Chapter 5: Judicial Review and Administrative Process

A. Understanding the Administrative State

❖ The role of the courts in reviewing environmental actions by administrative agencies

❖ Because environmental statutes are generally implemented by administrative agencies,
environmental regulation is inseparable from administrative law
❖ The questions that arise in administrative law include:
➢ Is it constitutional for congress to delegate this power to the agency?
➢ Does the statute authorize the agency to do what it did?
➢ Did the agency follow the appropriate procedures?
➢ Does the agency’s decision- its actual policy choice- have enough factual support?
❖ When Congress passes statutes, it typically enunciates general goals and then delegates much of the
task of implementing those goals to administrative agencies
➢ Congress could not possible make every detailed decision regarding the implementation of
every regulatory statute itself
➢ Managing such detailed decision-making would consume considerable time and resources,
and members of Congress have other priorities to attend to
➢ Institutional competence is another justification for delegating the details of implementation
to an administrative agency
■ These agencies are staffed with experts
❖ The concern is that agency staff are not directly accountable to the electorate
➢ Top-level officials of Executive agencies are political appointees who serve at the pleasure of
the President
➢ Actual oversight of the agency belongs to the current Congress and President

❖ How can the public discipline these agencies if it is unable to turn agency staff out of office?
➢ This is where judicial review comes in
■ Courts play a role in ensuring that agency action remains within lawful bounds
■ To ensure that administrative agencies comply with their statutory mandates + do not
abuse the discretion conferred upon them by the politically accountable leg branch
■ In performing this role, courts must interpret the relevant statutes to discern
legislative intent → statutory interpretation plays a major role in environmental
law
 B. Standing
In suits challenging actions by government agencies, often the first issue raised is whether the plaintiff has
the right to file the suit at all

A. Art. III Standing DEFINITION

➢ In order for the Court to hear a case, the P must have standing to file suit.
➢ A person has standing if he or she has a sufficient stake in the controversy that he or she
ought to be recognized as an appropriate party to assert the claim
■ Focuses on the P’s connection to the claim.

B. STANDING TEST
❖ 1. Constitutional Requirements, and
❖ 2. Prudential Requirements (zone of interests test)

❖ Constitutional Standing Requirements:

 ➢ 1. Injury-in-Fact
■ “The P must show that he has sustained or is immediately in danger of sustaining
some direct injury as the result of the challenged official conduct and the injury or
threat of injury must be both real and immediate, not conjectural or hypothetical.”
■ An invasion of a legally protected interest which is
● (a) concrete and particularized…and
● (b) actual or imminent
■
● Must be concrete and particularized
➢ 2. Causation
■ Must be a causal connection between the injury and the offending conduct so that the
injury is fairly traceable to the challenged action of the defendant and not the result
of the independent action of some third party who is not before the court
➢ 3. Redressability
■ P must also show that the injury is “fairly traceable to the D’s allegedly unlawful
conduct and likely to be redressed by the requested relief.” Allen v Wright, 468 US 737, 751
(1984)
❖ Prudential Requirements
➢ Zone of Interests Test Commented [1]: what is this test?
■ Injury in fact needs to be within zone of interest to be protected

C. When does an association have standing to bring suit on behalf of its members?
➢ When:
■ 1) Its members would otherwise have standing to sue in their own right
■ 2) The interests it seeks to protect are germane to the organization’s purpose
■ 3) Neither the claim asserted no the relief requested requires the participation of
individual members in the lawsuit

1. Injury in Fact (299)

❖ Standing law ensures that courts are not flooded with suits brought by people who are in fact
not harmed by agency action, and to ensure that the litigants before the court are those best
able to vigorously present the case
❖ Non-economical, environmental injuries, when properly pleaded, can satisfy the injury-in-
fact test

Sierra Club v Morton

A membership organization’s mere interest in a problem, without a showing that its members would
suffer actual injury, is not sufficient to show that the entity has standing to seek judicial review of an
action by a federal agency.
❖ No. Sierra Club claims that the injury it would suffer should the Mineral King Valley development
proceed is the resulting change in the aesthetics and ecology of the area.
❖ Defendants argue that a “change in scenery” is not a cognizable injury.
❖ While aesthetic and environmental well-being are important ingredients of the quality of life, the
“injury in fact” test requires more than an injury to a cognizable interest.
➢ It requires that the party seeking review by one who is injured.
❖ Here, the Sierra Club fails to articulate in its pleadings that its members use Mineral King for
any purpose, much less that they use it in a manner that will be substantially affected by the
proposed development.
❖ A mere interest in a problem is not sufficient by itself to render the organization “injured” or
“adversely affected” within the meaning of the APA. Such a holding could open up a plethora of
similar suits by entities having some interest in a particular issue without a showing that it would
suffer any injury from the complained-of activity

Facts:
* Mineral King Valley (the Sierra)
* The parties: Sierra Club (org) v. Morton (Secretary of Interior)
* Administrative Procedure Act 5 USC §702 allows people to sue the federal government (prev almost impossible)
* Alleged Injury-in-Fact: recreational and aesthetic. Impeding on interest of people enjoying the park because the Forest Service
is issuing permit to Disney
* Redressed by: revoking the permit
o Sierra Club ≠ a person, so how can they suffer I-in-F?
* “longstanding interest” in this issue, qualified to evaluate
* Court: not enough because π failed to allege that it/its members would be directly affected
o “Swinging for the fences”:
* Sierra club could have easily found a π who was injured, but want to be able to, in the future, skip the step of having a member
go to court so that they can have a wider impact and preserve for future generations
* Court says this is not ok. Mere organizational interests aren’t enough. Need to have party itself be injured à partial loss
* Also trying to establish “aesthetic and recreational injuries” as I-in-F
* Court says this is ok à partial win
o DISSENT by Justice Douglas: Nonhuman entities should have legal standing
* Recall Megan’s Presentation: “Should Trees Have Standing?” Commented [2]: get notes on the tree argument

D. CITIZEN SUITS-- (APA 5 USC §702)

 1. Citizens as private attorney general overseeing proper enforcement of law
2. Allows you to sue anytime someone in federal government didn’t do something when they were
supposed to do it, or did something when they weren’t supposed to
3. Once π gets standing, her individual harm is irrelevant Commented [3]: What does this mean?
a. Now: seeking to ensure Agency did what it was supposed to do
b. So, in environmental law cases, πs are vindicating general interests shared by many people
(and non-people)
i. → just need to be among the injured!

Commented [4]: what do we need to know from this?

what is the takeaway?

Lujan v Defenders of Wildlife

Under Article III of the Constitution, a party does not have standing to litigate a generalized grievance
against the government in federal court if she suffered no personal injury other than the harm suffered
by all citizens.
❖ Facts:
➢ 1986: proposed amendment to ESA to limit its scope to actions in the US or on high seas
➢ Respondents wanted to go to Egypt and Sri Lanka to study species and saw firsthand how developments by
USAID abroad will fuck up their habitats
➢ ∆s and other orgs dedicated to wildlife conservation filed action seeking declaratory judgement that the new
amendment erred by providing for a geographical limit on the original law→ claiming procedural injury
➢ USAID didn’t consult with Dep’t of Interior when engaging in activities that could harm wildlife (didn’t do
what they were supposed to do)
➢ Leads to substantial injury of not being able to see the wildlife they wanted to see
→ Problem: don’t have pertinent, immediate injury à I-in-F; àUS gov giving funding to project à→ Causation
(seem to have); killing funding will might not stop project à Redress
→ Holding: ∆s HAVE NO STANDING

❖ Plaintiffs argued they were injured because a lack of consultation for governmental activities abroad
increases the rate of extinction of endangered species

❖ A plaintiff may not litigate a generalized complaint against the government based on harm suffered
equally by all citizens.
❖ Standing under Article III of the Constitution contains three elements.
 ➢ 1. First, a plaintiff must have suffered an actual injury. An injury in fact is “an invasion of a
legally protected interest which is
■ (a) concrete and particularized…and
■ (b) actual or imminent.”
➢ 2. Second, the plaintiff must show a causal link between the harm and the conduct at issue.
This means that the injury is “fairly traceable to the challenged action…and not the result of
the independent action of some third party.”
➢ 3. Third, it must be probable that a favorable verdict will redress the harm.

❖ The burden is on the plaintiff to demonstrate these elements. Allowing citizens to sue over an
abstract “right” to have the Executive Branch follow statutory procedures implicates the separation
of powers doctrine.
❖ Here, the plaintiffs failed to show that threats to endangered species cause them imminent injury.
➢ Their theories regarding an ecosystem, animal, or vocational nexus justifying standing for
individuals who want to study, see, or work with such animals are too speculative.
❖ The plaintiffs also failed to show how a favorable outcome would redress their alleged injury.
➢ Conjecture regarding redressability is insufficient to support standing.
❖ Additionally, the plaintiffs have not suffered a “procedural injury” that justifies standing under the
citizen-suit provision of the ESA.
➢ The plaintiffs are suing over a generally available complaint about the government, not
seeking to enforce a procedural requirement that protects a separate, concrete interest .

E. REGULATORY AGENCIES
1. Congress/Legislature
a. passes statutes that name general goals
i. Congress not only branch of government that “makes law”
b. generalized language (because lack expertise)
c. then pass on details of implementing these laws to unelected officials
i. EPA, USFWS, ESDA, NRC, NOAA, NHTSA
ii. Who watches over the regulatory agencies?
a. Congress can ALWAYS amend or rescind statute
b. Courts, congressional budget appropriations, oversight hearings, watchdog
legal orgs, you (citizens and lawyers)
2. Executive Branch
a) Tasked with administering environmental laws we look at
3. Judicial Branch
a) Courts play role of watching over regulatory agencies

F. RULEMAKING
❖ Congress will often pass responsibility of interpreting/making statute to agency’s in the executive
branch
❖ There are three kinds of rule making
➢ 1) Formal Rulemaking
■ When statute dictates
■ Requires formal hearings before administrative law judge
■ (hearings, evidence, witnesses, etc)
 ➢ 2) Informal Rulemaking (what we will look like in this class)
■ Legislation passed by Congress with general goals
■ Send out advanced notice on proposed rulemaking
■ Then they will propose a rule, that are hypothetically registered in federal register
■ Then they open up the rule for public comment (giving citizens a chance to weigh in
on the proposed rule)
■ Final rule
● Agency must respond to every comment and defend its choice
■ Judicial Challenges
➢ 3) Informal Rulemaking – same force and impact as laws
■ Legislation by Congress with general goals
■ Smaller agency decisions that don’t require public participation
● accountability and democracy v. efficiency?
■ Advanced notice on proposed rulemaking
● Proposed rule published in Federal Register
■ Public Comment period
● Need to respond to every comment before finalizing the rule; Agency defends
its choice
● Judiciary branch can challenge agency decision

