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Reference Guide

Environmental Law - Reference Guides

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Course Code
LAW 356

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l e a r n • r e f e r e n c e • r e v i e w permacharts TM EEnvironmental Law ENVIRONMENTAL REGULATION NATIONAL ENVIRONMENTAL POLICY ACT METHODS STRUCTURE SCOPE OF EIS COMMAND & CONTROL REGULATIONS • NEPA requires that the federal • Address environmental effects of • Regulations that directly impose specific obligations government prepare and publish said action (such as limitations may be placed on amounts of information on environmental • Segmentation occurs when an pollutants a facility may emit) effects of government proposals agency tries to divide a large • A technology-based regulation is a standard or (NEPA s. 102(2)(C)) project into smaller segments while limitation that requires as much pollution control as • Requires agencies to prepare limiting the scope of the EIS to can be achieved with current technology; they are Environmental Impact each segment based on available control technologies and Statements (EIS) on federal • May be prevented where associated costs (such as BAT limitations under the actions that may significantly affect segmentation reduces the impact Clean Water Act) quality of human environment of the EIS to the point of not being • An environmental quality-based regulation is a • Established Council on effective (such as geographical standard or limitation that attempts to achieve a set Environmental Quality (CEQ); concerns, independent utility) level of protection to human health or the oversees implementation of • Tiering occurs where an agency environment; considers impact of pollutants on regulations, offers coordination prepares one general programmatic health and/or environment (such as NAAQS under among federal agencies, and EIS on the entire project and then the Clean Air Act) prepares annual reports of does a specific EIS on each smaller environmental conditions part MARKET INCENTIVES EIS PROCESS CONTENT OF EIS • Regulatory techniques that use market forces to control environmental pollution • Federal agencies must follow • Alternatives to the proposed certain steps when meeting EIS action (NEPA ss. 102(2)(C), (E)) • Usually allow operators of individual facilities, not requirements • Analysis of environmental effects of the government, to make decisions about pollution • Determine whether action is proposed action and alternatives to control levels that they want to achieve subject to statutory or other proposed action • Effluent fees are taxes and/or fees which are based on amount of pollution produced by an industry exemption • Rule of reason applies to scope of • Marketable pollution rights use market forces by • Prepare EnvironmentalAssessment alternatives establishing a set level of allowable pollution, giving (EA) to find if action requires an EIS• Mitigate the adverse environmental industrial facilities the right to emit pollutants at a • Issue a Finding of No Significant impact of proposed action level to meet this goal, and allowing facilities to buy Impact (FONSI) document if the • Uncertainties must be explained agency finds that no EIS is and sell these allocated rights necessary or publish a Notice of where information is absent or • Financial subsidies are given to industries to help Intent to prepare an EIS where lacking control pollution necessary p EIS THRESHOLD ISSUES INFORMATION DISCLOSURE • Publish a draft EIS with a full e analysis • Only necessary for federal actions • Emergency Planning and Community Right-to-Know • Make the draft available for public • Applies to private parties where r Act (EPCRA) requires facilities to calculate (on an comment there is federal authorization or m annual basis) the amount of hazardous substances • Issue a final EIS; may involve funding that they release into the environment; information judicial review • An EIS is only necessary forproposals a must be provided to the public for action; ripeness is an issue • National Environmental Policy Act (NEPA) requires c SUBSTANTIVE EFFECT OF NEPA • Does not include preliminary h government agencies to prepare Environmental agency plans Impact Statements which describe the environmental • Agencies are not mandated to take • Proposal must be a major federal a consequences of certain government proposals any particular action action with a significant affect on • An agency’s decision to take an the human environment r action will not be invalidated as a • Environmental effects must involve t violation of NEPA s CONSIDERATIONS • Agencies often act under authority impacts on the physical of statutes with substantive environment; does not include . ECONOMIC CONSIDERATIONS environmental provisions adverse social or economic effects c o • Cost vs. benefit analysis compares the cost of a regulation with the regulation’s benefits m • Cost effectiveness analysis compares cost between two viable options of achieving a certain goal COMMON LAW TORTS • Cost consideration analysis looks at simple costs CAUSES OF ACTION without determining how it affects the final decision • Cost oblivious analysis does not consider costs at all Negligence Conduct that falls below a standard of care that is owed to another party ETHICAL CONSIDERATIONS Nuisance Conduct that unreasonably interferes with use and enjoyment of land • May be private or public • May be negligent or intentional • Environmental regulations may raise ethical concerns • Includes extent to which humans are required to Strict Finding of liability without any regard to the defendant’s protect nature and other non-human species, Liability negligence • Also applies to product liability cases protecting future generations, and so on Trespass Physical invasion of another person’s land 1 ENVIRONMENTAL LAW • A-8I8-4 © 1996-2011 Mindsource