Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P21 ppt

character and severity of the harm imposed, the social value of the jeopardized interest, the appropriateness of protecting the interest in a particular locality, and the burden to the community or individual in avoiding the harm. An activity’s usefulness is measured by the activity’s social utility, its suitability to a particular community, and the practicality or expense of preventing the harm it inflicts. Because there is no exact or universally agreed-upon value for each of the competing interests, it is often difficult for judges to apply the balancing test in a consistent fash ion. Gravity of the injury Although courts apply the balancing test for nuisance actions on a case-by-case basis, judges generally follow certain principles. The injury in question must be real and appreciable; the law does not concern itself with trifles. An occasional whiff of smoke, a temporary muddying of a well, a modest intrusion by roots or bra nches, and intermittent odors of sauces and stews will not rise to the level of a nuisance. Courts also consider whether the alleged nuisance is of a continuing nature or has produced permanent or long-lasting effects. Nuisance law may excuse an isolated invasion of drifting pesticides, a single overflow of a sewer outlet, or a debris-burning incident lasting only a few days, and some courts have held that recurrence is a necessary prerequisite to a nuisance determination. For example, one court denied a prison inmat e’s nuisance claim that he was poisoned by pesticide delousing, because it occurred on only one occasion. In such cases, plaintif fs may have a viable claim for trespass or negligence (discussed later in this article) but not for nuisan ce. In suits over pollution, courts also consider which party arrived first in the particular community, the polluter or the landowner alleging harm. The law has permitted polluters to escape liability by proving that a landowner alleging harm moved next to a preexisting nuisance with knowledge of its harmful activities. The rationale for this defense is that the landowner who “comes to the nuisance” general- ly pays less for the property because the nuisance has reduced its value. If such a landowner were then permitted to remove the nuisance, a windfall would inure to her or his benefit. Increasingly, however, courts place less weight on priority of arrival when evaluating a nuisance claim. Nuisance claims have traditionally been evaluated from an objective point of view. If an “average” or “normal” person in the relevant community would be offended or annoyed by a certain intrusion, then the intrusion is considered real and appreciable. The idiosyncracies of a hypersensitive PLAINTIFF are generally discounted. Persons with extreme personal tastes and aes- thetic sensitivity are usually denied relief under this objective standard. Persons with abnormal physical vulnerabilities, such as those with heart conditions, breathing problems, and tender ear- drums, are usually denied relief as well. Since the 1990s, however, nuisance law has offered greater protection to society’s vulnerable members. People are not necessar ily abnormal, courts have held, merely because they enjoy spending time outdoors, sleeping with the windows open, or cultivating crops near smoke-billowing smelters. These activities are increasingly viewed as normal activities des erv- ing protection. Many courts are also becoming more sympathetic to plaintiffs with preexisting health conditions or genetic frailties. Two cases illustrate this trend. In the first, Lunda v. Matthews, 46 Or. App. 701, 613 P.2d 63 (1980), a cement plant was held liable for emitting debris, dust, and fumes that encom- passed a landowner’s house and aggravated his bronchitis and emph ysema. The court reached this determination despite arguments that the landowner’s illness made him more vulnerable to debris and dust than would be persons of ordinary health. The court also held that the cement plant could not escape liability merely because it was complying with state pollution standards. In the second case, Kellogg v. Village of Viola, 67 Wis. 2d 345, 227 N. W. 2d 55 (1975), a landowner was permitted to recover for the loss of mink kittens who were eaten by their skittish mother after being frightened by noises and odors from a nearby dump. The court was not persuaded that the mink were abnormally squeamish or that the landowner was primarily responsible for their death because he had chosen to move next to the dump with full knowledge of its activities. Aesthetic nuisances are another area where courts have produced inconsistent results. On June 25, 1927, a Pennsylvania court wrote that “[i]n this age, persons living in a community or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENVIRONMENTAL LAW 189 neighborhood must subject their personal comfort to the necessities of carrying on trade or business,” and when an “individual is affected only in his tastes, his personal comfort, or pleasure, or preferences, these he must surrender for the comfort and preferences of the many” (Pennsylvania Co. for Insurance on Lives & Granting Annuities v. Sun Co., 290 Pa. 404, 138 A. 909, 55 A.L.R. 873). This attitude was expressed more re- cently when a federal court denied the U.S. government’s request that the court enjoin (prohibit) the construction of high-rise office buildings on the Virginia side of the Potomac River—even though the buildings would blight the Washington Monument, Lincoln Memorial, and other national landmarks (United States v. County Board, 487 F. Supp. 137 [E.D. Va. 1979]). These cases reflect judges’ reluctance to hold themselves out