G. VIOLATIONS AND INJURIES

1) PROCEDURAL VIOLATION
a) Allege that the Agency failed to undertake non-discretionary procedure
2) PROCEDURAL INJURY
a) You (maybe) suffer a harm because the Agency’s failure to do a non-discretionary
procedure makes it more likely that you will suffer a future, substantive injury
3) SUBSTANTIVE VIOLATION
a) Allege that the Agency did what it was supposed to do, but its actions or conclusions were
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
(APA §706)
4) SUBSTANTIVE INJURY
a) You suffer an actual harm from the final decision – an “injury-in-fact”

❖ Procedural v Substantive Violation

➢ Procedural violation: in its decision making process, Agency didn’t do what it was required
by law to do
➢ Substantive violation: agency did what it was supposed to do, but its decision was, on the
merits, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law

C. Legal Bases For Challenging Agency Action

CHEVRON DEFERENCE
Commented [5]: would we apply these on an exam
A. CHEVRON DEFERENCE: (“Chevron step zero”) before we apply chevron 2-step?
 A. “Mead Deference” - U.S. v. Mead – did Congress intend the executive to make the interpretation in
the first place? → have to show before moving onto “two-step” Commented [6]: how would i know if they did it didn't?
a. Courts should defer only where “Congress delegated authority to the agency generally to
make rules carrying the force of law, and that the agency interpretation claiming deference
was promulgated in deference to that authority.
b. We only do chevron deference when it is clear that congress has given the executive branch the power to make
these decisions/ only when the agency has clearly been given that power

B. “Auer Deference” – Auer v. Robbins (1997) – What’s the standard courts should apply when
reviewing executive departments’ interpretations of their own rules?
a. Defer as long as permissible interpretation of its own rule that it has made
b. Sometimes when an agency makes a rule, that rule itself may have ambiguities
c. If any agency makes a rule and it is ambiguous, they may have to submit a subsequent
d. Defer as long a permissible interpretation of its own rule

B. CHEVRON TWO-STEP:
❖ When reviewing an agency’s construction of a statute that it administers, courts consider two
questions:
➢ (1) whether Congress has directly spoken to the precise question at issue (if the intent of
Congress is clear); and
➢ (2) if not, whether the agency’s answer is based on a permissible construction of the statute Commented [7]: if/when courts get to step #2, 90% of
the time the agency wins

Chevron v. NRDC
❖ CAA required polluters in certain areas to obtain a permit from a state regulator before building any
new or modified stationary sources of air pollution.
❖ The state regulator could only grant the permit if the polluter met specific requirements regarding the
abatement of new pollution.
❖ EPA promulgated a rule interpreting the term “stationary source” to include what the agency called a
“bubble policy.”
➢ Under this policy, an existing plant containing several pollution-emitting devices could
install or modify one piece of equipment without a permit if the alteration did not increase
the total emissions from the plant.
❖ NRDC (plaintiff) challenged the EPA’s interpretation of the word “source.”
➢ Specifically, the NRDC argued that the word referred to each individual pollution-emitting
piece of equipment, which meant that a plant would need to obtain a permit any time it
created a new source of pollution or modified an existing source if the effect were to increase
the pollution from the source

Issue
❖ When a court reviews an agency’s construction of a statute that it administers, may the court impose
its own construction on the statute if the statute itself is silent or ambiguous regarding the specific
question at issue?

Holding
 ❖ No. When a court reviews an agency’s construction of a statute, it faces two questions. First, the
court must consider whether Congress directly addressed the precise question at issue. Second, if the
court finds that the statute is silent or ambiguous regarding the specific issue, it must consider
whether the agency’s answer was based on a permissible construction of the statute. Here,
Congress did not express an intent regarding the applicability of the bubble concept to the permit
program. Given the many competing interests at stake, the EPA’s use of the bubble concept was a
reasonable policy choice for the agency to make. Commented [8]: they went with the agency's
interpretation
Competing definition of what a source is
➢ Can a source be individual structures and can it also be entire unit?
➢ If each one of these is a source, then each time you build one of these, they need to be done
to a certain standard
➢ Why does chevron think it should be the whole thing? If each smoke stack is a separate
source, any increase in pollution means a separate review
❖ The EPA agreed with Chevron, as long as you treat entire complex as being under an entire
bubble, and your net pollution does not increase you do not have to undergo a new source review bc
you are not technically a new source
➢ Allows polluters to gradually retire old equipment and bring in new equipment
❖ Pretend you are Chevron’s lawyer? Recommend one source, one bubble, will save you money
❖ The supreme court here has to figure out if a source is each ind structure or the whole facility
➢ What is the rule that they make? When there is some ambiguous language and crts are asked
to say whether agency interpretation was right…
CHEVRON TWO-STEP:
■ When reviewing an agency’s construction of a statute that it administers, courts
consider two questions:
● (1) whether Congress has directly spoken to the precise question at issue (if
the intent of Congress is clear); and
● (2) if not, whether the agency’s answer is based on a permissible construction Commented [9]: if/when courts get to step #2, 90% of
of the statute. the time the agency wins

“CHEVRON TWO-STEP”
[First, determine if Congress wanted Agency to clear anything up... then:]
1) If Congress’ intent is clear, that’s the end of the matter.
2) If not, (that is, the statute is silent/ambiguous in respect to the specific issue, ask: is the Agency’s answer
based on a permissible construction of the statute? If so, defer to Agency.
a. Permissible construction: reasonable/supported by facts (science, e.g.) etc.

Where does the court look?

❖ Statutory Language
❖ Legislative History
❖ Policy

❖ First- they looked to the definition section of the statute

 ➢ Bottom of 354
➢ The term “stationary source” means any building, structure, facility, or installation which
emits or may emit any air pollutant
■ This is the argument in favor of bubble bc they are arguing all the above means the
same thing (bc of “or”) and so “facility” falls under a bubble
■ Chevron arguing that when you have a series of words like this, they are all under
one bubble
➢ NRDC argued that the “or” means that they are all different things and have to consider them
separately
➢ EPA says we can read it either way, but ultimately chose to read it the way Chevron does
(although not clear what congress meant here)- but the way that Chevron interpreted is a
permissible construction of the statute (satisfying step 2)

❖ Second- Legislative History

➢ NRDC using the quote to argue that is says if you replace any new facility
➢ Chevron uses it to make opposing argument

❖ Third- Policy
➢ NRDC would use this- the whole point is to decrease air pollution, if we allow chevron to
replace smokestacks without putting measures in place to reduce pollution, aren’t we going
against this

❖ Congress seems to say that it is ambiguous and defer to agency interpretations bc not clear to
them whether a source is facility or individual piece
❖ EPA interpretation is permissible.

❖ Why does Congress defer to EPA? Congress seems to say in CAA that they are giving the authority
to the agency, (congress delegated its authority) + they don’t have the expertise to make that
decision
➢ So in complicated matters congress defers because they don’t understand these type of cases
➢ What’s the connection between chevron deference and environmental protection?
■ There is no correlation, it depends who is in office and if they are pro or against environment

Recap:
 Commented [10]: looking at all these things in step
one and seeing if it is clear or ambiguous/silent... if it is
then you can defer to agency interpretation

_______________________________________________________________________________________
_______________________________________________________________________________________
____
Chapter 6: Air Pollution CAA

A. THE BASICS OF THE CAA

CAA establishes NAAQS for 5 major air pollutants. The EPA has divided each state into Air Quality
Control Regions and monitors each region to assure that the national standard for each pollutant is met.
Where the standard has not been attained for a certain pollutant, the state must develop a SIP designed to
bring the area into attainment within a certain period. In addition, no new source of that pollutant may be
constructed until the standard is attained

A. Overview
❖ CAA requires the EPA to list pollutants that are
➢ 1. Emitted from numerous and diverse sources
➢ 2. Emissions of which may endanger public health or welfare
❖ EPA then prepares criteria documents that consist of the scientific data indicating the health and
welfare effects of the pollutant
❖ EPA then establishes an ambient standard for the pollutant→ standard is expressed as a maximum
concentration limit for that pollutant in the surrounding air
❖ These standards represent the air quality goals that states must achieve when designing SIPs

B. Basic Pillars
1. NAAQS: (National Ambient Air Quality Standards – (§§107-110)
a. Required for all stationary sources of pollution
i. Stationary = things that don’t move like buildings
b. These are health based standards
i. used to ensure that we are breathing clean air
c. Ambient = once it gets up in the air spreads into large areas
d. Six “criteria pollutants” Commented [11]: spare the air day is when they want
to keep the air in attainment (we are danger of going
i. Sulfur Dioxide out of attainment for some of the 6 pollutants)
ii. Particulate Matter
iii. Nitrogen Oxide
iv. Carbon Monoxide
v. Ground level Ozone
vi. Lead
e. Every state is required to have a constantly updated state implementation plan (SIP)
i. that explains how the state is supervising local air quality air managers to make sure
that the standards set by EPA are met

2. NEW SOURCE REVIEW:

 a. If you are constructing a new or modified significant and major source of pollution for one of
those 6 pollutants, the EPA is required to review a certain kind of technology you are
required to install
b. The state is required to review that and will only grant a permit if you are meeting certain
requirements that say that the air is safe for everyone that is breathing it (Need to get a
permit to pollute and technology that’s going to meet the pollution standards)
c. Different rules are in effect depending upon whether you are living in an area that meets the
national standard ambient air quality standards
i. If you are in an areas that is not meeting those standards where the air is more
polluted and thus more unhealthy, then it is more difficult and expensive for you to
make new pollutions
ii. When the air is dirty, it costs you more to do business there

3. (NON) ATTAINMENT AREA:

a. Every air quality control region of the country is either in attainment or out of attainment for
each of 6 criteria pollutants
b. A non-attainment area is an area considered to have air quality worse than the National
Ambient Air Quality Standards as defined in the Clean Air Act
c. Different rule standards apply depending on whether you are in or out of attainment
d. Non attainment = much more strict (and expensive) to comply with
e. SF always been; LA never been

4. PREVENTION OF SIGNIFICANT DETERIORATION (PSD)

a. For areas that do meet the NAAQS (ie areas that are in attainment) states must prevent air
quality deterioration
b. Less strict technological reqs for new + existing sources of pollution

5. NONATTAINMENT AREAS (NAZs)

a. For areas that do not meet the NAAQS (not in attainment) states must make reasonable
further progress towards achieving the NAAQS
b. New or modified stationary sources in a NAZ need
i. Operating permits
ii. To meet strict technology reqs to attain the lowest achievable emission rate
iii. To have any increased pollution offset by reductions elsewhere in the NAZ

6. NSPS (New Source Performance Standards - §111)

a. “Technology based” regulations for new or modified major stationary sources of pollution
for each major industrial category
b. EPA has catalog of acceptable technology for pollution control devices for about 75 different
standards (boilers, power plants, landfills, petroleum refineries)
 7. HAZARDOUS AIR POLLUTANTS (§112)
a. “Technology based” regulations for nearly 200 hazardous air pollutants
i. less pervasive, more toxic than six “criteria” pollutants
1. e.g. benzene, chloroform, etc.
2. http://www.epa.ohio.gov/portals/27/general/haplist.pdf

8. MOBILE SOURCES (§§ 201-235)

a. Standards to reduce pollution reduction in vehicles in a “technology forcing” way
i. Technology forcing: EPA tells industry it has to come up with the technology to meet
the health based standards
1. Expectation that the ‘desperation’ will create conditions for innovation
2. It actually works!

