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Environmental Law
Cards for a Law School Class in Environmental Law (Victor Flatt Professor)
70
Law
Professional
12/10/2009

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Cards

Term
Triggers for NEPA
Definition

  1. Major
  2. Federal Action
  3. That will significantly effect the quality of the human environment.

Term
When do you not have to do an EIS
Definition

  1. Project doesn't meet triggers
  2. Exempted from statutes (logging on fed lands)
  3. When statute requires an alturnative process that is = to EIS.
  4. Would be contradictory to statute (facility will be built in Chapel Hill, N.C.)

Term
What are Categorical Exclusions
Definition
List of things established by the CEQ that do not constitute a "significant effect" and thus do not trigger an EIS
Term
Requirements to be a Categorical Exclusion
Definition

No relocation of significant numbers people

No significant impact on natural, cultural, recreational, historic, or other resource

Do not involve significant air, sound, water quality impacts

Do not have significant impact travel patterns

 

Term
Examples of Categorical Exclusions
Definition

  • Activities not related or leading to construction
  • Grants and research activities
  • Projects under other statutes
  • Approval of utility installations
  • Construction of bike and ped lanes PG. 96 for more examples

Term
Environmental Assessment
Definition

This is a smaller scale review that determines if the full blown EIS is required it is done to save time and money. It outlines the project and the expected environmental impacts. 

Term
FONSI
Definition
Finding of No Significant Impact- This is a finding in an EA that says that the project will not have a significant environmental impact and an EIS does not have to be done.
Term
NEPA Process
Definition

Categorical Exclusions

Environmental Assessment

Scoping

 Notice of Intent

A Draft EIS is Done

Final EIS is issued

EPA reviews the Final EIS

Record of Decision is Made

Judicial Review 

Term
Scoping
Definition

The agency determines the proper scope of the impacts to be considered and the level of action alternatives that are to be explored. This defines the scope of the inquiry.

 

Term
Notice of Intent
Definition
If the EIS had to be done then the agency will issue a notice that says they will be doing the EIS. 
Term
Draft EIS
Definition
Once the draft is completed is ti circulated for comment by the public. There can be public meetings or not the agency will take the comments and change the draft or reject them
Term
Final EIS
Definition
With the comments made that were appropriate to be included
Term
EPA reviews Final EIS
Definition

EPA can review EIS done by other federal agencies. The are not allowed to change the decisions made by the other agencies made after the submission of the final EIS

Term
Record of Decision Is made
Definition

The agencies final determination about the project must be made and a justification given for the decision made as well as the reasons why the alternatives were not selected

Term
UNDER WHAT STANDARD WILL A DECISION NOT TO DO AN EIS BE REVIEWED?
Definition

arbitrary and capricious standard or abuse of discretion. Marsh v. Oregon

Term
WHERE IS THE JURISDICTION FOR J.R. COME FROM?
Definition

federal question jurisdiction. Calvert Cliffs v. Atomic Energy Commission

Term
DOES THE EA FONSI DETERMINATION TRIGGER JR?
Definition
YES,it is procedural step that triggers judicial review.
Term
Mitigated FONSI
Definition
During the EA process the agency can adapt the project to make sure that it will not trigger a "significant environmental impact," and thus not require an EIS.
Term
Factors Courts Look At during NEPA JR
Definition

  1. Whether the agency had to do the EIS
  2. Did Agency Take a "HARD LOOK" at the environmental impacts
  3. Whether the determination was based relevant factors and was it a clear error of judgement. 

Term
Under NEPA what is a Hard Look
Definition
At a minimum it must include “a through investigation into the environmental impacts of an agency’s action and a candid acknowledgement of the risks that those impacts entail
Term
Under NEPA what is Major Action
Definition


  1. Proposal or action, when an agency has a goal and it actively preparing to make a decision.
  2. Inaction will not require an EIS unless the agency has a decision making obligation. Defenders of Wildlife v. Andrus
  3. Sect. 102 (2)(C) specifies that EIS be included in every recommendation, report, proposals for legislation,and other major federal actions significantly affecting env, that are performed  by a fed agency.

 

Term
What is Federal under NEPA, Factors to consider?
Definition

"any action that is potentially subject to federal control or responsibility.” Winnebago Tribe of Nebraska v. Ray

Factors

 

  • Agency veto power
  • Degree of discretion agency has over the fed portion of the project. 
  • Whether fed gov’t has given any direct financial aid to project.
  • Whether the overall involvement is enough to turn the private action into a federal one.  Not here. 

