>> Anna Price: Hello,
and welcome to this
Environmental Law
Research Webinar.
My name is Anna Price, and I
am a Senior Legal Reference
Librarian at the
Library of Congress.
I'm going to be speaking about
environmental law generally
as well as how you can
use online resources
to research this topic.
On this slide, you can see
the order of the program.
First, I'm going to
talk a little bit
about the federal
government and then jump
into federal environmental
laws which will take
up the bulk of the presentation.
Specifically, I'm going
to give an introduction
to four core pieces of
environmental legislation
as well as some executive
branch actions
and related federal court cases.
I'll then give some guidance
on how you can use
freely available resources
through the Law Library's
website, law.gov,
if you want to learn
more about the topic.
I will also note that this
presentation covers a lot
of information across
dozens of slides.
At the Law Library,
we're always happy
to share our materials
with researchers.
If you'd like to receive a copy
of this presentation's slides,
I encourage you to contact us
through our Ask a
Librarian service.
You can find a link to submit a
request by visiting our website,
law.gov, and then
selecting Ask a Librarian
on the left side
of the homepage.
And with that, let's
get started.
I'm going to speak a lot
about federal laws today,
so I thought it might be helpful
to first give a brief overview
of how federal laws are
created, what they're called,
and where to find them.
The U.S. Constitution is
the supreme law of the land
in the United States,
and laws created
by all government branches,
judicial, executive,
and legislative, must follow
its clauses and amendments.
The legislative branch through
the U.S. Congress drafts
legislation, which is --
which are called bills
as they work their way
through the legislative process.
In order to become law, bills
must be passed in identical form
in both chambers of Congress,
the House of Representatives
and the Senate, and then they
must be signed by the president.
If the president vetoes a bill,
it's returned to the chamber
of origin in Congress.
A presidential veto can
be overridden by Congress
if two-thirds of each
chamber vote to do so.
Legislation passed by Congress
can be found in resources
like the Statutes at
Large in the U.S. Code.
The federal judiciary
includes the U.S. Supreme Court
and all federal courts,
including trial courts,
which are also called
federal district courts,
bankruptcy courts, and
intermediate appellate courts
which are also called
circuit courts.
Apart from some limited
exceptions, a case must be heard
by a federal district
court and then appealed
to a federal appellate
or circuit court before
it can be appealed
to the U.S. Supreme Court, which
is the nation's highest court
and the court of last resort.
The U.S. Supreme Court can
select which cases it wishes
to decide, and only a small
number are granted review
each term.
Federal court cases
are published
in books called reporters.
U.S. Supreme Court opinions,
for example, are compiled
in a publication
called U.S. Reports.
Finally, we have federal
agencies which fall
under the jurisdiction
of the executive
branch or the president.
Agencies carry out and
enforce federal laws related
to a specific subject.
For example, the Securities
and Exchange Commission
oversees securities exchanges,
securities brokers and
dealers, investment advisors,
and mutual funds while
the Federal Communications
Commission regulates interstate
and international communications
through cable, radio,
television, satellite and wire.
You can find federal agency
laws, which are called rules
and regulations, in resources
including the Federal Register
and the Code of Federal
Regulations.
Because environmental laws
trigger the interaction
between the congressional
legislation
and executive agency
regulations, I'm going to go
into a little more detail about
how these branches work hand
in hand to enact and
enforce environmental laws.
The U.S. Congress and
its members in the House
and the Senate cannot be experts
on all the details
of all things.
So Congress will often pass a
law which is also called an act
or a statute that provides
a general directive,
and within that law it grants an
administrative body or agency,
what's called the
regulatory authority,
to issue detailed rules
and regulations designed
to implement that law.
For example, Congress passed
a law called the Clean Air Act
in which it declared
that the increase
in air pollution was posing
a danger to public health,
agriculture and property, and
they wanted to do something
to help reduce and
prevent air pollution.
So within the Clean Air Act,
they delegated the authority
to an executive branch agency,
in this case the U.S.
Environment Protection Agency,
to create the detailed
and specific rules
or regulations to
implement the law.
The result was the
creation of regulations
such as those related
to air quality standards
for air pollutant emissions.