as standard-bearers for good taste. Yet aesthetic nuisances are still recognized by courts as viable claims when the extent of the injury is more serious. Judges distinguish between minor vibrations and bone-shaking tremors, normal barnyard smells and sickening stenches, and puffs of dust and blizzards of topsoil. An activity that overcomes extreme defensive measures taken by neighboring prop- erties will be declared a nuisance. Nocturnal noises interfering with sleep can also sound the death knell for a particular activity, especially when there is evidence of widespread commu- nity dissatisfaction and not just a single complaint. Utility of the Activity An environmental injury will not be declared a nuisance unless it outweighs the utility of the activity. Determin- ing the weight of a particular harm is often difficult for courts. Judges are human, and humans disagree on just about everything, including nuisance law. The easiest type of case for a judge involves an injury inflicted solely for the purpose of causing harm. A fence con- structed with the intent to obstruct a neighbor’s view will always be declared a nuisance. No socially redeemable value is assigned to animus and hostility. Most cases, however, do not involve a nuisance created by adverse motivations. For instance, pollute rs usually produce useful pro- ducts integral to a local economy, and the market value of an injure d property is rarely greater than the business investments made by the polluter. But dollar figures are not always of paramount importance to judges. Two leading cases illustrate the different results reached by courts in weighting utility. In the first, Madison v. Ducktown Sulfur, Copper, & Iron Co., 113 Tenn. 331, 83 S.W. 658 (1904), the court denied a landowner’s requested relief, stating, In order to protect by injunction several small tracts of land, aggregating in value less than $1,000, we are asked to destroy other property worth nearly $2,000,000, and wreck two great mining and manufacturing enter- prises…. The result would be practically a confiscation of the [polluter’s] property … for the benefit of the [landowner]—an appropriation without compensation. In the second case, Hulbert v. California, 161 Cal. 239, 118 P. 928 (1911), the court granted the landowner’s request for an injunction, over the polluter’s claim of greater hardship, saying, “If the smaller interest must always yield to the larger, all small property rights, and all small and less important enterprises … would sooner or later be absorbed by the large and more powerful few.” Some environmentalists maintain that the law must protect the environment at any cost, whereas extreme advocates of the free market believe that business must be allowed to expand unhindered by governmental regulation. Cer- tain results reached by particular judges may appear unreasonable to both extremes, but courts have attempted to strike a moderate balance over the long run. Technology has often provided the means to moderation. Requiring businesses to shut down and relocate, or homeowners to endure a nuisance or move, are remedies not favored by the law. Court s avoid such remedies by exerting pressure on companies to develop technologies to make their operation safer for the environment. For example, one court ordered a smelting business to install specific arsenic control measures to abate a nuisance, instead of closing down the business as requested by the landowner (American Smelting & Refining Co. v. Godfrey, 158 F. 225 [8th Cir. 1907]). Many nuisances can be remedied without state-of-the-art technology. For example, airports have been forbidden to authorize low-level GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 190 ENVIRONMENTAL LAW flights over certain residences, and farmers have been ordered to confine foul odors to particular buildings. Other nuisances can only be abated by the best available technology. Sometimes, how- ever, it is economically impractical or prohibi- tively expensive for a polluter to use such technology. Courts disagree about what should be done when a polluter can do nothing short of ceasing operations to lessen an injury. Many courts deny injunctive relief if the polluter is already using the most modern pollution control methods available. Some courts grant an injunction ordering the polluter to shut down when state-of-the-art controls hold no further promise of relief. Other courts award damages for a nuisance that occurs despite the use of the best available technology. Environmental Justice The field of Environme ntal Justice sprung from grassroots organizations formed to combat environmental racism. In the 1970s groups of minorities organized to protest the dispropor- tionate numb er of waste producing and pollut- ing industries located in areas where minorities or poor people lived. These groups included African Americans, Latinos and Native Amer- icans. This effort against environmental racism was viewed as outside the broader Environmen- tal Movement, which had white middle to upper class backing. In the 1980s the environmental racism movement reorganized and became known as the Environmental Justice movement, which focused on the equitable distr ibution of envi- ronmental health and risk. At that time their efforts be gan to receive more mainstream attention and recognition. Since that time, the topic of Environmental Justice has been addressed by colleges and universities, as well as environmental and religious groups. The field has begun to move beyond issues of equitable distribution to include concerns about reducing and stopping environmental risk. This later aspect may be called ecological justice and deems that the earth and the