Legal Protection of the Environment

, by Johnston, Craig N.; Funk, William F.; Flatt, Victor B.; Johnson, Craig N.

Note: Supplemental materials are not guaranteed with Rental or Used book purchases.

ISBN: 9780314152664 | 0314152660
Cover: Hardcover
Copyright: 9/7/2005

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This new casebook is an excellent tool for teaching students how to analyze environmental issues and become environmental lawyers. It covers the most significant environmental programs, shows how they operate, and demonstrates how remaining ambiguities are resolved by both agencies and the courts. In addition to containing thorough coverage of the major pollution control laws and NEPA, this book places more emphasis than most similar books do on areas such as the wetlands program and the Endangered Species Act.

Preface

Acknowledgments

vii

Table of Cases

xix

Introduction

(81)

Introduction

(1)

Some Perspectives on Environmental Law

(33)

History of Environmental Law

(4)

Types of Regulations

(4)

Theoretical Issues

(1)

Public Goods

(2)

Notes and Comments

(2)

Cost/Benefit Analysis

(5)

Notes and Comments

(1)

Risk Analysis

(3)

Notes and Comments

(1)

The Polluter Pays Principle

(1)

Sustainable Development

(2)

The Precautionary Principle

(4)

Environmental Ethics

(2)

Notes and Comments

(1)

Environmental Justice

(3)

Notes and Comments

(1)

The Constitution and Environmental Law

(34)

Authority for Environmental Laws

(4)

Hodel v. Virginia Surface Mining and Reclamation Association, Inc.

(3)

Hodel v. Indiana

(4)

Notes and Comments

(2)

Constitutional Limitations on Environmental Laws

(1)

Tenth Amendment

(1)

The Eleventh Amendment

(1)

The Takings Clause

(3)

Notes and Comments

(1)

Constitutional Limitations on State Laws

(1)

The Supremacy Clause

(2)

The Dormant Commerce Clause

(2)

Constitutional Limitations on Bringing Lawsuits

(1)

Lujan v. Defenders of Wildlife

(10)

Notes and Comments

(1)

Administrative Law Issues

(13)

Rulemaking

(1)

Adjudication

(1)

Presidential Oversight

(1)

Judicial Review

(1)

Obtaining Review

(1)

Preclusion of Review

(1)

APA Requirements for Review

(1)

Zone of Interests

(1)

Finality

(2)

Exhaustion of Administrative Remedies

(1)

Common Law Requirements for Review

(1)

Issue Exhaustion and Waiver

(1)

Ripeness

(1)

The Scope of Judicial Review

(3)

NEPA

(48)

Introduction to NEPA

(1)

Overview of NEPA and the NEPA Process

(8)

Is an EIS Required?

(21)

Is it a Major Action?

(1)

Kleppe v. Sierra Club American Electric Power System v. Sierra Club

(8)

Notes and Questions

100

(1)

Is it Federal?

101

(1)

Winnebago Tribe of Nebraska v. Ray

101

(4)

Notes and Questions

105

(1)

Does it Significantly Affect the Quality of the Human Environment

106

(1)

Grand Canyon Trust v. Federal Aviation Administration

107

(4)

Notes and Questions

111

(1)

Is the EIS Adequate?

112

(13)

Environmental Effects

112

(2)

Robertson v. Methow Valley Citizens Council

114

(7)

Notes and Questions

121

(1)

Alternatives Consideration

121

(2)

Mitigation

123

(1)

Robertson v. Methow Valley Citizens Council

123

(2)

State Environmental Policy Acts

125

(2)

The Effects of NEPA

127

(3)

The Clean Water Act

130

(83)

The NPDES Program

130

(83)

Jurisdiction

131

(1)

Addition of a Pollutant

132

(1)

Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York

132

(3)

Notes and Questions

135

(3)

Navigable Waters

138

(1)

Idaho Rural Council v. Bosma

139

(2)

Notes and Questions

141

(2)

Point Source

143

(1)

United States v. Plaza Health Laboratories, Inc.

143

(5)

Notes and Questions

148

(2)

The Federal/State Relationship

150

(1)

How States Become Authorized

151

(1)

Natural Resources Defense Council, Inc. v. EPA

152

(4)

Notes and Questions

156

(1)

EPA Oversight

157

(1)

Natural Resources Defense Council, Inc. v. U.S. EPA

158

(3)

Questions and Notes

161

(1)

Substantive Standards

162

(1)

Technology-Based Standards

163

(1)

Weyerhaeuser Co. v. Costle

164

(7)

Questions and Notes

171

(7)

Water Quality--Based Requirements

178

(1)

How Water Quality Standards are Set

178

(2)

Notes and Questions

180

(2)

How Water Quality Standards are Implemented for Point Sources

182

(2)

Arkansas v. Oklahoma

184

(5)

Questions and Notes

189

(3)

Other Water Quality--Based Programs Under the CWA

192

(1)

§ 401 Certifications

192

(1)

PUD No. 1 of Jefferson County v. Washington Dept. of Ecology

193

(7)

Questions and Notes

200

(2)

Sections 208 and 319

202

(1)

The TMDL Program

203

(2)

Pronsolino v. Nastri

205

(6)

Notes and Questions

211

(2)

Clean Air Act

213

(176)

The Problem of Air Pollution

213

(19)

The Clean Air Act---Overview

232

(2)

The Clean Air Act and the Control of ``Criteria Pollutants''

234

(47)

What is a Criteria Pollutant?