So the initial law, the
Clean Air Act in this case,
is called the enabling
or authority statute
because it gave the executive
agency the authority to act.
There are largely two reasons
that Congress delegates
this authority to agencies.
First, an agency has particular
subject matter expertise
on a topic or issue
addressed by the statute.
For example, the Department
of Labor would be expected
to have extensive
knowledge about labor
and employment issues.
Second, Congress wants to
provide a mechanism for the law
to more easily adapt
and respond to change,
and federal regulations can
often be updated more quickly
than federal statutes.
So let's shift our focus
to environmental law.
I want to begin by explaining
how the context of events
in America during
the 1960s contributed
to federal environmental
legislation.
In the 1960s, environmental
emergencies were becoming front
and center in the news,
politics and popular culture.
In 1962, the White House hosted
a conference on conservation
which was the first
such conference held
since Teddy Roosevelt
was president.
President Kennedy
stated that the purpose
of the conference was to take
stock of the national estate
and form a basis for more
cooperation in conservation.
The panelists over the
two-day event included state
and federal government
officials from executive
and legislative branches.
They discussed topics
including urbanization,
promoting scientific research
related to conservation,
and rural water projects.
Also in 1962, Rachel Carson's
Silent Spring was published
which popularized the
idea of naturalism
and environmental
causes especially related
to pesticides.
This book also helped to
merge the public health
and conservation movements.
And I want to note that the
shift toward environmentalism
was not confined to the U.S.
There was a growing consensus
internationally about the need
for more assertive regulations
to combat air pollution and
more closely monitor consumer
products such as
pharmaceuticals.
Following this trend, the Clean
Air Act was passed in 1963,
and in 1964, the Wilderness Act
which established a framework
for the wilderness preservation
system was signed into law.
I'll go into greater detail
about the Clean Air Act
later in the presentation.
But shifting away from
legislative activities,
a milestone decision came down
from the federal court system
in 1965 which is
commonly referred
to as the Storm King
Mountain Decision.
Later during this
lecture, I'm going to speak
about important environmental
court decisions and cases
that have been litigated as
a result of the enactment
of several environmental
statutes.
However, I want to spend a
couple minutes discussing Storm
King Mountain because it
was a major turning point
in the U.S. court system that
created a new path for citizens
to sue developers,
governments, and other groups
in the name of the environment.
And a quick note, while
this decision is referred
to as the Storm King
Mountain Decision normally,
the case's actual name
is listed on this slide
which is Scenic Hudson
Preservation Conference
versus Federal Power Commission.
So Storm King Mountain
is located
in southern New York State
along the Hudson River.
Consolidated Edison announced
plans to build the word's --
the world's largest
pumping station in this area
which was approved by the
Federal Power Commission.
In response, local citizens
formed a group called the Scenic
Hudson Preservation Conference
and protested the Power
Commission's decision
which was appealed to the
Second Circuit Court of Appeals,
a federal appellate court
that reviews federal cases
from several states
including New York.
The Second Circuit
overturned the Federal Power
Commission's decision.
In reaching its holding,
it looked to a federal statute
called the Federal Water Power
Act of 1920.
That act created a
number of factors
that the Power Commission
was required to look
to before permitting
the building
of a power utility structure.
Among these factors were
benefits to interstate
and foreign commerce, potential
improvements to water utilities,
and the general public benefit,
including recreational purposes.
The phrase "recreational
purposes" was important
in the court's decision,
and the court focused on it
on reaching its holding.
Specifically, the court
concluded that the term
"recreational purposes" implied
ideas related to conservation,
aesthetics, maintaining
natural beauty,
and preserving historic sites.
It further stated
that, and I quote,
"in licensing this
project, it is the duty
of the Federal Power Commission
properly to weigh each factor."
And in this case, in the
court's view, this was not done,
so the case was remanded
to the federal district
court for further review.
You may be wondering why
is this decision important?
It's important because it was
the first environmental court
decision recognizing the rights
of individuals and citizens
to bring a lawsuit when they
had no economic interest
in a case's outcome, and
their injury was based only
on their enjoyment
of the aesthetics
in the natural beauty
of an environment.