environment have intrinsic value. Environmental R acism Environmental racism has been defined by environmentalists as the deliberate targeting of communities of color for discriminatory treatment in governmental policy and corporate practices. Placement of toxic waste facilities in low income neighbor- hoods and nuclear waste dumps in indigenous territory have been cited as examples of this practice. Community activists have challenged what they believe is inherent and explicit racism in corporate strategies and discrimin- atory treatment in enforcement of environ- mental regulations. Private Title VI Lawsuits and Environmental Racism Title VI of the CIVIL RIGHTS Act has been one of the most commonly used statutes in Environment Justice lawsuits in recent times. Some of this is due to the failures from other statutes and some of it is the uncertainty about the viability of Title VI as a remedy for environmental racism. Title VI has two main parts to it, section 601 and section 602. One of the main differences in the two sections is whether it gives a private RIGHT OF ACTION to plaintiffs. A private right of action determines whether ordinary citizens have the right to bring the case based on the statute before a court to determine the validity of the claims. Section 601 has been determined by the United States Supreme Court to hold a private right of action for lawsuits. Section 602 however has not been interpreted as to whether or not it holds a private right of action within it. The issue of intent is defined differently in the two sections. Section 601 has a model of proving intent based on the EQUAL PROTECTION Clause of the FOURTEENTH AMENDMENT.Thismodel is that of proving purposeful discriminatory intent by a government agency or other group who is discriminating. This very strict interpreta- tion of the statute has served to quell any EJ lawsuits under section 601. For cases where discriminatory intent is obvious, section 601 is a good alternative since it allows for more punish- ment than section 602, which can only terminate funding. This allows corporate defendants to use reasons such as economic impacts and geographi- cal situation to explain away unjust allocation of environmental burdens. Section 602, however, allows for disparate impacts to be used instead of intentional discrimination as a means of impli- cating defendants in the violations. In February of 1994, President BILL CLINTON signed an executive order which brought together several federal agencies and offices in a battle against discrimination. This order was an outline of what each agency was required to do to promote Environmental Justice in its GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENVIRONMENTAL LAW 191 policies and practices and what each agency needed to do to ensure the continued compli- ance with Title VI. The EPA has used this order as a staging point for their new wave of Environmental Justice focuses. An Environmen- tal Justice Strategy has been formed by the EPA for the evaluation of Environmental Justice concerns brought to the EPA. The Executive Order is very limited in its scope and enforce- ability and has been widely criticized despite the fact that it facilitated the creation of the EPA Title VI policy. Trespass and Negligence Nuisance actions deal primarily with continuing or repetitive injuries. Trespass and negligence actions pro- vide relief even when an injury results from a single event. A polluter who spills oil, dumps chemicals, or otherwise contaminates neighbor- ing property on one occasion might avoid liability under nuisance law but not under negligence or trespass law. Trespass involves an intentional interference with the property interest of an owner or occupier of land. Negligence occurs when a DEFENDANT fails to exercise the amount of care that would be exercised by a reasonably prudent person under the circumstances. Whereas tres- pass requires the injury to result from deliberate misconduct, negligence results from the acciden- tal and inadvertent. Under nuisance law, liability is based on an unreasonable and substantial interference with the legal interests of a landowner’s property. Conversely, trespass is proved by evidence of any tangible invasion of a landowner’s property, however slight. Similarly, pollution resulting from negligence need not produce a substantial injury in order for a landowner to recover. However, a landowner who suffers only min or injuries from the negligence or trespass of a polluter will receive only NOMINAL DAMAGES. Strict Liability The doctrine of strict liability for abnormally dangerous activities provides a fourth remedy for those suffering environmen- tal harm. To recover under this doctrine, the landowner must demonstrate that a condition or activity qualifies as abnormally dangerous and was in fact the cause of the environmental injury. Many common activities have been decreed abnormally dangerous, including col- lecting large quantities of water in hydraulic power mains, storing gas in large amounts, and transmitting high-powered electricity under city streets. Courts sometimes struggle in determining when something rises to the level of abnormally dangerous, and liability generally also attaches for extraordinary, abnormal, exceptional, and nonnatural activities or conditions. Examples of such activities are oil well drilling, crop dusting, pile driving, and blasting. Prior Approp riat ion and Rip aria n Rights A riparian proprietor is the owner of land abutting a stream of water or river and, as such, has a qualified right in the soil to divert the stream as permitted by law. Generally, a riparian owner has the right to all the useful purposes to which a stream