esp 300 mid term

NEPA

makes fed agencys write impact reports (how their projects would impact or harm the environment

• is only procedural (doesnt directly protect the environment)

type of NEPA docs

EA , FONSI, DEIS, FEIS

environmental assessments (EA’s)

determine whether major federal projects will have any significant or long lasting effects

• examine direct, indirect, and cumulative effects

• examine and compare alternatives

• surface level “how big/long/impactful”

major federal project definition under EA’s

involves irretrievable commitments of env resources and lasting changes, may also involve high controversy or federal expense

• the permanent long term loss or usage of env resources and federal expense

significant effects definition under EA’s

env context and intensity of the project location, size/scale, nature, quality, and quantity of resources affected

Administrative Procedure Act (APA)

tells the feds how to makes propose, establish, and enforce regulations

• can block actions that are capricious/ politically motivated/ doesn’t follow the rules

• requires proof of NEPA participation to have “standing”

Council on Environmental Quality (CEQ)

adopts regulations telling feds how to comply with NEPA (created by NEPA)

If a agency project does NOT include a major federal action and significant environmental impacts then the agency issues a…

FONSI

If a agency project DOES include a major federal action and significant environmental impacts then the agency issues a…

EIS

Environmental Impact Statement (EPA)

done after a project was found to have sig damage, requires longer and more complete examinations

includes: direct & indirect env affects, reasonable alternatives, and a conclusion that summarizes severity of effects

reliance on mitigation (NEPA pitfall)

agency’s will sometimes issue FONSI’s if feds promise to reduce the severity or damage of their actions

• done to reduce the significant env impacts down to just minor or moderate

• done to avoid EIS

project segmentation (NEPA pitfall)

when agency’s try to break down a major project with significant effects into many smaller projects with minor effects

• smaller projects don’t require EIS

timing and consideration of an EIS (NEPA pitfall)

Calvert Cliffs case: courts emphasize the importance of considering EIS at e very important stage of the decision making process

Other issues with NEPA and EIS besides mitigation, segmentation, and timing

4. their efficiency/sufficiency (are they addressing all env impacts or just “sweeping under the rug”)

5. proves incorrect (if mitigation is not done correctly or performed poorly, there is no remedy to undo the project)

PROS of NEPA

• requires env impact analysis by following a process

• informs the public and decision makers about impacts of proposed actions

CONS of NEPA

• has indirect impacts

• does not require that harmful projects be avoided

emergency planning community right to know act (EPCRA)

allows communities/gov/first responders to be educated on possible chemical emergencies and releases

• facilities must report a toxic chemical release inventory (TRI)

toxic release inventory (TRI)

includes:

1. type of chemical used

2. estimate of max amounts present at any time in the prev year

3. waste treatment disposal method and efficiency

4. quantity of toxic entering the env annually

health and harm based approaches

forces regulators to adopt pollution standards or limits that achieve a certain level of clean and safe air or water

• requires scientific analysis to examine the tolerance of humans and the env to a pollutant

• pollutions standards are set by “margins of safety” to prevent illness or harm

technology based approach

setting standards that are based on technology performance

• focuses on what’s capable and easy to achieve

• reduce the concentration of pollutants discharged

• seek to determine which available tech performs the best

clean air act (CAA)

set health or harm base breathability standards, benefits to public health outweigh the costs

Nat’l Ambient Air Quality Standards (NAAQS)

implements standards through permits and plans to prevent harm before it happens

controversy

• health and harm based approached

• write SIPS or FIPS

state implementation plans (SIPS)

collection of regulations and permits that are given to emitters

• if failed a FIP i issued

• health/harm based approach

federal implementation plan (FIP)

FORCES them to comply and meet standards & produce work on SIP’s

new stationairy source review (NSR/NSPS)

new or modified sources must achieve BAT performance standards, emitters get a grace period to get to compliance (grandfathering)

• required for new facilities with major emission sources

• if cost repairs hit 20% its considered a substantial mod upgrade

• tech based performance standards

trading approach (cap-and-trade)

controls SO2 pollution, sets a cap for industry polluters based on env harm

• gov issues equal rights to admit specific quantities of a pollutant

• if company cuts emissions below its “allowance” it can sell or save for the future

issues with the trading approach

group of polluters who have old sources of SO2 zones together can buy many pollution credits and create hotspots

• as a result the EPA limited the amount of trades allowed

prevention of significant deterioration (PSD)

areas with good air quality can be allowed to deteriorate in small increments of pollution

• monitor incremental deterioration issue permits over time, and aren’t given if emitters would go over the increment cap

• require the use of BAT

After h/h based approaches didn’t work what did the CAA move to

tech based approaches regulating hazardous air pollution (HAP) (not formulated on prevention)

• under this all forms of pollution under fed statue can be sued by the public if they want to demand injunction

strict liability

when there is no requirement for the gov to prove intent, negligence, etc. they only need to prove that it happened under your watch/carelessness

citizen NGO enforcement

when citizens or non profit organizations hold corporations responsible to comply with laws with a notice by letter, if they fail to comply by 60 days they can be sued

clean water act (CWA)

created in response to sewage spills & fish deaths, protects all surface waters, intends to make water fishable, swimmable, etc.

