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U.S. Environmental Law and NGOs

U.S. Environmental Law and NGOs. Amy Albus. Legal Standing. Injury in Fact : a personal stake in a controversy Causation : the injury is traceable to the action challenged. Redressibility : available relief

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U.S. Environmental Law and NGOs

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  1. U.S. Environmental Law and NGOs Amy Albus

  2. Legal Standing • Injury in Fact: a personal stake in a controversy • Causation: the injury is traceable to the action challenged. • Redressibility: available relief • Zone of Interests: the interest claimed is an interest the statute is intended to protect.

  3. Storm King Mountain

  4. Storm King Mountain: • 1960s - Consolidated Edison (Con Ed) proposed the building of a hydroelectric power plant at Storm King Mountain to provide electricity for New York City region . • Scenic Hudson Preservation Conference was formed to object

  5. Storm King Mountain • Scenic Hudson intervened in the FPC licensing proceedings • March 1965 – FPC grants the license, refusing to accept Scenic Hudson’s arguments about aesthetic damage and calling the evidence of harm to the fisheries “irrelevant” • Scenic Hudson I – Court of Appeals holds that Scenic Hudson has standing to sue based on harm to non-economic interests • FPC approved the Storm King project for the second time and Scenic Hudson sued again • Scenic Hudson II (1971) –holding: FPC followed the required legal procedures. • Scenic Hudson III (1974) – Scenic Hudson sues again: fisheries data was grossly incorrect. Holding: new licensing hearing must be held • Settlement -The parties came to a negotiated agreement in December 1980 (“Hudson River Peace Treaty”). Con Ed gave up its Storm King license and donated land there to create a park.

  6. U.S. Statutory Law • NEPA - 1970 • EIS or EA • APA • Sets requirements for agency procedures • Public participation • Rulemaking and adjudication • Sets standards for judicial review • Clean Air Act, Clean Water Act etc

  7. Role of the Environmental Protection Agency 1. Draft and Enforce Regulations 2. Provide Financial Assistance to Non-Profit Organizations, State Environmental programs and Educational Institutions 3. Conduct Environmental Research 4. Offer Environmental Education and promote voluntary prevention and conservation programs

  8. EPA Homepage

  9. EPA Main Topics

  10. Quality-Based Controls Focus is on maintaining the overall quality of the environment Difficult to identify the cause of the problem Behavior-Based Controls Focus is on changing the behavior of particular actors Disproportional Blame is placed on easily-identifiable actors Methods of Regulation PROBLEMS • Cap and Trade Programs

  11. Quality Based Example- Clean Water Act - • Set a Water Quality Standard • If Water Quality decreases, find out who is to blame and prosecute FACTORY

  12. Behavior Based Example • Prohibition of Certain Behaviors: ie Buying Lead Tackle Lead in Fish Lead Fishing Tackle Lead Poisoning in People Use and Sale of Lead Tackle FORBIDDEN

  13. Cap-and-Trade Programs • Set a CAP - Determine the “safe” amount of pollution that can be released into the environment. Identify Polluters and divide up the allowable amount of pollution among them as ‘credits.’ • Allow Polluters to TRADE pollution credits • i.e. – if each polluter is given 10 credits and IndustryA does not need its 10, it can sell them to Industry B, which needs more than its 10. • Monitor environmental quality AND the behavior of the Polluters

  14. Cap-and-Trade Example • Problem – 5 Factories and 150 parts =Acid Rain • Solution – Reduce Sulfur Dioxide Emissions • Cap: Acceptable level of Sulfur Dioxide = 100 parts 40 parts 30 parts 20 parts 20 parts 50 parts Factory A Factory C Factory E 10 parts + 10 credits $$$ Factory B Factory D

  15. EPA Compliance and Enforcement • Civil Enforcement • Criminal Enforcement • Alternative Dispute Resolution • Partnerships and incentives to voluntarily improve the quality of the environment

  16. Negotiation and Settlement • Agrum/Royster-Clark • Manufactures Nitric Acid • Agram expanded the plant in the 1990’s WITHOUT obtaining the necessary permit • EPA sent Notice of Violation citing excess NOx emissions • Settlement requirements: • Payment of a $750,000 fine; • Installation of state-of-the art controls to lower NOx emissions