pas sing through the land may be put. Specifically, the rights of riparian owners have been divided into two discrete categories. The first category is known as prior appropriation. Under the principles of prior appropriation, the law provides that whoever first appropriates stream water for a beneficial purpose acquires a vested right to the continued diversion and use of that water against all claimants who might later do the same. Courts often describe prior appropriation as the princi- ple “first in time is first in right.” Prior appropriation places downstream owners at a distinct disadvantage because it permits upstream owners to completely divert or contaminate stream water so long as they do so for a beneficial purpose. Early cases suggested that no beneficial purpose was served when water was diverted for reasons other than commerce or profit, such as for mere personal pleasure. Today, however, courts permit ripari- an owners to appropriate water for almost any aesthetic, recreational, preservational, or pollu- tion control purpose. Prior appropriation principles are followed in many western states where water is scarce, and efficient and economic uses for streams and rivers are necessary. In the eastern states, the doctrine of riparian rights is followed. This doctrine has two strains. The first provides that each riparian owner has an absolute right to the flow of stream water uninterrupted by any unnatural (i.e., human) causes. The second strain provides that each riparian proprietor has a right to any reasonable use of the stream water passing through his or her land, and is protected from unreasonable uses upstream. This doctrine does not encourage the economically efficient GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 192 ENVIRONMENTAL LAW use of water, as does the doctrine of prior appropriation—but water is not scarce in the eastern states where riparian rights theory is applied. Statutory Law Much of the early environmental legislation at the federal level was drafted in response to the shortcomings of the common law, and the inadequate and inconsistent protection of the environment by the states. The common law was slow to respond to changes in technology, and often provided inadequate or antiquated remedies. By nature, common-law doctrines were developed only in response to lawsuits filed between the disputing parties. The initial dis- agreements were often protracted in nature, and litigation was usually the last resort. As a result, by the time a lawsuit was filed, a particular environmental hazard may have become so pervasive or problematic that no common-law remedy could adequately address it. Even when an appropriate common-law remedy was available, many state courts refu sed to enjoin larger businesses from polluting, out of concern that the polluters might harm the local economy by laying off employees or increasing prices. Although some states enacted pollution control statutes, many did not. The states that did enact such statutes varied in the level of protection provided and in the quality of enforcement. Thus, an activity might be deemed impermissible under the environmental legislation of one state, but permissible under the legislation of another. Federal air, water, and soil pollution standards and national w ilderness and wildlife preservation regulations were drafted largely in response to these problems. The National Environmental Policy Act (NEPA), 42 U.S.C.A. §§ 4321 et seq., is the fulcrum for these federal pollution and preser- vation regulations. NEPA, passed in 1969, requires the federal government to give envi- ronmental issues priority when planning major projects. It was created to establish councils and agencies that, in cooperation with state and local governments and public and private interest groups, would use all practicable means to monitor and protect the environment. The Council on Environmental Quality (CEQ) and the ENVIRONMENTAL PROTECTION AGENCY (EPA) were both created under the auspices of NEPA. The CEQ prepares an annual report that discloses the quality and condition of the country’s environment, evaluates federal programs that may affect the environment, and recommends spe cific policies to foster environ- mental protection and improvement. The EPA administers these policies and most federal environmental statutes. Each of the fifty states has drafted environmental regulations similar to those written on the federal level, and the state and federal regulations work together to address the various environmental issues. Air Pollution Air pollutants are divided into five main classes: carbon monoxide, particulates, sulfur oxide, nitrogen oxide, and hydrocarbons. Carbon monoxide is a colorless, odorless, and poisonous gas produced by the burning of carbon in many fuels. Motor vehicles are one source of this pollutant. Particulates are solid or liquid particles produced largely by stationary fuel combustion and industrial processes. Sulfur oxides are acrid, corrosive, and poisonous gases prod uced by burning fuel containing sulfur. Electrical utilities and indus- trial plants are their principal sources. Nitrogen oxides are produced when fuel is burned at very high temperatures, as is the case with stationary combustion plants and motor vehicles. Once emitted into the air, nitrogen oxides can be chemically converted into sulfates and nitrates, which may return to earth as components of precipitation, known as acid rain. Hydrocarbons, which are produced by cars, motorboats, and power plants, form smog when combined with nitrogen oxides in the atmo- sphere under the influence of sunlight. Each of these pollutants is a threat to human health. Acute cases of air