Sources Of Law

Nuisance

Unreasonable or unlawful use of property that results in material annoyance, inconvenience discomfort or injury to another person or the public

Trespass

The act of knowingly entering another person’s property without permission

Nuisance and Trespass Limitation

when the plaintiff must prove the defendant’s actions directly caused harm (causation)

precautionary principle

When human activity pose irreversible damage, protection must be taken even if no scientific certainty is lacking; the idea that 0 risk may be impossible

1970 Environmental Statues

Clean Air Act, Clean Water Act, Ocean Dumping Act, Safe Drinking Water Act

congress gives agency authority

step 1 for how a rule is born

Agency collects data, builds a record

step 2 for how a rule is born

agency proposed a rule, public comment

step 3 for how a rule is born

Agency finalizes rule and responds to commments

step 4 for how a rule is born

rule can be challenged in court

step 5 for how a rule is born

How a Rule is born

when congress gives agency authority, the agency collects data and builds a record, the agency proposes a rule and takes public comments, the agency finalizes the rule and responds to comments then the rule can be challenged in court

Cooperative Federalism

The shared responsibility for environmental regulation between federal and state governments; addresses the question, who is really in charge

Safe Drinking Water Act

the EPA issued a drinking water rule for PFAS called

PFAS Rule

this rule required water systems must monitor, notify and treat if needed. Utilities challenged this in federal court showing the rule making and challenge processes in place

Adminstrative Procedure Act

Sets the rules for how federal agencies create regulations and how courts can review those regulations

Sets rules and reviews for agencies creating regulations

the APA does what?

Authority

1st APA Challenge

APA Challenge Authority

Did Congress actually give the agency the power to issue this rule? This comes down to how the underlying law is interpreted

Procedure

2nd APA Challenge

APA Challenge Procedure

Did the agency follow all required steps? Notice must be meaningful, the agency must respond to important comments. Changing rules without notice can get a rule thrown out

Arbitrary and Capricious

3rd APA Challenge

Arbitrary and Capricious

A rule fails this standard if the agency didn’t consider important factors (connecting evidence to choices), explain tradeoff or ignored facts that didn’t fit its conclusion

Chevron Defense

When a law is ambiguous, courts defer to the agency’s interpretation as long as it’s reasonable.

Chevron Defense

This defense gave agencies significant power to interpret and apply their own statues

Risk decision factor - cost

Asks the questions: Would you pay extra for pollution controls? What if you couldn’t afford it - would you go without the product entirely?

Risk decision factor - location

Asks the questions: Does it matter how close you are to the harm?

Risk decision factor - who bears it

Asks the questions: Who is actually exposed to the risk? Who pays for the solution

Nuisance

When a neighbor sues a factory for polluting air or water that affected their quality, they are using a common law tool called

trespass

chemical runoff or air emissions settling on a neighboring property is an act of

Cuyahoga river fire, Santa barber oil spill

2 major pollution events of the 1970

1970

Year when major pollution events and growing public concern pushed Congress to act resulting in an explosion of federal environmental statues

1970

The Clean Air Act was passed in

Clean air act

regulates air pollutant emissions from stationary and mobile sources

1972

the Clean Water Act was passed in

Clear Water Act

reguates discharge of pollutants into US waters

1976

the Safe Drinking Water Act was passed

Safe Drinking Water Act

Protects public drinking water supplies

RCRA

regulates the management of solid and hazardous waste

1976

RCRA was passed in

Resource Conservation and Recovery Act

RCRA stands for

Toxic Substance Control Act

TSCA stands for

1976

the TSCA was passed in

TSCA

regulates the introduction of new or existing chemicals

Statutory Authority

Without this, the agency has no legal basis to issue a rule; Congress must give an agency the power to act

building the record

after getting authority, the agency collects data to support its proposed rule

proposed rule/public comment

the agency publishes a proposed rule and must allow the public to comment

Final Rule

the agency publishes this and must respond to important public comments

Chevron v NRDC

this case challenges how EPA defined ‘stationary source’ under the Clean Air Act - should the courts accept the agency’s interpretation of an ambiguous term in the statue

Supported EPAs interpretation

How did Chevron feel about they Chevron v. NRDC case

challenged the EPA rule

How did NRDC feel about they Chevron v. NRDC case

stationary source

In Chevron v NRDC, NRDC argues that the Clean Air Act didn’t clearly define

Bubble policy

the EPA adopted this policy that treated an entire plant as one source

Chevron

in Chevron v. NRDC the Supreme Court sided with

chevron deference

The impact of the Chevron v NRDC ruling lead to the creation of

chevron deference

a doctrine that gave agencies broader power to interpret their own statues

Loper Bright

this case asked whether courts should keep deferring to agencies when laws are ambiguous; vehicle for the court to revisit Chevron

fishing company vs secretary of commerce

the parties in the Loper Bright case are

Loper Bright

the fishing company that challenges a federal rule requiring the to pay for federal monitors on their boats

overruled

In the Loper Bright case the Supreme Court ______ Chevron deference

Shifts power from agencies to courts

the impact of the Loper Bright ruling

Loper Bright

this case was controversial because agencies have subject matter expertise that courts may lack and it puts decades of regulations in question