Environmental Law and Policy

by ;
Edition: 2nd
Format: Paperback
Pub. Date: 2006-12-31
Publisher(s): Foundation Pr
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Summary

Environmental Law and Policy is a user-friendly, concise, inexpensive treatment of environmental law. Written to be read rather than used as a reference source, the authors provide a broad conceptual overview of environmental law while also explaining the major statutes and cases. The book is intended for four audiences ? students (both graduate and undergraduate) seeking a readable study guide for their environmental law and policy courses; professors who do not use casebooks (relying on their own materials or case studies) but want an integrating text for their courses or want to include conceptual materials on the major legal issues; and practicing lawyers and environmental professionals who want a concise, readable overview of the field. The first part of the book provides an engaging discussion of the major themes and issues that cross-cut environmental law. Starting with the first chapter?s brief history of environmentalism in America, the second chapter goes on to explore the importance and implications of basic themes that occur in virtually all environmental conflicts, including scientific uncertainty, market failures, problems of scale, public choice theory, etc. It then presents three dominant perspectives in the field that drive policy development ? environmental rights, utilitarianism, and environmental justice. Chapter Three fills in the remaining legal background for understanding environmental protection, reviewing the theory of instrument choice, the basics of administrative law, core concepts in constitutional law (e.g., takings, the commerce clause), and the doctrines associated with how citizen groups shape environmental law (such as standing). The second part of the book examines the substance of environmental law, with separate sections on each of the major statutes. International issues such as ozone depletion, climate change, and transboundary waste disposal are also addressed. These chapters build on the themes and conceptual framework laid down in the first part of the text in order to integrate the discussion of individual statutes into a broad portrait of the law.

