts from manufacturing operations. And, as we have seen, not all wastes fall under RCRA. Congress intentionally chose not to regulate the manufacturing process, effectively treating the facility as a black box. Indeed, environmental law as a whole treats factories as giant black boxes, refusing to look at what happens inside. With rare exception, our pollution statutes only kick in when the waste leaves the facility, whether as air and water pollution or as solid waste.
- Arguably the most contentious and, certainly for lawyers and consultants, the most profitable environmental law has been the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, known popularly as “Superfund”).
- RCRA is an amendment to the earlier Solid Waste Disposal Act and accomplishes four basic goals. It (1) creates definitions to determine the classes of wastes coming under its authority; (2) creates a tracking system for hazardous waste from its creation to its disposal (the first environmental law to take such a life-cycle approach); (3) establishes handling standards for the waste from its generation to its disposal; and (4) provides authority for mandatory clean-up of polluted treatment, storage, and disposal facilities.
- As the text described, a review by EPA’s scientists in the late 1990s found that groundwater contamination poses a relatively low health risk compared to other environmental hazards. Despite this expert opinion, public opinion polls consistently rate groundwater contamination as near the top of environmental concerns. As a result, a great deal of money and effort flows toward cleaning up contaminated soil instead of other threats that may pose greater risks, such as radon exposure. The money dedicated to addressing environmental threats often reflects the public’s (inaccurate) perception of risk far more than the scientific community’s. In a democracy, is this the appropriate result, even if it places the public at greater risk?
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Chapter 11 Energy 17 results (showing 5 best matches)
- Renewable energy currently costs more in part because fossil fuels enjoy a variety of governmental subsidies and because consumers do not have to pay the environmental costs of fossil fuels, including climate impacts. The Environmental Law Institute estimates that, from 2002 through 2008, the United States provided $72 billion in subsidies to the fossil fuel industry (in comparison to only $29 billion in subsidies to the renewable sector). In 2007, the House of Representatives voted to eliminate the oil subsidies and use the proceeds to fund work on renewable energy, but the Senate refused to follow suit.
- Cape Wind is not an isolated example of controversy. Community and environmental opposition has arisen to renewable energy projects in California’s Mojave Desert, Northern Virginia, and many other locations around the nation. Communities oppose the siting of renewable energy facilities in their neighborhoods for multiple reasons, including visual, noise, cultural, and environmental impacts.
- The large environmental impact of fossil fuels presents the first major energy concern. As discussed in earlier chapters, the burning of fossil fuels produces a number of environmental problems, including global climate change and local air pollution. Fossil fuels currently produce about three quarters of the CO also has long raised a wide variety of environmental concerns. As discussed earlier, for example, states have recently worried about the risks of fracking in connection with natural-gas development, including groundwater contamination, proper disposal of waste water, and promotion of seismic activity. See pages
- What is the appropriate role for the national and state governments in the regulation of CCS? Is CCS regulation primarily a matter for state regulation (like the regulation of resource extraction)? A number of states have already adopted laws to promote and regulate CCS, and the Interstate Oil and Gas Compact Commission (IOGCC) has published a model regulatory framework for states. According to the IOGCC, the states have the necessary expertise and experience to regulate CCS because of their many years of experience regulating the underground storage of natural gas, as well oil and gas production. Or is CCS best regulated at the national level? The United States Environmental Protection Agency is currently developing rules for regulating the underground injection of CO2 under the Safe Drinking Water Act.
- One important question is whether the siting of renewable energy facilities should have to comply with the same environmental procedures and standards as conventional energy facilities. Opponents of specific renewable energy projects argue that there is no reason to exempt renewable energy from the same rigorous review and standards as apply to other facilities. Proponents respond that the dangers of climate change call for quick siting and that traditional procedures can take years if not decades to complete. Responding to such concerns, the U.S. Department of Interior has “fast tracked” the environmental review of a number of solar power-plant proposals. Some energy groups have suggested that the government should employ a careful planning process to determine those areas that are best suited for renewable energy and then fast track reviews of individual projects within those areas.