pollution have caused marked increases in illness and death, especially among older people and among those with respiratory and cardiac conditions. Such pollu- tants also contribute to the health problems of society’s less vulnerable members, increasing the incidence of emphysema and bronchitis among the general population. For instan ce, smokers living in polluted cities are more likely to contract lung cancer than are smokers in rural areas. Federal regulation of air pollution is con- trolled primarily by the CLEAN AIR ACT (CAA) and its amendments. Air pollution is broadly GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENVIRONMENTAL LAW 193 defined by the act to mean any air pollution agents or combination of agents. The act directs the EPA to establish the National Ambient Air Quality Standards (NAAQS) for air pollutants that endanger public health or welfare. The EPA may consider not the economic or technological feasibility of attaining NAAQS, but only wheth- er the standards are set at levels necessary to protect the public. States are not divested of the authority to regulate air pollution under the CAA. They retain “primary responsibility for assuring air quality” within their boundaries. Yet, following the promulgation of NAAQS, each state must submit for EPA approval a state implementation plan (SIP) designed to develop and maintain the air quality standards within its jurisdiction. SIPs that are found lacking may be amended by the EPA. States are also required to comply with the minimum national thresholds created by the CAA. These national thresholds permit state governments and their subdivisions to enact more stringent air pollution regulations than those enac ted by the federal government, but not less stringent ones. The CAA has three titles. Title I governs stationary sources of air pollution, including all buildings, structures, facilities, and installations emitting air pollut ants. Title II governs mobile sources of air pollution, such as automobiles, trucks, and aircraft. Both titles prescribe the amount of pollution that may be emitted into the air without violating the act. Title III outlines procedures for the enforce- ment of the act through legal or administrative proceedings. State and federal governments may enforce the act, as may private individuals in so- called citizen suits. The CAA provides a variety of administrative, equitable (nonmonetary), civil, and criminal penalties, ranging from informal measures such as violation notices to more formal measures such as injunctive relief (a court order to perform or refrain from performing a particular act), money damages, and fines. International attention has focused on three particular forms of air pollution: acid rain, global climate changes, and ozone depletion. Acid rain is created when sulfur from fossil fuels is emitted into the air and converted into a pollutant through oxidation, later mixing with rain or snow and returning to the earth as a component of precipitation. Although the CAA has commissioned a number of federally sponsored studies on the subject, scientists still disagree on the severity of the problems presented by acid rain. Scientists also disagree about whether air pollution can influence the global climate. Some scientific studies conclude that air pollution has caused the average temperature on earth to increase during the last twenty-five years or so, resulting in a condition called global warm ing; some conclude that the average temperature has decreased, resulting in global cooling. Other studies indicate that the global climate remains unaffected by air pollution and will continue to do so. Because of the discord in the scientific Air pollution from factories is regulated by Title I of the Clean Air Act. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 194 ENVIRONMENTAL LAW community, the CAA has commissioned feder- ally sponsored studies to investigate the rela- tionship between air pollution, acid rain, and the global climate. The CAA has also commissioned federally sponsored studies regarding the relationship between air pollution and the destruction of the ozone layer. The ozone layer shields the earth from the harmful effects of the sun’s radiation, and may be depleted by the release of chloro- fluorocarbons (CFCs) in to the atmosphere. CFCs serve as a coolant for refrigerators and air conditioners, as a foaming agent for insulation, as a solvent for computer chips, and as a propellant for aerosol products. The CAA bans nonessential uses of CFCs, but leaves room for judicial interpretation as to what the phrase nonessential uses might mean. Noise pollution is another form of air pollution regulated by the federal government. The rumbling sounds of eighteen-wheelers on the highway, 747s in the air, and jackhammers in the street are all familiar to the modern era. The Noise Control Act of 1972 (NCA) (42 U.S. C.A. § 4901 et seq.) was created to eliminate or reduce such noises when they pose problems to public health and welfare. Under the NCA, the EPA conducts studies on industrial areas with excessive noise, and establishes noise emissions standards. Airport s, airplanes, railroads, trains, and trucks have all been required to reduce noise levels through the development of quieter motors, engines, and equipment. Any citizen may bring legal action to enforce the provisions of the NCA, but the EPA retains the right to intervene. Remedies include injunctive relief, fines, and criminal penalties. In the late 1980s and early 1990s, the regulation of air pollution moved indoors. Studies conducted during the late 1980s and early 1990s have shown that people are exposed to higher concentrations of air pollution