Private property rights do not apply to public goods

People treat public property poorly

True costs of degrading public goods are unknown

Destruction/alteration of habitats

Species extinction

Stratospheric ozone depletion

Climate change

Herbicides/pesticides

Toxic chemicals and pollutants in surface water

Acid rain

Airborne toxins

Oil spills

Groundwater pollution

Airborne radioactive particles

Acid runoff from farms/industries

Thermal pollution

Judge made/case law

Centralized court system

Courts follow precedents

Jury trials

Accused are innocent until proven guilty

Adversary--lawyers argue directly to trier of fact

Expensive for citizens to seek law's protection

Codes/statutory law

Multiplicity of courts

Courts free to decide anew

Professors lead in applying law to new situations

No jury trials

Accused are guilty until proven innocent

Investigative--judge examines witnesses and calls experts

Cheaper for citizens to obtain law's protection

Parties initiate and prosecute the litigation

Truth is not the primary goal

Judge serves as umpire

Lawyers obtain best possible result for client consistent with ethics

Client makes all important decisions but lawyer exercises "client control"

Constitutional law (i.e. Bill of Rights)

Statutes (i.e. environmental laws)

Administrative law (i.e. regulations)

Local municipal/county ordinances

Common Law

Courts/jurisdiction

Rules of procedure

Administrative process

Appeals to local hearing boards

Government v. Private Party

Prosecution/defendant

Indictment based on probable cause

Arraignment

Guilty/not guilty

Government must provide evidence, defense may

Both sides may interview each other's witnesses

Right to counsel

Jury trial if requested

Defendant need not testify

Burden of proof on the government

Prison/jail/fines/probation possible

Private Party v. Private Party

Government v. Private Party

Plaintiff/defendant

Civil complaint based upon reasonable cause

Answer

Admit/Deny; Counterclaim; Cross Claim; Third Party Claim

Both parties must provide evidence

Summary judgment, preliminary injunction, demand for discovery

No right to counsel

Jury trial if requested

Defendant may be called upon to testify

Burden of proof on the plaintiff by a fair preponderance

Money damages, civil penalties, or injunction

Lawsuits must be real disputes

Courts do not issue advisory opinions about legal disputes

When one government entity transfers its legal authority to another governmental entity

Common in federal environmental statutes (delegation by feds to states)

Liability imposed without a finding of knowing, intentional or negligent conduct

Usually applies to ultra-dangerous activities or imposed by statute (common in environmental statutes)

When it's over, it's over

No retrials

1. Agencies must follow specified procedures

2. Agencies must make docket or record of decisions

3. Agencies only have delegated authority (no inherent power)

4. Agencies' opinions are granted deference by the courts

5. Agencies must follow their own rules

6. Agencies cannot be arbitrary or capricious

7. Agency decisions must be appealed to court

8. Agency actions are generally upheld in court

1962: Silent Spring by Rachel Carson

1969: Santa Barbara oil spill, Cuyahoga River catches fire

1970: First Earth Day

1971: EPA established

1978: Love Canal emergency

1979: Leak at Three Mile Island nuclear plant

1989: Exxon oil tanker Valdez spill

1997: Kyoto Protocol

2002: Earth Summit 2002

Rapanos wanted to build over wetlands, was blocked by "navigable waters" part of CWA

Court upheld and determined that "navigable waters" includes any body of water connected by tributaries or other similar means

CWA permits administered by EPA

Required for discharge of any pollutants from a point source into U.S. water

Allows discharge of specified pollutants from a specified outfall

Issued by EPA under CWA

Regulates storm water discharges associated with industrial activity and discharges from storm sewer systems serving more than 100,000

CWA permit administered by Army Corps of Engineers

Allows placement of dredge or filled materials in waters

Applies to bank protection, road crossing, filling of wetlands

Administered by ADEQ

Required for anyone who discharges to the vadose zone or who owns/operates a facility that discharges to the vadose zone

States must adopt drinking water regulations as stringent as the national primary drinking water regulations (NPDWRs)