Why only six section 108 pollutants?

● We have health based regulations
If you are in a non-attaintment area (such as LA) it is much more expensive to do business)
If you are in attaintment you are subject to PSD (prevention of significant deterioration)
● You have to keep the air clean
● You still have to go through source review, etc
● But those technological choices are cheaper, but if you are going to be a new source of pollution in
an area its going to cost you money
If you are in non-attainment area where the air is polluted and dangerous to human health, you have to
install state of the art technology that will enable you to have the highest caliber of pollution control +
every time a new source of pollution is emitted the air quality control manager has to retire a greater
polluting source

AIR QUALITY STANDARDS

B. Listing Pollutants

Natural Resources Defense Council v Train (436)

The EPA had refused to list lead as a pollutant despite overwhelming scientific evidence as to its health
impacts. The agency had chosen instead to regulate the lead content of gasoline as its primary strategy of
reducing lead emissions. An environmental group sued to force the listing.
∆ doesn’t think “shall” list = mandatory.
1. Plain language: “shall” means shall
a. Congress does not engage in mere surplusage
b. If Congress wanted to be more ambiguous, they would have said “may”, e.g.
2. Legislative history
a. “Congress reacted [to state inaction] by taking a stick to the states”
b. strict deadlines suggest Congress wanted there to be clear criteria for Lead
3. Structure of the Act:
a. Time-Table – within 30 days
4. Public Policy
a. Favors NRDC – Pb clearly a health hazard
b. Congress did not want the amended section to be optional... they wanted cleaner air.
 ●
● Conclusion was that it is mandatory to list lead- congress is not giving you discretion, they are clear
about their intent

C. Setting Air Standards

Lead Industries Inc. v. EPA
The Clean Air Act authorizes the Administrator of the Environmental Protection Agency to allow for an
adequate margin of safety when setting air quality standards that impact the public health and welfare .

❖ π argues that the PA went outside of statutory authority and made standards too stringent, and didn’t
consider economic and technical feasibility
➢ §109: once you list, what you do next: “allow adequate margin of safety are requisite to
protect public healtH
❖ π: “adequate margin” should take economic impact and tech feasibility into consideration
➢ Court: EPA can’t consider tech and econ feasibility when setting standards

1) Language: Congress explicitly emphasized health over price... get it from

2) Object and purpose of statute: reduce air pollution
3) Other sections of statute: §111 talks about cost, meaning Congress didn’t forget to leave it out.
a. They deliberately left cost out of §109

Fact:
● The Lead Industries Association, Inc., a non-profit trade association representing 78 members who
producer and commercial consumers of lead filed a petition in federal court against EPA-
○ Challenging the agency’s air quality regulations for lead under §§ 108 and 109 of CAA
○ Plaintiffs claimed the EPA Administrator exceeded his authority under the CAA by setting
air quality standards for lead that went well beyond what was contemplated by the statute
without considering the economic impact on the industry the regulations would have

Holding:
● Plaintiffs contend that the CAA only authorizes the Administrator to set air quality standards that are
known to be clearly harmful to the public health.
○ However, there is no basis in the language of the CAA to support plaintiffs’ claims.
● Instead, Congress specifically directed the EPA Administrator in the statute to allow an adequate
margin of safety to protect against likely harmful effects before they have been uncovered by
research or verified through scientific methods.
○ It is illogical to require the EPA to take a “wait and see” approach to see which airborne
pollutants “clearly harm” the public health before the agency takes action.
 ○ Additionally, Congress has acknowledged that more often than not, the “margins of safety”
that are incorporated into air quality standards are actually very modest or even nonexistent,
as new information reveals adverse health effects at pollution levels once thought to be
harmless.
● Congress authorized the Administrator to use his judgment in setting air quality standards so that he
could act in the face of uncertainty and err on the side of caution in order to protect the public health.
● Plaintiffs’ petition is denied.

B. MAJOR PROVISIONS OF THE CAA

1. STATE IMPLEMENTATION PLANS

❖ What power does EPA Administrator have in approving or disapproving SIP based upon his/her
consideration that plan is technologically or economically infeasible?
➢ Answer: none

❖ Section 110 of CAA assigns to states the responsibility for devising implementation plans that will
achieve the federal NAAQS
❖ In developing SIP, states must first determine the extent to which air quality in the state’s air quality
region violates the NAAQS
❖ It must then calculate the emissions reductions necessary to achieve compliance with NAAQS
❖ And finally, must allocate the reductions among the sources in the state, and predicting what the
technological and economic impact of imposing reductions on them would likely be

The cases below establish the basic principle that the EPA must approve a state plan if it will attain the
NAAQS.
● The agency may not reject a plan because it is weaker than the agency thinks feasible or less
rigorous than a previous state plan.
● Nor may it reject a plan because it is too stringent to be economically or technologically feasible.
● Thus, so long as the national standards are met, the state may use any mix of controls it wishes, no
matter how lax or how strict

❖ If a state fails to implement a plan (or the plan does not meet requirements + state fails to fix
deficiency), the EPA must promulgate a federal implementation plan

COOPERATIVE FEDERALISM- Union Electric v EPA

Facts
 ● The 1990 amendments to the Clean Air Act (CAA) required each State to formulate, subject to
approval by the Environmental Protection Agency (EPA) (defendant), a state implementation plan
(SIP) designed to achieve national ambient air quality standards.
● Any SIP could be challenged in federal court within 30 days of approval, or after 30 days if new
information was learned by the petitioner.
● The State of Missouri submitted its plan to the EPA for approval of a reduction in sulfur dioxide
emissions around the St. Louis metropolitan area. The EPA Administrator approved Missouri’s SIP.
● Thereafter, Union Electric Company (UEC) (plaintiff), St. Louis’ largest emitter of sulfur dioxide,
challenged the State’s SIP in federal court after the 30 days period had lapsed. UEC argued that it
could not comply with the State’s SIP because its sulfur dioxide-reducing emissions requirements
were economically and technologically impossible.

Issue
May a claim of economic or technological infeasibility be considered upon petition for review based on new
information and filed more than 30 days after approval of a state implementation plan pursuant to § 307(b)(1)
of the Clean Air Act?

Holding and Reasoning (Marshall, J.)

● No. Rather than filing a petition for review of Missouri’s SIP in federal court within the allotted 30-
day timeframe, UEC instead chose to apply to various state agencies for variances from the sulfur
dioxide emissions requirements.
● It was only after UEC was informed by the EPA Administrator that it was out of compliance
with Missouri’s SIP did it seek review in the court of appeals.
● Pursuant to § 307(b)(1) of the CAA, a petition for review of an SIP may be filed in federal court more
than the required 30 days if the petition is “based solely on grounds arising after such 30th day.” Commented [12]: can only file after the 30 days if you
● Here, UEC’s only claim is that it is economically and technologically impossible to comply with the are basing filing on new info that arose/came about
after the 30 day time frame
emissions requirements.
● UEC possessed this information prior to the expiration of the 30th day.
● The EPA Administrator has no power under the CAA to reject an SIP on the ground that it is
impossible to comply with.
● In fact, so long as the state’s SIP meets national air quality standards pursuant to the CAA, the EPA
must approve the plan.
● If a state goes beyond the requirements of the federal statute to require particular air quality
standards by a certain date, the CAA does not provide a basis for the EPA Administrator to
reject such a plan.
● That is not to say that claims of economic or technological infeasibility cannot be raised in situations
where consideration of such claims will not substantially interfere with the primary congressional
purpose of prompt attainment of the national air quality standards. However, that was not the case
here. The judgment of the court of appeals is affirmed.

❖ The CAA is an example of Cooperative Federalism

➢ EPA sets the standards that everyone has to meet, these are the standards for these 6
pollutants (federalism part)
➢ (cooperative part) as long as states meet these standards, they can meet those standards how
they want
 ❖ Technology forcing
➢ The whole point of the CAA is to be technology forcing, to make the technology emerge that
will help each state meet those standards

❖ Page 459: plain language of section 110.82

➢ Is there anything in there that speaks about economically or technological feasibility?
■ Says nothing about either.
➢ What happens when you have competing language from each house?
■ Will usually have staffers from each branch that massages the difference btwn the
two and come up with one version that can be voted on
➢ So if you are a judge trying to figure out what congress really meant, what would you do?
■ Look at the original and the made version and look back at what was taken out
➢ How would you use leg, history here to see if general electric was right?
■ If both houses thought about it, and ultimately decided on the strong version of
technological and economical feasibility- they made this clear choice
■ Congressional intent was clear here
➢ Policy seems clear that it is about getting the air clean as possible

❖ Does all of this mean that no one anywhere can consider technological and economical feasibility?
➢ No, the point of cooperative federalism- leave it to the states, who is going to pay what
costs in meeting these standards
➢ 462, second to last paragraph

● The state knows best how to balance pollution production with economic development
● EPA doesn’t have the resources to do it
● Politically unpopular

The Role of Cost in Standard Setting + Intelligible Principle- Whitman v American Trucking
(1) When Congress confers decision making authority to agencies, it must set forth in a legislative act an
intelligible principle to which the person or body authorized to act is directed to conform; and Commented [13]: The Supreme Court has recognized
that Congress could not delegate powers that were
"strictly and exclusively legislative." Chief Justice John
(2) Under § 109 of the Clean Air Act, the EPA Administrator may not consider implementation costs in Marshall laid the groundwork for the "intelligible
principle" standard that governs s non-delegation cases
setting national ambient air quality standards. today. Marshall stated that if Congress delegates
(1) Does § 109(b)(1) of the CAA delegate legislative power to the Administrator of the EPA? quasi-legislative powers to another body, it must
❖ No. In a delegation challenge, the constitutional question is whether the statute has delegated provide a "general provision" by which "those who act"
can "fill up the details." Therefore, Congress cannot
legislative power to the agency. give an outside agency free reign to make law, but it
❖ When Congress confers decision making authority to agencies, it must set forth in a legislative act an can authorize the agency to flesh out the details of a
intelligible principle to which the person or body authorized to act is directed to conform. law Congress has already put in place. This became
known as providing an "intelligible principle" to which
❖ An agency may not cure an unlawful delegation of legislative power by adopting a limited the agency is instructed to conform. The "intelligible
construction of the statute because doing so is itself an exercise of unlawful legislative authority. principle" could be anything in the "public interest,
❖ The degree of agency discretion that is acceptable depends upon the scope of the power that convenience, or necessity" or considered "just and
reasonable." Being put in such subjective terms gives
Congress has conferred. agencies vast discretion when enacting new rules
➢ Here, the text of § 109(b)(1) of the CAA places limits on the EPA’s discretion that are
similar to those that this Court has approved in earlier cases.
 ➢ Additionally, the scope of discretion that this statutory provision allows for falls within the
outer limits of this Court’s nondelegation cases.
➢ Accordingly, the lower court’s decision is reversed, and the case is remanded for
reinterpretation that would avoid a supposed delegation of legislative power .