for longer periods of time inside buildings than outdoors. One prevalent source of indoor air pollution is cigarettes. Many states restrict or prohibit smoking in a variety of public places, including indoor stadiums, restaurants, thea- ters, grocery stores, buses, trains, and airplanes. The federal government, through the Occupa- tional Safety and Health Act (OSHA), 29 U.S.C. A. § 651 et seq., protects employees from “occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors.” On February 27, 2001, the U.S. Supreme Court issued its decision in Whitman, Adminis- trator of Environmental Protection Agency, et al. v. American Trucking Associations, Inc., et al, a case which challenged the EPA’s revised Na- tional Ambient Air Quality Standards (NAAQS) for ozone and particulate matter. The Court, in a unanimous decision, held that Section 109(b) of the Clean Air Act (CAA) prohibi ts the EPA from considering implementation costs when the agency sets NAAQS; that Section 109(b)(1) of the CAA does not delegate legislative powers to the EPA; therefore, the EPA did not violate the non-delegation doctrine in issuing its revised ozone and particulate matter standards pursuant to this section; and that the EPA’s implementation strategy was an unreasonable agency interpretation of an ambiguous statutory scheme, and is therefore unlawful. The issue was therefore returned to the EPA so that it could develop a reasonable implementation strategy. Water Pollution Like clean air, healthy water is indispensa ble to human existence. Humans depend on w ater for drinking, cooking, swim- ming, fishing, and farming. Discharges of organic wastes, heated water, nutrients, sedi- ments, toxic chemicals, and other hazardous substances can all make water unfit for human use. Organic wastes, produced by animals and humans, decompose through the use of oxygen. If a body of water spends too much oxygen The Federal Water Pollution Control Act was designed to make waters, such as Mystic River in Massachusetts, fishable and swimmable. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ENVIRONMENTAL LAW 195 during the decomposition of organic wastes within it, certain types of fish will not survive. Aquatic life can also be harmed by the discharge of heated water into lakes and streams, because the increased temperatures accelerate biological and chemical processes that reduce the water’s ability to retain oxygen. The release of nutrients and sediments, such as detergents and fertilizers, can also harm bodies of water. Eutrophication, the natural process by which lakes evolve into swamps and eventually dry land over the course of thousands of years, is accelerated by the discharge of nutrients that make lakes more biologically productive. Discharges of toxic chemicals, heavy metals, and other hazardous material can render both the water and its aquatic life unsafe for human consumption. The three major sources of these types of water pollution are industry, municipal activity, and agriculture. Federal regulation of water pollution begins with the Federal Water Pollution Control Act (FWPCA) (Pub. L. 87-88, July 20, 1961, 75 Stat. 204, 33 U.S.C.A. §§ 1151 et seq.; 43 U.S.C.A. § 3906). The FWPCA was designed to make waters “fishable and swimmable” and to eliminate the discharge of pollutants into navigable waters. The act delineates water quality standards, requiring many water polluters to implement the best practicable control technology or the best available technology economically achievable. Pursuant to the FWPCA, the EPA is required to maintain a list of toxic substances and to establish separate limitations for each of them based on public health rather than technological or eco- nomic feasibility. Although the primary responsi- bility for the enforcement of the act was left with the states, the federal government and private citizens are also authorized to pursue remedies. In 1977 the FWPCA was amended by the CLEAN WATER ACT (CWA) (Pub. L. No. 95-217, Dec. 27, 1977, 91 Stat. 1566, 33 U.S.C.A. §§ 1251 et seq.). Under the CWA, conventional water pollutants, such as oil, grease, and fecal coliform bacteria, are to be measured by the best conventional pollutant control technology. The CWA requires the EPA to weigh “the reasonableness of the … costs of attaining a reduction in [pollution and the] benefits derived.” No cost-benefit analysis was permitted for toxic substances and nonconventional pollutants such as ammonia, chlorides, and nitrates. Civil and criminal penalties, including fines of up to $25, 000 a day, are authorized under the CWA. Oil spills and ocean dumping present two troubling problems for clean-water advocates in the international arena. Section 311 of the FWPCA announces that “it is the policy of the United States that ther e should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States [or] adjoining shorelines.” The same section later prohibits the discharge of any harmful quantity of a hazardous substance into any navigable waters of the United States. In accordance with this provision, the EPA, on behalf of the PRESIDENT OF THE UNITED STATES, has determined that discharges of harmful quantities of oil include, with some minor exceptions, any discharge that discolors or leaves a film on the water or adjoining shorelines. Since the discharge of even a few gallons of oil can leave a film, this provision is tantamount to a no-discharge policy. It also represents a strict liability standard. There is no escape from liability for a harmful discharge of oil that results from negligence, even if the accident could not have been prevented. By contrast, previous federal legislation prohibited only oil spills that were knowingly discharged. Courts