  17. Civil Action • Martex Farms • Grows and sells tropical fruits and plants • Failed to: • display specific pesticide application information; • provide them with decontamination materials; and • provide handlers with personal protective equipment • Jan 2005 – EPA filed complaint alleging violating the worker protection provisions of U.S. pesticide laws • Jan 2007 – Administrative Law Judge rules in EPA’s favor • Ordered to pay $92,620 for the 170 violations of worker safety

  18. Criminal Action • Atlantic States Cast Iron Pipe Co. • Charges: • Repeated discharge of oil into Delaware River • Concealment of worker injuries from health and safety inspectors • Maintenance of dangerous workplace • Seven-month long jury trial • Company + four of five individuals were found guilty

  19. EPA Overwhelmed • 12 Major Environmental Statutes plus several other pieces of legislation • Including: Clean Water Act, Endangered Species Act, Clean Air Act, and CERCLA etc • Multiple Roles • Research • Drafting Regulations • Monitoring Compliance • Negotiating Clean-up and Litigating • Educating the Public

  20. Pros and Cons of Environmental Public Interest Litigation Pros: • Government Accountability • Enforcement Assistance Cons: • Cost • Risk of flooding the courts. • Broad standing for all, including opponents of environmental protection.

  21. Environmental Public Interest Law Firms • Env. Defense Fund - 1967 • Citizens seek to ban use of DDT by the Suffolk County Mosquito Control Commission • NRDC -1970 • Partnership between a group of Yale Law School students and the Scenic Hudson Preservation Conference

  22. Assistance from NGOs • Education Campaigns • Partnerships for bettering the environment • Formulation of Policies and Regulations • Enforcement assistance

  23. EIS must include: • Purpose of the proposed action • Environmental impacts of the proposed action; • Range of alternatives; • Analysis of the affects of the alternatives. • the relationship between short term uses of the environment and maintenance of long-term ecological productivity; • required resources; and • cumulative effects of implementing the proposed action.

  24. EIS Procedure • Announce Project Plan (1st Notice and Comment Period) • Draft EIS • 2nd Notice and Comment Period • Final EIS and Proposed Action • Record of Decision

  25. Concerned Citizens Coalition of Stockton vs. City of Stockton City of Stockton Concerned Citizens Coalition Operations Management Intl, Inc & Thames Water • City decides that this contract is categorically exempt from the (state) requirements for preparing an EIS • Several groups get together to file a lawsuit to overturn the water privatization contract • Judge rules that the city abused its discretion in failing to consider the environmental impact such a contract may have • City must reestablish control over the utility and do an EIR (EIS) before approving the project

  26. Sierra Club vs. Johnson • April 2006 – Sierra Club petitions EPA and the Consumer Product Safety Commission (CPSC) to regulate use of lead in toy jewelry • July 2006 – EPA denies petition • September 2006 – Sierra Club files suit against EPA to compel rulemaking • December 2006 – CPSC votes to invoke a nationwide ban on toy jewelry containing more than 0.06% lead • January 2007 – CPSC publishes notice of the regulation

  27. Sierra Club vs. Rumsfeld DoD fails to respond to lawsuit Report due January 2006 May 2006 July 2006 August 2006 September 2006 • Congress enacted DoD Authorization Act compelling study of the effect of wind energy on military readiness (radar operations) Sierra Club files suit • Sept 12 - 36 Representatives send letter to President Bush • Sept 28 - Study released

  28. NGOs Partner up • Governments • Crow Wing County Recycling Program • Other Organizations • Habitat for Humanity and MEI • Businesses • Environmental Defense and Fed Ex

  29. Fed Ex • August 2000 - FedEx Express and Environmental Defense team up to create fuel-efficient delivery trucks. • May 2003 - FedEx Express agrees to purchase 20 hybrid electric diesel delivery trucks using Eaton's innovative hybrid electric technology. • March 2004 - The first two vehicles are used in Sacramento, CA. • October 2004 - 10 hybrid delivery trucks introduced in New York City; 4 in Tampa, FL; 2 in Washington DC • 2005 – 75 additional vehicles to be purchased

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