(2) Under § 109 of the Clean Air Act, may the EPA Administrator consider implementation costs in setting
national ambient air quality standards?

❖ No. Section 109(b)(1) of the CAA instructs the EPA to set primary ambient air quality standards,
NAAQS, “the attainment and maintenance of which are requisite to protect the public health with an
adequate margin of safety.”
❖ However, the appellate court in Lead Industries Assn., Inc. v. EPA, 647 F.2d 1130 (D.C.Cir.1980),
held that economic considerations may play no role in the promulgation of NAAQS under the CAA.
❖ Instead, the EPA identifies the maximum airborne concentration of a pollutant that the public health
can tolerate, decrease that concentration to provide an “adequate” margin of safety, and then set the
standard at that level.
❖ Plaintiffs contend that economic costs of implementing stringent NAAQS can cause detrimental
effects on the public health.
❖ Although plaintiffs’ claims may have some validity, the plain and unambiguous text of § 109(b)(1)
make clear that cost considerations do not enter the decision-making process for establishment of
NAAQS.

➢ Scalia looks at the amendments

■ What parts did they leave unamended? Section 109. This section says nothing about
cost. So congress knows how to change its mind and talk about costs when it wants
to talk about costs
➢ Congress does not hide Elephants in mouseholes
■ When congress wants to change something, they plainly do it and make it very clear.
If they wanted you to think about costs, it would have been a big element - would
have said it in PLAIN LANGUAGE
❖ Breyer agrees with Scalia - he talked about the legislative history. If you want to determine if
congress wanted us to consider costs, go to leg history

● What might be the objection to look at the leg history?

○ History can always be different than what they end up with- anyone can go into leg history
and find things that support their opinion

● What if…
○ “Isn’t it true that requisite can mean that EPA….”
■ What would you do if you were EPA administrative?
● Although when you publish your opinion in public register, you won’t say
anything about costs BUT when you are making the decision, you probably
will be considering cost

Citizens Against The Refinery’s Effects v EPA (467)

 ❖ CAA establishes NAAQS for 5 major air pollutants. The EPA has divided each state into Air Quality
Control Regions and monitors each region to assure that the national standard for each pollutant is
met. Where the standard has not been attained for a certain pollutant, the state must develop a SIP
designed to bring the area into attainment within a certain period. In addition, no new source of that
pollutant may be constructed until the standard is attained
❖ EPA recognized the need to develop a program that encouraged attainment of clean air standards
without discouraging economic growth
➢ Thus the agency proposed an interpretive ruling in 1976 which allowed states to develop an
offset program within SIP
➢ Permits states to develop plans which allow construction of new pollutant source where
accompanied by a corresponding reduction in an existing pollution source
➢ In effect, a new emitting facility can be built if an existing pollution source decreases its
emissions or ceases operations as long as a positive net air quality benefit occurs

To offset pollution, VA is going to pave the roads in a different way.

❖ Π has many issues
➢ Base year
➢ arbitrary geographic regions
➢ reductions in asphalt emissions already happening thru voluntary VA program
➢ “Offset program” proposed

❖ Here: Whole state of VA is one big bubble → offsetting in one place by allowing it somewhere
else
➢ Even though voluntary program already exists, it’s not creating a new offset... basically,
allowing VA to increase pollution in one place while doing the same thing elsewhere
➢ EPA WINS because within their discretion
➢ In approving the SIP, EPA thoroughly examined the data, requested changes in the plan, and
approved the plan only after the changes were made. No indication that agency acted in
arbitrary manner or capricious manner or stepped beyond bounds of CAA
Mass v EPA
Facts:
❖ EPA was refusing to regulate greenhouse gas emissions from cars
❖ Group of states brought suit against EPA- seeking declaratory relief on the issue of whether the EPA
had the statutory authority to regulate greenhouse gas emissions under the Clean Air Act; and if so,
whether its stated reasons for refusing to do so were consistent with the Clean Air Act
❖ Massachusetts argued that EPA failure to regulate = loss of coastal lands due to increased global
warming bc of the emissions
❖ EPA asserts CAA does not authorize it to issue regulations to address global climate change +
Congress has not finished investigating scientific merits of global climate change + not wise to
regulate such emissions at that time

Issue #1:
❖ Does the Clean Air Act provide the Environmental Protection Agency with the statutory authority to
regulate new motor vehicle emissions greenhouse gases as an “air pollutant”?

Answer:
❖ Yes. Section 202(a)(1) of the Clean Air Act clearly provides that the EPA Administrator shall
promulgate standards applicable to the emission of any air pollutant from any class or classes of new
motor vehicles or new motor vehicle engines that, in the Administrator’s judgment, may reasonably
endanger the public health or welfare.
 ❖ EPA argues that carbon dioxide, the basis of greenhouse gas emissions, is not an “air pollutant”
within the meaning of the CAA.
❖ However, the definition of “air pollutant” is broad enough to encompass any air pollutant,
including “any physical, chemical…substance or matter which is emitted into or otherwise enters the
ambient air….” 42 U.S.C. § 7602(g).
❖ EPA further claims it should not be required to issue regulations addressing new car emissions
standards because Congress has failed to issue a clear directive to do so.
❖ Merely because Congress continues to review the plethora of scientific literature surrounding
global climate change does not negate the clear statutory authority provided to the EPA to
regulate new vehicle greenhouse gas emissions.
❖ Additionally, the EPA’s reliance on FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120
(2000), is similarly misplaced. In FDA, the Court held that tobacco products are not “drugs” or
“devices” subject to regulation under the Food, Drug, and Cosmetic Act. Congress never intended
tobacco to be classified as a drug or device subject to regulation by the FDA.
➢ Conversely, Congress afforded the EPA with clear statutory authority to curtail the
emission of substances that may cause harm to the public.
➢ Finally, the EPA’s claim that it is not wise to issue regulations “at this time” is unavailing.
The agency has failed to offer any reason or explanation regarding why it is unwise to
regulate greenhouse gas emissions.

Issue #2:
❖ For standing to be appropriate, must an actual case or controversy be present, characterized by a
truly adversarial relationship?

Answer:
❖ Yes. For standing to be appropriate, an actual case or controversy must be present, which is
characterized by a truly adversarial relationship.
❖ A plaintiff can show the existence of a truly adversarial relationship by demonstrating that he
➢ 1. has suffered a concrete and particularized injury that is either actual or imminent;
➢ 2. that the injury is fairly traceable to the defendant;
➢ 3. and that it is likely that a favorable decision would redress that injury.
➢ In a class action suit, only one member of a class of petitioners must meet the required
elements of standing to sufficiently demonstrate an adversarial relationship.
➢ Massachusetts adequately met these requirements and standing is thus appropriate.
❖ Although it is unusual for a sovereign state such as Massachusetts to have standing to bring suit in
federal court, Congress made no other provision for states to sue the EPA for failing to regulate
greenhouse gas emissions according to its Clean Air Act obligations.
❖ 1. Massachusetts already showed the existence of a concrete and particularized injury because
it is well-documented that exposure to greenhouse gas emissions would further exacerbate the
problem of global warming and would ultimately cause Massachusetts to lose coastal lands.
❖ 2. Additionally, there is sufficient causation between the EPA’s failure to regulate greenhouse gas
emissions and this injury, as the lack of regulations contribute to the problem of environmental
damage from greenhouse gases.
 ❖ 3. Finally, although the impact would be small in light of the global problem of greenhouse gas
emissions, the EPA’s regulation of domestic emissions would, in fact, have an impact on
decreasing the amount of emissions in the environment and thus reducing the amount of
environmental damage to Massachusetts.
❖ On the merits, the EPA does have the authority under the statute to regulate greenhouse gases.
➢ If the EPA refuses to do so, the EPA must state the reasons for its refusal.

Issue #3: Is an agency’s refusal to promulgate rules subject to judicial review?

Answer:
❖ Yes. Although an agency’s refusal to initiate rulemaking is subject to judicial review, such review is
extremely limited and highly deferential
❖ A court may reverse an agency action found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.
❖ Once the EPA responds to a rulemaking petition related to the emission of pollutants, its
reasons for action or inaction must conform to the Clean Air Act.
❖ Under the Clean Air Act, the EPA may only avoid taking further action if it determines that
greenhouse gases do not contribute to climate change or if it provides some reasonable
explanation as to why it cannot or will not exercise its discretion to determine if they do.
❖ Here, the EPA refused to comply with the clear statutory demands of the Clean Air Act.
➢ In failing to offer a reasoned explanation for its refusal to decide whether greenhouse
gases cause or contribute to climate change, the EPA acted in a manner that was arbitrary,
capricious, or otherwise not in accordance with law. The judgment of the court of appeals
is reversed and the matter is remanded for further proceedings consistent with the opinion.
________________________________________________________

Commented [14]: see sample answer(s) online

Step 1:
● Started with CAA section 202(a)(1)- “the administrator shall…”
○ 202 is non stationary sources, (a)(1) “shall…”
 ○ This is what the regulation was supposed to be about
○ Matters because shall means shall

○
■ “Which in his judgment”...
● This language is discretionary
● What is discretionary? The degree to which it is actually having an affect
● She used to discretion to determine that greenhouse gases are dangerous, it is
anticipated to endanger public health and welfare (that’s what the article was
that we read)
● This is her discretion, her discretion determined that greenhouse gases are
dangerous (doc we read) → that they endanger public health and welfare
Step 2: Next…
❖ Finding that greenhouse gas emissions from cars endangers public health and welfare- do we have to
establish a national ambient air act?
❖ Mass v EPA
➢ Greenhouse gas has to be regulated by EPA or tell us a better reason as to why you are
refusing to regulate
➢ See if CO2 fits under the definition of air pollutant of EPA- yes it does
❖ Two part test
➢ The Endangerment and Cause test
■ Finds that yes, it does harm public health and welfare

Step 3: NRDC v Train

❖
 ➢ Above is where you need to look if you are looking at setting standards
➢ Bolded language- heard that language in 202 (non-stationary sources)
➢ Here, 100 series is about stationary sources- (202 was about non-stationary sources)
➢ Can use chevron here
■ Chevron **cornerstone tool for statutory analysis Commented [15]: should always use the chevron two
● 1) If Congress’ intent is clear, that’s the end of the matter. step when analyzing a statutory interpretation problem
● 2) If not, (that is, the statute is silent/ambiguous in respect to the specific
issue, ask: is the Agency’s answer based on a permissible construction of the
statute? If so, defer to Agency.
◆ a. Permissible construction: reasonable/supported by facts (science,
e.g.) etc.

