CHAPTER 15:

ENVIRONMENTAL LAW
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 Overview of Environmental
Laws
 Common Law Nuisance.
– Largely replaced with federal and state
environmental regulations.
 Environmental Statutes and
Regulations.
– Three Categories of Environmental Laws:
• (i) Regulation of pollutants in the air, water,
or ground.
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 Overview of Environmental
Laws
 Environmental Statutes and
Regulations.
– Three Categories of Environmental Laws:
• (ii) Regulation on the manufacture, sale,
distribution, and use of chemical substances
as commercial products.
• (iii) Laws that require government decision
makers to take into account the quality of
the environment.
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 Overview of Environmental
Laws
 Natural Resources Laws.
–Generally include, e.g., wilderness
preservation, wildlife protections,
coastal zone management, energy
conservation, national park
designation.
–Land-use laws: zoning.
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 Administration of
Environmental Laws
 The EPA operates under the
President.
 State Programs: EPA can approve
state program in lieu of federal.
 Industry Participation.

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 The Clean Air Act
 As amended by the Clean Air Act
of 1990.
 The CAA sets four kinds of air
quality goals:
– (i) EPA to establish national ambient
air quality standards.
– (ii) Air quality in areas already
meeting standards not be allowed to
deteriorate.
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 The Clean Air Act
 The CAA sets four kinds of air
quality goals:
– (iii) Preservation of natural visibility
within national parks and wilderness.
– (iv) EPA is required to establish
emissions standards that protect
public health. 

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 The Clean Air Act

–CASE 15.1 New Jersey v. EPA

(2008). Did the EPA violate the
Clean Air Act when it removed
EGU’s from the list of sources of
mercury pollution?

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 The Clean Air Act
 Federal and State Regulation of
Greenhouse Gases.
–Massachusetts v. EPA (2007),
Supreme Court confirmed the EPA’s
authority to regulate carbon dioxide
and other gases in motor vehicles. 

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 The Clean Air Act
 Federal and State Regulation of
Greenhouse Gases.
–Currently, there is a notice of
proposed rulemaking by EPA for
advantages and disadvantages of
regulating emissions under Clean Air
Act.
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 The Clean Air Act
 Federal and State Regulation of
Greenhouse Gases.
–CASE 15.2 American Electric Power
Co. v. Connecticut (2011). The CAA
displaces any federal common law
right to seek abatement of carbon-
dioxide emissions from coal power
plants.
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 The Clean Water Act
 It was first adopted in 1972,
substantially amended in 1977, and
again mended in 1987 by the Water
Quality Act. The principal goal is to
eliminate the discharge of
pollutants in “navigable” waters.
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 The Clean Water Act
 National Pollutant Discharge
Elimination System.
–National Effluent Limitations.
–Publicly Owned Sewage Treatment
Works.

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 The Clean Water Act
 Individual Liability of Corporate
Officers under CWA.
–Depends if officer had control over
activity that caused discharged.
–Criminal liability if officer
knowingly violated CWA.

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 Resource Conservation
and Recovery Act
 As amended by the Resource
Conservation and Recovery Act
(RCRA) of 1976 and the Hazardous
and Solid Waste Amendments of
1984, governs the management of
hazardous wastes.
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 Resource Conservation
and Recovery Act
 Cradle-to-Grave Responsibility.
–Each hazardous waste generator
has this responsibility. Each
generator is numbered so the
waste can be tracked to disposal.
–RCRA bans disposal of hazardous
waste into land without
treatment.
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 Resource Conservation
and Recovery Act
 Cradle-to-Grave Responsibility.
–Owners and operators of
hazardous waste facilities must
obtain permits and stringent
standards.

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 Resource Conservation
and Recovery Act
 Criminal Liability.
–For any person who “knowingly
transports any hazardous waste
identified under this [Act]…”, as
well as strict civil liability.

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 Federal Super Fund
(CERCLA)
 CERCLA authorizes the federal
government to investigate and
remediate designated hazardous
waste sites and then sue to
recover the costs. 

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 Federal Super Fund
(CERCLA)
 Any “potentially responsible party”
is strictly liable– without regard to
fault—for costs, unless he can
establish a third-party (innocent
landowner) defense. 

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 Federal Super Fund
(CERCLA)
 Potential Responsible persons
include:
–Past or Present Owners, Lessees, or
Operators.
–Officers who had authority to control
operations.

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 Super Fund (CERCLA)

 Joint and Several Liability.

–Any one responsible party can be held
liable for the entire cleanup costs. But
she can seek contribution from other
responsible parties. So the
government can seek reimbursement
from financially sound parties.
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 Super Fund (CERCLA)
 Liability of Affiliated Companies
and Piercing the Corporate Veil.
–Derivative Liability as Owner.
–Direct Liability as an Operator of the
Subsidiary's Facility.

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 Super Fund (CERCLA)
 Successor Liability.
–What liability does an acquirer of
corporate assets have?
 Liability of Lenders and
Fiduciaries.
–Foreclosure of property potentially
makes lenders owners of property.
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 Super Fund (CERCLA)
 Defenses.
–Act of God: unavoidable natural
disaster
–Act of War.
–Act or Omission of a Third Party
(Innocent Landowner).

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 Super Fund (CERCLA)
 Defenses.
–Brownfields and Ready for Reuse
Certificates.
–Recyclers exempted under the 1999
Superfund Recycling Equity Act.

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 Super Fund (CERCLA)
 Retroactive Application.
–In Eastern Enterprises v. Apfel
(1998), Supreme Court held that
retroactive application of CERCLA
violated the Takings clause of the
U.S. Constitution.

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 Super Fund (CERCLA)
 Extraterritorial Application.
–Extraterritorial Application: What
about non-U.S. factories that dump
into U.S. rivers?
• CASE 15.3 Pakootas v. Teck Cominco
Metals, Ltd. (2004). Congressional
intent applied to any waste in the U.S.
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 Enforcement and Sanctions

 EPA Agency Inspections.

 Administrative & Civil Enforcement
Actions.
 Criminal Prosecution.
–CASE 15.4 United States v. Hansen
(2002). When can corporate officers
and plant managers be held criminally
liable? 29
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 Enforcement and Sanctions
 Self-Reporting and Audits.
–Penalties vary.
 EPA Incentives for Self-Policing.
–Eligible for substantial reduction in
civil penalties.

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 Management of
Environmental Compliance
 Corporate Policy.
–A strong, top-down policy that is
enforced is needed.
 Well-Defined Organization and
Crisis-Management Plan.
–Clear reporting responsibilities.
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 Management of
Environmental Compliance
 Periodic Environmental Audits.
–Verify the effectiveness of the
system.
 Protocols for Agency Inspections.
 Community and Public Relations.
–Awareness of events.
 Long Term Strategies.
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  Global Warming: Kyoto and
Beyond.
 Managing Environmental Risks.
 Exporting Environmental
Compliance.
 B.P. Oil Spill.
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