November 21

Breaking News

Endangered Species Act under attack

People v. Conagra Grocery Prod. Co., No. H040880, 2017 WL 5437485 (Cal. Ct. App. Nov. 14, 2017)

Appeals court upholds public nuisance claim that requires paint companies to pay to remove lead paint in homes built before 1950 in California. This will push a billion dollars and is the first big verdict against companies that made lead paint or pigment.

Protesters Jeer as Trump Team Promotes Coal at U.N. Climate Talks

Assignment

Skim the rest of the book. I will do a brief overview of the endangered species act and we will talk about the future of NEPA in the face of climate change. This will not be exam material, but it is good general information.

The online class evaluations are now available, so you should do those.

November 16

Breaking News

TBA

Assignment

Read to B. REFORMING ENVIRONMENTAL ASSESSMENT LAWS? p. 718

Group Assignments

Group 1

Barro, DuBos, Long, Roy

PROBLEM: JAMES RIVER UTILITY LINE CROSSING, PART I

You are advising the Corps and Dominion. What position(s) would your client take on the basic question of whether an EIS should be prepared? What arguments would you use to advocate for that position? What legal risks, if any, do you perceive?

Group 2

Bounds, Dupree, McBride, Sayers

PROBLEM: JAMES RIVER UTILITY LINE CROSSING, PART I

You are advising the National Parks Conservation Association and Lower James Riverkeeper. What position(s) would your client take on the basic question of whether an EIS should be prepared? What arguments would you use to advocate for that position? What legal risks, if any, do you perceive?

Group 3

Buller, Falcon, Norfleet, Stephens

PROBLEM: JAMES RIVER UTILITY LINE CROSSING, PART II

You represent the Corps in this problem. How do you defend the Corp’s decision to only analyze some of the available alternatives?

Group 4

Cunningham, Knister, Pittman, Stewart

PROBLEM: JAMES RIVER UTILITY LINE CROSSING, PART II

You represent the environmental groups, James River Alliance, and the National Parks Conservation Association. How do you attack the Corp’s decision to only analyze some of the available alternatives?

Group 5

Downer, Leger, Ratnayaka, Thigpen

PROBLEM: NEPA, CLIMATE CHANGE, AND MINERAL LEASING

You are counsel to Secretary Zinke. While staying within the regs and cases, Secretary Zinke wants to downplay climate change as much as possible in the NEPA analysis for mineral leases. How do you defend his position?

Group 6

Dows, Lemoine, Reinhardt, Wilson (MS. Wilson will not be with us)

PROBLEM: NEPA, CLIMATE CHANGE, AND MINERAL LEASING

You represent the Sierra Club. You see mineral leasing as the most significant threat to public lands, as well as a major issue in climate change. How do you attack DOI’s position limiting the consideration of climate change?

November 14

Breaking News

Experts Ponder Why Administration Released Tough Climate Report

Cory Booker Wants to Tackle the ‘Corporate Villainy’ Behind Environmental Injustice

Assignment

Chapter 7 to III. Contents of an EIS (or an EA) – p. 680

Resources

The National Environmental Policy Act (NEPA)

Practice Problem (optional)

We are going to use part of the Capstone Problem on 634. You are junior counsel at the EPA and you have been assigned the task of filing an amicus brief in the PowerTech case:

I am asking you to identify arguments that EPA can make in a brief we plan to file as amicus. The issue in the case is whether section 107 provides a cause of action to a PRP like Power-Tech that has been sued by a state, and entered into a consent decree to resolve that suit, thereby falling within the conditions addressed in sections 113(f)(1) and 113(f)(3)(B). I would like you to argue that Power-Tech is limited to seeking contribution under those provisions of section 113 and may not choose, instead, to assert a claim under section 107(a)(4)(B). You should also consider why EPA is interested in this case at all. (636)

This problem includes some close reading of the statutes and the Atlantic Research case, as well as making the policy argument for the EPA that supports their position. You can use up to 1000 words. You are limited to using your book as research material. To have the best exam experience, try to do this in 90 minutes. Single space your exercise and email it to me by noon on Sunday,  12 Nov. to give me time to mark them up by class, where I will return them.

November 9

Breaking News

New permit from La. regulators allows Noranda plant to continue releasing mercury in air

Letters: Wetlands’ water quality faces threat

Real progress for an LA environmental group

Assignment

Finish reading the chapter – problem and group assignments will be posted later this morning.

CERCLA Problem Assignments

If there are any mistakes, let me know ASAP!

November 7

Breaking News

Climate Science Special Report: Fourth National Climate Assessment

Quick overview – Blockbuster Assessment: Humans Likely Responsible For Virtually All Global Warming Since 1950s

Perhaps the last honest climate report we will see from the federal government.

Impact of population growth and population ethics on climate change mitigation policy

This looks at some of the themes from our discussion last class about population control and migration.

WMO GREENHOUSE GAS BULLETIN No. 13 | 30 October 2017 The State of Greenhouse Gases in the Atmosphere Based on Global Observations through 2016

A 30 October report from the World Meteorological Organization warned that in 2016, globally averaged concentrations of carbon dioxide surged in 1 year from 400 to 403.3 parts per million, the highest level in 800,000 years

From our discussion from last class, these are examples of the traditional environmentalist view of role of wild nature in human life:

A Sand County Almanac

Desert Solitaire

The main author of domesticated nature – managed forests in particular was Gifford Pinchot, who worked with Teddy Roosevelt to establish national parks:

First Forester: The Enduring Conservation Legacy of Gifford Pinchot

Citizen lawsuit provisions under RCRA – Defending RCRA Citizen Suits in the U.S.

