Is the government correct in its contentions? Why or why not?-What standard should be applied? Why? Original Answers Only

ASSIGNMENT

1.The U.S. Department of the Interior filed an environmental impact statement (EIS) with regard to its proposal to lease approximately eighty tracts of submerged land, primarily located off the coast of Louisiana, for oil and gas exploration. Adjacent to the proposed area is the greatest estuarine coastal marsh in the United States. This marsh provides rich nutrients for the Gulf of Mexico, the most productive fishing region of the country. The EIS focused primarily on oil pollution and its negative environmental effect. Three conservation groups contend that the EIS is insufficient in that it does not properly discuss alternatives. The government contends that (a) it need only provide a detailed statement of the alternatives, not a discussion of their environmental impact, and (b) the only alternatives the NEPA requires it to discuss are those which can be adopted and implemented by the agency issuing the impact statement. Is the government correct in its contentions? Why or why not?

2. Chemical Manufacturers Association (CMA) and four companies that manufacture chemicals challenged a test rule promulgated by the Environmental Protection Agency (EPA) under the Toxic Substances Control Act (TSCA). The plaintiffs asserted that the EPA must find that the existence of an unreasonable risk of injury to health is more probable than not before it may issue a test rule under the Act. In response, the EPA claimed that it may issue a test rule under the TSCA if the agency determines that there is a substantial probability of an unreasonable risk of injury to health. The test rule required toxicological testing to determine the health effects of the chemical, 2-ethylhexanoic acid, and imposed on exporters of this chemical a duty to file certain notices with the EPA. What standard should be applied? Why?

3. National-Southwire Aluminum Company (NSA) owns and operates a plant that emits fluoride. When its wet scrubbers were turned off as part of its regular maintenance program, NSA discovered no appreciable change in ambient fluoride levels. Because of the expense of operating the scrubbers and its belief that using the scrubbers did not significantly affect ambient fluoride levels, NSA desired to turn the scrubbers off permanently. Accordingly, NSA sought a determination from the Environmental Protection Agency (EPA) that turning off the scrubbers would not constitute a modification requiring the application of new source performance standards to the plant. Turning off the scrubbers would result in an increase of more than 1,100 tons per year of fluoride emissions with no decrease in the emission of any other pollutant. This increase was nearly four hundred times the level the EPA had established as inconsequential. The EPA determined that turning off the scrubbers would constitute a “new source” modification. Accordingly, NSA was required either to leave the scrubbers on or to install new pollutant control equipment. Is the EPA correct in its assertion? Explain.

4. The city of Fayetteville, Arkansas, received a National Pollutant Discharge Elimination System permit from the Environmental Protection Agency (EPA) for the dis- charge of sewage into a stream that ultimately reaches the Illinois River, twenty-two miles upstream from the Oklahoma border. The EPA permit limited the effluent discharge to comply with Oklahoma water quality standards, but the EPA stated that those standards would be violated only if the discharge would cause an actual, detectable violation of Oklahoma standards. Oklahoma appealed the permit, arguing that the permit violated Oklahoma water quality standards, which allow no degradation of water quality. Explain whether the permit should be granted.

5. On October 20, 1999, a group of nineteen private organizations filed a rulemaking petition asking the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from new motor vehicles under the Clean Air Act. Fifteen months after the petition’s submission, the EPA requested public comment on all the issues raised in the petition, adding a “particular” request for comments on “any scientific, technical, legal, economic or other aspect of these issues that may be relevant to EPA’s consideration of this petition.” The EPA received more than fifty thousand comments over the next five months. On September 8, 2003, the EPA entered an order denying the rulemaking petition. The agency gave two reasons for its decision: (1) that contrary to the opinions of its former general counsels, the Clean Air Act does not authorize the EPA to issue mandatory regulations to address global climate change and (2) that even if the agency had the authority to set greenhouse gas emission standards, it would be unwise to do so at this time. In concluding that it lacked statutory authority over greenhouse gases, the EPA observed that Congress “was well aware of the global climate change issue when it last comprehensively amended the [Clean Air Act] in 1990,” yet it declined to adopt a proposed amendment establishing binding emissions limitations. Calling global warming “the most pressing environmental challenge of our time,” twelve states, including Massachusetts, local governments, and private organizations, alleged that the EPA has abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide, and challenged the decision. Explain whether the twelve States or the EPA are correct.