 

 

 

Term
What is Significant Impact under NEPA?
Definition

Case by Case Analysis

Factors

 

  1. Are there adverse environmental impacts in excess of those that are already in place
  2. The absolute quantitative effects of the action itself, including cumulative harm that results from the addition of harm to existing negative impacts
  3. One more highway in a city filled with highways has less of an impact than putting one through a forest
  4. When looking at the cumulative even a small amount of impact can be significant (the straw the breaks the camels back).

Things that are controversial are likely to be significant under CEQ guidelines. 

Actions that might have a cumulative effect on the environment require an EIS. Grand Canyon Trust v. FAA

Term
Under the Significant Impact What Effects Can Be Considered?
Definition

includes

ecological,

aesthetic,

historical,

cultural,

economic,

social,

or health effects,

whether direct or indirect.

Psychological fear of explosion from nuclear plant not warranted. Metropolitan Edison v. People Against Nuclear Energy

The cumulative impact of the past, present, and future impacts can be considered. A significant change in the plan of an agency may also trigger an EIS.

Term
When Might you need a Comprehensive EIS?
Definition

An EIS is necessary when proposals for federal actions are so closely related as to constitute a single course of action and are significant. (Trying to keep the agencies from making things so small nothing will trigger significant.)

No EIS if no Regional Proposal. 

Actions that might have a cumulative effect on the environment require an EIS. Grand Canyon Trust v. FAA

Term
Connected Actions
Definition

COnnected Actions must be done together. Building a hatchery and diverting water from a nearby river. Because the river water is being diverted just for the hatchery they must be considered. Morgan v. Walter

Term
What is Required in an EIS
Definition

Found in §102

 

  1. Does It look at Envr. Impacts?
  2. Consideration of Alternatives?
  3. Mitigation?
  4. Supplemental EIS?

 

Term
What is Required to Look at Environmental Impacts under NEPA EIS?
Definition

Things to be considered:Health and Public Safety Concerns, Air and Water Quality, Noise, Sewage and Solid Waste, Crime, Fire danger, social services, schools, hospitals, bus, any general comm. Services.  Alter character of area (Zoning, Aethstics blending)

 

  • All reasonable alternatives must be considered Methow
  • Those that would eliminate the need for this action
  • Those that would mitigate any environmental impact
  • The lack of action in this case.

 

IT does not require a plan that says what mitigation stratagies will be taken, or a worst case scenario analysis. Robertson v. Methow Valley Citizen’s Council

IF the adverse env effects of the action are adequately ID’d and considered, the agecy is not constrained by NEPA from deciding that other values outweigh the env. costs.  

Term
What is Included in considering Mitigaiton
Definition

While they must look at mitigation in the EIS there is no requirement that they use the mitigation strategies. Robertson v. Methow Valley Citizens

 

There used to be a worst case analysis requirement now all that is required is “summary of existing credible scientific evidence.” Courts have interpreted this to include a probability analysis. Methow


Term
Supplemental EIS
Definition
If the plan changes enough you may have to do a supplemental EIS, or if there is significant new informaiton.
Term
What is The Process for states to establish SIPS?
Definition

  1. State starts SIP when pollutant is added to the list. (within 3 years)
  2. EPA reviews to see if complete (6 mo.)
  3. EPA considers if SIP meets CAA (12 mo)
  4. EPA either Approves or gives conditional approval (If conditional state has 12 months to make EPA's required changes)

Term
Do states in granting allowances to a particular source within its SIP?
Definition
Yes, these are variances and a state can do this if the source says that it is economically or tech. infeasible. May require EPA to review SIP because this would be a change to the SIP.
Term
Can EPA delay the compliance of a source?
Definition
Yes, Called delayed compliance orders they can be granted up to a year of extended time.
Term
What Can EPA Do If A State Fails to Meet CAA provisions, approved SIP plan, or make changes under conditional approval?
Definition

 

  1. EPA can create a Federal Implementation Plan. Unless state fixes the problem within a certain period of time. 
  2. Sanctions- They are discretionary for attainment zones (Highway funds Ex.) Non-Discretionary for Non-attainment zones

 

Term
What CAA standard is required in NA areas when the NAAQS are set?
Definition

RACT (Reasonable Available Control Tech) as expeditiously as possible, and make reasonable progress towards attainment each year.

