CHAPTER 45
ENVIRONMENTAL PROTECTION
ANSWERS TO QUESTIONS
AT THE ENDS OF THE CASES
1. In what circumstance might the Port Authority—or anyone else—take a migratory bird
without a permit and not be sanctioned? The Port Authority, or anyone else, might take a
migratory bird without a permit and not be sanctioned if the bird presented a direct threat to
aircraft.
Migratory birds that congregate near airports pose a well-known threat to human safety.
To reduce the risks at New York City’s John F. Kennedy International Airport (JFK), the Port
Authority of New York and New Jersey, which operates JFK, obtained a permit from the U.S.
Fish and Wildlife Service (FWS) to take (kill or capture) birds that threaten to interfere with the
aircraft. The permit listed eighteen species of migratory birds that the Port Authority could take,
according to quota. The permit was issued pursuant to 50 C.F.R. Section 21.41.
In an action in a federal court, Friends of Animals (FOA) challenged the issuance of this
permit. FOA criticized in particular the permit’s emergency-take provision, under which the Port
Authority could take any migratory bird (with exceptions for endangered species and others),
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2. Under the plaintiff’s suggested reading of the regulation at issue in this case, what
3. Why is the taking of birds, or any wildlife, protected by treaty and federal law? What
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CASE 45.2—CRITICAL THINKING
WHAT IF THE FACTS WERE DIFFERENT?
Suppose that O’Malley had been licensed to remove the asbestos. Would the result have
CASE 45.3—CRITICAL THINKING
ETHICAL
In this case, aquatic organisms were most directly at risk. Is it acceptable to apply cost-
benefit analyses to situations in which the lives of people are directly affected? Explain.
Yes, because funds are limited and costs can become prohibitive. In the environmental law
context, for example, is it worth billions of dollars to clean water that may harm only a few
people? Even the most ardent supporters of environmental protection might concede that it is
not. No, because for some parties, in some situations, there may be more important factors than
money to take into account. These might include such social and political goals as assistance
for the disadvantaged.
GLOBAL
In analyzing the costs and benefits of an action that affects the environment, should a
line be drawn at a nation’s borders? Why or why not? Yes, because a nation’s borders are
the limits of its legal powers. No, because pollution and other environmental harm does not
respect political borders.
ANSWERS TO QUESTIONS IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
1A. Requirement
To establish a common law cause of action for nuisance, each plaintiff would have to identify a
distinct harm caused by the pollution that was separate from that affecting the general public. In
other words, they would need to show how each of them was individually harmed by Cotton
Design’s emissions.
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2A. Equipment
Major stationary sources of air pollution are required to use the maximum achievable control
technology to reduce emissions. The EPA issues guidelines as to what equipment meets this
standard, and the guidelines may vary depending on whether the source is new or existing and
whether the area is clean or polluted.
3A. Fines
For violations of the Clean Air Act in these circumstances, the EPA can assess fines of up to
$25,000 per day.
4A. Information
Under the Safe Drinking Water Act, as amended, suppliers of drinking water are required to
send an annual statement describing the source of its water, the level of contaminants
contained in the water, and any possible health concerns associated with the contaminants.
Thus, the city must send a statement that includes this information every year to every
household it provides with water.
ANSWER TO DEBATE THIS QUESTION IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
The courts should reject all wetlands cases in which the wetlands in question do
not consist of actual bodies of water that exist during the entire year. The Army Corps of
Engineers brings numerous cases to court each year that involve areas that are not “wet” part of
the year. Some are only wet during storms. Congress never created wetlands legislation to
protect such areas. The U.S. is a huge country such that the U.S. Army Corps of Engineers
should spend its scarce resources protecting real wetlands—bodies of water that are wet all
year long.
If the government were restricted to protecting just bodies of water that were wet all year
long, it would be forced to allow development in fragile animal habitats. Because the U.S. is so
big, developers do not need to encroach on areas that the U.S. Army Corps of Engineers has
deemed wetlands. They have plenty of other locations for development. All wetlands legislation
has as its goal to protect our environment.
ANSWERS TO ISSUE SPOTTERS
AT THE END OF THE CHAPTER
1A. Resource Refining Company’s plant emits smoke and fumes. Resource’s operation
includes a short railway system, and trucks enter and exit the grounds continuously.
Constant vibrations from the trains and trucks rattle nearby residential neighborhoods.
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The residents sue Resource. Are there any reasons that the court might refuse to enjoin
Resource’s operation? Explain. Yes. On the ground that the hardships that would be imposed
on the polluter and on the community are greater than the hardships suffered by the residents,
the court might deny an injunction. If the plant is the core of the local economy, for instance, the
residents may be awarded only damages.
