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Environmental Law and the Current Administration

Environmental Law and the Current Administration. Stacy Taylor Nelson Mullins Riley and Scarborough LLP. Tragedy of the Commons. Economics theory by Garrett Hardin

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Environmental Law and the Current Administration

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  1. Environmental Law and the Current Administration Stacy Taylor Nelson Mullins Riley and Scarborough LLP

  2. Tragedy of the Commons • Economics theory by Garrett Hardin • Individuals, acting independently and rationally according to each one's self-interest, behave contrary to the whole group's long-term best interests by depleting some common resource

  3. Environmental Awareness • Smog in Los Angeles (1940's) • Donora, Penn. (1948) • London's "Killer Fog" (1952) • Silent Spring by Rachel Carson (1962) • Santa Barbara Oil Spill (11 days) (1968) • Cuyahoga River, Ohio (1969) • Population Boom • Nuclear Proliferation

  4. Why Not the Courts or Traditional Legal Arena? • Complex technical issues • Science and technology • Complex social and economic issues • Balancing of risks versus economic and other harm to society • Not the traditional limited number of actors and limited number of harmed individuals • Not easily addressed through remedies available to the courts • What's a court supposed to do?

  5. How's Environmental Law Different? • Traditional law: • Developed over time • Grown and expanded from simpler beginnings • Through decisions and legal analyses • Lot of gray area and factors • Courts are the "regulators"

  6. Environmental Process • Enforcement, permits, issuance of regulations • Administrative process • Like the court process but starts with the agency • Potential Traps: • Deadlines • Must go through the process • Must raise and preserve issues

  7. Early Laws – Early 70's • 1955 – Air Pollution Control Act • 1960's – Land Management and Protection • Conservation/Preservation • 1963 – First Clean Air Act • 1970 – Clean Air Act • 1970 – EPA Established (under NEPA) • 1972 – Clean Water Act • 1973 Endangered Species Act

  8. Were They Successful? • Not initially • No teeth • Research and development; goals; expectations • But was the first step, which put the mechanisms in place • State agencies

  9. How Do We Incorporate Environmental Impacts Into Decision Making? • Easiest? • Traditional command-and-control regulation • MACT, BACT, LAER • Early approach to regulation • Still the challenge of what those limits or operating requirements should be • Risk based versus technology based

  10. How Do We Incorporate Environmental Impacts Into Decision Making? • Problem with this approach? • Does not allow market forces to work • If markets are the best balance of supply, demand, and limitations upon production • Want to capture these issues as real costs • Not efficient • Limits ingenuity

  11. Other Approaches • Incentive based restrictions • Tax reductions, grants, etc. • Emission tax/fees • Essentially a question of whose right it is • Cap and Trade • Market based approach • Puts a value on reductions that can be transferred • How it works . . .

  12. Cap and Trade • SO2, NO2, Greenhouse Gases • Set an overall target or "cap" and let "the market" dictate where reductions are made • An absolute cap is set on total emissions for a fixed compliance period (usually yearly)

  13. Cap and Trade • The cap is subdivided into allowances among pollution emitters • How the "shares" are allocated is usually the challenge • Allocated based upon prior emissions • Auction • Mix of the two • Typically, overall cap is then reduced periodically

  14. Advantages • Market forces control • Flexibility • Adapts to larger economic conditions • Cost-effective • For industry and regulators • Better data quality

  15. Cap and Trade • Is it always the best fit? • Must have enough facilities to support trade • Common pollutants / significant number of sources • Regional pollution issues • Substances with longer residence times • Differential Marginal Costs of Abatement • Strong regulatory/financial/contractual mechanisms

  16. Credit or Offset Programs • Similar to cap-and-trade • Non-attainment areas • New facility must offset emissions by acquiring from existing or recently closed facilities

  17. Environmental Statutes • Emissions and Effluent • Air • Water • Wetlands • Management of Hazardous Materials • Hazardous Waste Management • Toxic Substances • Solid Waste – Garbage/Trash • Contaminated Sites

  18. Federal and State • Feds. (EPA) set the minimum standards • States are to implement programs and enforce program to satisfy these standards • If states fail to implement programs enforcing the federal standards, then EPA can impose sanctions and can take over • Over-file

