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Contents Preface xxiii Acknowledgments xxv Chapter 1. Environmental Ethics, Standards, Markets, and the Common Law The Concept of Environmental Regulation Ecosystems and Cycles Ethics and Efficiency: The Moral Basis of Pollution Control The EPA and Its Authority to Permit and Enforce Setting the Standard for Emissions to the Environment Conventional Pollutants Toxic Pollutants Tools and Techniques of Environmental Protection Technology Forcing Standards Regulation of Existing Versus New Emitters Taxes and Subsidies Flexible Market Incentives Risk Assessment Environmental Equity Common Law Environmental Remedies Key Distinctions Nuisance Trespass Negligence Strict Liability Public Trust Doctrine The Availability of Criminal Sanctions Chapter 2. Administrative Procedure for Environmental Regulation Where the Action Is Drawing the Line: The Nondelegation Doctrine Staying Within the Tent: The Ultra Vires Doctrine The Administrative Procedure Act Types of Agency Actions Informal Rulemaking Formal Rulemaking Adjudications Hybrid Procedures Staying Current Reg-Neg The Process and Judicial Review Standing to Sue Ripeness of the Action Exhaustion of Administrative Remedies and Estoppel Standards of Judicial Review What Can Be Appealed to the Courts The Choice of Standard Remedies and Fees Federal Tort Claims Act Equal Access to Justice Act Public Access to Information Freedom of Information Act Federal Advisory Committee Act The Sunshine Act Chapter 3. The National Environmental Policy Act The Structure of NEPA The NEPA Text In the Beginning: Substance and Procedure The EIS Process The Administrative Process The Threshold Decision Major Federal Action Significantly Affecting the Quality of the Human Environment The Human Environment Judicial Review Under NEPA Timing and Scope of the EIS When: Timing of the EIS Who, What, and Where: Scope of the EIS Actions: Program Impact Statements, Segmentation, and the Small Handle Problem Alternatives to the Proposed Action When Again: The Supplemental EIS Adequacy of the EIS: Analysis and Alternatives Analysis of Sufficient Environmental Impacts To Analyze or Not to Analyze? EIS Uncertainty and Possible Delay Worst-Case Risk Analysis Cost-Benefit Analysis Treatment of Alternatives No-Action Alternative Primary Alternatives Secondary Alternatives Mitigation Measures Judicial Review of Adequacy: Substance Versus Procedure Exemptions from NEPA Statutory Exemptions Statutory Conflicts: The Flint Ridge Case National Security International Environmental Effects Chapter 4. Constitutional Issues: The Commerce Clause and Environmental Preemption The Commerce Clause and Environmental Regulation Issue One: The Plenary Power of Congress to Regulate Interstate Commerce Direct Federal Regulation The Tenth Amendment Limitation on Federal Power to Regulate Issue Two: Restriction of State Power ? The Dormant Commerce Clause Geographically Discriminatory Legislation The Balancing Test for State Legislation That Is Not Facially Discriminatory but May Burden Interstate Commerce Market Participant Analysis: When a State Does Not Regulate Federal Preemption of State Environmental Regulation Express Preemption Implied Preemption Savings Clauses in Environmental Statutes Chapter 5. Air Quality Regulation The Basics of Air Pollution Regulation Sources of Air Pollution Air Pollution Regulation Prior to 1970 The Clean Air Act Amendments of 1970 Ambient Air Quality: Area Regulation Source Controls: Regulation of Individual Emitters of Pollutants The Clean Air Act Amendments of 1977 The Concept of Nonattainment: Geographic Standards Existing Sources: RACT Nonattainment Areas: New Source Review (NSR) Attainment Areas: Prevention of Significant Deterioration (PSD) Summary of Permitting The Clean Air Act Amendments of 1990 Attainment and Maintenance of NAAQS: Title I Failure to Achieve Compliance Pollutant-Specific Requirements for Nonattainment Areas Regulating Mobile Sources: Title II Emission Controls Fuel Programs Vehicle Fleet Programs Hazardous Air Pollutants (NESHAPs): Title III Acid Deposition Control: Title IV Stratospheric Ozone Protection: Title VI Enforcement Provisions: Title VII EPA Enforcement Citizen Suits Criminal Penalties Privileged Legal Information Chapter 6. Water Pollution The Importance of Water Water Quality and