• States sued EPA to regulate  GHGs because climate change likely to endaner public health. EPA has authority over GHG's because of the broad wording of the CAA; EPA's decision not to regulate GHGs exceeded the scope of its descretion under the law.
• Question on standing: petitioners did have standing because they had a special duty to protect citizens
• court found that EPA has authority to regulate GHGs: "GHGs fit well within the CAA's capacious definition of air pollutant."
• EPA's decision not to regulate was arbitrary and capricious: need to make a factual determination that GHG's will not harm public based on scientific study
• Significance:opened regulation of GHG's

• LA instituted requirement that private owners of large vehicle fleets had to puchase clean fuel vehicles
• LA did not apply for waiver under the CAA b/c they felt new rule was a purchasing requirement, and not emissions standard
• EMA sued--said LA rule was preempted by CAA
• Court: each State can not have their own emissions standards... car manufacturers would have to make 50 different vehicles, which would be very inefficient.

• CA legislature enacted Assembly Bill that reqired CARB to develop and adopt regulations that achieve maximum feasible and cost effective reductions of GHGs from motor vehicles 
• CAA preempts state regulation of motor vehicles emissions, unless a state has adopted standards from the control of emissions from new motor vehicles prior to 1996. CA was the only state to do so. Applied for waiver of preemption to impose stricted standards than those in the CAA.
• Significance: both EPA and CA, through the waiver process of section 209 of CAA, are equally empower to make regulations that limit the emission of GHGs from motor vehicles.
• there should be no conflict between the EPA's duty to protect public health and welfare and the NHTSA's duty to set fuel efficiency standards through EPCA-->the doctrine of conflict preemption does not apply

Need endangerment finding

• administrator is required to protect public health and welfare and prevent harm before it occurs
• balances liklihood and severity of effects
• scientific evidence: sea level, climate, precipitation
• human health: respitory and toxic effects, heat waves
• public wefare

• Set based on public health considerations alone--cost of meeting NAAQS is irrelevant
• Controversey over what is an adequate margin of safety and what qualifies as a health effect?
• Feds mostly regulate mobile sources
• States have freedom to adopt whatever emissions limitations it deems suitable as long as the meet  NAAQS

• EPA issued a ruling that creacted NAAQS for lead
• LIA sued-- said that EPA did not have sufficient evidence to set the NAAQS so low.
• EPA argued that it should act in a precautionary nature
•  Crt: some uncertainty about the health effects of air pollution in inevitable; need to act in a precautionary nature to allow for an adequate margin of safety 
• SIG: EPA can regulate based on the best scientific data availible at the time; they do not have to wait for 100% conclusive scientific data before making ruling

• Challenges were made reguarding whether costs should be considered when the EPA makes NAAQS, and whether the nondelegation doctribe was violated by the power given to the EPA under the CAA.
  
• Court: section 109b of CAA--costs were not mentioned. In other parts of the CAA,  the EPA specifically ordered the consideration of costs. CAA does not delegate legislative power to the Admin of the EPA.
  
• SIG: economics dont play a role in setting NAAQS; scope of discretion is withint the limits of hte nondelegation precedents.

• EPA apprived a SIP in Missorui that was more stringent than the fed. standard. Union Electric sued saying that the standards were technologically and economically infeasivle.
•  Court: NAAQS were designed to force the development of new technologies; EPA cannot reject SIP based on its costs; the state has essentially has absolute power in allocating emissions limitations so long as the NAAQS are met
  • if state govt wants to make impossible standard and ends up losing the entire industry because no one can meet the standard, that is their problem and the EPA won't stop them.

• After Clean Air Ammendments of 1990, the Northeast Ozone Transport Commisson (OTC) was formed to help 12 states meet EPA's new NAAQS for ozone: OTC recommended that region needed to match CA standards for auto emissions
• EPA told individual states that their SIPs needed to match the OTC's recommendations before they would be approved-->states sued because the SIPs they were being asked to implement were a mandate because they did not offer any alternatives-->this violated state sovereignty 
• Court: Section 110 of the CAA does not give EPA the ability to madate specific pollution control measures ; EPA can only set standards, and states can meet those standards however they like.