  19. Clean Air Act • 42 U.S.C. §§7401 et seq. • Most complex of the regulatory structures and most far-reaching • Stationary sources, such as power plants and manufacturing facilities, but also mobile sources such as automobiles and boats

  20. Clean Air Act • Ambient air • Adverse to public health or welfare and derived from numerous or diverse sources • Criteria Pollutants • National Ambient Air Quality Standards (NAAQS) • § 108

  21. Clean Air Act • Regulation of sources • Hazardous Air Pollutants (HAPs) • National Emission Standards for Hazardous Air Pollutants (NESHAP) • Maximum Achievable Control Technology (MACT)

  22. NAAQS • This was the cornerstone of the Clean Air Act • Congress's goal of assuring healthy air quality across the nation • Particulate matter, ground-level ozone, carbon monoxide, sulfur oxides, nitrogen oxides, and lead • No teeth until 1970 amendments • 1977 amendments extended deadlines

  23. NAAQS • § 109 – Development of standards • Economics not considered • Primary standards – health based • Protect the most sensitive individuals and provide an "adequate margin of safety" • Secondary standards – public welfare • Environmental, views/scenery, property damage, etc. • Five year review

  24. State Implementation Plans (SIP) • Submitted to and approved by EPA • Sanctions/penalties if fail to timely submit • Evaluate current levels and estimate future air quality • Enforcement mechanisms and plan for protecting air quality and addressing nonattainment areas

  25. State Implementation Plans (SIP) • May include non-stationary sources (i.e. cars, trucks, etc.) • Time limits for bringing nonattainment areas into compliance • In general, higher pollution levels means more time to meet the standards, but must also include certain mandatory control measures in their plans • Interstate air pollution

  26. New Source Review (NSR) • New major stationary sources or major sources making a significant modification • Major – 100 tons per year or more of any air pollutant at a listed source category; otherwise 250 tons per year • Significant – More pollutant specific • Preconstruction permit

  27. Prevention of Significant Deterioration (PSD) • Attainment areas • Best Available Control Technology (BACT) • Air Quality Impact Analysis • PSD Permit

  28. Nonattainment NSR • Nonattainment areas • Lowest Achievable Emission Rate (LAER) • Most stringent emission limitation contained in any state SIP or achieved in practice by that type/class of industry • Emission offsets • Air Quality Analysis • Reasonably Available Control Technology (RACT) • Already existing sources

  29. Where this matters today • Particulate Matter • Was the original air quality issues – smoke/soot • Fine dust, soot, smoke, droplets – i.e. particles • PM10 and PM2.5 • Ozone • Ground-level ozone • Currently undergoing review to set new NAAQs

  30. One Other Program • New Source Performance Standards • Technology based standards but aimed at the same ambient air issue • Criteria pollutants plus a short list of additional pollutants • Specific source categories – source categories that cause or contribute significantly to air pollution • Approximately 75 – power plants, glass, cement, rubber tires, etc.

  31. NESHAP – MACT Standards • Hazardous air pollutants (HAPs) • Suspected to cause cancer or other serious health effects, such as reproductive or birth defects, neurological, etc. • Originally health-based program, like criteria pollutants • Continuous debate and litigation – whether or not a chemical was "toxic" • 1990 Amendments – Congress set out a list of 188 hazardous air pollutants • Industry/technology based

  32. NESHAP - MACT • Major source • ≥ 25 tons/yr of total HAPs • ≥ 10 tons/yr of any individual HAPs • Area source • Any stationary source that is not a major source • 30 most dangerous HAPs and 7 specifically delineated HAPs • Sources accounting for 90%

  33. NESHAP - MACT • Maximum achievable control technology (MACT) • Sets limits based upon available technology • Top-performing similar sources

  34. Other Programs • Regional Haze • Preventing future and remedying existing impairment of visibility in congressionally designated areas where visibility is an important value • Must include regional haze provisions in SIP • Acid Rain – SO2 and NOx • 1990 Amendments • Cap and trade • Stratospheric Ozone • CFCs and now phasing out HCFCs