■ Look at language 108- was it clear?

● It wasn’t clear in the statute.. Go to step 2
◆ We know that greenhouse gases are a pollutant from mass v epa
● Does the EPA admin HAVE to regulate it under this section of the CAA?
◆ No, because …
◆ Yes, we have found greenhouse gases to be dangerous in cars- but
does it matter to the atmosphere is CO2 comes from cars or
smokestacks?

■ The supreme court told us in Mass is that greenhouse gases are a pollutant, we know
they are a pollutant from Mass v EPA
● We know that the admin must come up with a reason as to why not regulating
or needs to start regulating
● We know that she found them to be dangerous/a harm

Does the admin have to set a NAA standard for CO2?

❖

EPA’S TAILORING RULE – valid? Commented [16]: see handout

❖ 1) EPA asserts newfound authority to regulate millions of small sources – including retail stores,
offices, apartments, etc. – and to decide on an ongoing basis and without regard for thresholds
prescribed by Congress, and asserts authority on how many of those sources to regulate. Statute says
250, but EPA believes 250 would be impractical and economically crippling – so they “tailor” the
rule to ony regulate very large emitters
➢ a) Utility Air Regulatory Group v. EPA: An agency may not rewrite clear statutory terms to
suit its own sense of how the statute should operate
➢ b) 250 means 250. EPA wants to make thresholds work for their ghg inclusive interpretation
(like make 100,000 instead of 250 because ‘tailoring’ it to only stationary sources and of
those, only covers power plants, refineries, etc.’
 ❖ Plain language vs intent/purpose
❖ Plain language: it says 250 tons per year
❖ Intent: tailoring rule would, making it feasible, by saying 250 means 250 we are undermining the
purpose and object of the statute

_______________________________________________________________________________________
_______________________________________________________________________________________

Chapter 3: Endangered Species

A. Introduction to the Endangered Species Act Commented [17]: More developing forcing bc there is
over 1500 species listed under this statute, it has
forced us to think about how we develop in almost
❖ Seeks to protect species at risk of extinction every single instance we want to develop something
❖ Once listed, the species are entitled to a variety of protections, includes; Question of the statute: How much are we willing to
spend as a society to control public and private
➢ Prohibition on any federal agency action likely to jeopardize their continued existence development on behalf of non-human world around us?
(ESA can block large infrastructure projects like dams and highways that are built,
funded, or sponsored by federal agencies
➢ Prohibits anyone from “taking” listed endangered species, whether on public or
private land
❖ Major goal of ESA is the recovery of species to the point at which the protection of the ESA
is no longer necessary -- “to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved and to provide a
program for the conservation of such species

❖
 ❖

A. §4: “LISTING” REQUIREMENTS

❖ (a) GENERAL - The Secretary shall determine whether any species is an
endangered species or a threatened species because of any of the following factor:
➢ the present or threatened destruction, modification, or curtailment of its
habitat or range;
➢ overutilization for commercial, recreational, scientific, or educational
purposes;
➢ disease or predation;
➢ the inadequacy of existing regulatory mechanisms; or
➢ other natural or manmade factors affecting its continued existence

“Critical habitat” is defined as: (1) specific areas within the geographical area occupied by the species at
the time of listing, if they contain physical or biological features essential to conservation, and those
features may require special management considerations or protection; and (2) specific areas outside the
geographical area occupied by the species if the agency determines that the area itself is essential for
conservation. Economic factors considered in designation. Alteration of critical habitat triggers the
consultation requirement. Critical habitat must be designated concurrently or within one year of
decision to list the species.

❖ (4)(a)(3)(A) CRITICAL HABITAT - The Secretary, by regulation promulgated in

accordance with subsection (b) of this section and to the maximum extent prudent and
determinable
➢ shall, concurrently with making a determination under paragraph (1) that a
species is an endangered species or a threatened species, designate any habitat
of such species which is then considered to be critical habitat; and
➢ may, from time-to-time thereafter as appropriate, revise such designation

❖ (4)(b)(2) CRITICAL HABITAT: The Secretary shall designate critical habitat, and
make revisions thereto, under subsection (a)(3) on the basis of the best scientific data
available and after taking into consideration the economic impact, and any other
relevant impact, of specifying any particular area as critical habitat. The Secretary
may exclude any area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the critical habitat,
unless he determines, based on the best scientific and commercial data available, that
the failure to designate such area as critical habitat will result in the extinction of the
species concerned.
➢ Basis of Determinations: why best commercial data? For some species,
fishers (e.g.) have much better data than scientists do.
■ What counts as “best” scientific data? – biologist review, prefer
primary sources, etc... Agency decides what best is.
■ (4)(d): Is a species likely to be threatened? Secretary has discretion to
afford protections
Threatened: flexibility
Endangered: protections = absolute

B. §7: “CONSULTATION” REQUIREMENTS

Requires all federal agencies to consult with the appropriate wildlife agency to ensure that their
actions are not likely to jeopardize the continued existence of listed species or result in destruction
or adverse modification of critical habitat. Mandatory; failure to engage in consultation legally
enforceable.
❖ Section 7 requires that Federal agencies develop a conservation program for listed
species (i.e., Section 7(a)(1)) and that they avoid actions that will further harm
species and their critical habitat (i.e., Section 7(a)(2)). The section 7 consultation
process described here applies to the second requirement - Section 7(a)(2).
 Commented [18]: directs all Federal agencies to
insure that any action they authorize, fund, or carry-out
does not jeopardize the continued existence of an
endangered or threatened species or designated or
proposed critical habitat

C. §9: “TAKE” PROHIBITIONS

(Section 3 definition of “take”) “Take” is broadly defined to include any actions that harm the species,
including “habitat modification or degradation where it actually kills or injures wildlife by significantly
impairing essential behavior patterns, including breeding, feeding, or sheltering”

It is illegal to “take” a listed species without a permit under Sections 7 or 10. Seldom enforced against
private parties due to burden of proof issues—must show “actual injury” to listed species.

❖ 1) Applies to any person... definitely going to cause problems.

❖ 2) Applies to Endangered species, not threatened (unlike §7 – although usually FWS will make
rules for threatened species too)
❖ 3) DOES NOT APPLY TO PLANTS! Only Fish or Wildlife (§7 applies to plants too)
 ❖ 4) Take: harass, harm, purpose, hunt, etc.
➢ Harm: to cause hurt, damage, or injure (dictionary definition).
➢ Injury = habitat modification of animal.

D. §10: INCIDENTAL TAKE PERMITS AND HABITAT CONSERVATION PLANS

❖ Who needs Incidental Take Permit?
➢ Private (non-government) entities and individuals.
➢ Anyone whose otherwise-lawful activities will result in the “incidental take” of a listed
wildlife species needs an ITP

❖ FWS can help determine whether a proposed project/action will likely result in a “take” and if HCP
is needed
➢ Findings the Secretary must make:
■ That taking = incidental
■ Minimize and mitigate impacts
■ Ensure adequate funding
■ Taking won’t reduce likelihood of survival and recovery
■ Meet Secretary’s recommendations that might be additional

❖ Habitat Conservation Plans: ensure that species will be conserved and that their recovery will be
contributed to during an “incidental taking”.
➢ When you apply for an ITP, you’re required to submit a Habitat Conservation Plan that
includes above findings of ITP.
■ Can apply to both listed and non-listed species (including candidates and those
proposed for listing)
➢ One view: basically, a license to kill
➢ Other view: monitoring is hard and litigation is timely and costly – great alternative.
➢ Monitoring: Three types – Compliance, Effectiveness, Effects

1. permit holder is responsible. FWS reviews and coordinates with permit-holder, if any action is needed
(reactionary v. preventative)

E.§11(g): CITIZEN SUIT PROVISIONS

allows any citizen with standing to sue: any one (incl government) violating the ESA; Secretary for failure
to do what supposed to do

→ Once listed as endangered under §4, a species is granted protections of §7 (prohibiting federal
agency action jeopardy or critical habitat degradation) and §9 (prohibition against any person
“taking” a species), albeit with the escape clauses of §10

------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------

TVA v Hill (131)

 Section 7 of the Endangered Species Act requires federal agencies to insure that actions authorized,
funded, or carried out by them do not jeopardize the continued existence of an endangered species or
result in destruction or modification of the species’ habitat.

Facts:
● Wanted to stop the construction of a nearly completed dam
● Tennessee scientist discovered a previously-unknown species called the snail darter, living in the
waters affected by the project
● Pursuant to the Endangered Species Act (ESA), the Secretary of the Interior found that once the dam
and reservoir were operational, it would result in the “total destruction of the snail darter’s habitat.”
● The Secretary listed the snail darter on the endangered species list and declared that, under § 7 of the
ESA, all federal agencies were required to protect the snail darter’s critical habitat area.

● TVA argues that the ESA cannot reasonably be interpreted as applying to a federal project that was
well underway when Congress passed the statute.
○ The TVA claims that millions of dollars and substantial work hours have been devoted to
completion of the dam and reservoir and halting the project now would be unjust.
○ Although the TVA’s arguments are valid, an examination of the ESA’s legislative history
and structure of the law indicates beyond doubt that Congress intended endangered species to
be afforded the highest of priorities and that their value is “incalculable.”

Analysis:
❖ Plain Language:
➢ The word “action” in section 7
■ TVA argued the word does not apply to completed projects
● Supreme court says that interpretation is wrong, because action means action,
finishing and dam and/or operating a dam is an action
● Shall means shall
■ Argued: The language of § 7 is plain and makes no exception such as that urged by
petitioner whereby the Act would not apply to a project like Tellico that was well
under way when Congress passed the Act.

