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Updates to Environmental Law in Context: Cases and Materials, 4th by Robin Kundis Craig

Introduction | Chapter 1 | Chapter 2 | Chapter 3 | Chapter 4 | Chapter 5 | Chapter 6





In The Introduction


UPDATES TO INTRODUCTION FOR THE THIRD EDITION:


NOTE for page 8:: The text will now note that federal agencies increasingly allow electronic submission of comments in notice-and-comment rulemaking.


INSERT new paragraph at the top of page 17, before the last paragraph before subpart G;

In recognition of the 20th anniversary of this Executive Order, the EPA is pursuing "Plan EJ 2014." The goals of this plan are: (1) "Protect health in communities overburdens by pollution"; (2) "Empower communities to take action to improve their heath and environment"; and (3) "Establish partnerships with local, state, tribal, and federal organizations to achieve healthy and sustainable communities." EPA, Environmental Justice: Plan EJ 2014, http://www.epa.gov/environmentaljustice/plan-ej/index.html. The plan includes development of legal tools to effectuate environmental justice.


INSERT at the end of the pentultimate paragraph on page 17:Most recently, President Obama affirmed the role of cost-benefit analysis in federal regulation. Improving Federal Regulation and Regulatory Review, Exec. Order No. 13,563, 76 Fed. Reg. 3821 (Jan. 18, 2011).


INSERT new paragraph at the end of page 20:

The OMB's latest cost-benefit report on federal regulations appeared in June 2011. OMB, Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities (June 2011). Notably, for all federal regulations from October 1, 2000, to September 30, 2010, "the air pollution rules from the Environmental Protection Agency (EPA) produced 62 to 84 percent of the benefits and 46 to 53 percent of the costs." Id. at 3. In total, the EPA's 32 major rules during this period imposed $23.3 to $28.5 billion in costs (in 2001 dollars) to achieve $81.8 to $550.7 billion in benefits, id. at 13 table 1-1, again suggesting that environmental regulation provides net benefits to the United States. Among EPA programs, moreover, air regulations produced the greatest ratio of benefits to costs, followed by water regulations. Id. at 15 table 1-2.


INSERT on page 27 of the text at the end of subpart H, "Risk Assessment," and immediately BEFORE subpart I, "Scientific and Technological Developments":


On the subject of overprotection, Thomas McGarity has noted that "[i]n the Benzene Case (Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980)), the U.S. Supreme Court suggested that a one-in-one-billion chance of developing cancer was not a significant risk, but that a one-in-one-thousand chance of dying was. Id. at 655. However, the Court did not consider exposure rates when talking about risk." Thomas O. McGarity, "The Story of the Benzene Case," in Richard J. Lazarus & Oliver A. Houck, eds., Environmental Law Stories 141, 164 (Foundation Press 2005). Professor McGarity credits the Benzene Case with making quantitative risk assessment a routine part of environmental law. Id. at 165-69.

REVISIONS respecting the Data Quality Act at the top of page 28: The Third Edition will now note that the Data Quality Act is also known as the Information Quality Act. Moreover, it corrects the dates and citations for the Final Guidelines, which appeared in January 2002 at 67 Fed. Reg. 369 (Jan. 3, 2002). Finally, the Third Edition will add a new concluding sentence to the first paragraph on page 28: "Nevertheless, litigation decisions involving the Act remain limited--fewer than 30 from federal courts as of June 2011."







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In Chapter 1


UPDATES TO CHAPTER 1 FOR THE THIRD EDITION:


p. 38, at the beginning of “A. Triggering RCRA: The Definition of ‘Solid Waste’”: By way of background, Thomas W. Merrill has noted that “in the early 1980s, . . . the municipal garbage disposal industry began to undergo a major transformation. The driving force behind this transformation was a shift in public attitudes about wastes buried in the ground.” Thomas W. Merrill, “The Story of SWANCC: Federalism and the Politics of Locally Unwanted Land Uses,” in Richard J. Lazarus & Oliver A. Houck, Environmental Law Stories 283, 284 (Foundation Press 2005). RCRA, as we will see, places special emphasis on reducing land disposal of wastes.

