The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), codified in 42 U.S.C. Chapter 103, is a large piece of legislation passed in 1980 that gives the Environmental Protection Agency (EPA) the ability to intervene in managing land contaminated with high levels of hazardous materials.
May the EPA perform a cost-benefit analysis to decide which technologies best minimize adverse environmental impacts on marine life stemming from cooling water intake structures?
Cooling water intake structures divert billions of gallons of water into coolant systems for industrial equipment and power generation. These systems can injure or kill billions of aquatic organisms, resulting in severe environmental impacts. Congress sought to remedy this problem through 33 U.S.C. §1326(b). The statute requires that “cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” The “best technology available” requirement is the heart of the dispute. In enforcing the statute, the Environmental Protection Agency (“EPA”) turned to a cost-benefit analysis. If the cost of a particular technology was not justified by a corresponding environmental benefit, the technology was not required. Environmental groups sued to require the EPA to employ a cost only analysis. This analysis requires the best technology a facility could afford, even if the environmental benefit generated was minimal. This case will affect the EPA’s method of regulating cooling water intake structures, potentially leading to greater costs for power plants and industry. Increased costs may disrupt the energy industry and potentially lead to greater costs for consumers.
Whether Section 316(b) of the Clean Water Act, 33 U.S.C. 1326(b), authorizes the Environmental Protection Agency (EPA) to compare costs with benefits in determining the "best technology available for minimizing adverse environmental impact" at cooling water intake structures. The cases are consolidated and a total of one hour is allotted for oral argument.
Industry diverts billions of gallons of water a day into water-intake coolant systems in order to cool industrial equipment and also to generate power. See Riverkeeper, Inc. v. EPA, 358 F.3d 174, 181 (2d. Cir.
Environmental law refers to a variety of protections which share the goal of protecting the environment.
Consolidated with American Lung Association v. EME Home City Generation (12-1183).
In 1963, in response to growing concerns of pollution, Congress passed the Clean Air Act (CAA). The CAA requires the Environmental Protection Agency (EPA) to set certain air quality standards for harmful pollutants, and includes a “Good Neighbor” provision requiring states to adopt plans that prohibit pollution that would “contribute significantly” to other states’ nonattainment of these standards. However, the CAA does not define “significant contribution.” In 2011, the EPA finalized a rule known as the “Transport Rule.” Mirroring the language of the “good neighbor” provision, the Transport Rule defines emission reduction obligations for several upwind states that “contribute significantly” to downwind states’ nonattainment of the EPA’s air quality standards. In determining what constitutes a significant contribution, the EPA balanced achievable emission reductions against the cost of achieving those reductions. However, in EME Homer City Generations v. EPA, the D.C. Circuit struck down the Transport Rule and rejected the EPA’s analysis for determining what constitutes a significant contribution in this context. These two cases present the Supreme Court with questions about the EPA’s interpretation of its statutory grant of authority under the CAA as well as questions about the jurisdiction of the D.C. Circuit to hear the challenges presented. This case also raises concerns about federal intervention in state affairs and public health concerns posed by the EPA’s interpretation of the CAA. Should the Supreme Court decide this case on the merits, the Court’s decision will significantly affect the EPA’s grant of authority to regulate interstate pollution.
The Clean Air Act, 42 U.S.C. 7401 et seq. (Act of CAA), requires the Environmental Protection Agency (EPA) to establish National Ambient Air Quality Standards (NAAQS) for particular pollutants at levels that will protect the public health and welfare. 42 U.S.C. 7408, 7409. “[W]ithin 3 years” of promulgation of a [NAAQS],” each State must adopt a state implementation plan (SIP) with “adequate provisions” that will, inter alia, “prohibit[]” pollution that will “contribute significantly” to other States’ inability to meet, or maintain compliance with, the NAAQS. 42 U.S.C. 7410(a)(1), (2)(D)(i)(I). If a State fails to submit a SIP or submits an inadequate one, the EPA must enter an order so finding. 42 U.S.C. 7410(k). After the EPA does so, it “shall promulgate a [f]ederal implementation plan” for that State within two years. 42 U.S.C. 7410(c)(1).
The questions presented are as follows:
QUESTIONS PRESENTED:
The Clean Air Act’s “Good Neighbor” provision requires that state implementation plans contain “adequate” provisions prohibiting emissions that will “contribute significantly” to another state’s nonattainment of health-based air quality standards. 42 U.S.C. 7410(a)(2)(D)(i). A divided D.C. Circuit panel invalidated, as contrary to statute, a major EPA regulation, the Transport Rule, that gives effect to the provision and requires 27 states to reduce emissions that contribute to downwind states’ inability to attain or maintain air quality standards. The questions presented are:
In passing the Clean Air Act, Congress empowered the Environmental Protection Agency (EPA) to set National Ambient Air Quality Standards (NAAQS), the maximum permissible levels of common pollutants released into the air. See EME Homer City Generation v. EPA, 696 F.3d 7, 12 (D.C. Cir. 2012).
Does the term “extension” in Section 7545(o)(9)(B)(i) of the Renewable Fuel Standards require small refineries to have continuously received the hardship exemptions since 2011 to qualify for a hardship exemption under the statute?