❖ Legislative History/amendments: Commented [19]: a. If different language previously

➢ They took out NEPA exceptions, if they debated about it and decided to take it out from the Congress must have explicitly considered challenging
that language
newer version, it was done on purpose, Congress really intended that certain language to be
taken out and other kept
 ➢ One version of the statue said the federal govt should in so far as is practicable emphasize
protection of the species … the final version takes out the “in so far is practicable”-->
congress deliberately did not want to have wishy-washy language

❖ Omission of language
❖ Applied: The pointed omission of the type of qualified language previously included in endangered
species legislation reveals a conscious congressional design to give endangered species priority over
the “primary missions” of federal agencies. Congress, moreover, foresaw that § 7 would on occasion
require agencies to alter ongoing projects in order to fulfill the Act's goals.
❖ Omission of “wherever practical” implying that practicality was not a concern. Commented [20]: this qualification was taken out of
❖ * Result: endangered species priority over the “primary missions” of federal agencies. current version

❖ “Repeal by implications are not favored”

➢ TVA argues: Continued funding for Tellico Dam means implied appeal
■ Court: No. Especially when appropriations
■ “every appropriations measure would be pregnant with prospects of altering substantive
Legislation...”

❖ Intent of congress determined through legislative history

➢ Applied: congress intended endangered species to afforded the highest of priorities.
➢ It is clear from the Act's legislative history that Congress intended to halt and reverse the
trend toward species extinction—whatever the cost, it is incalculable.
■ Result: protection of fish more important than dam.

------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------

Listing: Section 4
1. Listing Endangered and Threatened Species
❖ The first step in the statutory scheme of the ESA is the listing of endangered or threatened species
❖ In the listing of a species, Secretary may not consider economic impacts, must make the decision
solely on the basis of the best scientific and commercial data available
❖ (in the designation of critical habitat, which is made at the same time as the listing of the species, the
Secretary may consider other factors, including the economic impact, the impact on national
security, and any other relevant impact)

In RE Polar Bear and 4(d) Rule

❖ Endangered v Threatened Species
➢ Environmental group wants more protection for the bear, want it to be an endangered species
(not merely threatened)
➢ The oil groups don’t want it listed at all, believe that data suggests it is neither endangered or
threatened
➢ What consideration does secretary cite/consider to list this as a threatened species?
 ■ 1. Not all polar bears were being affected by ice melts- if going to list it wanted
to limit it to only part of the population → court said no
■ 2. Models, the prediction of what’s going to happen in the future, debate if the models
were right/correct. The models were an issue in this case bc there was some
inconsistency, but court said doesn’t matter, the models are generally in agreement
(step 2 of chevron, defer to what the agency says, agency has done enough science to
justify its finding)
● Given that the models were inconsistent, can use the ones that the agency
wanted
■ 3. Foreseeability- polar bear would become endangered within 45 years
● What does congress say about what foreseeable is? Nothing. So we are in the
world of Chevron (ambiguity, congress did not tell us what they meant about
foreseeable- step 1) - so the agency says that 45 years is fine to fit into
“foreseeable” future (defer to agency- step 2)- the agency has done their
research and has all the knowledge

➢ How can you list the species but say we are not going to do anything about climate change,
when climate change is endangering the habitat?
➢ Why do you think the secretary listed polar bear as threatened rather than endangered?
■ Normally all of the protections of endangered species are available to threatened
species, here secretary says that ESA is the wrong tool to regulate global climate
change
■ Environmentalists tried so hard to get polar bear listed because the hope was that if it
got listed it would prompt more action on climate change

What does a 4(d) rule do? Commented [21]: https://www.fws.gov/mountain-

❖ The intent of any 4(d) rule is to provide for the conservation of a threatened species by allowing prairie/factsheets/ESA%20SpecialRules%20Factsheet
_020714.pdf
regulatory flexibility under the ESA. A 4(d) rule allows the Service the flexibility to customize
prohibitions and regulate activities to provide for the conservation of threatened species, potentially
without involving all of the restrictions that apply to endangered species.
❖ The exact requirements depend on the species’ biology, conservation needs, and threats being
managed.
❖

Commented [22]: One of three things happen after the

secretary is petitioned to list
One of 5 factors apply and listing is warranted
Listing is not warranted
Warranted but precluded- the criteria for listing are met
using best data available but bc of budget constraints
or personnel constraints we cannot yet list them bc we
do not have the manpower to list them- essentially
creates a waiting list of species waiting to be listed

❖
 2. Critical Habitat
❖ What happens after a listing? The listing of a species can be understood as the “trigger” of
the ESA
❖ Secretary must determine a species’ critical habitat at the time of its listing

❖ 16 USC section 1533(a)(3)(A)

➢ The secretary must determine a species’ critical habitat at the time of its listing
➢ The Act defines critical habitat as:
■ (1) specific areas within the geographical area occupied by the species at the time of
listing, if they contain physical or biological features essential to conservation, and
those features may require special management considerations or protection; and
■ (2) specific areas outside the geographical area occupied by the species if the agency
determines that the area itself is essential for conservation. Economic factors
 considered in designation. Alteration of critical habitat triggers the consultation
requirement.
■ Secretary may choose not to designate an area as critical habitat if she determines that
the benefits of such exclusion outweighs the benefits
➢ 16 USC section 1533 (b)(6)(C)
■ A final regulation designating critical habitat of an endangered species or a threatened
species shall be published concurrently with the final regulation implementing the
determination that such species is endangered or threatened, unless the Secretary
deems that—
● (i) it is essential to the conservation of such species that the regulation
implementing such determination be promptly published; or
● (ii) critical habitat of such species is not then determinable, in which case
the Secretary, with respect to the proposed regulation to designate such
habitat, may extend the one-year period specified in subparagraph (A) by
not more than one additional year, but not later than the close of such
additional year the Secretary must publish a final regulation, based on such
data as may be available at that time, designating, to the maximum extent
prudent, such habitat.

❖ The initial determination of what areas constitute critical habitat is made on the basis of
➢ The best scientific data available
■ This requires identifying geographic areas containing the physical and biological
features considered to be essential to the conservation of the species
➢ Consider the probable economic or other impacts on human activities resulting from the
critical habitat designation
➢ May exclude any area from critical habitat if she determines that the benefits of such
exclusion outweigh the conservation benefits, unless to do so would result in the extinction
of the species
➢ When critical habitat is not determinable at the time of the final listing rule, the Secretary is
authorized up to twelve additional months to complete the designation
■ Amendments emphasize that designation is to occur at the earliest possible time, not
to exceed 12 months after publication of the final listing rule
■ Amendments states that the Secretary must justify listing a species without
designating critical habitat to support it
■ The legislative history leaves little room for doubt regarding the intent of Congress-
the designation of critical habitat is to coincide with the final listing decision absent
extraordinary circumstances

Biology v. Economy...
● Biological argument: If data shows this species needs this habitat, ESA requires the habitat listing
● Economic argument: “warranted but precluded” – sometimes we don’t have money to do that.
○ §4(b)(2): Critical habitat designation allows economic considerations. Congress
specifies you can if you want to...
→ Not so for listing! Just habitat designation.
 ● Both side are going to argue the best data wasn’t used. Data is interpreted – it
doesn’t necessarily speak for itself.

● Congress doesn’t tell us what counts as “best” – we just don’t know

everything there is to know about ecology of a species, and that works both
ways.

Northern Spotted Owl v. Hodel

❖ FWS biologists: harvesting trees will lead to this owl’s extinction; peer reviews agree – listing
warranted.
o Court’s Chevron deference: court will reject conclusions without sufficient data to back it up. Will not
defer to Agency’s decision without them explaining their action.
● The Service has failed to provide its own or other
expert analysis supporting its conclusions.
Such analysis is necessary to establish a rational
connection between the evidence presented and the Service's
decision. Accordingly, the United States
Fish and Wildlife Service's decision not to
list at this time the northern spotted owl as endangered
or threatened under the Endangered Species Act was
arbitrary and capricious and contrary to law.
●

Northern Spotted Owl v. Lujan

❖ Secretary of interior Lujan is being sued by Defenders of Wildlife. NSO has been listed as
endangered, and now habitat has to be determined. NSO wins – Chevron analysis showed the statute
was clear here, and was no need to defer to Agency. Holding: Secretary abused discretion.

o RULE: §4(a): once a species is listed as “threatened,” Secretary of Interior has to determine
“critical habitat” (1) critical to its survival within the species’ range, (2) areas needing special
management outside of its range.
● Needs to be concurrent, unless not determinable – can file for extension, up to 12 months.
● 4(a)(3) placement: habitat designation placed in §4 “Listing” section à meant to be determined
at the same time.
Facts:
● § Πs: USFS cuts down trees for logging, and it’s threatening the owl’s habitat. Want critical habitat
designation for owl.
● § ∆s: we didn’t designate because “not determinable” but didn’t give explanation, and doesn’t think
he’s required to. Didn’t file for extension (even though required to)
● § Πs: need to give reason for non-designation of critical habitat. Plus, clearly determinable because
old-growth forest = NSO home.

o Leg history: “in no event may Sec delay.” NSO is most studied species in ESA History, of course its
habitat is determinable.
Meaning of “Prudence”: when is it prudent NOT to designate critical habitat? → only if in best interest of
the species. Even if NOT prudent, need to give reasons why! (which Sec didn’t do)
● The court rejected the argument that section 4 authorizes an automatic extension of time merely
upon finding that the critical habitat is not presently “determinable”, even where no effort has been
made to secure the info necessary to make the designation
○ To relieve the secretary of any affirmative info gathering responsibilities would
essentially nullify Congress’ charge that the species listing and habitat designation occur
concurrently

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CONSULTATION: Section 7
Requires all federal agencies to consult with the appropriate wildlife agency to ensure that their actions are
not likely to jeopardize the continued existence of listed species or result in destruction or adverse
modification of critical habitat. Mandatory; failure to engage in consultation legally enforceable.

Commented [23]: "is not likely to jeopardize the

continued existence of any endangered species or
threatened species

Thomas v Peterson (164)

A plaintiff’s burden in establishing a procedural violation of the Endangered Species Act is to show that the
circumstances triggering the procedural requirement exist and that the required procedures have not been
followed.

Facts
● Harold Thomas and other landowners, ranchers, miners, and conservation and recreation
organizations (plaintiffs) filed suit in federal court against R. Max Peterson, in his official capacity
as Chief Forester of the U.S. Forest Service (USFS), and others (defendants) to enjoin the
construction of a gravel road to be used for harvesting and selling timber in the “Jersey Jack” area of
the Nez Perce National Forest in Idaho. Plaintiffs claimed defendants improperly approved the road
and timber sales without first preparing an Environmental Impact Statement (EIS) required by the
National Environmental Policy Act (NEPA). Plaintiffs also alleged that USFS failed to consider
 what impact the construction and timber harvesting protection would have on the Rocky Mountain
Gray Wolf pursuant to the Endangered Species Act (ESA). The district court granted summary
judgment in favor of defendants. Plaintiffs appealed.