Regulates "public water systems" for the provision of water to the public for human consumption through pipes with 15 service connections or serving 25 individuals

Absolutely enforceable requirements

Establish MCLs for finished water

Health-based

Non-enforceable

Pertain to aesthetics of water

Non-health related

Standards established by the EPA under the CAA

Primary standards to protect human health

Secondary standards to protect plants/animals

PM10

SO2

CO

NO

O3

Lead

Hydrocarbons (removed in 1983)

State Implementation Plans (SIP)

Federal Implementation Plans (FIP)

Plans to achieve and maintain NAAQS

State plans are for states that have not yet made a mistake

Federal plans give the feds more control and mean the state has messed up their compliance

Attainment areas are areas that have reached NAAQS

Goal is to prevent significant deterioration

Non-attainment areas have not reached NAAQS

SIP revisions mandatory

Unclassified areas are considered non-attainment areas

Class I for "major sources"

Class II for state Hazardous Air Pollutants sources and NESHAP sources and nonmajor sources

A tank or combination of tanks and pipes/valves connected to tanks being used or having ben used to contain regulated substances and which has ten percent of its total volume underground

Exceptions: septic tank, home heating oil tanks, fuel for non-commercial purposes, tanks located in a basement, cellar or mine

Identify existing USTs and require upgrade/removal

Clean up past UST contamination

Require new tanks to meet strict standards

Require leak minimization and proper closure

Require reporting, investigation and cleanup of spills

Operator: a person in control of/having responsibility for day-to-day operations of a UST

Owner: a person who holds legal/equitable/possessory interest in a UST or held interest in a UST at the time of release, excluding:

Persons exempt under innocent landowner clause

Owner/operator must report a release or suspected within 24 hours or immediately if reportable quantity of hazardous substance

Must take immediate action to prevent any further release or hazards

Must implement corrective action plan

Possible temporary (up to one year) closure or permanent closure

Emergency Planning and Community Right to Know Act (EPCRA)

Composed of state and local elected officials, police, fire, civil defense, public health, environmental and transportation officials

Must develop emergency response plan

Under EPCRA:

Facility must engage in emergency planning only if amount of extremely hazardous substance exceeds TPQ

Facility must notify the State Emergency Response Committee (SERC) and the (LEPC)

Exceptions:

Do not have to notify if release is solely within boundaries of a facility, a continuous CERCLA release, a federally permitted release, exemptions from CERCLA

Preferential hierarchy of methods for dealing with pollution:

1. Source reduction

2. Recycling

3. Treatment

4. Safe release to the environment

Must be filed by those required to file under EPCRA or who generate a certain amount of hazardous waste per month

Must include PPA annual report

Required by those who meet the requirements for toxic data reports

Must include information about facility, certification of knowledge of the plan, specific goals, a written policy, analysis of pollution prevention opportunities, employee awareness and training programs

Must be maintained until facility no longer exceeds the threshold level

Goals: to protect human health/environment from hazards posed by waste disposal

To conserve energy/resources through waste recycling

Reduction of generation of waste

Generators:

Proper on-site waste handling

Manifest 

Transporters:

Labeling/DOT placarding

Delivery to approved TSD

Manifest

Treatment, Storage and Disposal Facilities (TSDs)

Performance standards

Groundwater monitoring

Air emission controls

Prohibitions against land disposal

Any discarded material including solid, liquid, semisolid or contained gaseous materials resulting from industrial, commercial, mining, agricultural or community activities

Exceptions:

Sewage and mixtures thereof that pass through the POTW

Industrial wastewater discharges under CWA

Irrigation return flows

Nuclear material under Atomic Energy Act

Recycled wastes that are not "reclaimed"

Solid waste with any of the following characteristics:

Ignitability

Corrosivity

Reactivity

Toxicity

Under RCRA, any amount of a listed waste, when combined with non-hazardous waste, renders the whole mixture hazardous

Any amount of a characteristic waste, when combined with non-hazardous waste, renders the whole mixture hazardous only if it still exhibits the characteristic

