Environmental Law Exam 2 || A+ Graded Already.
Agency Actions correct answers The third source of environmental law—agency rules and
decisions. Agencies act as an extension of both Executive and Legislative branches—rules,
orders, op memos.
Evolution of Administrative/Agency process—began as a way to control actions of the agencies
and morphed into APA and case law. Inclusion of the public hearing and comment is important!
Challenging agency actions—Typically courts is to defer to agency if supported in fact and a
reasonable interpretation of law. Why would we challenge? No clear authorization, step beyond
the bounds of law and failure to act.
Disclosure Laws correct answers Disclosure laws are designed to provide information to public
to enable their participation. Meant to provide transparency. NEPA and background-era of
1970s's and some say it was a mistaken act because required agencies to do an analysis of
environmental impact before taking action. The court's interest is to make sure that agencies
conduct a robust review of proposed major actions. EIS and EA.
Roadblock Laws correct answers Regulation to prohibit use due to inherently dangerous nature
of activity. Endangered Species Act is model federal law. States have similar ESA laws.
Courts have been sympathetic over the years to essence of the law—because law is so clear.
Michigan's best known roadblock law is its invasive species law written by the legislature but
control was given over to the DEQ, DNR, and other agencies because they have more
knowledge. Roadblock laws have greater utility as canary in coal mine indicator—we not just
protect species but help to focus on harmful human behaviors.
Permitting Standards correct answers Harm-Based Standard: Gives people options as to how to
prevent the harm
Tech-Based Standard: Gives people flexibility with emission/effluent levels as long as
technology is implemented to the standard.
Clean Air Act (1970) correct answers Passed to control both stationary and mobile sources of air
pollution. Quality of air seen as a most visible health issue—secondary natural resource issue.
CAA provides for limits for the permissible concentration of 6 criteria pollutants in the Ambient
Air Standards are periodically reviewed and revised if they are not protective of public health.
Makes distinction between stationary and mobile sources to control emissions. Also makes
distinction between new and existing stationary sources. States are given the job of regulating
most stationary sources while feds retain control over mobile sources. States are required to
prepare plans (State Implementation Plan) to implement various pollution control measures to
improve air quality to attain the federal standard or maintain the already good air quality. SIPs
must be approved by the EPA for review to make sure that Federal minimums are met.
Whitman v American Trucking Association (2001) correct answers American Trucking
Association challenges EPA's setting of NAAQS—claims that protecting public health is a more
complicated analysis—more factors than just air pollution! Out of work, bad health results!
Claims that EPA did not fully consider economic costs associated with standards. We've heard
this argument before! Sup. Court says that Congress was very explicit in their intent (standards
, must protect public health) and that EPA is bound to follow. EPA had not acted outside the
bounds of the statute.
Massachusetts v EPA (2007) (Bush) correct answers EPA says that it lacks authority to regulate
green house gasses from new motor vehicles. Sec. 202 of CAA—"EPA to set standards of any
air pollutant.....which cause or contribute to air pollution reasonably anticipated to endanger
public health, welfare." Court says CAA is clear—agency has the authority—very broad
mandate. Is this a case of politics?
Air Pollution Control Dist v. EPA correct answers Kentucky challenges EPA's enforcement of
CAA for failure to control impact of Indiana sources. Downwind states have a difficult burden-
despite all their efforts, they can't control upwind pollution! EPA says only a small amount of air
pollution came from Indiana plant. There is a forum for this discussion—interstate transport
commission to mediate disputes. EPA was reluctant to require changes to Indiana SIP because
they would be able to change their SIP in the next few years. Every 5 years, SIPs must be
reviewed and revised.
NMU Heating Plant Case correct answers NMU makes noble effort to convert to combo
wood/coal/natural gas burning boiler system for heat/electricity. Local coal (not low sulphur) to
be used. Lower costs for local coal. DEQ had done the PSD analysis and gave specific
preference for use of coal over wood.
Sierra Club sues and move is to protect a PSD area.
Case involves a major modification of existing source in a PSD area—high air quality to be
preserved. Must take most aggressive measures to protect! EPA tells DEQ to do more!
Clean Water Act (1972) correct answers CWA enacted after CAA and it created a 5-year permit
with the intention of regular review and the potential for changing requirements. Vehicle for
controlling releases —NPDES (National Pollutant Discharge Elimination System) permits. Clean
up and protect waters of the US with specific standards based on the quality of the waters. The
CWA made it unlawful to discharge any pollutant to the surface waters unless a permit was
obtained. It is generally applicable to industrial facilities and municipal wastewater treatment
facilities known as point sources. CWA set water quality standards for allowable discharges, but
states are free to develop their own water quality standards to accommodate state conditions as
long as the EPA has approved the state's NPDES permit program.
Mecury, PCB's, Benzopyrene, etc and many more....
Example—key rivers and streams in Michigan—Blue Ribbon Trout streams and Natural Rivers
get special attention.
EPA v. California correct answers Key background case on evolution of CWA. Water Quality is
protected through through the National Pollutant Discharge Elimination System (NPDES) permit
process and states are allowed to assume delegated authority if program is approved by EPA.
States must use the appropriate federal standard or be more protective. This case affirmed that a
permit issued from a state with an approved state program does not have to obtain additional
federal authorization.