Some commentators and
scholars have called this case
"the foundation of environmental
law as we know it today."
So getting back to the timeline,
following the Storm
King Mountain case,
environmental disasters were
frequently seen in the news.
For example, some of you may
have heard of the Cuyahoga River
in Ohio catching fire in 1969.
The Cuyahoga River runs along
the banks of Cleveland, Ohio,
which at the time was a
major manufacturing hub.
The river had become one of the
most polluted bodies of water
in the country with
debris and oil slicks
from industrial runoffs.
These were ignited when a
train drove by the river
and created a spark
on the tracks.
And as a side note, this wasn't
the first time the river had
caught fire.
Historians have documented about
13 river fires in this area
between 1868 in the 1960s.
Meanwhile, across the
country, in California,
an oil rig on the Santa
Barbara coast had an accident
and spilled between 80
and 100,000 barrels of oil
over the course of a few days
which caused serious damage
along the California coast.
At the time, this was
the largest oil spill
in American waters.
These example -- examples and
other situations created a call
to action for more environmental
protections and led
to the enactment of the bulk
of environmental legislation
but still on the books today,
some of which are
listed on this slide.
So now that you have
a little more legal
and historical context, I'm
going to run through some
of the major federal statutes
that Congress has
enacted related
to environmental
laws and protections.
And I'm going to start
by going a little bit
out of chronological
order and focus first
on the National Environmental
Policy Act or NEPA.
NEPA was enacted in 1969 and
went into effect in 1970.
It was one of the first
all-encompassing environmental
laws, and it continues to have
a profound impact on daily life
across the U.S. today.
NEPA was by no means the
first federal law related
to environmental protections.
The federal and state
governments had been enacting
piecemeal legislation on
various environmental topics
for some time.
But let's start with NEPA's
purpose which is on this slide
and can be found in
the statute itself.
As you can see, the
purpose is very broad,
and it includes goals such
as harmony between and people
in the environment,
promoting efforts
to eliminate environmental
damage, expanding knowledge
of the environment and ecology,
and setting up the Council
on Environmental Quality.
And I'll talk about the council
or CEQ a little bit later.
So what is NEPA intended to do?
To understand what NEPA
requires, I think it's helpful
to know what it does not do,
but let's start with
NEPA's mandates.
First, the statute is intended
to have an action-forcing
influence on decision making
that improves agency
decision-making procedures.
This means that NEPA makes
an agency think about
or take a hard look at the
potential environmental impacts
of its actions with the hope
that once it understands
those environmental impacts
or consequences, it will
choose an option that mitigates
or avoids negative
environmental impacts.
And it does this by
creating steps and processes
that an agency must follow
which can vary depending
on the significance
of the project.
And I'll get into details on
how this works in a little bit.
NEPA also requires that
the government inform
and involve the public
in agency decisions.
This requirement means
that there should not
be closed-door meetings
where environmental impacts
of agency decisions will
be discussed and debated.
The drafters of NEPA wanted the
public to understand the process
and results of government
decision making.
So while it's not intended to
compel a specific decision,
it is hoped that through
creating a rigorous process
for pre-action review
and public accountability
through an open government
policy,
environmental harms
will be limited.
So let's turn to the
right-hand column and talk
about what NEPA does not do.
It's not intended to compel
any particular decision.
NEPA does not set
pollution standards
or other quantitative
measurements
for pollution limits or studies.
Pollution limits are set by
other laws and regulations
and frequently overseen
at the local level.
It also does not change the
obligations and responsibilities
of agencies under other
substantive statutes.
As I briefly touched on earlier,
federal agencies can be thought
of as subject matter
experts, and they're charged
with enforcing federal
laws on specific topics.
For example, the Federal
Highways Administration,
which is part of the Department
of Transportation builds,
maintains, and preserves
the nation's highway system.
When NEPA interacts with the
role and work of the FHA,
it doesn't prevent this
agency from doing its job.
Rather, it creates an open
process for the agency to work
through to analyze the
environmental impacts
of its projects before
they begin.
It should come as no surprise
that NEPA has been interpreted
by the U.S. Supreme Court since
its enactment over 50 years ago.