have broadly interpreted the CWA to cover oil discharged by trucks, pipelines, vessels, drilling platforms, and both onshore and offshore facilities. A civil penalty of not more than $5,000 is prescribed for each offense, and some penalty must be imposed for every violation regardless of its severity. Accompanying the civil penalty scheme are cleanup provisions. These include (1) prepara- tion and publication of a national conti ngency plan for the removal of hazardous substances and the prevention of spills; (2) authorization for the United States to take summary action (including the removal or destruction of a vessel) whenever a marine disaster creates a substantial threat to the nation’s environment, including threats to fish, w ildlife, shorelines, and beaches; (3) authorization for the U.S. attorney general, under the direction of t he president, to abate any “imminent or substan- tial” marine disaster through legal action; and (4) imposition of costs for cleanup upon the owner or operator. The Marin e Protection, Research, and Sanctuaries Act of 1972 (MPRSA) (27 U.S.C. A. § 1401 et. seq.), popularly known as the Ocean Dumping Act, is the second piece of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 196 ENVIRONMENTAL LAW federal legislation drafted in response to these two international water pollution problems. The MPRSA has three titles. Title I establishes a permit program, administered by the EPA, for dumping materials into and transporting them through ocean waters. Title II creates a research program, under the auspices of the secretary of commerce, to determine ways in which ocean dumping can be reduced or eliminated. Under title III, the secretary of commerce may designate certain parts of ocean water as marine sanctuaries to preserve and restore recreational, ecological, or aesthetic interests. The MPRSA flatly prohibits any dumping of radiological, chemical, or biological warfare agents into ocean waters. The Coast Guard is responsible for surveillance under the act. Violators face civil penalties of up to $50,000 for each violation. Criminal penalties and injunctive relief may also be pursued by the government. Private citizens harmed by ocean dumping may seek relief as well. Permits for ocean dumping may be granted in certain circumstances. Both the administrator of the EPA and the secretary of the Army have the power to dispense permits, but the adminis- trator may veto permits issued by the secretary. The considerations in evaluating permit requests include the need for dumping material into ocean waters, other possible methods of disposal, and the appropriateness of the chosen dumping location. Generally, permits are granted when ocean dumping will not “unreasonably degrade or endanger human health, welfare, amenities or the marine environment, ecological systems or economic potentialities.” On January 9, 2001, in a 5–4 decision, the U.S. Supreme Court struck down the Migratory Bird Rule, which was the basis of jurisdictional authority for the U.S. Army Corps of Engineers over a non-navigable, isolated, intrastate water of the U.S. The Migratory Bird Rule stems from a 1986 interpretation by the U.S. Army Corps of Engineers of its regulatory definition for “navigable waters,” the statutory limit to the Corps’ jurisdiction under the Clean Water Act (CWA). The property at issue in the decision was a 553-acre abandoned sand and gravel mine, which contained water-filled excavation trenches that were used by approximately 121 bird species. The area did not qualify as “wetlands.” The U.S. Army Corps of Engineers found the site jurisdictional based on its use by migratory birds. The Court of Appeals for the Seventh Circuit upheld the U.S. Army Corps of Engineers’ jurisdiction over the site. The peti- tioners, a consortium of 23 suburban Chicago cities and villages who intended to fill the site as a sanitary landfill, appealed to the Supreme Court, claiming that: (1) the Migratory Bird Rule exceeded the Corps’ authority under the CWA and (2) the exercise of such jurisdiction was inconsistent with the COMMERCE CLAUSE, U.S. Constitution, Art. 1 § 8, cl. 3. The Supreme Court reversed the Court of Appeals decision by supporting petitioner’s first assertion and de- clined to make a judicial determination on the validity of the second assertion. Specifically, the Court did not overturn its prior decision in U.S. v Riverside Bayview Homes, 474 U.S. 121 (1985), which affirmed the Corps’ jurisdiction over wetlands adjacent to open water bodies. The Court distinguished between wetlands, which actually abut a navigable waterway, and an isolated, abandoned sand and gravel pit. The Court clarified that although the Riverside Bayview Homes decision established that the navigable requirement was of “limited import,” the requirement has some meaning, particularly when applied to water bodies that are dec idedly not wetlands. Toxic and Hazardous Substances The federal government uses various forms of legislation to regulate the manufac ture, storage, disposal, sale, and discharge of hazardous substances, which include toxic substances. States have also enacted hazardous substance laws with varying success results. After the supertanker Torrey Canyon spilled crude oil off the coast of England in 1967, both Congress, in the Port and Waterways Safety Act of 1972 (PWSA), and the State of Washington enacted more stringent regulations for tankers and provided for more comprehensive remedies in the event of an oil spill. The ensuing question of federal preemption of the State’s laws was addressed in Ray v. Atlantic Richfield Co., 435 U.S. 151. In 1989, the supertanker Exxon Valdez ran aground in Alaska, causing the largest