Doctrine of Federalism is reinforced.
Agency Actions correct answers The third source of environmental law—agency rules and
decisions. Agencies act as an extension of both Executive and Legislative branches—rules,
orders, op memos.
Evolution of Administrative/Agency process—began as a way to control actions of the agencies
and morphed into APA and case law. Inclusion of the public hearing and comment is important!
Challenging agency actions—Typically courts is to defer to agency if supported in fact and a
reasonable interpretation of law. Why would we challenge? No clear authorization, step beyond
the bounds of law and failure to act.
Disclosure Laws correct answers Disclosure laws are designed to provide information to public
to enable their participation. Meant to provide transparency. NEPA and background-era of
1970s's and some say it was a mistaken act because required agencies to do an analysis of
environmental impact before taking action. The court's interest is to make sure that agencies
conduct a robust review of proposed major actions. EIS and EA.
Roadblock Laws correct answers Regulation to prohibit use due to inherently dangerous nature
of activity. Endangered Species Act is model federal law. States have similar ESA laws.
Courts have been sympathetic over the years to essence of the law—because law is so clear.
Michigan's best known roadblock law is its invasive species law written by the legislature but
control was given over to the DEQ, DNR, and other agencies because they have more
knowledge. Roadblock laws have greater utility as canary in coal mine indicator—we not just
protect species but help to focus on harmful human behaviors.
Permitting Standards correct answers Harm-Based Standard: Gives people options as to how to
prevent the harm
Tech-Based Standard: Gives people flexibility with emission/effluent levels as long as
technology is implemented to the standard.
Clean Air Act (1970) correct answers Passed to control both stationary and mobile sources of air
pollution. Quality of air seen as a most visible health issue—secondary natural resource issue.
CAA provides for limits for the permissible concentration of 6 criteria pollutants in the Ambient
Air Standards are periodically reviewed and revised if they are not protective of public health.
Makes distinction between stationary and mobile sources to control emissions. Also makes
distinction between new and existing stationary sources. States are given the job of regulating
most stationary sources while feds retain control over mobile sources. States are required to
prepare plans (State Implementation Plan) to implement various pollution control measures to
improve air quality to attain the federal standard or maintain the already good air quality. SIPs
must be approved by the EPA for review to make sure that Federal minimums are met.
Whitman v American Trucking Association (2001) correct answers American Trucking
Association challenges EPA's setting of NAAQS—claims that protecting public health is a more
complicated analysis—more factors than just air pollution! Out of work, bad health results!
Claims that EPA did not fully consider economic costs associated with standards. We've heard
this argument before! Sup. Court says that Congress was very explicit in their intent (standards
, must protect public health) and that EPA is bound to follow. EPA had not acted outside the
bounds of the statute.
Massachusetts v EPA (2007) (Bush) correct answers EPA says that it lacks authority to regulate
green house gasses from new motor vehicles. Sec. 202 of CAA—"EPA to set standards of any
air pollutant.....which cause or contribute to air pollution reasonably anticipated to endanger
public health, welfare." Court says CAA is clear—agency has the authority—very broad
mandate. Is this a case of politics?
Air Pollution Control Dist v. EPA correct answers Kentucky challenges EPA's enforcement of
CAA for failure to control impact of Indiana sources. Downwind states have a difficult burden-
despite all their efforts, they can't control upwind pollution! EPA says only a small amount of air
pollution came from Indiana plant. There is a forum for this discussion—interstate transport
commission to mediate disputes. EPA was reluctant to require changes to Indiana SIP because
they would be able to change their SIP in the next few years. Every 5 years, SIPs must be
reviewed and revised.
NMU Heating Plant Case correct answers NMU makes noble effort to convert to combo
wood/coal/natural gas burning boiler system for heat/electricity. Local coal (not low sulphur) to
be used. Lower costs for local coal. DEQ had done the PSD analysis and gave specific
preference for use of coal over wood.
Sierra Club sues and move is to protect a PSD area.
Case involves a major modification of existing source in a PSD area—high air quality to be
preserved. Must take most aggressive measures to protect! EPA tells DEQ to do more!
Clean Water Act (1972) correct answers CWA enacted after CAA and it created a 5-year permit
with the intention of regular review and the potential for changing requirements. Vehicle for
controlling releases —NPDES (National Pollutant Discharge Elimination System) permits. Clean
up and protect waters of the US with specific standards based on the quality of the waters. The
CWA made it unlawful to discharge any pollutant to the surface waters unless a permit was
obtained. It is generally applicable to industrial facilities and municipal wastewater treatment
facilities known as point sources. CWA set water quality standards for allowable discharges, but
states are free to develop their own water quality standards to accommodate state conditions as
long as the EPA has approved the state's NPDES permit program.
Mecury, PCB's, Benzopyrene, etc and many more....
Example—key rivers and streams in Michigan—Blue Ribbon Trout streams and Natural Rivers
get special attention.
EPA v. California correct answers Key background case on evolution of CWA. Water Quality is
protected through through the National Pollutant Discharge Elimination System (NPDES) permit
process and states are allowed to assume delegated authority if program is approved by EPA.
States must use the appropriate federal standard or be more protective. This case affirmed that a
permit issued from a state with an approved state program does not have to obtain additional
federal authorization.
Doctrine of Federalism is reinforced.