Table of Contents

PREFACE V
PART I TOOLS OF THE TRADE
CHAPTER 1 AN INTRODUCTION TO ENVIRONMENTAL LAW AND POLICY
1
I. Why Study Environmental Law?
1
II. A Short History of Environmental Protection in America
3
A. Natural Resources
3
B. Pollution
9
CHAPTER 2 PERSPECTIVES ON ENVIRONMENTAL LAW AND POLICY
13
I. Basic Themes of Environmental Law
13
A. Scientific Uncertainty
13
B. Market Failures
16
1. Public Goods
17
2. The Tragedy of the Commons
18
3. Collective Action and Free Riders
19
4. Externalities
19
C. Mismatched Scales
21
D. Cognitive Biases
23
E. Sustainable Development
25
F. Protected Interests
27
II. Three Analytical Frameworks
28
A. Environmental Rights
29
B. Utilitarianism and Cost—Benefit Analysis
32
C. Environmental Justice
38
CHAPTER 3 THE PRACTICE OF ENVIRONMENTAL PROTECTION
43
I. Instrument Choice
43
A. The Regulatory Toolkit
44
1. Prescriptive Regulation
46
2. Property Rights
46
3. Financial Penalties
49
4. Financial Payments
50
5. Persuasion
51
B. Putting the Toolkit to Work
51
C. Instrument Design Issues
53
D. Where to Go from Here?
55
II. The Administration of Environmental Protection
57
A. Basics of Administrative Law
58
1. Rulemaking
60
2. Adjudication
64
III. Constitutional Issues in Environmental Policy
65
A. Congressional Powers
65
B. Legislative Delegation
68
C. Regulatory Takings
70
IV. How Citizen Groups Shape Environmental Law
75
A. Lobbying for Legislative and Administrative Action
76
B. Citizen Suits
77
C. Standing
79
PART II POLLUTION LAW
CHAPTER 4 AIR POLLUTION
87
I. The Clean Air Act
87
A. National Ambient Air Quality Standards (NAAQS)
90
1. State Implementation Plans (SIPs)
94
B. New Source Performance Standards (NSPS) and Grandfathered Sources
96
C. Mobile Sources and Technology-Forcing
98
D. Trading
100
E. Prevention of Significant Deterioration (PSD)
108
F. Air Toxics
109
G. The CAA of Tomorrow
110
II. Ozone Depletion
111
A. The Science of Ozone Depletion
111
B. International Controls
113
C. Developing Countries
117
D. Remaining Challenges
118
E. Lessons Learned
118
III. Climate Change
120
A. The Science of Climate Change
120
B. Impacts of Climate Change
125
C. Legal Responses
127
D. Climate Change Policies — No Regrets, Trading, Joint Implementation, and the CDM
129
E. Sub-National Activity
133
F. The Future of the Climate Regime
135
CHAPTER 5 WATER POLLUTION
137
I. An Overview of Water Pollution
138
II. A Brief History of Water Quality Regulation
140
III. The Clean Water Act
142
A. Regulation of Point Sources
143
1. NPDES Permits
144
2. Publicly Owned Treatment Works
145
3. Industrial Point Sources
146
4. Existing Point Sources
148
5. New Point Sources
149
6. Industry-by-Industry Determination
150
7. Indirect Sources
151
8. Criticism of the Technological Approach
152
B. The Non-Regulation of Nonpoint Sources
153
C. Escaping Regulation as a Point Source of Pollutants
154
1. What Is a Point Source?
155
2. When Does a Point Source "Add" "Pollutants"?
156
D. Water Quality Standards
158
E. Always Cleaner, Never Dirtier
161
F. Interstate Water Pollution
162
CHAPTER 6 REGULATING TOXIC SUBSTANCES
165
I. The Difficulties of Regulating Toxic Substances
166
A. Is "Tolerable Risk" an Oxymoron?
166
B. The Problem of Uncertainty
169
1. A Paucity of Information
169
2. The Difficulty of Determining Cancer Risks
171
3. Regulating Under Uncertainty
173
II. Major Regulatory Options
175
A. Pure Health-Based Statutes
175
B. Feasibility Statutes
177
C. Risk-Benefit Statutes
179
1. Federal Insecticide, Fungicide, and Rodenticide Act
179
2. Toxic Substances Control Act
180
3. "Paralysis by Analysis"
180
4. Criticisms
182
D. Informational Approaches
183
1. The Toxic Release Inventory
183
2. California's Proposition 65
185
CHAPTER 7 WASTE MANAGEMENT
188
I. The Resource Conservation Recovery Act
188
A. What is It?
190
1. Solid Waste and Strategic Behavior
190
2. Solid Hazardous Waste and Closing Loopholes
194
B. Who am I?
196
1. Generators, Transporters and TSDs
196
2. The Land Ban and Regulatory Hammers
198
C. Subtitle D
200
D. The Challenge of Pollution Prevention
202
II. The Dormant Commerce Clause and Waste Disposal
203
III. The Basel Convention
209
IV. The Comprehensive Emergency Response, Compensation and Liability Act
215
A. The Cleanup Process
218
1. Listing and Prioritization of Sites
218
2. Responses
218
B. Compensation for Response Actions
220
1. Potentially Responsible Parties (PRPs)
221
2. Liability Standards
221
C. Defenses
223
1. Acts of God, War, or a Third Party
223
2. Divisibility
223
3. Small Contributors
224
4. Municipalities
224
5. Lenders
225
6. Innocent Landowners
226
7. Settlement Strategies
226
D. Brownfields
227
E. How Clean Is Clean?
228
F. Superfund Reform
230
PART III TRADE
CHAPTER 8 TRADE AND ENVIRONMENT
233
I. The Trade Debate
234
II. The GATT and WTO
237
A. Like Products and PPMs
240
B. Multilateral Environmental Agreements
245
III. The North American Free Trade Agreement (NAFTA)
246
A. Environmental Provisions
248
B. Environmental Side Agreement
249
C. Chapter 11
251
IV. The Trade in Chemicals
254
PART IV NATURAL RESOURCES
CHAPTER 9 WETLANDS, ENDANGERED SPECIES, & THE PUBLIC TRUST
261
I. The Nation's Diminishing Resources
261
II. The Public Trust Doctrine
262
III. Protecting Wetlands
265
A. Rivers & Harbors Act of 1899
266
B. Section 404 of the Clean Water Act
267
1. What Are "Navigable Waters"?
267
2. What is a "Discharge" of Material?
270
3. Special Exceptions
271
4. The Permitting Process
272
5. General Permits
274
6. EPA Vetoes
275
7. Constitutional Takings Challenges
275
C. Incentive Programs
276
IV. The Endangered Species Act
277
A. Listing Species
281
B. Limits on Federal Agency Actions
283
C. Private Violations
288
1. The Prohibition on "Takings"
288
2. Incidental Take Permits
290
3. Administrative Reform Efforts
291
4. Criticisms of Section 9
292
5. Constitutional Takings Challenges to Section 9
293
D. Recovery Plans & Other Provisions
294
E. Does the ESA Work?
295
CHAPTER 10 ENERGY & WATER
298
I. The Tragedy of the Commons
298
II. Conservation
301
III. Renewable Energy
304
PART V ENVIRONMENTAL IMPACT STATEMENTS
CHAPTER 11 THE NATIONAL ENVIRONMENTAL POLICY ACT
309
I. NEPA Grows Teeth
310
II. When Must An Agency Prepare An EIS?
313
A. Major Actions
313
B. Significantly Affecting the Human Environment
315
III. Timing
315
IV. Adequacy of the EIS
317
V. Does It Work?
320
TABLE OF CASES 323
INDEX 327

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