2A. ChemCorp generates hazardous wastes from its operations. Disposal Trucking
Company transports those wastes to Eliminators, Inc., which owns a site for hazardous
waste-disposal. Eliminators sells the property on which the disposal site is located to
45-1A. The Clean Water Act
Fruitade has violated a number of federal environmental laws if such actions are being taken
without a permit. First, because the dumping is in a navigable waterway, the River and Harbor
45-2A. Environmental protection
As a general rule, a property owner is free to use his or her property in any manner desired so
long as such use is not in violation of any statute or does not interfere with the property rights of
others. When such use interferes with another’s property rights, an action may be brought as a
tort of nuisance. In such a case, the court would try to balance the interests of both parties. In
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45–3A. SPOTLIGHT ON THE GRAND CANYON—Environmental impact statement
The appeals court found that the plaintiffs failed to establish that the NPS acted in an arbitrary
45–4A. Superfund
All of the parties are potentially liable for the costs to clean up the site. Under the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also
known as Superfund, when a release or a threatened release of hazardous chemicals occurs at
a site, persons who may be held liable for the cost of cleaning up the site include the person
who generated the wastes disposed of at the site, the person who transported the waste to the
site, the person who owned or operated the site at the time of the disposal, and the current
owner or operator. These are referred to as potentially responsible parties. Liability cannot be
avoided through transfer of ownership. Thus, selling a site does not relieve the seller of liability,
and the buyer also becomes liable. Liability also extends to those that merge with or buy
corporations that have violated CERCLA. Liability under Superfund is usually joint and several.
CERCLA authorizes a party who has incurred clean up costs to bring a contribution action
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45–5A. BUSINESS CASE PROBLEM WITH SAMPLE ANSWER—Environmental impact
statements
Yes, an environmental impact statement (EIS) is required before the U.S. Forest Service
(USFS) implements its proposed travel management plan (TMP). An EIS must be prepared for
every major federal action that significantly affects the quality of the environment. An action is
“major” if it involves a substantial commitment of resources. An action is “federal” if a federal
agency has the power to control it. An EIS must analyze (1) the impact on the environment that
the action will have, (2) any adverse effects on the environment and alternative actions that
might be taken, and (3) irreversible effects that the action might generate.
Here, the resources committed to the implementation of the USFS’s TMP could include
the resources within the wilderness and the time and effort dedicated by the agency. The
wilderness resources would include the soil, the vegetation, the wildlife, the wildlife habitat, any
45–6A. The Clean Water Act
No, ICG’s discharge of selenium into the water surrounding ICG’s coal mining operation does
not violate the Clean Water Act (CWA). The CWA established a permit system—the National
Pollutant Discharge Elimination System (NPDES)—to regulate discharges from point sources of
pollution. Under the NPDES system, a polluter must obtain a permit before discharging wastes
into surface waters. An authorized state agency can issue an NPDES permit for a discharge that
will not violate water-quality standards.
In this problem, KDOW, an authorized state agency, issued an NPDES permit to ICG for
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45-7A. SPECIAL CASE ANALYSIS—Environmental regulatory agencies
Case No. 45.1
Friends of Animals v. Clay
United States Court of Appeals, Second Circuit, 2016
811 F.3d 94
(a) Issue: What regulation was at issue in this case? What activity did it regulate? The
regulation at issue in the Friends case was 50 C.F.R. Section 21.41. Under this section, the U.S.
Fish and Wildlife Service (FWS) may issue “depredation permits” that authorize the taking (or
possession or transport) of migratory birds that are causing injury to certain human interests.
Take means kill or capture.
The taking of migratory birds is governed generally by the Migratory Bird Treaty Act
(MBTA). The MBTA prohibits the taking of any bird protected by treaty or federal law. But
unchecked, migratory birds can interfere with human activity. For example, migratory birds that
congregate near airports pose threat to human safety. Thus, there is an exception in the MBTA
allowing the taking of migratory birds as permitted by such regulations as Section 21.41.
In the Friends case, to reduce the risks at New York City’s John F. Kennedy International
Airport (JFK), the Port Authority of New York and New Jersey, which operates JFK, obtained a
permit from FWS to take birds that threaten to interfere with aircraft. The permit listed eighteen
species of birds that the Port Authority could take, according to quota.