234

(1)

Natural Resources Defense Council, Inc. v. Train

234

(4)

Notes and Questions

238

(1)

How is a National Ambient Air Quality Standard Established?

239

(10)

Whitman v. American Trucking Associations, Inc.

249

(6)

Commonwealth of Massachusetts v. United States Environmental Protection Agency

255

(1)

How are the National Ambient Air Quality Standards Met?---State Implementation Plans

255

(1)

Natural Resources Defense Council, Inc. v. Train

256

(1)

Train v. Natural Resources Defense Council, Inc.

257

(2)

What about the transport of criteria pollutants?

259

(1)

Appalachian Power Company v. Environmental Protection Agency

260

(14)

Notes and Questions

274

(1)

Environmental Protection Agency

274

(3)

Notes and Questions

277

(1)

What happens when the states don't meet the NAAQS---Non-compliance

277

(3)

Whitman v. American Trucking Associations, Inc.

280

(1)

The Clean Air Act---Direct Controls on Sources

281

(40)

Stationary sources

281

(3)

Notes and Questions

284

(1)

Lignite Energy Council v. U.S. Environmental Protection Agency

284

(4)

New Source Review---What about existing sources? (An exercise in the administrative process)

288

(1)

New Source Review

289

(1)

Application to Existing Sources

289

(1)

Wisconsin Electric Power Company v. Reilly

290

(8)

Notes and Questions

298

(1)

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.

299

(8)

Wisconsin Electric Power Company v. Reilly

307

(7)

Notes and Comments

314

(3)

United States v. Ohio Edison Company

317

(2)

Notes and Questions

319

(2)

Clean Air Act---Prevention of Significant Deterioration and Related Requirements

321

(19)

The Core Program

321

(1)

Alabama Power Company v. Costle

321

(7)

Air Quality Related Values and Visibility Protection

328

(1)

Central Arizona Water Conservation District v. United States Environmental Protection Agency

329

(11)

The Clean Air Act---General Enforcement and Permits for Regulated Stationary Sources

340

(27)

What is required for a state permit program to be approved?

342

(1)

Public Citizen, Inc. v. United States Environmental Protection Agency

342

(9)

Federal Overfiling---Federal Enforcement above and beyond the state

351

(1)

Alaska Department of Environmental Conservation v. Environmental Protection Agency

351

(16)

Clean Air Act---Regulation of Hazardous Air Pollution

367

(5)

History of the regulation of HAP--the change to technology based standards

367

(4)

Health Based Standards Remain

371

(1)

The Clean Air Act---Mobile Sources

372

(9)

The Clean Air Act---Acid Deposition Control and the Use of Market Based Controls

381

(8)

SO2 Emission Limitation Program

382

(2)

NOx Emission Limitation Program

384

(1)

The Use of Market Based Trading Systems

385

(4)

Resource Conservation and Recovery Act

389

(33)

Overview and Jurisdiction

389

(19)

What is a ``Solid Waste''?

390

(2)

American Mining Congress v. U.S. EPA

392

(6)

Notes and Questions

398

(6)

What is a ``Hazardous Waste''?

404

(2)

Notes and Questions

406

(2)

The Regulatory Program

408

(14)

Generator Requirements

408

(4)

Notes and Questions

412

(1)

Requirements for Treatment, Storage and Disposal Facilities (TSDs)

412

(8)

Notes and Questions

420

(2)

Regulatory Enforcement

422

(96)

Enforcement

422

(96)

Investigations

422

(2)

Enforcement Options

424

(1)

EPA--Lead Civil Actions in Court

425

(1)

Weinberger v. Romero-Barcelo

425

(6)

Questions and Notes

431

(1)

United States v. The Municipal Authority of Union Township

432

(6)

Questions and Notes

438

(1)

Administrative Enforcement

439

(1)

Southern Pines Associates v. United States

439

(3)

Questions and Notes

442

(11)

Questions and Notes

453

(2)

Criminal Enforcement

455

(1)

United States v. Weitzenhoff

456

(8)

Questions and Notes

464

(1)

Federalism Issues in the Enforcement Context

465

(1)

Harmon Industries, Inc. v. Browner

466

(4)

Questions and Notes

470

(2)

Citizen Suits

472

(1)

Notice

473

(1)

Standing

474

(1)

Friends of the Earth v. Laidlaw Environmental Services

474

(5)

Questions and Notes

479

(4)

The Gwaltney Doctrine

483

(1)

Gwaltney of Smithfield, Ltd., v. Chesapeake Bay Foundation, Inc.

