Week 1 Chapter 1: Fundamentals of Environmental Law PDF

Week 1 Chapter 1: Fundamentals of Environmental Law Syllabus History of US Environmental Law ◼ The Industrial Revolution (1760 to 1830) ◼ New machines and sources of power ◼ Increased impacts to natural resources and human health ◼ Asbestos use ◼ After WWII ◼ Ci...

Week 1 Chapter 1: Fundamentals of Environmental Law Syllabus History of US Environmental Law ◼ The Industrial Revolution (1760 to 1830) ◼ New machines and sources of power ◼ Increased impacts to natural resources and human health ◼ Asbestos use ◼ After WWII ◼ Cities boomed ◼ Highways constructed ◼ Air and water pollution increased ◼ Smog events in Pennsylvania, London, and New York Examples – Donora, PA Smog ◼ 1948 – 5 day smog event killed 20 people and caused respiratory problems for 6,000 of the 14,000 inhabitants ◼ HF and SO2 emissions from US Steel’s Zinc mill and American Steel & Wire Plant + a temperature inversion London Smog 1952 ◼ 5 day weather inversion ◼ Coal used in domestic and industrial furnaces ◼ 4,000 immediate human deaths, 12,000 long term deaths ◼ Also affected cattle/livestock New York 1953, 1966 ◼ 1953 – 260 deaths 1966 – 168 deaths 10% of population affected Examples – Love Canal ◼ William Love began digging a canal to conned upper and lower Niagra Rivers to harness power ◼ 1920, plan failed and area used as municipal waste site ◼ 1942-1953, Hooker Chemical Company, with government approval, the canal was turned into a municipal and industrial chemical dumpsite ◼ 1953 - Hooker capped the 16-acre hazardous waste landfill in clay and sold the land to the Niagara Falls School Board (school board approached Hooker) for $1 Examples – Love Canal Limited Liability Clause “Prior to the delivery of this instrument of conveyance, the grantee herein has been advised by the grantor that the premises above described have been filled, in whole or in part, to the present grade level thereof with waste products resulting from the manufacturing of chemicals by the grantor at its plant in the City of Niagara Falls, New York, and the grantee assumes all risk and liability incident to the use thereof. It is therefore understood and agreed that, as a part of the consideration for this conveyance and as a condition thereof, no claim, suit, action or demand of any nature whatsoever shall ever be made by the grantee, its successors or assigns, against the grantor, its successors or assigns, for injury to a person or persons, including death resulting therefrom, or loss of or damage to property caused by, in connection with or by reason of the presence of said industrial wastes.” https://www.google.com/maps/@43.0810201,- 78.9456978,1328m/data=!3m1!1e3?entry=ttu  Untreated Wastewater Discharge ◼ Standard for US cities until 1972 NPDES program ◼ San Diego into San Diego Bay (also Navy and industry wastes) ◼ New York City into Hudson River (also tannery and paper mill discharges) ◼ Around Manhattan, 150 million gallons of raw sewage entered the river daily until 1986 ◼ The Hudson’s color once matched the paint applied to vehicles at a General Motors plant in Tarrytown ◼ Continues globally (and allowed past 3 miles off shore) ◼ Untreated wastewater in developing countries: 14 billion a day and we don’t know where it ends up ◼ Stemming the Plastic Tide: 10 Rivers Contribute Most of the Plastic in the Oceans ◼ Here’s what to know about the Seine River quality during the Paris Olympics Cuyahoga River Fire, 1969 ◼ Oil slick caught fire just southeast of downtown Cleveland, Ohio Videos ◼ Madmen Family Picnic https://www.youtube.com/watch?v=rhcKuMjvcCk ◼ Lady Bird Johnson, the First Lady of the United States in 1965, began to be the voice of anti-littering ◼ https://www.youtube.com/watch?v=qd_iM4hMWyI ◼ Rachel Carson 1962 (stop at 3.00) https://www.youtube.com/watch?v=SeJNRaE11A0&t =1s Sources of Environmental Law ◼ Three major branches of government ◼ Legislative branch – creates laws ◼ Executive branch – carries out laws (federal agencies), issues executive orders, and signs treaties (with confirmation by Congress) ◼ Judicial branch – interprets laws Forms of Enabling Legislation ◼ Act – Law that describes the kind of program Congress wants and establishes who will run and enforce it ◼ Regulation – Legal mechanisms issued by an Agency that establishes the standards and requirements ◼ Guidance – Documents issued to provide info on how to implement programs ◼ Policy – Statements outlining positions on a topic Regulatory Agency Responsibilities ◼ Occupational Safety and Health Administration (OSHA) ◼ Hazardous materials and conditions within the facility ◼ Environmental Protection Agency (EPA) ◼ Hazardous materials that enter the environment ◼ Air ◼ Water ◼ Waste ◼ OSHA/EPA MOU – information sharing