The Failure of EPA's Water Quality Reforms: From Environment-Enhancing Competition to Uniformity and Polluter Profits (original) (raw)
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Recent Developments in Clean Water Act Litigation: September 2001-2002
2002
The last twelve months produced interesting juridical pronouncementsin the areas of Clean Water Act ("CWA" or "Act") jurisdiction, permits, standards, citizen suits and other enforcement. On the jurisdictional front, "addition" includes polluted water diverted from one to another water. "Pollutant" includes parts, foods and medicines from fish farms and other operations that are discharged, unless exempted. Combined animal feeding operations, or "CAFOs," are sometimes "point sources." Post SWAANC, some courts are still interpreting "navigable water" with some elasticity to include wetlands adjacent or hydraulically connected to non-navigable tributaries that flow into actual navigable waters. Permit issues were less eventful. Courts still defer broadly to EPA establishment of technology-based standards. Pollutants contemplated but not regulated by agencies can be discharged without a permit under the Act's "permit shield" provision. States can waive the requirement that renewal applications need be submitted 180 days before permit expiry. Under certain circumstances, EPA must withdraw delegated NPDES permitting authority. Water quality standard issues continue to provide fireworks. While litigation in the water quality standards field has slowed, the TMDL front continues to provide a litigator's bazaar for an increasingly bizarre program that is quickly slipping into practical irrelevance and desuetude. Despite ever increasing hurdles concerning jurisdiction, notice, preclusion, fees, and constitutional challenges under Articles II and Ill, the fruits of citizen enforcement persist to demonstrate the majesty of § 505. The vast majority of cases reported under the Act in the last 12 months are citizen suits.
Jewish and Israeli Law - An Introduction, 2017
Clean Air Act,l Congress has developed a plan by which the states may institute their own programs to control air pollution within their boundaries while keeping within the framework of a general federal plan. While the Act declares a Congressional policy of leaving the responsibility for the achievement and maintenance of air quality to the states,2 it also reveals an intent to develop a viable national control strategy through the provisions authorizing federal intervention should states fail to implement or enforce minimum federal standards. 3 The wrinkles of "new federalism" inherent in these provisions are sometimes surprising, often confusing, and invariably complex. The following sections will explore the scope and enforceability of the Massachusetts statutes and regulations which implement the Act's provisions for the oontrol of air pollution. Under the provisions of the Clean Air Act, several phases of statefederal interaction must precede final adoption of state implementation plans: (1) federal designation of air quality control regions;4 (2) federal listing of air pollutants for which completed air quality criteria and standards must be issued;5 (3) federal publication of national primary and secondary ambient air quality standards 6 for each air pollutant for §21.2. 1 42 U.S.C.
A Primer: Air and Water Environmental Quality Standards in the United States
How are environmental quality standards created, implemented, and enforced in the United States? The Clean Air Act calls on the Environmental Protection Agency (“EPA”) to set the acceptable ambient levels of pollution through the national ambient air quality standards, while leaving it to the states to decide how to obtain those pollution levels. In contrast, under the Clean Water Act, EPA promulgates national industry-wide standards with which polluters must comply, whereas the states are empowered to define acceptable ambient pollution levels in water bodies within their borders. What are the details, successes, and challenges to this approach? This Article, designed as a resource for environmental law professors both domestically and abroad, addresses how environmental quality standards are created, implemented, and enforced in the United States. The answers to these questions are useful to those teaching U.S. environmental law and international scholars, especially in the European Union, who are faced with the challenge of creating new environmental quality standards under both national and EU directives. It must be noted that this project is complicated by the federal system within the country, and, thus, attention must be devoted to the federal-state relationship. In fact, the major relevant statutes, the Clean Air and Clean Water Acts, were designed to use the federal system in order to implement their statutory objectives, and this Article is divided into two sections focusing on these two natural resources, air and water.
2008
As economists, we believe that the Second Circuit's ruling, by not allowing the consideration of important information about the relationships between the benefits and costs of alternatives, is economically unsound. In particular, we believe that, as a general principle, regulators cannot make rational decisions unless they are allowed to compare costs and benefits and to use the results, along with other factors as appropriate, to choose among alternatives. To the extent permissible under the statute and case law, EPA should be allowed to consider benefits and costs in establishing rules for implementing §316(b). The Court's allowing EPA to consider benefits and costs would improve both the decision making process-by making it more transparent-and the regulatory decisions by allowing important relevant information to be considered explicitly.
Vermont Law Review, 1995
This Article has three principal purposes. First is to explain the genesis of Section 316(b) by examining the adverse impacts caused by cooling water intake structures. Second is to provide a detailed description as to how Congress, EPA, the courts, state agencies, and litigants have interpreted Section 316(b). Third is to offer guidance and recommendations for more effective implementation of the Section. Ultimately, this article concludes that many agencies implementing Section 316(b) have misapplied cost considerations, misapprehended mitigation projects, and mishandled the operative language of Section 316(b). Part I begins by discussing the adverse environmental impacts cooling water intake structures inflict upon source water bodies. Part II views how Section 316(b) has evolved along with EPA's attempts to promulgate implementing regulations, and addresses the statutory framework of Section 316(b) and how it interrelates with the rest of the Section. Part III explains how courts, agencies, and disputants have interpreted the operative terms of Section 316(b), with special emphasis heaped on the more recent and most important activities and concludes that some early EPA decisions offer the best guidance for informed implementation of the Section. Part IV examines the relevant factors in determining whether a facility is complying with the requirements of Section 316(b), that is, whether the design, location, construction, and capacity of a cooling water intake structure reflects best technology available for minimizing adverse environmental impact. Part V discusses the role of costs in construing Section 316(b), and opines that both environmental costs and marginal costs to ratepayers deserve greater attention. Part VI examines the use of mitigation projects and maintains that Section 316(b) does not currently allow them to be used as substitutes for the technological prescriptions of the provision. Part VII addresses proposed legislative reform of Section 316(b) recently passed by the United States House of Representatives and finds that its enactment would further dilute the Section. Part VIII offers recommendations for better implementation of Section 316(b).
Where the Water Hits the Road: Recent Developments in Clean Water Act Litigation
Environmental Law Reporter, 2003
This article discusses reports recent developments involving particularly interesting juridical and administrative pronouncements in the areas of Clean Water Act jurisdiction, including key definitional terms "navigable waters," "addition," "pollutant," and "point source." It discusses how developments concerning permits, standards, TMDLs, citizen suits, and enforcement policies are shaping water pollution regulation in the United States. …
The Clean Water Act: A Blueprint for Reform
Social Science Research Network, 2008
Thank you to American Rivers and NRDC for their helpful comments. Thank you also to Matthew Freeman and Matthew Shudtz for their editing. About the Center for Progressive Reform Founded in 2002, the Center for Progressive Reform is a 501(c)(3) nonprofit research and educational organization comprising a network of scholars across the nation dedicated to protecting health, safety, and the environment through analysis and commentary. CPR believes sensible safeguards in these areas serve important shared values, including doing the best we can to prevent harm to people and the environment, distributing environmental harms and benefits fairly, and protecting the earth for future generations. CPR rejects the view that the economic efficiency of private markets should be the only value used to guide government action. Rather, CPR supports thoughtful government action and reform to advance the well-being of human life and the environment. Additionally, CPR believes people play a crucial role in ensuring both private and public sector decisions that result in improved protection of consumers, public health and safety, and the environment. Accordingly, CPR supports ready public access to the courts, enhanced public participation and improved public access to information. The Center for Progressive Reform is grateful to the Bauman Foundation, the Beldon Fund, and the Deer Creek Foundation for their generous support of its work.