Assignment

Read to V. CLEANUP PROCESS, p. 610

The plan is to finish Chapter 6 next week. I will give you a CERCLA problem on Thursday that you can write, which we will discuss on the next Tuesday. We will also try to start NEPA on that Tuesday, but I want to make sure we have at least 2 days on NEPA.

Resources

EPA – National Contingency Plan

Introduction to CERCLA – Slides

November 2

Exam Info

I have created an Exam Info page which you can see under Pages on the right column of the site. I have posted the exam from the last time I taught environmental law. Different book, different course, so our exam may look a little different.

Breaking News

Citing The Bible, The EPA Just Changed Its Rules For Science Advisers (tip of the hat to Mr. Bounds)

(I am an AAAS member.)

ExxonMobil to spend $300 million on air pollution control in Baton Rouge, Texas to settle Clean Air Act violation

Assignment

This is the time of year when I start making decisions about coverage so that we can get to all the important stuff. With that in mind, we are not going to take class time to work through the capstone problem. Review the RCRA Civil Penalty Policy starting on page 507, which we will discuss. Then read Chapter 6 to Liability, p. 566. We will run through the overview of CERCLA, and work the following problems next week.

Resources

ATSDR’s Substance Priority List

PCBs

Cancer Cluster Investigations: Review of the Past and Proposals for the Future

October 31

Breaking News

AFTER THE NAPA FIRES, A DISASTER-IN-WAITING: TOXIC ASH

Assignment

Read to V. Capstone Problem: Enforcing RCRA at p. 501

October 26

Breaking News

Record-Melting Fall Heat Wave Bakes Southern California

Assignment

Read to C. TREATMENT, STORAGE, AND DISPOSAL FACILITIES, 474.

Group Assignments

Tell us about how you use the statutes and what the cases mean.

Group A – EPA

Utility Poles, Part I – p432

What are EPA’s views about whether the following circumstances would
involve a disposal of solid waste for purposes of RCRA: First, if precipitation
comes into contact with a structure owned by a company—for example, a
utility pole—and the precipitation absorbs a chemical from that structure, is
that precipitation a solid waste when it carries the chemical into the ground?
Second, if a structure owned by a company slowly and unavoidably sloughs
off small amounts of material—for example, wood flaking off of a utility
pole—and that material is impregnated with a chemical, are those small
amounts of material a solid waste?

Group B – EPA

Utility Poles, Part I – Part I- p432

I am also seeking EPA’s concurrence with AUA’s view that the following two circumstance do not involve solid waste: First, a company removes old utility poles containing wood impregnated with PCP and sells those poles to a thirdparty who uses the poles to produce wood chips for landscaping. AUA does not believe the poles are a solid waste because they are being reused. Second, a company maintains an outdoor facility for treating utility poles and purchases PCP in ten gallon drums for its operations. Full and partially empty drums of PCP remain on the platform with lids affixed and are used as the company has need for new utility poles. The drums may be left in place for extended periods of time of up to two years. AUA does not believe the full or partially empty drums of PCP are a solid waste because they will be used by the company.

Group C – EPA

Utility Poles, Part II – p453

I am also seeking EPA’s concurrence with AUA’s view that the following two circumstance do not involve solid waste: First, a company removes old utility poles containing wood impregnated with PCP and sells those poles to a thirdparty who uses the poles to produce wood chips for landscaping. AUA does not believe the poles are a solid waste because they are being reused. Second, a company maintains an outdoor facility for treating utility poles and purchases PCP in ten gallon drums for its operations. Full and partially empty drums of PCP remain on the platform with lids affixed and are used as the company has need for new utility poles. The drums may be left in place for extended periods of time of up to two years. AUA does not believe the full or partially empty drums of PCP are a solid waste because they will be used by the company.

Group D – EPA

Utility Poles, Part II – p453

I also seek EPA’s concurrence with AUA’s view that unused PCP that a company has decided not to use is not a hazardous waste so long as the company dilutes it with sufficient water so that the resulting mixture produces TCLP results of less than 100 mg/L of PCP.

Group E

PROBLEM: RESTORATION PAINTS – p. 466

Group F

PROBLEM: CHEMCO – p473

October 24

Breaking News

Urban storm run off drives fish kills in Puget Sound

Premature deaths from pollution – only visible from on campus

Why Has the E.P.A. Shifted on Toxic Chemicals? An Industry Insider Helps Call the Shots https://nyti.ms/2gW4h6S

China bans import of US solid waste

Assignment

Finish group work from last class.

Chapter 5 to IV. Regulated Entities, 462.

Resources

EPA Information on RCRA

EPA Report on Hazardous Wastes

Look at all three graphs

Where does all that waste go?

Types of disposal wells

Checklist to Assist in Evaluating Whether Commercial Chemical Products are Solid and Hazardous Waste under the Resource Conservation and Recovery Act

 

Careers, Community, and Conservation (Jobs in Environmental Law Panel)