p. 42, Note 4: Environmental Law and Federal Court Procedures. END OF NOTE: Nevertheless, when the U.S. Supreme Court addressed the issue of a preliminary injunction in a lawsuit involving the National Environmental Policy Act (NEPA) on November 12, 2008, it emphasized that "[a] preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008).

p. 47, Note 3: Environmental Law and the Military.
NEW PARAGRAPH, END OF NOTE 3 (MS-Word)


pp. 58-59, Note 9: New "Solid Waste" Regulations
NEW NOTE 9 (MS-Word)


p. 73, NEW NOTES:
NEW NOTES 5, 6, and 7 (MS-Word)


p. 80, NEW NOTE:
NEW NOTE 3 (MS-Word)


p. 95, NEW NOTES:
NEW NOTES 5 and 6 (MS-Word)


pp. 100-108, REPLACEMENT TEXT: Replace In re Ash Grove Cement Company
NEW DISCUSSION OF ENVIRONMENTAL JUSTICE and PLAN EJ 2014 (MS-Word)


p. 110: INFORMATION UPDATE. The EPA has continued to increase civil penalty maximums to account for inflation. Through January 12, 2009, maximum penalties for most statutes were increased to $32,500. After January 12, 2009, those maximums increased to $37,500. Environmental Protection Agency, Civil Monetary Penalty Inflation Adjustment Rule, 74 Fed. Reg. 626, 627-28 (Jan. 7, 2009).

p. 122, end of Note 8: INFORMATION UPDATE. In 2010, the U.S. Court of Appeals for the First Circuit held that the Federal Sentencing Guidelines do not apply to fines imposed on a corporation pursuant to RCRA; instead, district courts should follow the statute itself. United States v. Southern Union Co., 630 F.3d 17, 39 (1st Cir. 2010). Nevertheless, district courts continue to rely on the Federal Sentencing Guidelines. See, e.g., United States v. Mancuso, 2011 WL 2580228 (2d Cir. 2011).

p. 132, NEW NOTE:
NEW NOTE 6 (MS-Word)


p. 139, NEW NOTE:
NEW NOTE 1 (MS-Word)


p. 140, end of renumbered Note 6 (former Note 5): INFORMATION UPDATE. For a recent, thorough review of this issue that nevertheless failed to choose between state and national law, see New York v. National Services Industries, Inc., 460 F.3d 201, 206-09 (2d Cir.2006).

p. 148, NEW NOTE:
NEW NOTE 6 (MS-Word)


p. 160, NEW NOTE:
NEW INSERTED NOTE 5 (MS-Word)


pp. 162-173, REPLACEMENT TEXT: Replace United States v. Shell Oil Company
NEW CASE: Burlington Northern on Arranger Liability (MS-Word)


pp. 188-195, REPLACEMENT TEXT: Replace Public Service Company of Colorado v. Gates Rubber Co.
NEW Subpart b with Cooper Industries v. Aviall Services and Atlantic Research (MS-Word)


pp. 201-205, REPLACEMENT TEXT: Replace beginning of Part E and United States v. Alcan Aluminum
NEW Approach to Part E with Burlington Northern on Joint & Several Liability (MS-Word)


pp. 216-222, SECTION ELIMINATED: SECTION F IS NOW ELIMINATED
NEW Approach to Part E with Burlington Northern on Joint & Several Liability (MS-Word)


p. 223, end of renumbered Part F (former Part G): INFORMATION UPDATE. Through his 2011 proposed budget, President Obama would have reinstated the three Superfund excise taxes on: (1) crude oil and refined oil products; (2) certain hazardous chemicals; and (3) imported products that use those hazardous chemicals. As the Third Edition goes to press, however, Congress is unable to agree on a budget.

p. 224, REPLACEMENT CHART: Replace the existing chart
NEW CHART OF CERCLA PROGRESS (MS-Word)


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In Chapter 2


UPDATES TO CHAPTER 2 FOR THE THIRD EDITION:


p. 243, Note 1:
ADDING ONTO NOTE 1: On May 9, 2008, NOAA released its draft EIS. Comments on this draft EIS were due by August 15, 2008. As of late November 2011, NOAA had not release the final EIS. However, the gray whale's status was a prominent issue at the July 2011 meeting of the International Whaling Commission.
In the meantime, on September 8, 2007, five tribal members shot and killed a gray whale without NOAA's permission and apparently without tribal authorization. Federal prosecutors indicted the five on October 4, 2007, on misdemeanor counts, and the leader served five month in prison.

pp. 290, Categorical Exclusions:
ADDING ONTO NOTE 5: The CEQ's finalized guidance appeared on November 23, 2010, and is available at http://ceq.hss.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232011.pdf. According to the CEQ, "Categorical Exclusions are not exemptions or waivers of NEPA review; they are simply one type of NEPA review." CEQ, Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act 2 (Nov. 23, 2010).