• is an example of cooperative federalism (states can enforce fed. water protection acts)

national pollutant discharge elimination system (NPDES)

covers water pollution that meet the following requirements

• discharge of pollutants

• a point source

• navigable waters

set effluent limitations and regulate TBELS in permits

effluent limitations

limits the amount/rate of liquid pollutant, measured at the end of the pipe

point source

any confined source of contamination that discharges pollutants

ex: pipes, cattle feed lot, channels, canals, machinery, ditches

tech based effluent limitations (TBELS)

tech based approach! uses limits based on outputs of tech/performance standards

BCT (decides how strict a TBEL is)

used for conventional pollutants that are biological in nature (oil and pH)

BAT (decides how strict a TBEL is)

used for harmful heavy/toxic metals, set using the best performing technology available

• new ___: requires 0 pollutant discharge from point source (instead expected to infiltrate or truck it)

• focuses on what is economically achievable for the entire industry

indirect discharge

allows owners of businesses to reroute water to send to sewage treatment plants (needs permits)

• issues: pass through and interference (some sewage plants aren’t designed to treat certain pollutants so water needs to go through pre treatment before its sent)

when swimmable and fishable waters werent achieved the CWA responded by….

focus on non point source pollutants (all waste water that might flow across lands and move into a storm drain or creek/lake

• implemented BMPS

best management practices (BMPS)

primarily applied to manage stormwater runoff, control erosion, and prevent pollution

• used to capture and contain flowing of non point sources

health based water quality standards (step 2 CWA)

state establishes beneficial uses for each water body, and must develop water quality based effluent limits (WQBEL) or water quality standards (WQS) to establish the desired conditions of waterways

total maximum daily load (TMDL)

the maximum amount of a specific pollutant that a surface water body (such as a lake, river, or stream) can receive and still meet state and federal water quality standards

• last line of defense, considering impaired waters

permits impaired waters need to comply with

TBELS AND TMDLS (which is inserted into their NPDES permits)

anti backsliding policy

says that permits have to stay strict and cannot get more lenient

• always cleaner and more protective

anti degradation policy

rule that stops clean rivers, lakes, and streams from getting dirtier unless there is an important economic or social reason to allow it

• where beneficial uses are met, water quality must be maintained

regional boards: basin plans

protects the beneficial uses of surface water and ground water

common law

las her inherited/modified to suit the U.S, made by judges, under this all citizens/corporations have the duty to behave reasonably to forsee harm

cooperative federalism

shared regulatory power between the states and feds

• feds delegate their power to the states because states know about localized issues

federalization

the individual states have police powers to public health safety, etc.

prescriptive regulation

is a rule that tells companies or individuals the exact steps, materials, equipment, or methods they must use to comply with the law

express preemption

happens when a statute says no state/city/county can make/enforce rules on a certain subject

preemption

higher level of authority invalidates the lower levels of authority

savings clause

says that states can regulate/have strict regulations, opposite of preemption clause!

• doesn’t need fed approval

• clean air and water act have this

Riparian rights

A property owners right to divert water from a waterway (that touches their property physically) for beneficial use

• isn’t right to the water itself, its the right of usage

• Beneficial use can range from personal use to agricultural use

Prior appropriation

An old claim of water for “beneficial uses” has superior right/power compared to future/present claims

• Doesn’t consider land ownership

Con of prior appropriation

Use or lose it! (If a right holder stops using their allocated water for a certain period of time then that water is abandoned or forfeited, it goes to waste!)

intentional torts

civil wrongs involving intended acts with unintended harmful effects

tort of nuisance

intentional actions by a facility that create a harmful or offensive environmental effect or impact especially to neighbors (sensory sense disturbance)

• requires evidence of liability and standing

• private _: injury to private property

• public _: pollution to state or public areas

tort of trespass

intentional interference with private property, requires:

• intentional act

• substantial damages

• reasonable foreseeability (realizing that your actions would wrongfully interfere with someone else’s property)

standing

the right to bring the lawsuit, requires evidence of injury and causation

liability

proving that another party is responsible for an injury or accident

CONS of common law

• payouts are given instead of actually fixing the issue

• works on issues AFTER they happened (doesn’t prevent anything)

• more catered towards public health and properties