• Congress modified the CAA to create the Prevention of Serious Deterioration Program (PSD): areas that had better air quality than EPA mandated were required to take steps to ensure that thieir air quality did not deteriorate
• Red Dog Mine is Alaska was expanding-- increased activity would add more NOx pollutants in air--Under PSD, new projects were supposed to use the Best Availible Control Technology (BACT)
• EPA said that Red Dog did not meet requirements of PSD because it did not use the BACT; Alaska Dept. of Environ. Conservation (ADEC) had already approved the project, and said that BACT was not economically feasible for Red Dog
• EPA stopped Red Dog from preceding with operation
• ADEC sued EPA on grounds that EPA had no authority to overrule it administratively
•  Court: Congress has authority to overrule state agencies that fail to comply with thier PSDs when the State agency's determination is not based on a reasoned analysis
  
  • basically, the EPA cannot overrule the States whenever they like, only when the state fails to make a reasonable argument to support their ruling

Supreme Court overturned Appellate Court's decision, saying that EPA could interprete the term "modifications" in two ways in the same statute, so EPA can interprete modifications in PSD (Prevention of Serious Deterioration Program) and NSPS (New Source Performance Standards) differently (as long as = reasonable).  Sig:  EPA had power to regulate new plants (kind of, I think?)  See http://www.invispress.com/law/environmental/duke.html

• One of the most effective controls for air quality, especially for transboundary, multistate pollution
• allowances are distributed; penalty if emissions are exceeded
• credits can be purchased from other stationary sources or from liscensed car scappers

nationwide cap on emissions for NOx and SO2 (2 phase process)

bonus opportunitues to reward utilities that invest in clean coal technology, conservation, and renewable energy

Alliance for Clean Coal v. Bayh (1995)

• EPA used a cap and trade system for SO2 and NOx due to their concern about acid rain
• To save $, coal burning power plants started to purchase low sulfer coal that was shipped in, rather than buying locally mined high sulfer coal.
• These high sulfer coal companies started to suffer economically. As a result, several states, including indiana, mandated that thier utilities buy only local high sulfer coal.
• coal plants sued for the right to burn low sulfer coal
• Court: Indiana's law was a violation of the interstate commerce clause: cannot protect local industry

• EPA had authority to reduce a upwind state's emissions when it significantly contributed to downwind states' nonattainment
• EPA told 22 states that they needed to reduce their ozone and NOx emissions by installing controls that would cost less than $2K to prevent each ton of NOx emitted 
• States sued, saying EPA acted contrary to past precedents for the following reasons: previously interpreted phrase "prevent attainment" rather than "contribute significantly to nonattainment," considered cost, intruded on statutory rights of states to come up with thier own SIPS, imposed uniform standards on all 22 states, violated non-delegation doctrine b/c thier determination was deviod of intellegible principles (no strong reason for chosing $2k)
• Apellate Court:
  
  • no reason why EPA could not interpret "significantly" in different way than they had in the past; significantly should be interpreted to mean cost effectively (contrary to Whitman v. American Trucking Assoc).
    
• looked to previous ruling in Virginia v EPA: The EPA cannot tell states to adopt a specific approach to pollution control. However, the NOx program reasonably established reduction levels and leaves control measure decisions up to states.
  
• Sig:  EPA can decide how to define "significant" - can take into consider cost
  

EPA implemented Clean Air Interstate Rule (CAIR) to eliminate impact of upwind sources of out-of state downwind nonattainment of NAAQS.  North Caroline argued that CAIR measures are not reasonable b/c they will not assure that upwind states will abate their emmissions under Section 110.  Court held for NC, saying that EPA is not exercising its Section 110 duty unless CAIR actually requires reduction of pollution from upwind sources that contributes to pollution + interferes with nonattainment in downwind states (which CAIR doesn't do effectively enough).