Agencies continue to promulgate categorical exclusions in reliance on the CEQ's encouragement. As three recent examples, the National Oceanic and Atmospheric Administration (NOAA) promulgated categorical exclusions as part of its new regulations government the Environmental Review Process for Fishery Management Actions, see 73 Fed. Reg. 27,998 (May 14, 2008); (2) the National Endowment for the Arts published its Protocol for categorical exclusions, see 74 Fed. Reg. 21,011 (May 6, 2009); and the Department of Commerce has proposed comprehensive categorical exclusions, see 74 Fed. Reg. 24,782 (May 26, 2009).



p. 290, NEW NOTE:
NEW NOTE 6 (MS-Word)


p. 315, Note 1:
ADDING ONTO NOTE 1: The blast to notch the dam occurred on July 15, 2008, opening Elk Creek for both fish and recreational rafters and kayakers. Video of the blast and photos of the transformed river are available from WaterWatch of Oregon. Notching the Elk Creek Dam, http://waterwatch.org/programs/freeing-the-rogue-river/notching-the-elk-creek-dam.



p. 290, REPLACEMENT TEXT:
NEW PART IV, with Monsanto v. Geertson Seed (MS-Word)




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In Chapter 3


UPDATES TO CHAPTER 3 FOR THE THIRD EDITION:


p. 348: End of Note 1: The Politics and Economics of the Northern Spotted Owl Listing:

The Northern Spotted Owl also become embroiled in the allegations that former Deputy Assistant Secretary of the Interior Julie MacDonald interfered with the scientific and agency evaluations of species in 13 Endangered Species Act cases. Specifically, a lawsuit in the U.S. District Court for the District of Columbia (Carpenters Indistrial Council v. Salazar) alleged that Ms. MacDonald improperly interfered with the revisions of the spotted owl's recovery plan and critical habitat designation. On March 31, 2009, the U.S. Department of Justice and Interior Department asked the federal court to remand the recovery plan and critical habitat designation to the U.S. Fish & Wildlife Service for reconsideration.

p. 349, NEW NOTE:
NEW NOTE 6 (MS-Word)


pp. 361-366 Note 4, REPLACEMENT TEXT: Replace Natural Resources Defense Council v. U.S. Department of the Interior and Notes 1-4
NEW CASE ON CRITICAL HABITAT DESIGNATION (MS-Word)


p. 376: Before Sub-Section b:

The U.S. Fish & Wildlife Service and NMFS established most of the Section 7 consultation process through regulations. See 51 Fed. Reg. 19,926 (June 3, 1986). As a result, details of the consultation process can be altered by these agencies. A political battle ensued in December 2008, when the agencies, in the last days of President George W. Bush's Administration proposed new consultation regulations, to take effect on January 15, 2009 -- i.e., right before President Obama took office. On May 4, 2009, the Obama Administration withdrew the new consultation regulations, reinstating, with some minor amendments, the 1986 regulations. 74 Fed. Reg. 20,421 (May 4, 2009).

p. 386: New Note 7: The Discretionary Action Regulation: The ESA regulations currently state: "Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control." 50 C.F.R. 402.03.

p. 400: End of Note 1: The Rest of the Story: Eliminate last paragraph and replace with:
ADDITIONAL INFORMATION (MS-Word)


p. 402, NEW NOTE:
NEW NOTE 6 (MS-Word)


p. 461, NEW NOTE:
NEW NOTE 8 (MS-Word)


p. 488, ADDITIONAL INFORMATION:
NEW INFORMATION FOR END OF NOTE 2 (MS-Word)




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In Chapter 4


UPDATES TO CHAPTER 4 FOR THE THIRD EDITION:


p. 496: New Note
NEW NOTE 4 (MS-Word)

p. 515: Continuing Note 3 and New Notes
CONTINUING NOTE 3 and NEW NOTE 4 (MS-Word)

Historical Documents for Massachusetts v. EPA:

The following are links to many of the documents related to the Massachusetts v. EPA litigation, including an edited version of the D.C. Circuit's decision for students.