Pre-construction Review-For New and Modified Major stationary sources

Term
What is a Major Stationary Source Under NNSR?
Definition
Emits or had the potential to emit 100 tons per year of any pollutant
Term
How does EPA measure a facility/
Definition
Using the bubble method, approved in Chevron v. NRDC. Measures all of the sources from a facility together. not individually.
Term
What is Construction or Modification under CAA?
Definition
This occurs when there will be an increase in the emissions of a pollutant. Under the Bubble Concept this means that if the plant builds a new stack but reduces somewhere else then they don't have to go through Pre-Construciton Review.
Term
Under NNSR what Tech. level and other requirements must new or modified sources meet?
Definition

  1. LAER- (Lowest Achievable Emissions Rate) This is requires lower emission rate than anything in the state SIP at least as stringent as NSPS.
  2. Offsets- States decide but has to improve air quality not just keep status Quo. more than 1 to 1.
  3. Owner of source must show that any other units they have in the sate meet CAA standards
  4. State must be properly implementing its SIP
  5. Cost Benefit Analysis that says that after looking at other sites the benefits of this site outweigh the environmental and social costs.

Term
Where Can Offsets be claimed?
Definition
From the particular air shed or another shed if that shed is in higher non-attainment then the sources shed. And that shed contributes to non-attainment in the sources shed.
Term
What is LAER?
Definition
LAER is the rate of emission reflecting (A) the most strigent emission limitation in that SIP for such class of source unless owner demonstrates that such limitations are not achievable, or (B) the most stringent emission limitation achieved in practice by such class of source, whichever is more strict. Cost is not considered in the determination. Done on a case by case during permitting.
Term
What is the Prevention of Significant Deterioration Areas Program
Definition
This is the program that attainment and unclassifiable areas go through when there will be construction of a a new major emitting facility or a modification of an existing one.
Term
What is Major Stationary Source Under PSD?
Definition

A source that emits more than 100 tons per year of any pollutant or 250 tons per year of any combination of pollutants and the source is a member of one of the 28 listed categories of industry. (Plant Wide Bubble) Alabama Power Co. v. Costle

Term
What Technology Requirements Does PSD Impose?
Definition

(BACT) Best Available Control Technology

"maximum degree of reduction of each pollutant . . . taking into consideration energy, environmental, and economic impacts and other costs"

Case by Case analysis

Term
What Other Requirements Does PSD Require?
Definition

 

  1. Air Quality Impact Review- Demonstrates that the the new or modified emission will not cause or contribute to the violation of any emission limit under PSD. 
  2. Classification of Air Sheds for Visibility Rehabilitation. Class I, II, III. 

 

Term
What Does the Visibility Classification Program Do?
Definition

Class I: are National Parks and Scenic Areas. Sometimes Goal is 0 visibility impairment in SIP's. They must install BART (Best Available Retrofit Technology).

Class II: Most other Zones

Class III: areas for Industrial Development. 

States can switch a zone between II and III but they have to show that it will not result in the violation of NAAQS. 

Term
What is BART
Definition

Standard that is imposed on sources of pollutants that may cause or contribute to Class I Impairment

Factors in Determining Level

  1. Cost of Compliance
  2. energy and nonair quality env impacts of compliance
  3. any existing pollution control tech in use at the source 
  4. the remaining useful life of source 
  5.  the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology         

The States Set BART

 

Term
Can Companies Challenge BART installation on their Facility
Definition
Yes, They can show that they do not any contribution to the haze problem during the determination step Utility Air Regulatory Group v. EPA
Term
Steps In the Visibility Program
Definition

  1. Attribution step: is a source BART eligible (does it emit any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of viz in any mandatory Class I Federal area). EPA Cant force a state to find a source.
  2. Determination step: requires states to determine the particular technology that an individual source subject to BART must install

Term
Can A State Implement a Better Than BART Standard?
Definition

Yes, When

 

  1. Viz does not decline in any Class I area
  2. There is an overall improvement in Viz, determined by comparing the average difference between BART and the alternative over all Class I areas affected  

 

Term
What is NSPS?
Definition

New Source Performance Standards

They cover new and modified sources in both attainment and non-attainment regions. They are required to use BADT (Best Available Demonstrated Technology)

Term
What is BADT
Definition
The best system of emissions reduction that has been adequately demonstrated.
Term
What is Adequately Demonstrated Under NSPS's BADT
Definition
Cost can be a factor but not over-riding. It is a standard that is meant to force new technology. Does not require that it be routinely used. 
Term
What is New Source under NSPS?
Definition
constructed or modified after the publication of the standard of performance
Term
What is a Modification of a under NSPS New Sources?
Definition
any physical change in, or change in the method of operation of a stationary source. It must result in an increase in emissions
Term
How Do You Measure The Increase on NSPS To Determine If Modification Triggers BADT?
Definition
You Measure Actual to Projected Actual Emission for Existing Sources. Actual to Potential Is Allowed if the Source Chooses
Term
Exceptions to Modification in NSPS
Definition

WEPCO- Things that are Routine Maintenance and Repair

Factors In determining if it is R&M (small list)

  1. Frequency of Repair
  2. Cost of Work 
  3. Extension of Plant Life

Term

Of the Three Regulatory Frame Works Which have the Bubble Principle Apply?