Sig:  Blow to federal cap + trade program (part of CAIR)?

• EPA sets National Ambient Air Qulity Standards (NAAQS) for criteria pollutants that have adverse effects on human health or are anticipated to endanger the publuc
• fed regualtion motly for mobil sources and toxic substances
• SIP: state implementation programs to meet NAAQS
• FIP:issued if a SIP does not meet requirements of EPA

• CWA: prohibits all unpermitted discharges into navigable waters of the US from point sources, imposes limitations on dischargers, and requires statewide planning for control of pollution from nonpoint sources
• controversey over discharge into groundwater--what exactly qualifies as a navigable water?
• National pollutant discharge elimination system is hte administrative system for issuing permits for individual point source dischargers; states meeting minimum fed requirements may assume responsibility for issuing permits

• CWA defines navigable waters to mean "the waters of the US, including territorial seas"-->vague definition
• Riverside began dumping fill materials from housing construction into wetland that was near a lake on their land (wetland did not feed directly in to lake, so they didn't think they needed a permit). US Army Corps (USAC) sued for a injuction because they felt that Riverside needed a permit
• US Supreme Court: permit was required--> waters covered under the act include any waters that the USAC reasonably concludes may affect the water quality of adjacent lakes, rivers, and streams, even if the waters of those bodies are not connected to the navigable water
• Since it is difficult to define jurisdictional boundaries, it is best to leave it up to scientists to determine the jurisdictional reach of CWA

• Cook County had open pit mine that flooded with water and essentially became lake; decided to fill the pit with trash and the Amry Corps sued for an injuction
• Although lake not connected to any body of water, Army Crops argued that it was home to 100 species of migratory birds. Since birds fly across state lines while migrating, they are interstate commerce 
• Supreme Court: Congress' use of the word "navigable" must mean they they did not intend the CWA to cover completely issolated bodies of water
• Permitting the Army Corps to claim federal jurisdiction over ponds and mudflats would result in a significant impingement of the States' traditional power over land and water use .

• Rapanos owned wetlands that were 20 miles away from navigable water; without getting  a permit he filled wetlands with sand to build a shopping mall
• Army Corps sued; Rapnos convicted in criminal trial and fined millions of dollars
• Supreme Court: If there were a significant nexus between the wetland and a navigable body of water, it could be covered under the CWA, but in this case, the wetlands are isolated; a wetland that is adjacent to a navigable water or connected by continuous surface flow would qualify, but no evidence that these qualifications are met
• Unlike the Riverside case, courts said that act does not cover waters that Army corps reasonably believe will affect the water quality of adjacent lakes and rivers, even if they are not directly connected to navigable water

• US Army Corps changed  definition of discharge to cover "any addition of dredged material, including an redeposit of dredged material in waters of the US." -->
  
• MNA sued, claiming Corps exceeded their authority under the CWA
•  Court: "addition" could not encompass material that was dumped back into the same water source it was removed from; Corps could not make a blanket ruling that all dredged materials should be covered--needed to develop criteria. 
• Rivers and Harbors act already covered dredging, so Congress probably didn't intend for the CWA to completely cover all dredging activities
• after this ruling, developers went to wetlands and dug huge channels down the middle to drain them and create dry lands for building...no permit needed!

• Miccosukee sued water distruct on the grounds that they violated the CWA by releasing pollutants from a pump system without a permit
• Water Dist. defended action by saying that it was not actually adding pollutants to the water, but transporting polluted water from one body of water to another less polluted body of water
• Sup. Crt sent case back to Dist. Court: rejected water district's argument that the act covers a point sourve only when pollutants originate from that source. A point source need only convey the pollutant to navigable waters.

• EPA decided to exempt certain classes of point sources from the permitting requirements of the CWA
• NRDC sued, saying section 402 included all sourved and they EPA could not chose to not enforce the law
•  Court: EPA does not have the authority to exclude relevant point sources from the program. The EPA could lower thier permitting requirements for certain circumstances to improve feasibility or create a system of area wide permits.