(1) Jonathan Cannon's 1998 Memorandum for the Clinton Administration's EPA, arguing that the EPA did have authority under the Clean Air Act to regulate carbon dioxide as an air pollution.
Download PDF

(2) The International Center for Technology Assessment's (ICTA's) 1999 Petition to the EPA, requesting that the EPA regulate carbon dioxide.
Download PDF

(3) The National Academy of Science's controversial 2001 report on climate change, on which both the EPA and the D.C. Circuit relied.
Download PDF

(4) Several States' February 2003 Intent to Sue Letter to the EPA, threatening litigation over carbon dioxide.
Download PDF

(5) Robert Fabricant's August 2003 Memorandum for the Bush Administration's EPA, denying that the EPA has authority to regulate carbon dioxide under the Clean Air Act.
Download PDF

(6) California's August 2003 Petition for Review of the Robert Fabricant memorandum.
Download PDF

(7) The EPA's September 2003 denial of ICTA's petition.
Download PDF

(8) An edited version of the D.C. Circuit's 2005 decision in Massachusetts v. EPA.
Download PDF

(9) The D.C. Circuit's denial of rehearing in Massachusetts v. EPA.
Download PDF

(10) The petition for certiorari.
Download PDF


p. 529:
NEW NAAQS CHART (MS-Word)


p. 534:
NEW NOTES 11 and 12 (MS-Word)


p. 552:
NEW NOTE 5 (MS-Word)


p. 573:
NEW NOTE 6 (MS-Word)


pp. 579-80:
REPLACEMENT END TEXT FOR NOTE 5 and NEW NOTE 6 (MS-Word)


p. 582:
ADDING TEXT TO PART II.B (MS-Word)


p. 595:
REPLACEMENT FOR FIGURE 4-14 (MS-Word)


p. 620:
NEW ENVIRONMENTAL JUSTICE CASE: In re Shell Gulf of Mexico (MS-Word)


p. 632:
NEW NOTES 8 and 9 (MS-Word)


pp. 646-655:
REPLACEMENT CASE: North Carolina v. EPA (MS-Word)


p. 666:
REPLACEMENT FOR FIGURE 4-21 (MS-Word)


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In Chapter 5


UPDATES TO CHAPTER 5 FOR THE THIRD EDITION:


p. 739: ADDITIONAL RESOURCES FOR THE RAPANOS CASE:

Breaking Down Rapanos (MS-Word Chart)
Breaking Down Rapanos (HTML Chart)


pp. 754-55: ADDITIONAL RESOURCE FOR NOTE 3: THE RAPANOS GUIDANCE:

As this Note recognizes, the EPA and Army Corps have issued guidance regarding how the Rapanos decision should apply. Those guidance documents are availabe here.

On July 5, 2006, the Army Corps issued the following interim guidance to the district office regarding the implementation of Rapanos:
Army Corps Reaction to Rapanos (PDF)

On June 5, 2007, the EPA and the Army Corps issued guidance regarding their Clean Water Act jurisdiction in light of the Rapanos decision. These documents include:
The Guidance Memorandum (PDF)
The Memorandum of Agreement (PDF)
Questions and Answers on the Effect of Rapanos (PDF)

p. 755:
EXTENDING NOTE 3 and NEW NOTE 4 (MS-Word)


p. 794:
NEW SUBSECTION G: Entergy Corp. v. Riverkeeper (MS-Word)


p. 805:
EXTENSION OF NOTE 6 (MS-Word)


p. 821:
NEW SUBSECTION 4: Coeur Alaska v. Alaska DEC (MS-Word)


p. 878:
NEW NOTE 3 (MS-Word)




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In Chapter 6


UPDATES TO CHAPTER 5 FOR THE THIRD EDITION:


p. 937:
NEW CASE: Summers v. Earth Island Institute (MS-Word)


p. 949:
NEW NOTE 7 (MS-Word)


p. 995:
NEW NOTE 3 (MS-Word)


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