http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=238 &p_table=mou Environmental Legislative Process ◼ To begin, a member of Congress will propose a bill. ◼ If both houses of Congress approve the proposed bill, it will then go to the President for either approval or veto. ◼ If the bill is approved, the new law is then called an Act (Clean Air Act, Clean Water Act, etc.) ◼ Once the Act has passed, the House of Representatives standardizes the law and publishes it in the United States Code (U.S.C). ◼ Once the law is official, Congress authorizes certain government agencies (like EPA) to create and enforce regulations Rulemaking Process ◼ Administrative Procedures Act (APA) ◼ The Agency proposes a regulation through a Notice of Proposed Rulemaking and publishes it in the Federal Register for public review and comment ◼ The comments are considered and addressed ◼ The final rule is published in the Code of Federal Regulations (CFR) codified by Title, Part, and Section ◼ Title 40 – EPA 40 CFR 763.1 ◼ Title 29 – OSHA ◼ Title 49 – DOT 29 CFR 1926.1101 ◼ Title 10 - NRC Examples of the Language Found in Acts vs Regulations ◼ Act (b) Regulations https://www.govinfo.gov/content/pkg/USCODE-2013- title42/html/USCODE-2013-title42-chap85-subchapV- sec7661a.htm ◼ Regulations 70.6 Permit content https://www.ecfr.gov/current/title-40/chapter-I/subchapter- C/part-70/section-70.6 Occupational Safety and Health Act ◼ The OSHAct was enacted in 1970 ◼ It created the Occupational Safety and Health Administration (OSHA) ◼ OSHA has authority through this Act to promulgate regulations to protect workers ◼ OSHA regulation development is described at https://www.osha.gov/laws-regs/standards- development Economics ◼ OSHA regulations must take into consideration the cost of compliance, and a cost-benefit analysis must be provided to justify new regulations or changes to regulations ◼ EPA, Under Executive Orders 12866 (Clinton) and 13563 (Obama), develops Regulatory Impact Analyses (RIAs): (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. Regulatory Authority ◼ In 2015, the Environmental Protection Agency (EPA) promulgated the Clean Power Plan rule, which addressed carbon dioxide emissions from existing coal- and natural-gas-fired power plants ◼ EPA’s plan was a shift in generation from existing coal-fired power plants, which would make less power, to natural-gas- fired plants, which would make more. This would reduce carbon dioxide emissions because natural gas plants produce less carbon dioxide per unit of electricity generated than coal plants. ◼ June 30, 2022, the Supreme Court overturned and remanded the rule Regulatory Authority ◼ The Clean Power Plan was an EPA administrative action and did not originate in the legislative branch. ◼ “Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan” ◼ “EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority… (which) allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself.” ◼ “The only question before the Court is…whether the “best system of emission reduction” identified by EPA in the Clean Power Plan was within the authority granted to the Agency in Section 111(d) of the Clean Air Act. For the reasons given, the answer is no.” https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf Federal Environmental Acts Clean Air Act (CAA) Resource Conservation and Recovery Act (RCRA) Pollution Prevention Act (PPA) Clean Water Act (CWA) Safe Drinking Water Act (SDWA) Oil Pollution Act (OPA) Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Emergency Planning and Community-Right-to- Know Act (EPCRA)  Federal Environmental Acts Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Toxic Substances Control Act (TSCA) National Environmental Policy Act (NEPA) Others we won’t cover: Hazardous Materials Transportation Act (HMTA) Endangered Species Act (ESA) https://www.epa.gov/laws-regulations/laws-and- executive-orders Common Law Liabilities  Common Law v. Statutory Law Statutory Law Common Law ◼ Rules are created ◼ Rules are created by through legislative judges through court procedures. decisions. ◼ Because common law is ◼ Statutes provide uniform, continuously shaped by national frameworks for court decisions, common pollution control, e.g. law can vary between Clean Water Act. different jurisdictions. ◼ Liabilities stem from ◼ Liabilities stem from national pollution control personal injuries or policies. property damage caused by environmental conditions. Common Law: Toxic Torts ◼ Definition: A claim for damages arising from exposure to a harmful chemical or substance ◼ Application in environmental law: Environmental torts are increasingly related to injuries caused by exposure to pesticides, PCBs, benzene, heavy metals, and other contaminants Definition of a Tort ◼ “A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.” Cornell Law School. (n.d.). Tort. https://www.law.cornell.edu/wex/tort ◼ “Tort is the word used to denote a common civil wrong for which a court will provide a remedy.” Sullivan, T. (2017). Environmental law handbook. Bernan Press ◼ A toxic tort is a subcategory of torts involving injuries to plaintiffs caused by toxic substances. Toxic Tort ◼ To sustain a claim for damages in a toxic tort action, a plaintiff must show that: ◼ he or she was exposed to a disease-causing agent of substance; ◼ the defendant is legally responsible for the plaintiff's exposure; ◼ the plaintiff has suffered or is currently suffering from the exposure; and ◼ the plaintiff's injury was caused by exposure to the disease-causing substance. ◼ Work-related exposures are covered under workers’ compensation laws that have sole remedy through the workers compensation system.  Common Law: Nuisance ◼ Definition: An action brought against somebody for interfering with one’s use and enjoyment of property ◼ Application in environmental law: In Florida, a court ruled that an oil company unreasonably interfered with the ability of neighboring land owners to peacefully occupy their land because of noise, vibrations, and emissions from the plant Nuisance ◼ Defined as an activity that is unreasonable or unlawful use by a person of his own property causing injury to the right of another, or the public, and producing an annoyance, inconvenience or discomfort ◼ Can be “public” or “private” nuisance ◼ In general, a public nuisance negatively affects an entire community or a large number of people, while a private nuisance affects an individual or a relatively small number of people Examples of Nuisance ◼ P. 14 – odors from sewage ◼ P. 15 – PCB migration from one property to another ◼ Not a nuisance: ◼ P. 15 Air pollution – was not shown to cause substantive harm ◼ P. 16 Recycling – no imminent hazard Common Law: Trespass ◼ Definition: unauthorized entering of a person’s land ◼ Application in environmental law: a defendant was held liable for trespass when defendant’s sludge seeped on to plaintiff’s land and defendant did nothing to stop it Trespass vs Nuisance ◼ Line between trespass and nuisance is difficult to differentiate ◼ Nuisance is an interference with the use and enjoyment of the property ◼ Trespass is an interference with the possession of personal property or the unlawful, forcible entry on another’s property Negligence ◼ “Omission to do something which a reasonable person, guided by those ordinary considerations which ordinarily regulate human affairs, would do” ◼ Violation of a Statute or Ordinance ◼ Plaintiff must show that the violation of the law was the proximate cause of the injury. ◼ Paint spray example p. 20 ◼ Improper disposal of hazardous waste  Common Law: Strict Liability for Ultrahazardous Activities ◼ Definition of Strict Liability: the defendant can be liable if he was engaged in the activity that caused injury, without proof that defendant actually did anything wrong. ◼ Application in environmental law: the owners of a toxic waste dump were held strictly liable for harm caused to others ooked like a CERCLA issue Strict Liability ◼ “If someone is engaged in an ultrahazardous or dangerous activity for profit, that party should bear the burden of compensating others who are harmed by its activities.” ◼ https://en.wikipedia.org/wiki/Strict_liability ◼ Most EPA laws are based on strict liability Key Legislation Incorporating Strict Liability ◼ CERCLA (Superfund) ◼ Potentially responsible parties (PRPs) can be held liable for cleanup costs and damages without requiring proof of negligence. Liability extends to current and former property owners, operators, and those who arranged for the disposal of hazardous substances, regardless of their knowledge or intent. ◼ RCRA ◼ Facilities managing hazardous waste must comply with regulations, and violations can result in liability even if the operator did not intend to cause harm. ◼ CWA ◼ Entities discharging pollutants into navigable waters must obtain permits and adhere to specified limits. Violations of these permit requirements can lead to strict liability, focusing on the act of discharging pollutants rather than intent or negligence. Environmental Criminal Prosecution ◼ Enforcement of federal environmental laws is in the jurisdiction of the EPA’s Office of Enforcement and Compliance Assurance (i.e., those programs where there are no EPA-authorized state programs) ◼ Complaints of environmental criminal activities must be referred to the Department of Justice for prosecution ◼ Criminal charges can be brought if the acts against society are believed to be willful or knowing violations Occupational Laws ◼ Under the OSH Act, the