Environmental Law Professor Robert Glicksman
partially override every federal statute mandating agency action
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| partially override every federal statute mandating agency action by subjecting such action to the further condition that it pose no jeopardy to endangered species.”
Court will not read ESA to create implicit repeal of CWA. National Association of Home Builders. To avoid direct statutory conflict, Court cites 50 C.F.R. § 402.03, saying that § 1536(a)(2) applies only to discretionary agency actions. Because statutory language does not clearly indicate guidance Defer to agency interpretation (i.e., C.F.R.) under Chevron deference. “We read 50 C.F.R. § 402.03 to mean what it says: that § 1536(a)(2)'s no-jeopardy duty covers only discretionary agency actions and does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred. This reading not only is reasonable, inasmuch as it gives effect to the ESA's provision, but also comports with the canon against implied repeals because it stays § 1536(a)(2)'s mandate where it would effectively override otherwise mandatory statutory duties.” Supported by TVA v. Hill. See p. 363. Court rejects argument that transferring NPDES permitting authority under the CWA to a state is discretionary. It must be done once certain criteria are met. See ppp. 363–64. Climate Change – See p. 367 (note 1). Affirmative Conservation Duty § 1536(a)(1) – “All other Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title.” § 1536(a)(2) is phrased in negative terms. Agencies are required to refrain from harmful actions. No-jeopardy duty. § 1536(a)(1) is phrased in affirmative terms. Agencies must take affirmative steps. Affirmative conservation duty. Much less litigation over (a)(1) than (a)(2). Sierra Club v. Glickman. Affirmative Conservation duty applies to FWS. Andrus. Page 369. Section 9 Taking Prohibition See E&E 596–98; Salzman 292–94. 16 U.S.C. § 1538(a)(1)(B) – “Except as provided in §§ 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to § 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to . . . take any such species within the United States or the territorial sea of the United States.” Applies only to listed fish and wildlife, not listed plants. Bars only taking of endangered fish or wildlife, not threatened fish or wildlife. But FWS is going to exercise its discretion to apply the provision to threatened species. Applies to federal agencies and private individuals (unlike § 1536, which applies only to federal agencies). Exceptions – (1) Those permitted by God Committee or (2) incidental takings under § 1539. Violators are subject to real criminal penalties, e.g., 1 year in prison. Definitions Take – “The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” § 1532(19). Interpreted broadly. Harass – “Harass in the definition of “take” in the Act means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. Harm – “Harm in the definition of “take” in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3. Modification of habitat can invoke a § 9 taking. To establish harm, must show impairment to the essential behavioral patterns listed in definition of “harm.” Harm may be imminent, but cannot be too speculative. No Taking – Must show no imminent actual injury to species or habitat. For harm, one-time instances are not enough. Neither is numerical probability or scientific data. Need actual injury. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon Congress intended to protect wildlife habitat in two different ways: Federal government may acquire important land. Through § 1536 duties, including those to avoid jeopardy or destruction or adverse modification of habitat. Court held that “the § 9 prohibition on takings, which Congress defined to include "harm," places on respondents a duty to avoid harm that habitat alteration will cause the birds unless respondents first obtain a permit pursuant to § 10.” Offered three textual arguments in support. See pp. 371–72. Rejected argument that “the Secretary's only means of forestalling that grave result [harm caused by habitat alteration]--even when the actor knows it is certain to occur--is to use his § 5 authority to purchase the lands on which the survival of the species depends.” O’Connor, Concurring – Proximate Cause “I see no indication that Congress, in enacting [§ 1538(a)(1)], intended to dispense with ordinary principles of proximate causation.” “I note, at the least, that proximate cause principles inject a foreseeability element into the statute, and hence, the regulation, that would appear to alleviate some of the problems noted by the dissent.” This allows the takings prohibition to apply in circumstances such as, “the landowner who drains a pond on his property, killing endangered fish in the process.” Do not want this private individual to be able to harm endangered species just because he did not apply the force directly. Proximate causation allows § 1538(a)(1) to reach him. Habitat Modification as Taking Before Actual Injury? Yes, reasonably certain threats of imminent harm to a protected species and threats of future harm suffice. Marbled Murrelet. See conflicting case law on pp. 375–76. But see: NWF – “The plaintiff must make a showing that a violation of the act is at least likely in the future.” Speculative future harms are not good enough. American Bald Eagle – “courts have granted injunctive relief only where petitioners have shown that the alleged activity has actually harmed the species or if continued will actually, as opposed to potentially, cause harm to the species.” Failures to Act as Takings Scalia, Dissenting in Babbitt – Failure to act never can qualify as a taking. It may qualify as a taking though. Some argue that a preexisting duty to act is a prerequisite. This is what the government argued in its amicus brief in Babbitt. Glicksman has a hard time imagining where this preexisting duty would come from, but it might come from the affirmative conservation duty, i.e., agency violates duty by failing to adopt a conservation program. Section 10 Incidental Takings See p. 376; Salzman 295. 