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Definitions 2 results
Chapter 6 Global Air Pollution 22 results (showing 5 best matches)
- Of all the topics in environmental law, climate change is currently the most dynamic, complex, and controversial. Climate change looms as a defining issue of the 21st century, pitting the potential disruption of our global climate system against the future of a fossil fuel-based economy.
- As of 2013, the Montreal Protocol had been ratified by 197 countries, including all industrialized countries and most developing countries. While the Protocol and its amendments have not eliminated the dangers of ozone depletion, they have established national commitments that will lessen the threat in years to come. The most important precedent in international law for the management of global environmental harms, the Montreal Protocol provides a useful model for other long-term environmental challenges such as climate change. The difficulties diplomats faced during the negotiation of the Protocol are much the same—genuine scientific uncertainty over the scale of harm, a sharply divided international community, potentially high transition costs, and a global problem requiring a global solution.
- • In 2004, eight States, New York City and environmental groups filed a nuisance claim against the five largest power companies. The suit claimed that the power plants’ emissions contributed to climate change and constituted a public nuisance. The case was dismissed on the basis of the political question doctrine—that legislatures rather than courts should decide such a significant and complex policy issue. In 2011, the Supreme Court held that polluters could not be sued for greenhouse gas emissions under federal common law.
- The problems posed by ozone depletion were unlike anything international environmental law had ever addressed. With traditional air and water pollution, the harms are generally perceived as localized and discrete. Even when pollution crosses national borders as acid rain or oil spills, the harm is still confined at worst to a region. The Protocol was thus the first treaty to address fully the global nature of a set of pollutants. Moreover, during the initial negotiations and ratification, there was genuine doubt whether ozone depletion had even occurred. Thus the Protocol was the first “precautionary treaty,” instituting tough technology-forcing controls as a safeguard against uncertain future harms. It has also provided an important model for efforts to reduce greenhouse gas emissions.
- With 24 nations signing in Montreal, the Protocol was universally hailed as a diplomatic triumph. Starting from low or no expectations in Vienna, within eighteen months strict international controls had been negotiated that would be refined and changed over time with the benefit of more knowledge. This flexible, structured evolution marked a new feature of international environmental law and showed great foresight. Because parties
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Table of Contents 16 results (showing 5 best matches)
Title page 3 results
Chapter 7 Water Pollution 16 results (showing 5 best matches)
- Most federal environmental laws assume that regulations should act like a ratchet: environmental standards should continually be tightened, and they never should be loosened. In line with this theme, the CWA suggests that technology-based limitations should become progressively more stringent over time. The CWA, moreover, generally forbids a state from modifying an NPDES permit to permit an increase in pollution. There are only a few exceptions to this “anti-backsliding” policy. If new information becomes available demonstrating a lower technology-based standard is appropriate, a more lenient permit can be issued. Similarly, if a point source is unable to meet its NPDES requirements despite the installation and operation of appropriate pollution-control equipment, a state can reconsider the standards that it originally set.
- How should the CWA deal with hydrologic modifications? Should either of the following actions require an NPDES permit? If so, what type of regulatory requirements should be included in the permit? If the action should not require an NPDES permit, should the CWA deal with the environmental consequences of the hydrologic modification in some other fashion?
- standards, each with its own acronym. This is where environmental law begins to resemble a child playing with a bowl of alphabet soup. To help you through the morass, Figure 6–2 provides a quick summary of the various standards, all of which are discussed in more detail below. The standards are listed in their general order of stringency, with the standards at the top of the table being less stringent than those at the bottom.
- Like playing chess, designing an environmental law requires legislators to think one step ahead of regulated companies. Not only must the legislator design an effective regulation, but the legislator must predict how companies might try to get around the regulation. Faced by expensive effluent limitations, for example, what might a company do to avoid the limitations? One option is to discharge the waste into the local sewage system rather than directly into the waterway. This can pose at least two problems. First, the secondary treatment required of (most) POTWs does not adequately treat a number of common industrial pollutants. In fact, at one point, over a third of the toxins that polluted the nation’s waterways flowed from industrial facilities through POTWs. Second, pollution from industrial facilities can increase the risk of fire or explosion at a POTW and can interfere with the POTW’s treatment of other waste.