Holding
● Under the ESA, before a federal agency may take an action, the agency must ask FWS whether an
endangered species might be present in the area in which the agency proposes to act.
● If FWS determines, or if the agency already knows, that the proposed action is in an area in which an
endangered species might be present, the agency must prepare a biological assessment to determine
whether the proposed action is likely to affect the species.
● If the assessment reveals that the proposed action is likely to affect the species, the agency must
consult formally with FWS so that FWS can determine whether the proposed action will harm the
species or its habitat.
● These procedural requirements in the ESA are necessary to ensure that federal agencies comply with
all of the ESA’s substantive requirements. If the procedural requirements are not followed, there is
no way to know whether the substantive requirements will be followed.
● A plaintiff’s burden in establishing a procedural violation of the ESA is to show that the
circumstances triggering the procedural requirement exist and that the required procedures have not
been followed. In this case, USFS was aware that the wolf might be present in the area of the
proposed road. This knowledge triggered the requirement for USFS to prepare a biological
assessment to determine whether the road was likely to affect the wolf.
● Because USFS did not prepare the required assessment, Thomas has met his burden of establishing
a procedural violation. Contrary to the holding of the district court, Thomas was not required to
demonstrate that the road would affect the wolf or its habitat in a way prohibited by the ESA.
● The burden of proof employed by the district court applies to alleged substantive violations of the
ESA, and does not apply to alleged procedural violations of the ESA. For these reasons, the
judgment of the district court is reversed.

Procedural violation: πs allege that Forest Service didn’t take any steps necessary to ensure compliance
with substantial provisions by federal agencies

❖ Step 1: Inquire of FWS: are there any potential species listed on ESA?
· If no, done à good to go. If yes…
❖ Step 2: Prepare biological assessment.
· What’s possibility of impact of proposal on species?
❖ Step 3: “Biological Opinion”
➢ Use scientific evidence, make new plan that proves some/no destruction.
➢ Federal Agency can’t jeopardize species or destroy their habitat
➢ Secretary must suggest alternatives that might mitigate damages

● Alternatives must be “reasonable and prudent” → every Agency has to think about doing things
different if actions might violate ESA

● §10 Incidental Taking Permit (ITP): for federal actions and agencies. Result of §7 Consultation
for Agency actions. Applies to private, non-federal entities who would otherwise be engaging in
 lawful action that incidentally/as an indirect consequence results in the taking of an endangered
species, and when the purpose of activity is NOT scientific research or enhancement of species.
○ As long as you don’t jeopardize the continued existence of the species.

○
o Forest service: argues that not feasible to enact critical habitat because wolves migrate, so their habitat is
always moving.
o Env Org: shouldn’t allow anything. A road is a road, still going to destroy or modify, and small actions
can still have important ripple effect. You allow one small area, who’s to say you won’t allow another
small area? Will add up and go against whole point of ESA.
o Jeopardize: the word OR is very important.
§ Environmentalists: anything that will destroy habitat OR endanger species... should “or” be read as “and”?
Env says yes, timber says no... “or” = “or”.

“Any action”: how attenuated does “action” have to be? (think: scope of liability.)
o What does “action” actually mean? Granting a permit? Signing K?
● What is the scope of environmental impacts do you have to access?
○ Whether permitting the building of the road + the actual cutting of the trees (this is always in
the consultation being argued- will try to say the consultation only needs to be about the
road, not the eventual cutting down of the trees)
● Oil and gas burned? Court said you cant just consutl the exploration phase, need to do a consultation
on when it is found
→ the scope of what the action is, how far out, how big of a scope do you have to consider the action to
be

Inter-Owl Competition
● Bard Owls: modification of habitat and reforestation efforts: range of owl has extended, made their
way from east coast to PNW because of tree planting in places where didn’t used to be. NSO is
eaten for dinner by these guys! FWS has plan to kill off these owls where NSO lives because NSO
is listed species... is that good? Is FWS required by law to do so?
○ Man-made problem, so not much of a choice... if had migrated naturally, then don’t hunt.
 ○ Raises the issue: habitats are not static. What is a critical habitat? How static does it have to
be? Where do we draw the line? Humans have played important part in that change...

If you are going to do statutory analysis on spotted and barred owl, where may you start? Commented [24]: when you hear the words
● Chevron deference permissible or required immediately think about
chevron defference
○ Was congress clear about action or inaction? If not, go to step 2
○ Defer to the agency
● 4(d) rule - analogize to polar bear case, forest is the critical habitat - just as it was not required for a
threatened species to regulate greenhouse gases, therefore not required to to kill an owl to regulate
another animal (precedent)
○ But note under the 4d rule of the polar bear the secretary carved out exceptions for polar
bears
● Incorporation almost by implication - even thought he specific terms of listing are not in consultation
it does say you cannot jeopardize its existence, can make the argument that the listing requirements
should be required/though of here

- GOD SQUAD: created in 1992. Arose out of Northwest Forest Plan, post-NSO v. Lujan (Sophie’s
presentation, 2/27). Members appointed by President (I think already in his/her cabinet?)
o Gives opportunity for creating an exemption if:
§ Get 5 members to vote for one
§ in public interest, regional v. national effect, alternatives, economic (come too far to go back, e.g. dam)
o Clinton Admin: created Forest Ecosystem Management Team (FEMAT), developed Forest Plan.
Established forest reserves à limits on logging and road building, program to survey and protect old growth.
o Bush Admin: weaked the plan to make some things optional
o Obama Admin: revised plan to establish critical habitat of owl (10mil acres)
o Note that that critical habitat can be re-examined... can be good (depends on Admin), seldom
happens.

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 The TAKE Prohibition: Section 9
Most controversial aspect of the statute- establishes the broad prohibition against “taking” endangered
species

Applies to any person subject to the jx of the United States (not just federal agencies like section 7 only
applies to federal agencies)
“Jx”- creates very broad application, including people overseas who may want to come here and harm
endangered species

Under section 3, take is defined as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or attempt to engage in any such conduct

Palila: Hawaii case. Sheep eating the grass, which is modifying habitat of Palila (animal). Q: By
allowing sheep, have they committed an impermissible take because of habitat modification? What does
harm mean? Congress did not define harm, so Dep’t of Interior did...
Palila 2: HI says “let’s reintroduce sheep again...” Court says no because impermissible take as per §9.
Palila 3: Sheep are dwindling, hunters want to hunt and reintroduce…

Harm → harm include significant habitat modification or degradation of the endangered species habitat

Enter...

Babbitt v Sweet Home (172)

The Secretary of the Interior possesses the authority pursuant to the Endangered Species Act to define the
term “harm” broadly to encompass direct injury or death to endangered animals and indirect actions
including the destruction of a species’ habitat and breeding grounds

Facts
● Sweet Home Chapter of Communities for a Great Oregon, an entity representing the interests of
families dependent upon the forest-products industry, small landowners, logging companies, and
others (plaintiffs) filed suit in federal district court against Bruce Babbitt, in his official capacity as
Secretary of the Interior (Secretary), the U.S. Fish and Wildlife Service, and others (defendants)
challenging the meaning of the term “harm” as defined in regulations promulgated pursuant
to the Endangered Species Act (ESA).
 ● Section 9 of the ESA makes it unlawful for a person to "take" a threatened or endangered species,
and the ESA in turn defined "taking" to mean, among other things, "harm."
● The Secretary promulgated a regulation defining the word "harm" in the prohibition on takings to
include significant habitat modification or degredation that actually kills or injures wildlife.
● The plaintiffs alleged that the application of the “harm” regulation to the red-cockaded
woodpecker, an endangered species, and the northern spotted owl, a threatened species, had injured
plaintiffs economically because they could not conduct logging activities where the animals
were located.
● The district court granted defendants’ motion for summary judgment and held the Secretary possessed the
authority to define “harm” as he wished. The court of appeals reversed, relying on a canon of statutory
construction that a word is defined by the words around it and finding that the words around "harm" in the
statute referred only to the application of direct force against the "taken" animal. The United States Supreme
Court granted certiorari.

“The Secretary, on the other hand, submits that section 9 prohibition on takings, which Congress defined
to include “harm”, places on respondents a duty to avoid harm that habitat alteration will cause the birds
unless respondents first obtain a permit pursuant to section 10.” (171)

● Definition of the word “take”? - the court here had to determine what does take mean? Direct harm
only? Does indirect harm count?
○ If encountering statute for first time ever and want to know what word means, look in the
definition section to see if Congress defined “take” Commented [25]: here, they provided that take
can/does include "harm" in its definition
■ 9th circuit affirms that take can mean harm, which can mean degrading the habitat of
endangered species
○ What is the court trying to figure out here?
■ Is it lawful to include significant habitat modification or degradation where it actually
kills or injuries
○ In this case we are on chevron step 2- congress was unclear of what harm is, agency has
issued an interpretation of harm- now we need to determine if that interpretation is proficient
■ Where do we start to figure out whether or not what “take” actually means and
whether “harm” includes habitat modification

● TOOLS: Where do we start in stat interpretation to see what “harm” means?

○ Tool 1: Plain Language
■ Court started in dictionary
● In dictionary, means “ to cause hurt or damage to: injure”
● Found it to be very broad, not necessary a direct injury, definition includes
indirect injury - does not include the word “directly” in it or suggest in any
way that only direct or willful actions = harm
● In the context of ESA, that definition naturally encompasses habitat
modification that results in actual injury or death to threatened/endangered
species
 ● Words surrounding the word harm- unless it was meant to encompass both
direct and indirect, the word would have no meaning that does not duplicate
the other words that surround it in the definition of “take”
○ Secretary said harm must have meaning separate from the other words
or why else would you have it because congress does not engage in
mere surplusage
■ Other argument is that they are all meant to convey the same idea

○
○ Scalia’s argument on what “take” means
■ To reduce the animals by killing or control- didn’t matter because the agency chose a
different way

○ Tool 2: Statutory Purpose

■ ESA supports the secretary’s decision to extend protection against activities that
cause the precise harms Congress enacted the statute to avoid
■ Quoted TVA v Hill→ “the Act is the most comprehensive legislation for the
preservation of endangered and threatened species ever enacted by any nation” --
“the plain intent of Congress in enacting this statute was to halt and reverse the
trend toward species extinction, whatever the cost
 ○ Tool 3: Look at Amendments Subsequent to Original Passage of Law
■ It didn’t work out, or they say that they made a mistake- so they made an amendment
and that amendment is important because it is more precise and deliberate
■ 1982 amendments- by amending the statute to allow for a take, congress is telling you
that take must mean habitat modification
■ “When Congress acts to amend a statute, we presume it intends its amendments
to have real and substantial effect” → Congress’s addition of the section 10 permit
provision supports the Secretary’s conclusion that activities not intended to harm
an endangered species, such as habitat modification, may constitute unlawful
takings under the ESA unless the Secretary permits them