16 U.S.C. § 1539(a)(1)(B) – “The Secretary may permit, under such terms and conditions as he shall prescribe . . . any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” Why Exception for Incidental Takings – Purpose of land development is not to kill species. If taking provision required a direct application of force, it never would be invoked. People usually do not go into the woods and kill endangered species. Reading the taking provision as requiring direct application of force would render it superfluous. Incidental take permit need not specify number of animals killed that will amount to take. Ecological conditions could be used if no such numerical value could be practically obtained. Arizona Cattle Growers Assoc. Exemption Mechanisms ES Committee (“God Squad”) may issue exemptions from the no-jeopardy provision under § 1536(e)-(h). Criteria for exemption are rigorous. Committee has issued exemptions only a few times, and one issuance was reversed. FWS may issue exemptions for private individuals from the take prohibition by issuing incidental take permits under § 1539(a). Must not appreciably reduce the survival or recovery of species. FWS may issue an incidental take statement under § 1536(b)(4) and (o) that shields a federal agency action that complies with the no-jeopardy provision (and the conditions of the incidental take statement), but that nevertheless causes the incidental take of listed species, from being regarded as violations of § 1538(a)’s take prohibition. Support and Criticism of ESA’s Effectiveness See p. 376. Clean Air Act Introduction See pp. 389–90 (discussing why it is appropriate to study CAA before other major pollution control statutes). States are at heart of CAA (and CWA). Air Pollution: Types, Sources, Impacts & Control Techniques Pollutants & Their Sources Naturally Occurring Air Pollution – Hydrocarbons; hydrogen sulfide; carbon monoxide from forest fires and volcanoes; background radiation; etc. See p. 391. Criteria Pollutants Six Criteria Pollutants Carbon Monoxide Nitrogen Oxides Hydrocarbon Compounds Ozone Lead Sulfur Dioxide “Criteria” refers to scientific criteria. Levels have significantly declined. But millions still live with polluted air. Other Pollutants – Arsenic, beryllium, cadmium, mercury, asbestos, chlorine, radioactive substances, organic compounds, etc. Total Suspended Particulates (TSPs) – Collection of solid or liquid particles, e.g., dust, pollen, soot, metals, chemicals, etc., dispersed in atmosphere. Composition and size determine public health risk. Cause many health problems, e.g., asthma. Primary v. Secondary Pollutants Primary – Directly emitted as a result of human activities. Secondary – Form when human emissions combine with naturally occurring materials. Must curtail primary pollutants to curtail secondary pollutants. Adverse Health Effects – Very attenuated, but real. Vehicles as a Source of Pollution – Percentage of VOC emissions attributable to cars has declined since 1970s. Pro & Con Arguments – See pp. 399–400. Pro – CAA has produced benefits worth trillions at a cost of billions. Con – Costs have outweighed benefits. Environmental Justice – Minorities and low-income people face worse air quality than the wealthy and whites. Relies on technology-based approach. Alternatives – Harm-based; market-based; remedial-liability-based approaches. [Glicksman wants us to be able to recognize statutes that use these approaches without having seen them before.] No federal statute relies on one approach to the exclusion of the others. All are hybrids to some extent. First Step – What is the goal? What level of protection are we aiming to provide? Informal Goal – Clean air; air that people can breathe without becoming sick. Absolute protection is rarely desirable, even if achievable. Air and water are able to absorb certain amounts of pollution without causing any discernable adverse effects. Official Goal – Protection of public health with an adequate margin of safety. See § 101(b)(1) (describing paramount goals of CAA). NAAQS – Principal mechanism of CAA. Some pollutants: EPA has issued short- and long-term NAAQSs. Maximum concentrations over three hours (short) or one year (long). Isolated instances of pollution can create severe health risks, which are different from those produced by more incremental, longer-term pollution. This illustrates why annual limits alone are insufficient. Short-term concentration limits also are required. 42 U.S.C. § 7409(b)(1) – “National primary ambient air quality standards, prescribed under subsection (a) of this section shall be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health. Such primary standards may be revised in the same manner as promulgated.” Primary NAAQS. Our primary focus will be here. EPA has focused almost all of its attention here and has not addressed § 7409(b)(2) extensively. Margin of Safety – Required because of scientific uncertainty regarding air pollution. We want to provide a buffer against erroneous determinations. Precautionary: err on the side of overregulation. Preference for false positives, rather than false negatives. § 7409(b)(2) – “Any national secondary ambient air quality standard prescribed under subsection (a) of this section shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air. Such secondary standards may be revised in the same manner as promulgated.” Secondary NAAQS. EPA has not addressed § 7409(b)(2) as extensively as it has § 7409(b)(1). Welfare – Defined in § 7602(h). “All language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being, whether caused by transformation, conversion, or