Technologies Inc. l e a r n • r e f e r e n c e • r e v i e w permachartsM COMMON LAW TORTS (CONTINUED) CAUSATION REMEDIES • Plaintiff must prove that defendant’s • Issuing an injunction is an equitable • Force a facility to stop polluting where the conduct was the cause in fact of his/her remedy plaintiff is able to prove that the defendant is injury • Court may consider several factors committing a continuing tort • Difficult to prove that exposure to toxic when it is deciding to issue an • Balanced the harm to the plaintiff with the utility substance caused disease or injury (such injunction (that is, adequacy of of the defendant’s conduct (see Boomer vs. as cancer) monetary damages) Atlantic Cement Co.) RESOURCE CONSERVATION & RECOVERY ACT STRUCTURE GENERATOR REQUIREMENTS • The RCRA is a federal statute which deals with the disposal of • Do not need a permit (RCRA s. 3002) hazardous and solid wastes • Must determine whether they have generated hazardous waste, obtain EPA • Deals with hazardous wastes (Subtitle C), non-hazardous solid ID number, prepare and transport hazardous wastes for off-site disposal or wastes (Subtitle D), underground storage tanks (Subtitle I), and treatment using a manifest, and store hazardous wastes on-site to 90 days used oil (s. 3014) TRANSPORTER REQUIREMENTS HAZARDOUS WASTE REGULATORY SYSTEM • Do not need a permit (RCRA s. 3003) • Subtitle C of RCRA contains separate requirements which apply • Must obtain an EPA identification number, only transport properly to generators and transporters, as well as treatment, storage, packaged and labeled hazardous waste with a manifest, and deliver and disposal facilities (TSDFs) • A manifest must accompany all hazardous waste shipments hazardous waste only to a permitted TSDF labeled on the manifest • Prepared and signed by the generator, and then signed by TREATMENT, STORAGE, & DISPOSAL FACILITIES the transporter and disposal site • Generator must notify EPA if a signed copy of the manifest is • Facilities that treat, store, or dispose of hazardous waste must obtain a not received from the disposal site within 45 days; ensures permit (RCRA s. 3005) that the transporter does not illegally dispose of waste • TSDF must meet minimum technical standards (that is, liners for landfills), groundwater monitoring requirements for landfills, financial responsibility • Facilities that treat, store, or dispose of hazardous waste requirements, and plans to close and maintain site after closure must have a TSDF permit • May be required to undertake corrective action to clean up areas on-site HAZARDOUS WASTE with hazardous waste or constituents • A material is a hazardous waste if the generator determines LAND BAN that it is a solid waste and the solid waste meets the regulatory definition of hazardous waste • Land disposal of hazardous waste is prohibited (RCRA s. 3004) • A material is a solid waste if it is abandoned, recycled, or • Allowed where government has found that there will be no migration of wastes from facility or waste has been treated to meet technology-based classified as inherently waste-like cleanup levels (BDAT) • Solid wastes include solids, liquids, and contained gases • Solid waste is hazardous waste if it is a listed waste or it is a m characteristic waste NON-HAZARDOUS SOLID WASTE o • A listed hazardous waste is waste that is found on specific EPA • Subtitle D deals with non-hazardous solid waste lists of hazardous wastes • Solid wastes can only be disposed of in sanitary landfills (RCRA s.4004) c • A characteristic hazardous waste is a waste that exhibits any • Set criteria define what constitutes a Municipal Solid Waste Landfill . one of four characteristics (ignitability, reactivity, (MSWLF) s corrosivity, toxicity) • Open dumping is prohibited (RCRA s. 4005) t • Mixture rule determines whether mixtures of hazardous and r non-hazardous waste are classified as hazardous ENFORCEMENT • Derived-from rule determines whether residues from a treatment of hazardous waste are classified as hazardous • Allows government or citizen actions for violation of requirements • Contained-in rule determines whether groundwater and soil • Authorizes actions against parties causing or contributing to imminent and h substantial endangerment from either solid or hazardous waste (RCRA ss. c contaminated with hazardous waste are classified as 7002, 7003) hazardous a m r ADMINISTRATIVE PROCESS e ENVIRONMENTAL PROTECTION AGENCY ADMINISTRATIVE DECISIONS JUDICIAL REVIEW p • The EPA (1970) is responsible for • Administrative Procedure Act (APA) defines the procedures • Agency actions may be subject implementing most federal pollution that federal agencies must follow when developing to federal review; however, control statutes regulations or issuing permits court must have proper • Environmental statutes give power to • Agency regulations are court-reviewed under the arbitrary jurisdiction create regulations, issue permits, and and capricious standard • Citizen suit provisions allow enforce laws • Courts usually defer to agency interpretations of related parties to sue the EPA where legally required non- • Other federal administrative agencies statutes discretionary action has not have environmental responsibilities • Most EPA regulations go through a notice and comment been taken (such as Department of the Interior, procedure (APA s. 553) Food and Drug Administration) 2 ENVIRONMENTAL LAW • A-8I8-4 © 1996-2011 Mindsource Technologies Inc. l e a r n • r e f e r e n c e • r e v i e w permachartsM REGULATION OF TOXIC SUBSTANCES S AFETY UNCERTAINTY • Assume that there is no safe level of carcinogenic exposure (such • Little scientific information about effects of exposure to low levels of as non-threshold pollutants); threshold pollutants have a safe toxic substances level of exposure with a margin of safety • Regulators must make decisions even
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