agency can bring criminal charges against an employer for: ◼ Willful violations causing an employee's death ◼ Providing advance notice of an OSHA inspection ◼ Providing false statements on a document required by the Act ◼ Can refer violations to state or Federal district attorney offices in fatality cases with willful violations International Treaties  International Treaties: The Kyoto Protocol ◼ Addresses greenhouse gas emissions ◼ President Bill Clinton signed the agreement in 1997, but the US Senate refused to ratify it, citing potential damage to the US economy required by compliance and because it excluded certain developing countries, including India and China, from having to comply with new emissions standards. in 2001, George Bush pulled the US out of the Kyoto accords as one of the first acts of his presidency. Bush dismissed the Kyoto Protocol as too costly and claimed that millions of jobs will be lost if the US joins in this world pact. ◼ If ratified, the U.S. would have to: ◼ Reduce greenhouse gas emissions (CO2, NOx, and CH4) 7% below 1990 levels ◼ Reduce HCFC, CFC, and HFC 7% below 1995 levels over the period from 2008 to 2012 ◼ The Protocol also contains provisions whereby credits for greenhouse gas emissions can be earned by carbon reducing activities, e.g., reforestation.  International Treaties: Great Lakes Water Quality Agreement of 1978 ◼ Agreement between the U.S. and Canada ◼ Created an international joint commission to draft regulations and make recommendations on actions affecting the Great Lakes, their tributaries, and adjacent riparian areas ◼ Regulations for discharges from ships (Coast Guard), preventing introduction of aquatic invasive species (US Fish and Wildlife), etc.  International Treaties: The Montreal Protocol ◼ Addresses ozone depletion ◼ 1987 Protocol Requirements: ◼ 50% reduction in the 1986 CFC productions levels by 1999 ◼ Freeze on the 1986 halon production and consumption levels ◼ London Amendment of 1990: ◼ Phase out CFCs entirely by 2000 ◼ Amendments of 1992: ◼ Accelerated timetable for reducing ozone depleting substances ◼ Implementation in the U.S. through Title VI of the Clean Air Act Amendments of 1990: ◼ Production of all Class I substances (CFCs, halons, carbon tetrachloride, and methyl chloroform) phased out by 2000 ◼ Production of Class II substances (HCFCs) phased out by 2030 Performance Standards Derived From Environmental Laws ◼ Corporate Average Fuel Economy (CAFE) ◼ Established through the Energy Policy and Conservation Act of 1975. ◼ Requires manufacturers to produce and sell enough fuel efficient cars to compensate for producing and selling cars or trucks with poor gas mileages in order to reach a targeted fuel efficiency of the manufacturer’s product line overall ◼ The National Highway Traffic Safety Administration (NHTSA) regulates CAFE standards and the EPA measures vehicle fuel efficiency. Performance Standards Derived From Environmental Laws (cont…) ◼ Appliance Energy Efficiency Standards ◼ Under the Energy Policy and Conservation Act of 1975 (EPCA), the Department of Energy (DOE) is required to establish by certain dates energy efficiency standards for a broad class of residential and commercial products. ◼ The National Appliance Energy Conservation Act of 1987 requires minimum energy efficiency standards for appliances ◼ The Federal Trade Commission (FTC) is responsible for in accordance with the Energy Policy and Conservation Act. The yellow FTC label on new appliances displays estimated energy-use. Performance Standards Derived From Environmental Laws (cont…) ◼ Vehicle Emissions Standards and Fuel Sulfur Content Regulations ◼ New standards require passenger vehicles to be 77 to 95% cleaner than those on the road today ◼ Promulgated to implement the goals of the Clean Air Act ◼ In February 2000, the EPA announced more protective tailpipe emissions standards for all passenger vehicles, including SUVs, minivans, vans, and pickup trucks. ◼ New standards reduce sulfur content by up to 90% ◼ At the same time, the EPA announced lower standards for sulfur content in gasoline, which reduces air pollution and ensures the effectiveness of low emission- control technology Criminal vs Civil Law ◼ Criminal law is made up of federal and state laws designed to protect society in general ◼ Illegal dumping of hazardous waste is criminal law as is arson or murder ◼ Criminal law threatens loss of liberty (jail!) ◼ Civil law regulates relations between individuals or corporations. Case Law ◼ The law as established by the outcome of former cases ◼ Provides a record as to disputes and disagreements in the application of the regulations, and provides guidance as to how to interpret and apply the regulations going forward ◼ We will look at case law from OSHRC