Pollution Primary Sources of Water Pollution Point Sources Nonpoint Sources Types and Measurements of Water Pollution Biological Hazards Chemical Hazards Early Water Quality and Effluent Regulation The River and Harbors Act of 1899 Twentieth Century Pre-1972 Water Pollution Control Federal Water Pollution Control Act The Structure Permits for Point Source Discharges to U.S. Waters Toxic Pollutants Health-Based and Technology-Based Standards Health-Based Standards Technology-Based Standards Amendments Regulating Specific Discharges Existing Industrial Sources POTWs New Industrial Sources Nonpoint Sources FDF Variances Water-Quality Standards Enforcement Additional Federal Water Pollution Statutes The Safe Drinking Water Act Other Water Pollution Statutes The Coastal Zone Management Act The Oil Pollution Act The Marine Protection Act The Fish and Wildlife Coordination Act Chapter 7. Rights to Use Water Surface Water Rights Riparian Water Rights: Geographic Determination What Are Riparian Water Rights? Water Types Subject to Riparian Rights Riparian Land The Evolution of the Reasonable Use Rule The Effect of Non-Use and Prescription The System of Prior Appropriation: First in Time Development of Prior Appropriation Obtaining Priority Rights: Appropriation Water That May Be Appropriated The Transfer or Conveyance of Water Rights Dual System States Administrative Permit Systems Constitutional Issues Groundwater Allocation Riparian Rights Prior Appropriation Rights Federal and Tribal Rights Chapter 8. The Management of Hazardous and Solid Wastes: RCRA What Waste Is Regulated? RCRA?s Purpose and Goals Trigger One: RCRA Regulates ?Wastes? Trigger Two: RCRA Regulates Hazardous Wastes Criteria for Identifying Regulated Hazardous Wastes Hazardous Wastes Regulated Under Other Statutes Are Excluded from RCRA Regulation Other Unregulated or Minimally Regulated Wastes Regulation of Hazardous Waste Generators Regulation of Hazardous Waste Transporters TSD Facility Regulation Interim Status Facilities Permanent Permitted Status Facilities Relation to Other Regulation The Land Ban State and Local Government Regulation Overfiling Wrestling the Tiger: Enforcement by Agencies and Citizens Information Gathering by the EPA: ?3007 Information Inspections Monitoring and Testing: ?3013 Citizen Suits: ?7002 Imminent and Substantial Endangerment Actions: ?7003 The Contribution The Actors Remedies Criminal Violations Scienter Penalties RCRA Remedies and Bankruptcy Powers Subsidiary RCRA Regulatory Programs Underground Storage Tanks (UST) Medical Waste Tracking Act of 1988 Chapter 9. The Superfund: Hazardous Substance Remediation The Mechanics of CERCLA How Superfund Is Different from Other Environmental Laws Prospective or Retrospective Wastes and Other Substances Persons and Places Common Law Distinctions Basic Structure Information and Inspection: ??103 and 104 Key CERCLA Definitions Clean-up Authority: ??104 and 105 The Superfund: ??111 and 112 Liability Allocation: ?107 The 1986 SARA Amendments EPA Tools to Accomplish Pollution Abatement and Impose Liability: ??106 and 107 The Four Basic Tools ?106 Orders and Injunctive Remedies ?107 Litigation ?104 Friendly Persuasion Strict Liability Proximate Cause Generators Owners and Operators Officer Liability Transporters Basic Defenses Assignment and Allocation of Liability to Private Parties Joint and Several, or Several, Liability? Divisibility of the Harm Equitable Factors as Apportionment Tools Private PRP ?107 Actions Private Party Allocation: ?113 Uniform Contribution Among Tortfeasors Act (UCATA) Uniform Comparative Fault Act (UCFA) Strategic CERCLA Litigation Choices and Outcomes Substantive Distinctions Statutes of Limitation and Review The Application of CERCLA Liability in Special Situations Liability Status of Unconventional ?Persons? Municipal Liability Liability of Trustees, Fiduciaries, and Lenders Liability of Parent Corporation for Acts of the Subsidiary Successor Corporation Liability Liability of Persons During Acts of War Interrelationship of CERCLA and Other Law Effect of Indemnities and ?Hold Harmless? Clauses Interplay with Bankruptcy Law The Petroleum Exclusion Natural Resource Damages and Economic Loss Liens Against PRP Property Interlocutory Challenge: The ?Take It or Leave It? Proposition Criminal and Civil Penalties Insurance Compensation for