NNSR, PSD, and NSPS?

Definition
NNSR and PSD. The Bubble Framework does not apply to the NSPS.
Term
Hazardous Air Pollutants Program
Definition
Applies to NEW and OLD. Controls a list of hazardous pollutants established by Congress and updated by EPA. 
Term
Types of Sources Under Hazardous Air Pollutants
Definition

Major: emits or has the potential to emit 10 tons or more a year of a HAP. or 25 tons per year or more of any combination of HAPs.

Area: Everything Else that is Stationary

Term
How Does EPA Measure under HAP
Definition

EPA gets to decide how it will measure for HAP. Can include fugitive emissions. However in calculating potential EPA must consider state and local controls. National Mining Association v. EPA

112a1 states that a “group of stationary sources” need meet only three conditions to be termed a major source

Sources within the group must be located within a contiguous area

Must be under common control

Term
What are the Emission Standards for HAP?
Definition
MACT (Maximum Available Control Technology)
Term
What is MACT?
Definition

Cost and Technological feasibility should be considered. §112(d)(2).

New- at least as stringent as “achievable in practice by the best controlled similar source”

Existing- reflect at least the average emission limitation achieved by the best 12% of existing sources in the same category. If there are less than 30 sources then the level of the best 5.

MACT- Must be updated every 8 years, this creates a ratcheting effect. 

Term
Under HAP Compliance for New Sources
Definition

  1. After the effective date for the HAP no new major source can be constructed if not approved by the EPA as being compliant with CAA.
  2. Those that are constructed after promulgation but before effective approval have 3 years to comply.
  3. If the proposed level is more stringent than the final they must comply with the proposed for the three years. 

Term
HAP Compliance for Existing Sources
Definition

  1. Residual risk standards are effective from the  date of promulgation, existing source had 90 days to come into compliance.
  2. There is a 2 year waiver which can be obtained from the EPA 112 (f)(4).
  3. MACT- EPA had 3 years to promulgate a new MACT to bring existing sources into compliance. 112(i)(3)(A).
  4. 1 year extension is avaliable if it is determined that more time is required to install the technology. 

Term
CAA Permitting Program Who Does It Who Approves?
Definition
States create them EPA approves. EPA can deny or give interim approval. State has two years to fix problems.
Term
Elements of CAA Permitting Program
Definition

  1. Public Access- The public must have access to the permits, permit applications, and monitoring and compliance reports.
  2. Public Participation- Must allow the public the ability to participate in the permit process and in any judicial review of final permit actions in state court.
  3. Minimal Conditions- there are minimum conditions that must be included. Ex. 5 year length of permit.
  4. Modification Provisions- All permits must allow for changes at a source without revision of an existing permit if the source provides advanced written notice to the EPA and state.
  5. Standardized Permit Application
  6. Fees- Must provide for permit fees for implementation and enforcement costs. 

Term
What is Included in EPA Review of the State Permit Program under CAA?
Definition

They approve or deny. The states get 2 years to fix the problems they do not have to fix all problems with their program only those that were identified by EPA. 

  1. Language says EPA must specify “the changes that must be made before the program can receive full approval.”
  2. Requiring redress of problems arising during interim approval could sabotage state’s efforts for full approval
  3. CAA creates mechanism in NOD process to correct deficiencies.  Why would that process be there if Congress expected ever deficiency would be corrected during the interim process.

Term
Who do the permits apply to?
Definition

Only Major Sources as Defined by PSD, NNSR, HAP, 

  • Major Source for HAP- stationary source which does nor might emit 10 tons per ear of any HAP or 25 tons of any combination of HAPs is a major source under the HAP covered by title V
  • Major Stationary Source: Any source that might emit 100 tons of any pollutant covered by 302(j)
  • Non-Attainment major source- source that might emit between 10 and 100 tons of any air pollutant (depending on nonattainment classification.)

Term
What Can EPA Do While Monitoring To Decide if State IS Complying With CAA through Permit Program
Definition

EPA can block Construction of New Major emitting facilities if they think their BACT is unreasonable

If state is not complying with CAA can prohibit construction, give admin penalty, or bring civil action.

There could be a suit in state court saying that the state was acting arbitrary and capricious. 

Bring Suit

 

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