ENVIRONMENTAL LAW

University of Missouri

Kansas City School of Law

Course # 773, Tue/Thus. 4:15-5:30

Fall 2010

Assignment: Thursday, 8-26

Chapter 1

• Read Pages 1 to 11,

• Skip over Talbot Page article.

• Read Pages 13 to 36.

What we’ll cover today:

• 40 Year Overview of Environmental Law

• Basics Aspects/Themes

• Cross Cutting Themes

• Hot Topics in Major Environmental Laws

1970s

1970 – First Earth Day, EPA created, NEPA, & CAA

1972 – FIFRA Banning DDT

1972 - CWA

1974 - RCRA

1979 – TMI

1980s

1980 – CERCLA (Superfund)1984 – Hazardous, Solid Waste Amendments (RCRA)1986 – Safe Drinking Water Amendments1986 – Emergency Preparedness and Community Right to Know Act 1987 – Clean Water Act Amendments

1979 – Love Canal, NY1981 – Times Beach, MO1981 – Valley of the

Drums, KY

1984 – Bophal, India

1990s

1990 – Earth Day 20th Anniversary

1992 – EPA & DOEEnergy Star Label

• Pollution Prevention Act• Oil Pollution Prevention Act• Clean Air Act Amendments

1995-2003Project XL

Exxon Valdez Ozone damaged trees

2000s

2000 – Office of Pollution Prevention“Read the Label First!” 2006 – Office of Water

• Brownfields 2002• Voluntary Programs

The "Performance Track“ program was discontinued in 2009, it encouraged environmental management systems, community outreach, and measurable results.

GREEN POWER PARTNERSHIP encourages organizations to buy green power. Over 750 partner organizations are purchasing more then 10 billion kilowatt-hours of green power annually – preventing CO2 emissions equivalent to those of 1.3 million cars.

METHANE PARTNERSHIP programs have resulted in declines in total

U.S. methane emissions. In 2005, US methane emissions were over 11% lower than emissions in 1990. The U.S. is working with 19 partner countries that account for 60% of global methane emissions, and over 600 public and private sector partners.

EPA’s Voluntary Climate Change Programs

2010 & Next Decade of Environmental LawNew Environmental Laws? New Policy?

• GHG regulation at EPA:– Massachusetts v. EPA, 549 U.S. 497 (2007). – GHG Reporting, Final Rule 2010– GHG Tailoring, Proposed Rule 2010– Geologic sequestration via the UIC program,

proposed rule

• US Climate legislation? Carbon Tax?– Clean coal technology?

• UN Framework Convention Climate Change – 2010 Mexico City Protocol?– 2009 COP Copenhagen Accord

Earth Day 2010

Basic Aspects of Environmental Law

Common Law:• Tort and Property Law• Toxic Torts

Public Law:• Based on Common Law• Cooperative federalism

– Federal/State/Tribal– Partnerships

• Administrative Law• Environmental Justice• Multi-Media vs. Single-Media• Enforcement

Basic Themes

• Ecosystem Services• Laws of Nature• Laws of Ecology• Environmental Ethics• Internalize the

Externalities

Energy flows and material cycles through ecosystems. The figure shows the links in an ecosystem between the flow of energy and the cycle of materials in an ecosystem.

Cross Cutting Themes

1. Uncertainty, scientific complexity and risk

2. Risk and costs/benefit

3. Sustainability and the Three Economies – Marketplace Economy, Environment and Equity

4. Polluter Pays Principle

5. Law and Science

Uncertainty, scientific complexity and risk

•The Making of Environmental Law Richard J. Lazarus

Hydrologic Cycle

Global Wind Patterns

Complexity and Uncertainty Science and Models

Global Ocean Patterns

Risk Assessment, Risk Management, and Risk Communication Projected CO2 Emissions, 1990 – 2030

Environmental Law

Public Law Approaches in United States

Some of the Major federal statutes and major questions we face today.

INFORMATION IS POWERNational Environmental Policy Act (NEPA) 1970How to consider Climate Change in NEPA decisions?

A national policy encouraging A national policy encouraging productive harmony between productive harmony between man and his environment, man and his environment,

A procedural law requiring A procedural law requiring consideration of environmental consideration of environmental effects and informed decision effects and informed decision making – making – Stryker’s BayStryker’s Bay, 444 US , 444 US 223 (1980).223 (1980).

NEPA NEPA indirectlyindirectly affects affects federalfederal decisions by requiring decisions by requiring procedures & informing decision procedures & informing decision makers & the public.makers & the public.

Clean Water Act of 1972 (CWA)

• Protects chemical, biological and physical integrity of waters of the United States

• Prohibits discharges without a permit

• How to define waters of US after SWANCC (2001) and Rapanos, 126 S.Ct. 2208 (2006)

Clean Air Act Are Green House Gases (GHGs) an air pollutant?

EVOLUTION OF THE CAA

CAA of 1955 – ResearchCAA of 1963 – First nation-wide programAir Quality Act of 1967 – National

enforcement processCAA of 1970 – Federal National Ambient

Air Quality Standards, State implementation, New Source Review, National Standards for Hazardous Air Pollutants, and federal enforcement authorized

CAA of 1977 – Prevention of Significant Deterioration in Attainment Areas

CAA of 1990 – Acid Rain program, NSHAPs modified, Title 5 Operating Permits, NAAQS modified, and improved federal enforcement

Massachusetts Case, S.Ct. 2008, GHG may be a pollutant under CAA

1967 Protest

Comprehensive Environmental Response, Compensation and Liability Act (Superfund) Should we renew the Superfund Tax?

Resource Conservation Recovery Act of 1976 (RCRA) Regulates Hazardous Waste Generators, Transporters and Treatment, Storage & Disposal (TSD)

RCRA: Regulation of hazardous waste from cradle to grave … Can RCRA address lifecycle materials handling from cradle to cradle?

US Environmental

MECHANISMS:• US DOJ, EPA, States,

and Tribal Govts. • Civil Adm. & Judicial• Criminal Prosecution• Citizen Suits• International Treaties

QUESTIONS:Do we need more or

LESS enforcement?More or LESS citizen

suits?Do we need market

incentives?Do we need

International Standards?

Quote for the day:

“For if one link in nature’s chain might be lost, another might be lost, until the whole of things will vanish by piecemeal.”

Thomas Jefferson

A Place Called Earth – slide show