483

(7)

Questions and Notes

490

(4)

Friends of the Earth, Inc. v. Laidlaw Environmental Services

494

(5)

Questions and Notes

499

(3)

The Effect of Prior Governmental Enforcement Actions

502

(2)

Attorney Fees

504

(1)

Hensley v. Eckerhart

505

(3)

Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources

508

(7)

Questions and Notes

515

(3)

Comprehensive Environmental Response, Compensation and Liability Act

518

(74)

Cercla

518

(74)

Overview and Jurisdiction

518

(3)

EPA Response

521

(1)

Liable Parties

522

(1)

Owner/Operator Liability

523

(1)

Ownership Liability

523

(1)

New York v. Shore Realty Corp.

523

(1)

Notes and Questions

524

(3)

Operator Liability

527

(1)

United States v. Bestfoods

527

(6)

Notes and Questions

533

(4)

Arrangers for Disposal or Treatment

537

(1)

United States v. Wade

538

(2)

Notes and Questions

540

(3)

Scope of Liability

543

(1)

United States v. Chem--Dyne Corp.

543

(4)

O'Neil v. Picillo

547

(3)

Notes and Questions

550

(2)

Defenses

552

(5)

Notes and Questions

557

(3)

A Quick Overview of the Cleanup Process

560

(4)

Settlement

564

(5)

United States v. Cannons Engineering Corp.

569

(6)

Notes and Questions

575

(1)

Private Party Cost-Recovery and Contribution

575

(2)

Bedford Affiliates v. Sills

577

(2)

Cooper Industries, Inc. v. Aviall Services, Inc.

579

(6)

Notes and Questions

585

(7)

Protection of Particular Natural Resources

592

(135)

The Endangered Species Act of 1973

592

(64)

Outline of the Act

593

(1)

Section 4

593

(1)

Listing

594

(1)

Endangered or Threatened

594

(1)

Notes and Comments

595

(2)

``A Significant Portion of its Range''

597

(1)

Defenders of Wildlife v. Norton

597

(3)

Notes and Comments

600

(1)

``Species'' includes ``subspecies''

600

(1)

``Species'' includes Distinct Population Segments

601

(1)

National Association of Home Builders v. Norton

602

(6)

Notes and Comments

608

(2)

Critical Habitat

610

(3)

Recovery

613

(1)

The Procedures

613

(2)

Notes and Comments

615

(1)

Section 7

616

(1)

The Affirmative Obligation

617

(1)

The Procedural Requirements

618

(2)

Thomas v. Peterson

620

(4)

Lane County Audubon Society v. Jamison

624

(4)

Newton County Wildlife Association v. Rogers

628

(1)

Questions and Comments

629

(2)

The Substantive Requirements

631

(1)

Gifford Pinchot Task Force v. United States

632

(3)

Notes and Comments

635

(1)

Exemptions

636

(2)

Notes and Comments

638

(1)

Section 9

639

(1)

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon

639

(12)

Notes and Questions

651

(2)

Section 10

653

(2)

Section 11

655

(1)

Protecting Wetlands

656

(48)

Section 404 of the Clean Water Act

657

(1)

What Waters are Covered?

658

(1)

United States v. Riverside Bayview Homes, Inc.

659

(4)

Notes and Comments

663

(1)

Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers

664

(9)

Notes and Comments

673

(3)

What Activities are Covered?

676

(2)

National Mining Association v. U.S. Army Corps of Engineers

678

(3)

Notes and Comments

681

(3)

Exceptions from the Permit Requirement

684

(1)

The 404 Permit

684

(2)

The 404 (b)(1) Guidelines and the Public Interest Review

686

(3)

Fund for Animals, Inc. v. Rice

689

(6)

Notes and Comments

695

(1)

General Permits and Alternative Procedures

696

(1)

Nationwide Permits

696

(2)

Other General Permits and Letters of Permission

698

(2)

Notes and Comments

700

(1)

The Swampbuster Program

701

(3)

The Surface Mining Control and Reclamation Act of 1977

704

(23)

Background

704

(4)

SMCRA's Provisions

708

(2)

Notes and Comments

710

(1)

Issues

711

(1)

Federalism Issues

711

(2)

Haydo v. Amerikohl Mining, Inc.

713

(3)

Molinary v. Powell Mountain Coal Company

716

(4)

Notes and Comments

720

(1)

Mountaintop-removal/Valley fill mining

720

(4)

Notes and Comments

724

(1)

Enforcement Issues

724

(3)

Appendix

727

(36)

Glossary of Acronyms

763

(4)

Index

767

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Legal Protection of the Environment

Summary

Table of Contents

Supplemental Materials