Commonly recycled wastes with special management provisions intended to facilitate recycling

Batteries

Pesticides

Mercury thermostats

Mercury containing lamps

Administered by Occupational Health and Safety Administration (OSHA)

Requires standards to assure that every working person has safe and healthy working conditions

Has greater impact on environmental health than EPA because one is more likely to encounter hazardous exposures at work than at home

Under OSH Act: "the worker right-to-know rule)

Requires written Hazard Communication Program

Labels on all containers of hazardous chemicals

MSDSs for each hazardous chemical--accessible to all employees

Info/training of employees prior to assignment to work with hazardous chemicals

Carcinogens

Toxic agents

Reproductive toxins

Irritants

Corrosives

Sensitizers

Target organ effects

Declares a national policy to protect the environment

Federal agencies must take a "hard look" at environmental impacts of actions

Establishes procedure for environmental impact statements

Establishes Council on Environmental Quality to advise the President

No enforcing agency

Must include:

Environmental impact of the action

Adverse environmental effects which cannot be avoided

Alternatives to the action

Relationship between short-term use and long-term productivity 

Irreversible or irretrievable commitments of resources

Concise public document to determine whether an EIS is necessary

If there is a significant environmental impact, proceed with EIS

If there is no significant environment impact, prepare Finding of No Significant Impact (FONSI)

Provides the means and program for conservation of endangered/threatened species and their habitats, administered by the Fish and Wildlife Service (FWS) under the Department of the Interior

1. Listing of species/habitats

2. Consultation with FWS

3. Taking of protected species prohibited

4. Permits for taking

5. Enforcement--civil/criminal/citizen suits

Under ESA

1. Present/threatened destruction, modification or curtailment of habitat

2. Over-utilization of the species

3. Disease/predation

4. Inadequacy of existing regulations

5. Other factors affecting species' existence

Under ESA

Specific geographical areas occupied by the species at the time it is listed

Specific areas outside the occupied area if such areas are essential for conservation

Must be made on the basis of the best available scientific data taking into consideratin economic impacts

Under ESA

Must be developed to promote conservation and survival of listed species

Must include site specific management actions needed to achieve goals

Under ESA, administered by FWS

For scientific purposes or to enhance survival of species

Or an incident to carrying out an otherwise lawful activity

Applicants must submit a Habitat Conservation Plan (HCP)

Submitted when applying for an incidental take permit

Must specify:

Impact which will result from taking

Steps taken to minimize/mitigate such impacts

Why alternatives to action are not feasible

Administered by EPA

Gives EPA authority to clean up inactive hazardous waste sites or to force private parties to do so

Sets procedures and standards for cleanup

Sets release reporting requirements for hazardous substances

Establishes procedure for identifying priority sites

Creates a Superfund to fund cleanups

Provides grounds for private party liability

Provides guidance for settlements with EPA

Primary plan for CERCLA

Sets procedures and standards for response actions and cleanups

Any "person in charge" must report as soon as release is known of a hazardous substance into the environment in reportable quantites to the National Response Center

Exceptions:

Pesticides under FIFRA

Federally permitted releases

RCRA releases

Continuous releases with previous notification

Under CERCLA

First step to respond to environmental emergencies

Removal of threat: e.g. fencing, finding an alternative water supply

Generally restricted to one year and less than $2 million

Under CERCLA

Preliminary Site Assessment and Site Investigation (PA/SI)

Remedial Investigation/Feasibility Study (RI/FS)

Remedial Design/Remedial Action (RD/RA)

Under CERCLA

How a remedy is chosen, considering:

Protection of human health/environment

Compliance with Applicable or Relevant and Appropriate Requirements (ARARs)

Long-term effectiveness/permanence

Short-term effectiveness

Reduction of toxicity, mobility or volume

Implementability

Cost

State/local acceptance

Current owners/operators

Former owners/operators

Generators/Arrangers

Transporters

Strict liability

Joint and several liability

Retroactive liability

Act of God

Act of war

Third-party or "innocent landowner" defense

Under CERCLA

Defendant must have undertaken all appropriate inquiry into previous ownership and use of a property before purchasing and still not known about contamination