oil spill in U.S. history. Again, both Congress and Washington responded. Congress enacted the Oil Pollution Act of 1990 (OPA). The State created a new agency and directed it to establish standards to provide the “best achievable protection” (BAP) from oil spill damages. That agency promulgated tanker design, equipme nt, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENVIRONMENTAL LAW 197 reporting, and operating requirements, giving the state of Washington stricter standards than those required by federal law. In United States v. Locke, 120 S.Ct. 1135 (2000), the United States Supreme Court unanimously struck down a Washington State oil tanker law and held that the state’s safety and environmental standards were preempted by the comprehensive federal regulatory scheme governing oil tankers. Pesticide Regulation The sale and distribu- tion of pesticides in the United States are governed by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (Pub. L. No. 100- 532, Oct. 25, 1988, 102 Stat. 2654, 7 U.S.C.A. §§ 136 et seq.). Under the FIFRA, no pesticide may be introduced into the stream of commerce without approval by the administrator of the EPA. If the administrator finds that a pesticide will “cause unreasonable adverse effects on the environment,” the pesticide will not receive approval. An unreasonable adverse effect on the environme nt is defined as “any unreasonable risk to [humans] or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.” Once a pesticide is approved by and regis- tered with the EPA, registration may be sus- pended by the administrator upon proof that continued use would “likely result in unreason- able adverse effects on the environment.” Before suspension, the registrant is entitled to an expedited administrative hearing during which the danger and usefulness of the pesticide are measured. In emergency circumstances, the administrator may suspend registration prior to a hearing on the merits. Chemical Manufacturing Regulation The manufacture of chemicals is regulated on the federal level by the Toxic Substance Control Act (TSCA) (15 U.S.C.A. 2601 et seq.). The TSCA is underpinned by three policy considerations. First, industry has the primary responsibility for ascertaining the environmental effects of the chemicals it is manufacturing. Second, the government should have the authority to prevent unreasonable risks of injury to the environment, especially imminent risks. Third, the government should not exercise this au- thority in a manner that places unreasonable economic barriers to technological innovation. As with most of the statutory law in the environmental arena, the relative weights given to each value are balanced against each other. The central provisions of the TSCA are sections 4, 5, and 6. Section 4 empowers the EPA to adopt rules requiring a manufacturer to test each substance that may “present an unreasonable risk” to the environment, “enter the environment in substantial quantities,” or present a likelihood of “substantial human exposure.” Section 5 requires manufacturers to give the EPA notice before producing new chemical substances. New chemicals covered by section 4 must then be tested. New chemicals not covered by section 4 but listed by the EPA as potentially hazardous are evaluated at a hearing provided under section 6. Resource Conservation and Recovery Act The Resource Conservation and Recovery Act (RCRA), Pub. L. No. 94-580, Oct. 21, 1976, 90 Stat. 2795, 42 U.S.C.A. § 6901 et seq., was passed in 1976 as a response to a growing public awareness of problems relating to the disposal of hazardous waste. In 1981 the EPA estimated that 290 million tons of hazardous waste were produced in the United States annually, 90 percent of which would have been imp roperly disposed of before the RCRA became law. The chemical, petroleum, and metal industries were the nation’s leading generators of hazardous waste during this period. In 1983 government studies indicated that as many as 50,000 inactive disposal sites contained hazardous waste, with as many as twenty-five hundred posing a serious threat to grou ndwater and to public drinking supplies. Hazardous waste was traditionally disposed of on the land of the generator. Occasionally, the generator would transport the waste to an off-site disposal area. During the 20-year active life of a disposal site, ownership and operation frequently changed hands. Very few records were kept at the disposal sites, leaving many subsequent owners and operators without any indication of their prior use. The RCRA attempted to answer these problems by providing “cradle-to-grave” regula- tion of hazardous materials. The RCRA requires the EPA to promulgate criteria for identifying hazardous waste in light of a substance’s toxicity, persistence, degradability, corrosiveness, flamma- bility, and potential for accumulation in organic tissues. Standards are prescribed for the gen- erators and transporters of hazardous materials as well as for storage and disposal sites. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 198 ENVIRONMENTAL LAW . and Sanctuaries Act of 1972 (MPRSA) (27 U.S.C. A. § 140 1 et. seq.), popularly known as the Ocean Dumping Act, is the second piece of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 196 ENVIRONMENTAL LAW federal. Because of the discord in the scientific Air pollution from factories is regulated by Title I of the Clean Air Act. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 1 94 ENVIRONMENTAL LAW community,. nt, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENVIRONMENTAL LAW 197 reporting, and operating requirements, giving the state of Washington stricter standards than those required by federal law.