- A repeated lesson in environmental regulation is that if the law draws a bright-line distinction between two different types of activities or actions and regulates one far more than the other, the regulated community will fight hard to end up on the less onerous side of the line. Under the CWA, a lot depends on whether a source
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Chapter 5 The Clean Air Act 24 results (showing 5 best matches)
- Amidst our many environmental laws, the Clean Air Act Amendments of 1970 (the CAA) stand apart. A massive law, the CAA was also historic. Unlike earlier laws passed by Congress, the CAA boasted
- A review of the CAA provides a fascinating study of cooperative federalism, strategic choice of regulatory targets, and cutting-edge environmental policy instruments. To understand the CAA’s structure, however, first requires a basic understanding of the air pollution problem. As with most environmental issues, the air pollution “problem” is actually a combination of many different problems. There are many kinds of air pollutants with varying environmental and health impacts. Some are highly mobile, some highly reactive. Apart from toxic air pollutants such as vinyl chloride and small particulates, air pollution alone generally does not produce fatalities. More often, air pollution aggravates health problems through chronic exposure, increasing the incidence and severity of respiratory diseases such as bronchitis, pneumonia, and asthma.
- Another major reason for the uniform NAAQS approach is that it stifles potential interstate competition for industry. A driving force behind the CAA was the historic failure of state programs to control air quality and the consequent fear that, absent national standards, states might be willing to sacrifice air quality for economic growth. In other words, because there existed no national clean air requirements prior to the CAA, each state was free to set standards as it wished. This made it potentially easy for states to become “pollution havens,” offering lax environmental standards in exchange for an influx of new industries and jobs. This could encourage an environmental “race-to-the-bottom,” much as Delaware has led the race to create a corporate friendly state, sacrificing air quality for economic growth. There has been a vigorous debate over whether environmental races to the bottom actually occur (indeed some have pointed to California, arguing that a “race-to-the-top” and...
- The CAA’s first use of trading (indeed the first use in any environmental law) focused on reducing lead in gasoline. EPA began phasing out lead in gasoline in 1982. To try to reduce the cost of the lead phase-out, EPA allocated lead content credits among gasoline refiners and allowed refiners to trade the lead content credits or bank them for later use or trading. Refiners were required to have sufficient credits to cover the lead additives in the gasoline they produced. If they did not have enough credits to cover the lead additives they were using, they needed to go on the market and buy more credits from other refiners. The key to this, and all such trading programs, is that the total number of credits available is capped at the desired regulatory level.
- The unceasing pressure over the last four decades to improve our nation’s air quality has provided a valuable opportunity for experimentation and fine-tuning the CAA’s regulatory approaches. This is most evident in the area of trading, where experiences under the CAA have truly influenced environmental policy around the globe.
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Index 57 results (showing 5 best matches)
Table of Cases 6 results (showing 5 best matches)
- Corrosion Proof Fittings v. Environmental Protection Agency ---------------------------221
- Environmental Defense Fund, Inc. v. Andrus ------------------341
- Environmental Defense Fund, Inc. v. Massey------------------345
- Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. ----91, 92, 105
- Piedmont Environmental Council v. FERC -------------------------324
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- Publication Date: November 26th, 2013
- ISBN: 9781609303051
- Subject: Environmental Law
- Series: Concepts and Insights
- Type: Hornbook Treatises
- Description: Environmental Law and Policy is a user-friendly, concise, inexpensive treatment of environmental law. Written to be read pleasurably rather than used as a dry reference source, the authors provide a broad conceptual overview of environmental law while also explaining the major statutes and cases. A series of problem exercises have been added throughout the book, describing a legal or policy conflict in detail and asking students to identify and assess solutions. The first part of the book provides an engaging discussion of the major themes and issues that cross-cut environmental law. The second part of the book examines the substance of environmental law, with separate sections on each of the major statutes. The third part of the book describes natural resources law, discussing endangered species conservation, wetlands protection, water and energy issues. Part four addresses environmental impact statements and the National Environmental Policy Act.