In an action in a federal district court, Friends of Animals (FOA) challenged the issuance
of this permit. FOA criticized in particular the permit’s emergency-take provision, under which
the Port Authority could take any migratory bird (with exceptions for endangered species and
others), including one not listed, if it posed a “threat of serious bodily injury or a risk to human
life.” FOA sought to invalidate the permit as a product of agency action that was arbitrary,
capricious, an abuse of discretion, or otherwise not in accord with the law. FOA argued that
FWS had exceeded the limits of Section 21.41, which in turn led the Port Authority to unlawfully
take a number of migratory birds.
The court issued a summary judgment in favor of the defendants. FOA appealed to the
U.S. Court of Appeals for the Second Circuit.
(b) Rule of Law: What rule of statutory interpretation did the court apply to construe
this regulation? The U.S. Court of Appeals for the Second Circuit applied the plain language rule
to construe the permit regulation (50 C.F.R. Section 21.41). Under this rule, a court gives effect
to the plain language of a statute or regulation.
Section 21.41 provides for the U.S. Fish and Wildlife Service (FWS) to issue a permit that
authorizes the taking of migratory birds causing injury to certain human interests. FWS issued a
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permit to the Port Authority of New York and New Jersey, which operates New York City’s John
F. Kennedy International Airport (JFK), to take birds of certain listed species that threatened to
interfere with aircraft at JFK. Under the permit’s emergency-take provision, the Port Authority
could take any migratory bird (with certain exceptions), including a member of a species not
listed, if it posed a “threat of serious bodily injury or a risk to human life.”
Friends of Animals (FOA) filed a suit in a federal district court to challenge the
emergency-take provision, seeking to invalidate the permit. FOA argued that FWS’s issuance of
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45–8A. A QUESTION OF ETHICS—Clean Air Act
(a) The court held that the fuel economy standards and GHG regulations did not cover
the same subject and that the rules are not “an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress” in requiring NHTSA to set fuel economy
standards. The state rules “embrace much more than a simple requirement to improve fuel
economy, cloaked in the rhetoric of reducing carbon dioxide emissions. . . . [W]hile there is a
near-perfect correlation between fuel consumed and carbon dioxide released, there is no such
perfect correlation between fuel consumed and emissions of hydrocarbons or carbon monoxide.
This fact undermines the assertion that the GHG regulation is nothing more than a fuel economy
standard, since it encompasses emissions which do not correlate with fuel economy.”
(b) The plaintiffs argued that Vermont's GHG regulations “intrude upon the foreign
policy of the United States and the foreign affairs prerogatives of the President and Congress of
the United States.” They claimed that “the regulation conflicts with the United States' pursuit of
multilateral agreements to reduce international GHG emissions, diminishes its bargaining
power, and interferes with the ability of the United States to speak with one voice upon matters
of global climate change.”
The court disagreed. The court cited the “U.S. Dept. of State, U.S. Climate Action
Report—2006’” that “applauds nonfederal policies and measures that limit GHG emissions: ‘In
addition to the national effort, state and local governments and private and nonprofit
organizations are taking a variety of steps that contribute to the overall GHG intensity reduction
goal. These nonfederal climate change activities can be an important factor in the success of
emission reduction policies.’ The report goes on to specify that ‘[m]any state governments have
made . . . climate change initiatives high priorities . . . . These states are implementing a wide
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45–9A. LEGAL REASONING GROUP ACTIVITY—Clean-up costs
(a) One way to reduce administrative costs is to spend less money on administration:
allocate dollars strictly for clean-up. Administrative costs would also be reduced if business and
property owners would voluntarily clean up their dump sites. If insurance companies, lenders,
and other potentially responsible parties would agree to contribute to the cost of cleaning up
sites, without litigation and other expensive steps, administrative costs could decrease. Another
way to reduce administrative costs is to assign the work of more than one agency to a single
agency—combine the tasks of local and state agencies, for example, or turn all of the
responsibility over to the Environmental Protection Agency. A drastic step, and probably the
least likely, would be to eliminate the agencies altogether.
(b) Congress can change the laws pertaining to hazardous waste clean up if that
legislative body has the will to do it. Federal and state administrative agencies that implement
and administer those laws can also change them within the parameters of their authority. By any
means, those laws should be changed to reduce the costs to government, and it is not likely that
anyone would disagree with that goal. There is likely to be disagreement in what those changes
should involve, however. Should private businesses be required to shoulder more of the
burden? Should compliance be made less onerous so that clean up, and thereby the costs,
would be less? Should the owners of property adjacent to a site be asked to pay for its clean up
on the ground that the clean up will benefit their property most directly?