Conclusion: the secretary’s interpretation is allowed Commented [26]: : πs want to log the forest, but
wolves live there. They therefore want “harm” to =
directly killing or injuring [the wolf]. Harm ≠ habitat
modification! ∆s want harm = habitat modification of
animal. Both definitions have merit, so we’re at
Chevron step 2. Latter definition wins.
o Plain language: Dictionary definition of harm = to
cause hurt, or damage, to injure. → habitat mod could
= injury.
• “Harm” does not include the word “directly” and
Congress doesn’t engage in surplusage... thus, harm
does mean something different than the other words
next to it in the OG “take” definition → word is
“character of its own, not to be submerged by its
association.”
• ∆s: words are defined by their association though,
and injure can imply “direct” injury, so why can’t harm
here not also = directly? Why is ‘harm’ now an outlier?
• Both arguments have merit... the Court thus defers
to the Secretary ∆.
Commented [27]: https://www.fws.gov/endangered/es
a-library/pdf/Guidance-on-When-to-Seek-an-Incidental-
Take-Permit.pdf

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Incidental Take Permits

 An incidental take permit is a permit issued under Section 10 of the United States Endangered Species
Act (ESA) to private, non-federal entities undertaking otherwise lawful projects that might result in the take
of an endangered or threatened species

Incidental take permits may be sought when a non-federal entity believes their otherwise lawful activities
may result in take of endangered or threatened animal species. A habitat conservation plan must accompany
an application for an incidental take permit. The habitat conservation plan associated with the permit
ensures that the effects of the authorized incidental take are adequately minimized and mitigated

Thus, permit holders can proceed with an activity, such as construction or other economic development, that
may result in the "incidental" taking of a listed species.
The 1982 amendment requires that permit applicants design, implement, and secure funding for a Habitat
Conservation Plan or "HCP" that minimizes and mitigates harm to the impacted species during the proposed
project. The HCP is a legally binding agreement between the Secretary of the Interior and the permit holder.
------------------------------------------------------------------------------------------------
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Habitat Conservation Plans

_______________________________________________________________________________________
_______________________________________________________________________________________

The National Environmental Policy Act

 Not a regulatory statute, not aimed at individuals or firms but instead at federal government agencies

Requires federal agencies to file environmental impact statements (EISs) for major federal actions
significantly affecting the human environment

❖
➢ Declares it to be the policy of the federal govt to “use all practicable means and measures
to create the conditions under which man and nature can exist in productive harmony

❖
➢ The Act also states that “each person should enjoy a healthful environment” (101c)

HEART OF EPA
 ❖
➢ Requires all agencies of the federal govt to include in every recommendation or report on
proposals for legislation and other major Federal actions significantly affecting the quality of
the human environment , a detailed statement by the responsible official on the
environmental impact of the proposed action and alternatives to the proposed action

❖ NEPA establishes the CEQ in the executive office

❖ CEQ advises the President in preparation for annual environmental reports
❖ CEQ is tasked with issuing regulations to assist with the implementation of NEPA
❖ CEQ contain detailed procedural requirements governing the entire EIS process
❖ CEQ regulations are entitled to substantial deference
❖ Provide guidance to agencies on how to perform their NEPA obligations

NEPA Process: Flow Chart

❖ Environmental Assessment (EA)
➢ EA is a concise public document that briefly provides sufficient evidence and analysis for
deciding whether to produce an EIS
➢ Also considers alternatives to the proposed action
❖ FONSI
➢ If, through the EA, they find no significant impact, and decides not to make an EIS→
need to make a FONSI available to the public
➢ Courts defer to FONSI determination unless the decision is “arbitrary or capricious”
❖ EIS
➢ If significant impact is found → prepare EIS
➢ EIS is needed only when a project is “major”, constitutes a “federal action”, and has a
“significant environmental impact”
 1. Threshold Requirements

Hanly 1 Commented [28]: the court remanded the agency's

Facts environmental assessment- the EA needed to include
❖ Π are residents, business owners, etc. of an area where a
factors relating to the "quality of life" for city residents-
including crime, congestion, and the availability of
proposed jail [MCC] will be built to replace another located 2- drugs
3 blocks away. Jail will be two nine-story buildings. π want to
enjoin ∆ from proceeding with construction until they comply
with NEPA §102(2)(C).

Procedural Posture:
❖ District Court denied injunction
❖ The General Service Administration considered "all of the
environmental factors relevant to the construction of the [jail]," and
that GSA's conclusion that the [jail]"will not have a significant adverse
impact on the environment was not arbitrary or capricious.”
Issue:
❖ Which federal agency is required to determine whether an
 environmental impact statement is necessary and whether one is necessary here?

Hanly II
 ● Is the creation of the jail going to significantly impact this neighborhood?
○ Looking at CEQ 1508.27:
❖ Conext: zoning, the city has already zoned the area for similar buildings/use
❖ Impact:
➢ Beneficial vs adverse impact
■ Crime, rehab centers- are these environmental impact?
➢ Public health and safety?
➢ Unique charactersitics to the area?

Environmental Justice?
❖ What is significant is going to be determined on the “context” of the locale- poorer neighborhoods = less
likely to be significant
❖ Might turn context on its head “this place is already full of dirt and crime one more won’t matter”--> context
may start to be looked at in the opposite way
Judge Friendly Dissent
❖ Thinks significant should be at the lower end
❖ This is the only section of NEPA where there is an actual meaning
❖ If something might be significant, do a study on it

Once an agency comes up with a finding of no significant impact, court will uphold it unless the agency
did not follow procedure, abused discretion, capricious, or otherwise not in accordance with law

Review of case:
 Commented [29]: Friendly- stop wasting time on EA's
and put that energy in just creating an EIS already

2. Scope and Timing of the EIS

Kleppe
Section 102(2)(C) of the National Environmental Policy Act requires a federal agency to
include an environmental impact statement at the time of a recommendation or report on
proposals for legislation and other major Federal actions significantly affecting the quality
of the human environment.

Facts
❖ In an effort to protect their members’ enjoyment and use of the Northern Great Plains
Region (the Region), the Sierra Club and other environmental interest groups
(plaintiffs) filed suit in federal court against Thomas Kleppe, in his official capacity
as Secretary of the Department of Interior, and others (defendants) seeking injunctive
and declaratory relief to require federal agencies to develop and issue an
environmental impact statement (EIS) pursuant to the National Environmental Policy
 Act of 1969 (NEPA) on the entire Region prior to the agencies’ approving any coal-
related or mining operations. Section 102(2)(C) of NEPA required all agencies to
include an EIS, “in every recommendation or report on proposals for legislation and
other major Federal actions” significantly affecting the quality of the human
environment. 42 U.S.C. § 4332(2)(C). The district court concluded that plaintiffs had
failed to sufficiently show that the defendants had either (1) proposals for legislation
or (2) major Federal actions pending and granted summary judgment in favor of
defendants. Plaintiffs appealed. The court of appeals reversed and held that a regional
plan or program was “contemplated” requiring an EIS under the statute. The U.S.
Supreme Court granted certiorari to review.

Holding
❖ the record clearly indicates that defendants currently have no proposals for
legislation or proposals for major Federal action in the Region requiring issuance of
an EIS under NEPA. Even if the record justified that a regional program was
“contemplated” by defendants as the court of appeals concluded, such contemplation
by itself is insufficient to warrant an EIS.
❖ Nevertheless, the court of appeals incorrectly found that an EIS was necessary at
some point prior to the formal recommendation or report on a proposal. Section
102(2)(C) clearly provides that the appropriate moment at which an agency must have
a formal EIS prepared is at the time it makes a recommendation or report, not
beforehand.
❖ A court has no authority to depart from the statutory language and to determine for
itself the time during the proposal process at which an EIS should be prepared.

Class Notes:

● District court no evidence in the record that there is no plans for the great plains region
● Appellate court said the regional plan was “contemplated” so it did indeed require and EIS plan
○ Problem is that if you start too early, you are going to invest a lot of energy making and EIS
If you are an agency you don’t want to do this
● If you do it too late, will be too late for input bc it wouldn’t make a difference→
● So you need to balance and find the perfect time between the 2 extremes to do EIS

● When is the timing appropriate?

● What sierra club have to do to prevail here?
○ Strd of review they are going to have to meet? Arbitrary and capricious strd (chevron deff)
● The appellate court said we don’t know what a proposal is- so here is a way forward for us:
○ They come up with a 4 part test
● The crt here says you can’t just make up your own steps/add steps to the statute
● Why do they say the govt is right?
○ There is no evidence in the record of any action or proposal
Marsh v Oregon Natural Resources
Pursuant to the National Environmental Policy Act, a federal agency must prepare a
supplemental Environmental Impact Statement if there are new, significant circumstances
or information relevant to the environmental concerns bearing on the proposed major
federal action.

Facts
● The Corps issued a “Final Environmental Impact Statement Supplement No. 1”
(FEISS) in 1980 and proceeded with construction of the dam in 1982 despite two
memoranda released by the Oregon Department of Fish and Wildlife and the U.S.
Soil Conservation Service indicating the project would have greater adverse impacts
on the environment than previously believed. Plaintiffs argued that the Corps violated
NEPA by failing to prepare a second supplemental EIS in response to the information
contained in the two memoranda.

Analysis
● a federal agency is not required to prepare a supplemental EIS each and every time
new information comes to light which may impact the proposed federal action in
some manner.
○ Such a requirement would prohibit the project from ever coming to fruition.
Instead, NEPA requires federal agencies to take a “hard look” at the
environmental effects of planned action, even after an EIS has been prepared,
when “significant” circumstances or information relevant to the environmental
concerns relevant to the proposed action arises.
● Here, the Corps reviewed the two memoranda provided by the state and federal
agencies and, using its scientific and technical expertise, concluded it was not
“significant” to the point of requiring issuance of a supplemental EIS. A federal court
will defer to an agency’s more qualified determination if it does not appear to be
arbitrary or capricious.
● For a supplemental report what is the srtd of review?
○ Crt looked at whether this is a q of law or of fact? (reviewing agency interpretation of the law
or of the facts, here they found it was factual)
■ Why does it matter? Bc it determines whether they should be arguing about sig or
about the facts
○ Why different strd of review if its a question of fact vs law- bc judges are experts on law and
agencies are experts on facts

● Standard of review (slide 6) Commented [30]: if facts, overrule only if “arbitrary,

● If the question is “what does sig mean” then it is a q of law capricious, an abuse of discretion”If law, overrule if
“unreasonable”
Commented [31]: (if they had decided it was a q of
law, they would go through chevron- would look at
CEQ regulations and use those as law, apply them to
the facts)
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CEQ Regulations