This case asks the Supreme Court to decide whether the EPA’s Renewable Fuel Standards (“RFS”) requires small refineries to have continuously received the hardship exemption since 2011 to qualify for a hardship exemption under Section 7545(o)(9)(B)(i). Specifically, the Court must determine whether the statutory phrase “extension” acquires one of two definitions: a narrow definition, preferred by the Tenth Circuit and Respondent Renewable Fuels Association (“RFA”), which supports the case for continuity; or a broad reading, supported by Petitioner HollyFrontier Cheyenne Refining (“Cheyenne”), which effectively means to “grant” or “make available.” In selecting the appropriate definition, the Court must decide if and to what extent it should read “extension” apart from its broader statutory context, or consider other factors such as congressional purpose and whether the EPA’s interpretation receives deference. This case has policy implications for the finances of local refineries, economies of local communities, and environmental health.
Whether, in order to qualify for a hardship exemption under Section 7545(o)(9)(B)(i) of the Renewable Fuel Standards, a small refinery needs to receive uninterrupted, continuous hardship exemptions for every year since 2011.
In 2005 and 2007, Congress amended the Clean Air Act, 42 U.S.C. § 7401, to direct the Environment Protection Agency (“EPA”) to require gasoline sold in the United States to include an increasing amount of renewable fuel. Renewable Fuels Association v. U.S. Environmental Protection Agency at 1215.
Where the EPA Administrator is required by the Clean Air Act to set auto emission standards for pollutants that may endanger public health, may the Administrator decline to do so for policy reasons not specifically found in the Clean Air Act and does the EPA Administrator actually have authority to regulate certain air pollutants associated with climate change under the Clean Air Act?
In October 1999, several environmental groups petitioned the U.S. Environmental Protection Agency (the “EPA”) to use its power to regulate carbon dioxide and other greenhouse gases from new motor vehicles. According to these groups, greenhouse gases should be classified as “air pollutants,” which can be regulated under the Clean Air Act if they “can be reasonably anticipated to endanger public health or welfare.” Among the possible “dangers” to welfare, the Clean Air Act lists effects on “weather” and “climate.” However, almost four years later, the EPA officially denied the petition, saying that the Clean Air Act did not give the EPA the authority to regulate greenhouse gas emissions and, even if it did, the EPA would deny the exercise of such authority. According to the EPA, the causal link between greenhouse gases and global warming has not been proven conclusively. Clearly, the Court’s decision in this case will have a significant effect on federal, state, and local efforts to curb greenhouse gas emissions. Furthermore, the Court’s decision could determine the amount of deference that a federal agency should receive in its determinations and could lend credibility to particular side of the scientific argument concerning the tie of greenhouse gases to global warming.
1. Whether the EPA Administrator may decline to issue emission standards for motor vehicles based on policy considerations not enumerated in section 202(a)(1) [of the Clean Air Act].
2. Whether the EPA Administrator has authority to regulate carbon dioxide and other air pollutants associated with climate change under section 202(a)(1).
In October of 1999, the International Center for Technology Assessment (the “CTA”) petitioned the EPA to regulate carbon dioxide and three other greenhouse gasses released by motor vehicles as per § 202(a) of the Clean Air Act, 42 U.S.C.§ 7521(a)(1).
Law about... Environmental law
Does a person who was issued a compliance order by the Environmental Protection Agency have the right to judicial review of the order prior to Environmental Protection Agency enforcement?
After Petitioners Chantell and Michael Sackett began construction on their land, they received a compliance order from Respondent, the Environmental Protection Agency, informing them that their construction project violated the Clean Water Act because it filled in protected wetlands. The Sacketts sought pre-enforcement judicial review of the compliance order under the Administrative Procedure Act, but were denied. The Sacketts assert that Congress intended to provide for pre-enforcement judicial review, and that without such review, the compliance order violates their due process rights. The Environmental Protection Agency maintains that Congress intended to preclude judicial review of compliance orders under the Administrative Procedure Act because compliance orders are not self-executing. The Environmental Protection Agency argues that sufficient procedural safeguards exist under the Clean Water Act to provide adequate review before any penalties are enforced. The Supreme Court's decision will impact the ability of regulated parties to seek review of compliance orders, and will determine what methods the Environmental Protection Agency can utilize to respond to environmental emergencies.
Chantell and Michael Sackett own a small lot in a built-out residential subdivision that they graded to build a home. Thereafter, the Sacketts received an Administrative Compliance Order from the Environmental Protection Agency claiming that they filled a jurisdictional wetland without a federal permit in violation of the Clean Water Act. At great cost, and under threat of civil fines of tens of thousands of dollars per day, as well as possible criminal penalties, the Sacketts were ordered to remove all fill, replace any lost vegetation, and monitor the fenced-off site for three years.
The Sacketts were provided no evidentiary hearing or opportunity to contest the order. And, the lower courts have refused to address the Sacketts' claim that the lot is not subject to federal jurisdiction. Do Petitioners have a right to judicial review of an Administrative Compliance Order issued without hearing or any proof of violation under Section 309(a)(3) of the Clean Water Act?
In 2007, Chantell and Michael Sackett purchased an undeveloped, residential plot in a subdivision near Priest Lake, Idaho. See Brief for Petitioners, Chantell and Michael Sackett at 6; see
Greg Stohr, Bloomberg Businessweek, Mike and Chantell Sackett vs. the EPA (Aug. 11, 2011)
Holly Doremus, LegalPlanet.com, More on Sackett v. EPA (June 28, 2011)
Lawrence Hurley, New York Times, Idaho Couples’ Permit Fight Drags Wetlands Back to the Supreme Court (Sep. 19, 2011)