Contamination: Who Ultimately Pays? The Duty to Defend The Requirement of an ?Occurrence? Within the Policy Period The ?Trigger? of Coverage The Pollution Exclusion Clause and Its Interpretation: ?Sudden and Accidental? Polluting Events The Absolute Pollution Exclusion Equitable Relief Versus Damages: Are Clean-up Costs Covered Under the CGL Policy? Chapter 10. Local Environmental Controls Land Use, Property Rights, and Environmental Law Zoning and Critical Environmental Habitats Zoning and the Environment History and Evolution of Zoning Techniques Legal Problems with Zoning Environmental Zoning Techniques Euclidean Zoning Subdivision Control Cluster Zoning Planned Unit Development (PUD) Transferable Development Rights (TDR) Environmental Overlay Districts Open Space Zoning Restrictions on Growth Exactions Conservation Easements, Land Acquisition, and Taxation Performance Standards Regulation of Critical Environmental Resources The Coastal Zone Wetlands Other Critical Areas Municipal Licensing for Environmental Goals The Municipal Power to License Building and Occupancy Permits Nonconforming Uses and Their Destruction Board of Health Environmental Authority Common Law Land Use Controls The Public Trust Doctrine Waste and Nuisance Legal Limitations on Environmental Land Use Regulation Spot Zoning Reverse Spot Zoning The ?Takings? Clause Limitation Procedural Limitations Due Process Variances Vested Rights Special Permits Chapter 11. Preservation of Natural Areas: Wetlands and Open Space Wetlands and Waterways What Is a Wetland? Regulation of Wetlands Early Regulation The Rivers and Harbors Act of 1899 The National Environmental Policy Act (NEPA) The Wild and Scenic Rivers Act The Federal Water Pollution Control Act Amendments of 1972 ?404 Overview Exemptions The Extent of Jurisdiction Under the Clean Water Act Jurisdictional Overlaps in Implementing ?404 Initial Review of the Army Corps of Engineers EPA Veto Review of EPA or Corps? Decisions Administrative Review Citizen Suits Under ?505 Regulatory Takings The Role of the States in Wetlands Protection State Control of the ?404 Program State Wetlands Protection Jurisdiction Protected Natural Resource Areas The Agencies in Control Wilderness Areas Timber Exploitation Mineral Exploitation Grazing Chapter 12. Energy and the Environment Energy and the Environment The Role of Electricity The History of Power High Energy Electricity as a Special Resource Energy Efficiency Pollution from Power Plants Regulation of Public Utilities Where Does It Come From ?Where Does It Go? How Utility Rates Are Set Federal Versus State Regulation The Filed Rate Doctrine Deregulation of Power Deregulation of Power Generation Deregulation of Power and Wheeling Power Bidding Retail Sales and Wheeling Oil and Gas Rights Oil and Gas in the American Economy Environmental Repercussions Ownership and Transfer of Oil, Coal, and Gas Rights Chapter 13. The Endangered Species Act Key Statutes Key Definitions The Key Verb: ?Take? Listing of Species and Consultation Listing Species and Habitat: ?4 Required Cooperation and Consultation for Listed Species and Habitat: ?7 Exemption from ?7 Takings: ?9 What Private Action Is Prohibited Incidental Takes Allowed Chapter 14. TSCA and FIFRA: Regulating Chemical Manufacture and Distribution The Toxic Substances Control Act (TSCA) What Is a Chemical Substance? Parties Regulated Testing Chemical Substances Regulating Existing Chemical Substances Existing Substances That Present an ?Unreasonable Risk of Injury? ?Imminently Hazardous? Existing Substances ?Significant New Uses? of Existing Substances Regulating New Chemical Substances Enforcement The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Pesticides Defined Registration Export of Pesticides Preemption Chapter 15. International Environmental Law The Structure and Limitations of International Environmental Law Treaties Custom General Principles of Law Judicial Decisions and Scholarly Writing International Forums for Justice Equity in International Justice The Application of International Environmental Law Judicial Decisions Trans-Boundary Harm Air Pollution Water Pollution Desertification Environmental Warfare Nuclear Power and Weapons Species and Toxins Glossary Abbreviations Table of Cases Index
Library of Congress Subject Headings for this publication:
Environmental law -- United States.