First ESA case heard by conservative court. Red wolves re-released onto private land. Owners unhappy - can't "take" under section 9. Plaintiffs argued that fed gov doesn't have power to protect wolves on private land b/c exceeds power to regulate interstate commerce under Commerce Clause. Ruled against: said anti-taking provision involves regulable economic and commercial activity, so = fed. power.

Significance: Says that gov. can protect endangered species on private land + reaffirms that endangered species have incalculable value

Forest Service wanted to build a road through endangered wolf territory. Didn't do a biological assessment. Env groups argued that the road wasn't an end in itself, being built to allow timber access. Court ruled that they erred in not doing an assessment. Likened it to not doing an EIS under NEPA.

Significance: Can't break up a project in order to avoid doing an assessment (can't do road and then timbering)

In transfer of CWA polluting permit to AZ, must comply with ESA? Court ruled no - CWA has 9 criteria, no reason to make ESA supercede the CWA criteria esp. in light of Chevron v. NRDC.

Significance: Confines ESA to discretionary actions

Two fish endangered by lowering water levels b/c of agreement between DOI and water district.

Significance: Court ruled that duty goes beyond conserving species - must also make them healthy

  ·      Nature is characterized by change, not consistency

·      If we are to conserve and manage out living resources, then we must understand that nature adapts and take this into account when making decisions

Companies emmitting polluting sulfur emissions that are harming a nearby town.  Farmers want an injunction under private nuissance laws, didn't get it.

Significance: 

Placed economic value above environmental protection/individual harm.

Chicago dumping its sewage into the Missippi River --> causing typhoid fever in St. Lewis.  Couldn't find conclusive evidence that Chicago pollution was the cause, St. Lewis had to filter their water.

Significance:

State can't hold other state to dif. standards.  Called for a separate admin. body to regulate such matters b/c Court is not in a place to solve such scientific matters --> EPA

Sulphuric smoke going across border to GA and destroying crops, etc.  Sued under private nuissance law, injunction awarded.

Significance:

States rights prioritized over eco. benefits.

Step forward in env. law b/c showed that env. protection can't be done on a state by state basis, must be federal

Sierra Club sued Disney to try to stop them from building a ski resort in Sequoia Valley.  Sued as a special interest group w/ special interest in the conservation of the park.  Lost b/c SC didn't have legal standing.

Significance:

In dissent, argued that nature itself should have a standing, voice, whose rights should be protected in court.  More opportunities for outside groups to have standing.

MA sued EPA to try to force them to regulate GHG's.  EPA said they didn't have to, and that GHG's didn't fall under what they had to do under the Clean Air Act.  Court found that EPA does have authority and that the EPA's rationale for not regulating was inadequate (based on Admin's opinion, not sceintific study).

Significance:

Opens up regulation of GHG's + maybe climate change.  Most recent sig decision.

If not catagorically excluded:

EA --> FONSI

No FONSI --> EIS

Nuclear power plan in Chesapeake, company had done EIS but only "accompanied" proposal, not considered in deciding approval of project.  Court said nope.

Significance:

Agencies must act on or at least seriously consider acting on the alts proposed in the EIS, must investigate alts thoroughly

Dep. of Housing and Urban Dev. wanted to build low-income housing proj in rich part of Manhattan.  Council challenged, saying that HUD didn't consider alts (even though ≠ EIS req).  Districut Court --> prepare alts, HUD rejected alts (time).

Significance: 

Conisderatin of alts is enough.  NEPA = a procedural duty, only

Asbestos entering digestive tract and causing harm to miners?  CWA, Rivers and Harbors, nuissance.  Three conflicting studies, inconclusive evidence.  Court ≠ order an immediate injunction --> mitigation

Significance:

Must weigh economic + health.

Lead in gasoline, Clean Air Act

Significance: 

precautionary principle - "will endanger" --> "may reasonably be anticipated to endanger"

Ceceed authority on case-by-case basis

OSHA standards set for 10 ppm --> 1 ppm for benzene

Significance:

1. Risk?

2. Threshold finding

3. Feasibility (doesn't impair viability of ind.) + best scientific evidence

EPA set goal at 0 = best available evidence?  Court said that even though might be a carcinogen, can't make decisions now based off of possible future evidence saying so

Significance:

Can't make decisions now based off of possible future evidence saying might cause harm

Asbestos, EPA wanted to ban all asbestos ("death penalty choice"), have to take in costs AND benefits of asbestos.  Court, failed to provide reasonable basis b/c didn't consider risks of banning products or risks of substitutes.

Significance:

Have to consider benefits.  How far do you have to disagregate? (think about all different possibilites of actions, how far into the future)

Section 4: requires testing

Section 5:  pre-manufacturing notification

Section 6:   authorizes EPA to protect against risk using "least burdensom requirements"

NRDC v. EPA

Synthetic organic principles

DOI developing coal reserves in 4 NW states.  Had done naiton-wide EIS and 3 other studies.  Sierra Club argued that had to do EIS for this specific project.  Court said no, b/c ≠ major Fed. action (= lots of small ones)

Significance: 

Found that NEPA only requires an EIS be prepared by an agency at the time "at which it makes a recommendation or a report on a proposal for Federal action" - @ end of process (as about to issue a permit).  Dissent argued that Court should be able to remedy violations earlier in NEPA process.