  35. Mobile Sources • Around half and sometimes more of the pollutants come from mobile sources • Title II of the Clean Air Act • Emission standards and fuel or fuel additives • Reduced lead content of gasoline and then sell of unleaded gasoline; reduced sulfur in highway diesel; lower volatility gas in the summer; addition of ethanol • 1990 Congress mandated some of these • Became more important with GHGs

  36. Greenhouse Gases • CO2, CH4, N2O, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride • Massachusetts v. EPA, 549 U.S. 497 (2007) • 5 to 4 • § 202 – emission of any air pollutant from new motor vehicles/engines, which "in his judgment cause, or contribute to, air pollution which may be reasonably be anticipated to endanger public health or welfare • EPA's response – if pollutant then must go through broader analysis

  37. GHG • Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards Rule (LDV Rule) • Subject to regulation – PSD kicks in • Tailoring Rule – largest stationary sources • >100,000 tons/yr. or modification increasing by more than 75,000 tons per year • New Source Performance Standards

  38. Mechanism • Permit • Legally enforceable document (like a contract) • Construction and then operating permit • Fees • New Source Review – Preconstruction • PSD, Nonattainment, Minor • Title V – added with 1990 amendments • Conditional major/Synthetic minor • Federally enforceable conditions

  39. Enforcement • Fines, penalties, corrective action • Consent Order • Administrative Order • Voluntary self-disclosure

  40. Energy Independence and Security Act of 2007 • Energy Policy Act of 2005 • Renewable fuels standard program for gasoline and diesel • Expanded with the 2007 act • Two goals: • Reduce oil imports • Reduce greenhouse gas emissions • Advanced biofuels

  41. Clean Water Act • Federal Water Pollution Control Act (1948) • As we know it – Clean Water Act (1972) • Federal Water Pollution Control Act Amendments of 1972 • 33 U.S.C. §§1251 et seq. • Regulates discharges into waters • Regulates quality standards for surface waters

  42. Applicability • Feds. don't have jurisdiction over everything • "Navigable Waters" • Defined in wetlands arena • "Duck Butt Rule" • Sold Waste Agency of Northern Cook County (SWANCC) v. Corp., 531 U.S. 159 (2001) • Rapanos v. U.S., 547 U.S. 715 (2006) – "substantial nexus" • Some states have stepped in to fill the gaps

  43. Water Quality • Classify based upon usage and value • Public water supply, protection of fish and wildlife, recreational waters, agricultural, industrial, and navigational • Anti-degradation policy • Tier 1 – all surface waters • Tier 2 – fishing and swimming • Tier 3 – outstanding national resource waters (ONRWs)

  44. Pollution Control Approach • National Pollutant Discharge Elimination System (NPDES) • Permit • Technology based standards • New Source Performance Standards • Best Available Technology (BAT)

  45. Pollution Control Approach • Impaired waters – water quality standards • Total Maximum Daily Load (TMDL) • Indirect dischargers • Publicly owned treatment works (POTWs) • Pretreatment program • Categorical pretreatment standards

  46. Stormwater Runoff • Act regulated point sources • 1987 Amendments • Municipal storm water systems (MS4) • Industrial stormwater

  47. Wetlands • How many think that there is a law against destroying wetlands? • Nope • Permit • 404 permit – US Army Corp. • 401 water quality certification – SCDHEC • Jurisdictional determination • Substantial nexus • What constitutes a wetland is broader than one might assume

  48. Resource Conservation and Recovery Act (RCRA) • 42 U.S.C. §§6901 et seq. • Regulations and permitting system for the handling of hazardous waste • Hazardous waste • Listed or categorical

  49. Resource Conservation and Recovery Act (RCRA) • Cradle to grave program • Cleanup regulations and standards • Requirements on how it is stored and for how long • Small quantity generator - >100 kg; <1,000 kg per month • 180 days without a permit • Large quantity generator - > 1,000 kg • 90 day accumulation

  50. CERCLA • Comprehensive Environmental Response, Compensation, and Liability Act • 42 U.S.C. §§9601 et seq. • Cleanup statute • Strict liability • Owners, operators, arrangers, transporters • Bona fide prospective purchaser (BFPP) • Due diligence / All appropriate inquires • State voluntary cleanup or brownfields programs

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