• Requires dredders of dredge and fill material obtain permit from Corps
• Controversial because it greatly extends the reach of fed. govt 

• Proposed new collaborative effort between states, communities, and public and private enterprizes to protect watersheds 

• Emissions trading between point source and non point source pollution

-municipality in Ohio, Village of Euclid, had zoning plan. Real estate company had residential land, wanted to use it for industrial purposes

-sued saying zoning unconstitutional, zoning reduced the property’s market value

-supreme court ruled in town’s favor “rejected due process and equal protection challenges to the constitutionality of zoning”

- court listed the pros of residential districts

-important decision because led to spread of zoning by municipality

-Penn Central Co owned grand central station in NYC, a designated historical landmark

-wanted to build 55 story office building above it, were told no because of landmark laws, sued NYC

-said it was a regulatory taking because it diminished the value of the site, wanted “just compensation”

- supreme court did not grant them compensation because company didn’t need the money from the added value, TDR were enough, were allowed to build shorter building but didn’t look into that

-significance: Penn Central test: 1)economic impact 2)economic investment expectations 3)character of governmental regulatory actions

-owned beachfront island property, wanted to build vacation rentals, prevented under Beachfront Management Act (passed after purchase)

-sued saying this was a taking and he was entitled to “just compensation,” SC argued that the law is for the good of the public

- supreme court remanded and said that SC has to review nuisance and property law relating to the case

-dissent: justice Blackmun says that court has ruled in the past that state allowed to regulate land for public good without granting compensation

-significance: the lucas test- total takings=”deprivation of all economically valuable use”

-palazzolo acquired waterfront property on designated protected coastal wetlands area, wanted to develop, sued for regulatory taking

-court considered 2 threshold considerations: ripeness and “acquisition which postdates the regulation”

-it is ripe, land use authority had the opportunity to “decide and explain the reach of a challenged regulation” before owner sued

- acquisition after the fact does not preclude owner from bringing the court to trial (depends on individual case)

- lucas test: there was part of the property that palazzolo was allowed to build on, so not a total taking

-palazzolos right to sue was affirmed but his claim of a total taking was denied, case was remanded

-Superior Court of Rhode Island rejected his entire claim because public nuisance under RI law, no taking because he could still develop part of his property

-significant because established the fact that owners could challenge land use regulation even if they bought/acquired the property when regulation was already in place

-Florence Dolan wanted to expand her hardware store into floodplain, city gave her permit on the condition that she build a bike path to offset traffic, help with flooding on her property

-sued saying it was a taking of her property

-the fact that she had to essentially give some of her property to the government, for a public path, instead of being able to control her own property is a taking even if..

-…”essential nexus” between flooding concerns and controlling development exists, which in this case there was not “rough proportionality” between the flooding and the taking of land

-dissent by stevens, blackmun, ginsburg: case should not be a taking because most of her property remained unter her control, burden of proof should be on dolan, not the city

-significance: rough proportionality test, showed that for government to take property must show a strong connection between their regulation and public good

-Hawaii made a law that put a limit on the rent oil companies could charge dealers leasing company owned service stations, effort to lower gas prices for consumers

-lower courts ruled unconstitutional because “does not substantially advance legitamate state interests”

-supreme court disagreed, rejected the entire “substantially advance” test, said takings cases needed to focus on property rights, not government intentions

-significant because held that “substantially advance” test should not be used ever

Federal laws that affect private land use

Federal management of public lands

Zoning

The takings clause of the 5^th amendment

Kelo decision

Turner and Rylander, Land Use:The Forgotten Agenda – gov housing policies, zoning, and transportation/highway policy, and other national laws have made a “de facto national land use plan” that is bad for ecosystems

Liberty, Planned Growth:The Oregon Model – oregon has state land use policy that works for it

Rising Seas, Coastal Erosion, and the Takings Clause: How to Save Wetlands… --“three ways to protect tidelands: establish setback line, defer action, create rolling easements”

Problem exersize involving toxic contaminents, gov clean up, and takings clause