Factors to be considered:

Special knowledge/experience of the defendant

Purchase price 

Commonly known/reasonably ascertainable information about the property

Obviousness of presence of contamination

Ability to detect contamination by inspection

No universally defined standard, but must be "all appropriate inquiries" for the situation

Based on:

EPA guidance

Resolution Trust Corporation (RTC) guidance

American Society for Testing Materials (ASTM) Standards

Under CERCLA

To define all appropriate inquiry into the previous ownership and uses of a property

Concerned with providing "innocent landowner defense"

Records review

Interviews

Site reconnaissance

Report

Follow-up after a problem is identified in previous phases

Usually requires soil or gas bores or monitoring wells

A civil wrong, other than a breach of contract, for which courts will provide a remedy in the form of damages

Examples:

Nuisance

Trespass

Strict liability

Negligence

A tort when damages result from a hazardous or toxic substance

Common claims:

Asbestos

Chlordane/Heptachlor

Pesticides

TCE, PCE, Vinyl Chloride

Lead

Dioxin

PCBs

Benzene

DES

Formaldehyde

Lumber products

EMFs

Mold

(causing cancer, birth defects, organ damage, or other illnesses)

Under tort actions

Includes intentional wrongdoing such as assault, battery, trespass, inflicting emotional distress

Remedies include compensatory or punitive damages

Under tort action

Includes any reckless disregard for human life or health

Remedies include compensatory or punitive damages

Under tort actions

Worth than simple negligence

Remedies include compensatory damages and sometimes punitive damages

Under tort action

Duty, breach of duty, causation, damages

Remedies include compensatory damages

Ultra-hazardous activity, product liability

Remedies include compensatory damages

Under tort action

Negligence actions for personal injury must be filed within one to two years, and time begins at the time when the plaintiff knew or should have known

Under tort action

Personal injury

Economic loss

Pain and suffering

Medical expenses

Loss of consortium

Emotional distress (alongside injury)

Environmental Management System (EMS) promulgated by the International Organization on Standardization (ISO)

Comprehensive systems standard calling for organizations to conduct their environmental affairs through a structured management system

Elements include:

Policy

Structure and responsibility

Significant environmental aspects

Identifying legal and other requirements

Setting objectives and targets

Programs

Operational controls

Training/awareness

Monitoring/measurement

Communication

EMS auditing

Corrective and preventative action

Management review

Documentation/Records

Good:

Reduced risk of prosecution

Reduced inspections

Reduced penalties

Reduced reporting requirements

Enhanced compliance

Reduced products liability claims

Reduced waste streams

Reduced worker injuries/illnesses

Reduced contractor accidents

Bad:

Factual basis for civil liability and penalties

Factual basis for criminal liability and knowing and willful violation

Factual basis for non-disclosure violation

Factual basis for officer, director, shareholder liability

Factual basis for permit violation, suspension or revocation

Factual basis for internal factions to blackmail or pressure change

Factual basis for toxic tort liability

Factual basis for insurance carrier defense of non-disclosure in application for insurance

Factual basis for competitor to steal customers

Factual basis for buyer in real estate transaction to claim incomplete or inaccurate representations

Contact

Notice of opportunity to correct

Notice of violation

Administrative orders/consent orders

Permit revocation

Judicial enforcement (penalties or injunctions)

No mental state defense--strict liability

Must show criminal intent or "mens rea"

Must be intentional and knowing

Being tried for both civil and criminal violation

Communication of Grand Jury testimony to civil authorities is prohibited

Results of civil searches may not be admissable in criminal cases

Government attorneys cannot threaten criminal prosectuion in order to obtain higher civil penalties

Invocation of 5th Amendment privilege against self-incrimination cannot be used in a civil case

Almost all commercial general liability (CGL) insurance policies exclude problems caused by pollutants in their coverage.

To be insured clients must purchase a rider or policy endorsement