NFS had leased land to oil + gas ind. in ID + WY.  2 land categories:  highly env. sensitive (had NSO stipulations), non-highly env. sensitive (no stipulations).  Sierra Club argued that EIS had to be done before leasing the land (b/c leasing would have sig. env. impact) + NFS was not able to control drilling on leases w/ no NSO stips.  Court agreed.

Significance:

NEPA requires agencies to be able to preclude and prevent actions on land.

Wanted to build office + jail in Manhattan.  Agency (GSA) said no EIS required b/c effects are not "significatly affecting the quality of the human env."  Argument over "significantly."

Significance:

Neither Congress nor CEQ defined "sig." adequately.  Court - depends on a lot of things.  Threshold determination:  agency must investigate some possible impacts before they can determine that there will be no sig. impacts.  Procedural steps should be left to agency.  Dissent:  Better to actualy prepare EIS than to waste time proving there is no need for one.  Anyways, it makes sense to prepare an EIS for "controversial" actions since they'll probs be challenged.

Pres. Bush opening Mex. border to Mex trucking companies (NAFTA).  FMSCA (motor agency) prepared EA but no EIS.  Court said taht FMSCA ≠ didn't have to do EIS b/c did not have ability to regulate trucks or to address env. impacts of trucks.

Significance:

If effects of action ≠ direct, NEPA doesn't cover them --> weakening of NEPA.

Center for Biological Diversity v. National Highway Transportation Safety Administration

CBD argued that NHTSA should have prepared an EIS considering effects of climate change before establishing new fuel economy standards.  NHTSA found no sig. impact in EA b.c changes in GHG's would have little effect on overall prob. of climate change.  Court said must do EIS.

Significant:

NEPA covers significantly cumulative actions --> must prepare EIS.

Should nuclear company have to consider energy saving alternatives in EIS?  Court says no, only has to consider those available @ time EIS was written, and ≠ have to consider all possible alts.

Significance:

EIS ≠ have to consider all pos. alts.  = w/in agency discretion to determine how to interprete NEPA requirements.  Court can only make sure that procedure has been followed.

Army Corps wanted to build highway through Manhattan, found in EIS that area of Hudson River shoreline that would be filled = a "biological wasteland."  Sierra Club sued saying that EIS ≠ adequate b/c there were stripped bass there.  Court agreed: not considering info about fish is a procedural error.

Significance:

Court limited their ruling, saying that not all errors and inaccuracies should warrant a court ordering a new EIS.  Court only can find that procedural duty is/is not followed, cannot make substantiative or analytical judgements.  Decision must be well-informed even though usually = left up to agency.  This = one of only times Court feels justified stepping into science.

Army Corps building 3 dams in OR.  Did EIS, etc.  New info came to light about other pos. env. impacts.  Corps decided not to do a supplemental EIS, Marsh sued.  Court found that did not have to do supplemental EIS b/c decision to do so was not "abritrary nor capricous," that it was a scientific decision (much like the decision to do an EIS in the first place) that was up to the agency to decide.

Significance:

Court cannot make agency do a supplemental EIS if agency's decision not to is not arbitrary or capricious.

Reserve discharging waste containing asbestos into Lake Superior.  3 conflicting studies.  Court --> no injunction.  Given uncertaintly + willingness to abate, Reserve should be given time to try to abate pollution.  Good, b/c this way hardship to employees can be avoided.

Significance:

If uncertain, will often choose eco. benefits above chance of health costs.

Lead content in gasoline, under Clean Air Act.  EPA:  lead = "substantial risk of harm," but couldn't conclusively show = harmful at those levels.  Court said ok.

Significance:

Precautionary principle:  EPA ≠ have to wait for actual harm to occur.  Should look at both probability and severity.  Leeway given to admin to assess risks + make judgement.

1. Cost-benefit analyses

2. Quantitative risk assessments ($ estimate of health effects)

3. TSCA and FIFRA

Case:  Corrosion Proof Fittings v. EPA

Technology-based regulation

(Feasibility-limited regulation)

Tech. must be used up to point @ which it is infeasible to use it anymore

Based on feasibility, not degree of risk or CBA.

Requires "significant risk" determination threshold before regulation can be issued

Feasibility:  Techonological and economic

Cases:  AFL-CIO v. OSHA, SWDA

Regulations based solely on public health effects.

De minimis and comparative risk assessments.

Cases:  Delaney Clause ("zero-risk" regulatory scheme), section 112 of Clean Air Act, NRDC v. EPA (vinyl chloride, plywood, synthetic organic chemicals)

NAAQSs:  National Ambient Air Quality Standards = nat'l

SIPs:  State implementation plans decide how to meet the NAAQSs

FIP:  Federal implementation plan if NAAQSs ≠ met

NAs:  Nonattainment areas - LA Basin

PSD:  prevention of significant deterioration program regulates NAs

Technology-based standards

EPA has power to regulate content of fuels and emissions standards for new vehicles.  EPA has aouthority to regulate pollutions from non-criteria pollutants if they "may reasonably be anticipated to endanger public health or welfare" as decided my Admin.

State authority to reg. mobile = preempted by fed. statute (expect CA, grandfathered)

States sued EPA to make it regulate GHGs (public health) --> EPA's decision not to regulate = arbitrary + capricious b/c ≠ base decision off of scientific study

Sig:  EPA has power to regulate GHGs once it makes an endangerment finding

LA enacted purchasing requirements for clean fuel vehicles for large vehicle fleets, did not apply for CAA grandfathering waiver

Court:  Each state can't have their own emissions standards or else --> 50 dif vehicle types (inefficient)

Sig:  Showcases complexity of CAA