combination with other air pollutants.” Criteria Pollutants Six Criteria Pollutants Requiring NAAQSs: Carbon Monoxide Nitrogen Oxides Hydrocarbon Compounds Ozone Lead Sulfur Dioxide 42 U.S.C. § 7408(a)(1) – “For the purpose of establishing national primary and secondary ambient air quality standards, the Administrator shall within 30 days after December 31, 1970, publish, and shall from time to time thereafter revise, a list which includes each air pollutant.” § 7408(a)(1)(A)–(C) – Three factors for determining which pollutants are criteria pollutants: “Emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare; “The presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and “For which air quality criteria had not been issued before December 31, 1970, but for which he plans to issue air quality criteria under this section. Listing requires issuance of NAAQS. § 7412 – Addresses another 189 air pollutants. Separate provisions for ozone and acid rain. Summary of Clean Air Act Regulatory Framework Two Types of Regulatory Standards Ambient Standards Technology-Based Standards Two Governmental Roles Federal Standard Setting State Implementation Two Other Factors Whether sources are stationary or mobile; and Whether sources are located in clean-air or dirty-air areas of the country. Ambient Air Quality Standards Maximum pollutant concentrations deemed to be safe for exposure over various periods of time. Do not specify limits on actual sources. Must be coupled with measures limiting individual source emissions. EPA Regulation – See §§ 108–09 (describing NAAQS). States must attain ambient standards by limiting emissions from mobile and stationary sources. Must adopt a SIP (subject to EPA approval) for each criteria pollutant. Technology-Based Standards Pollution control performance levels expected from particular types of air pollution sources. Four Types of Federally Uniform Emissions Standards Vehicle emissions. See p. 405. New source performance standards (NSPS) for various categories of stationary sources. See p. 405. National emission standards for hazardous air pollutants (NESHAP). See pp. 405–07. Existing sources in nonattainment areas (not yet having achieved NAAQS) must install, at a minimum, reasonably available control technology (RACT). See p. 407. State Implementation Plans (SIPs) Used to achieve NAAQS. Designed and implemented by states. §§ 107(a), 110(a)(2). Enforceable by states and federal government. Clean-Air v. Dirty-Air Regions – Different SIPs required. Nonattainment Areas CAA includes requirements. Prevention of Significant Deterioration (PSD) Areas CAA includes requirements. Note Different SIPs apply to each pollutant individually. Separate “sub-SIP” for each pollutant depending on PSD or nonattainment status. Nonattainment Provisions Imposes on states general and pollution-specific requirements. General – See p. 408. Pollution-Specific – See p. 408. Supplement or increase severity of general requirements. Controls on Mobile Sources – See p. 408. 1990 Amendments allowed more regulation of mobile sources and of ozone and CO. Sanctions for Noncompliance Withholding of federal grants. Imposition of multiple offset requirements. Imposition of penalty fees for pollution-specific violations. PSD Provisions Major emitting facilities must install “best available control technology” (BACT), to be determined for each facility, and demonstrate that plant operation will not cause ambient air to be “significantly” degraded. §§ 165(a)(4), 169(3). Significant Increment – Depends on location of proposed facility. § 163. Three Classes of Clean-Air Areas Class I Class II Class III Visibility – “Best available retrofit technology” (BART). § 169A. Hybrid Emission Standards Three Hybrid Emission Standards LAER BACT BART Applied under nonattainment, PSD, and visibility. Case-by-case basis. States play a larger role. Compromises on pollution abatement. Acid Deposition Control Cap and trade program for SO2 emissions. Title IV of CAA. Stratospheric Ozone Protection Title VI. Phasing out CFCs. Protecting ozone layer. Global Climate Change Not addressed by specific CAA provisions. Supreme Court has held that CO2 qualifies as a pollutant so that EPA has authority to establish motor vehicle emission standards for CO2 and other GHGs. Permits Title V – Federal permit program for acid rain deposition; NSPS or NESHAPs; nonattainment or PSD; and other major sources. States must develop permit programs to conform to minimum EPA requirements. EPA may administer a permit program if state fails to do so. Permit Applications – See p. 410. Enforcement § 113 – Civil and criminal penalties. § 304 – Citizen suit provision. § 303 – EPA may administer orders or sue in federal court. Judicial Review § 307 – In federal courts of appeals. § 307(d) – Special provisions for EPA rulemaking supplementing APA. Implementing NAAQS Generally Health-Based – Protecting public with adequate margin of safety. Once EPA issues an NAAQS for a criteria pollutant, it has established the maximum permissible concentrations in the ambient air. NAAQS are goals, not emissions controls. Not prohibitions, e.g., no lead in gasoline. First Step – Figure out how much pollution can be assimilated into the air without exceeding the maximum permissible concentrations reflected in the NAAQS. Gives you an aggregate amount of emissions over a specified period of time. Step Two – Source-by-source emissions limits. Divide aggregate amount of emissions among polluters. States are responsible for achieving NAAQS within their borders and imposing emission limits on individual sources so that NAAQS are achieved within statutory timetables. 42 U.S.C. § 7407(a) – “Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such State.” State Implementation Plans – 42 U.S.C. § 7410. Required by CAA. 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