I've included a couple
of these interpretations
because I think they do
a good job of summing
up NEPA's mandates
which are fairly concise
when reading the
statute's terms.
In one case, the
Supreme Court noted
that NEPA requires agencies
to reach a fully informed
and well considered decision.
In another case, the Supreme
Court interpreted NEPA's terms
as requiring agencies
to carefully consider
information concerning
significant environmental
impacts.
So what does NEPA require?
I have a flowchart here of
NEPA's procedural steps,
and I know it looks
overwhelming.
I'm not going to spend
a lot of time going
through this chart cell by cell.
Instead, I'll briefly cover the
different types of processes
and documents that are created
under NEPA's mandates
on different slides.
But I want to give
you an understanding
that even though NEPA's
language is succinct,
and its mandates can
be described generally,
how it works in practice
can be somewhat complicated.
NEPA requires process
and analysis.
As I mentioned previously,
the statute itself is pretty
simple and straightforward.
In fact, it's only about five
pages long which is fairly short
for major legislation.
In part, it provides that an
environmental impact statement
or EIS is required for "every
recommendation or report
on proposals for legislation
and other major federal actions
significantly affecting the
quality of the human
environment."
An EIS is usually a
multivolume series that can take
between one year and over a
decade to complete depending
on the complexity
of the project.
If you think back to the
flowchart, this is the process
that is undertaken if the
answer to the question
of whether a project or action
will have a significant impact
on the neck -- on the natural
environment is inserted
with yes.
And I've outlined on this slide
some of the questions or factors
that an EIS must address
including the action's
environmental impact,
adverse environmental effects,
alternatives, et cetera.
But even though NEPA provides
only significant environmental
projects requiring EIS,
the Council on Environmental
Quality, which was created
by NEPA, has promulgated
regulations requiring NEPA
review under additional
circumstances.
A quick background.
The Council on Environmental
Quality
or CEQ is an advisory office
under the executive office
of the president, and it
counsels the president
and develops policies
on climate change
and other environmental matters.
This office can create
rules and regulations which,
as you'll remember from the
brief civics lesson earlier,
are laws created by
the executive branch.
And the CEQ has created a
couple categories of actions
that can bypass an environmental
impact statement which can fall
under the pathway of either
a categorical exclusion
or an environmental assessment.
So let's start with talking
about categorical exclusions.
A common example is a
standard practice, for example,
of buying office supplies,
but it could also be applied
to more substantial actions.
And I want to clarify
that a categorical exclusion
is not an exemption from NEPA.
The CEQ requires an
environmental assessment
or an environmental
impact statement even
for minor projects under
extraordinary circumstances.
Also, an agency cannot just say
that something is a categorical
exclusion and thereby work
around needless requirements.
A categorical exclusion must be
an activity or action that falls
under a category
already established
through an agency process
that has identified actions
that don't require
an EA or an EIS.
You can read the law covering
this at Title 40 of the Code
of Federal Regulations,
Section 1501.4
which is linked on this slide.
So let's turn now to
environmental assessments.
These are concise documents that
provide evidence and analysis
for determining whether
to prepare an EIS.
This document aids in an
agency's compliance with NEPA
when no environmental impact
statement is necessary,
and the categorical
exclusion does not apply
to the agency's action.
Generally, an environmental
assessment includes a brief
description of the purpose and
need for the proposed action,
alternatives to the project,
the environmental impacts
of the proposed action and
alternatives, and a listing
of agencies and persons
consulted.
Additionally, federal
regulations provide
that this document must be
made available to the public.
However, NEPA does not
have specific requirements
for how this information
is published.
The methods that agency use
to fulfill this requirement
varies considerably.
Some just issue a document while
others allow for public comment
and a certain amount
of time to pass.
An environmental assessment
results in either a finding
of no significant impact,
also referred to as a FONSI,
which presents the reasons
why an action will not have a
significant effect on
the human environment,
or an environmental
impact statement
which requires a much lengthier
and more involved review.
So let's talk about
environmental impact statements.
As I mentioned previously,
these are triggered
when a proposed major federal
action significantly affects the
quality of the human
environment.
And I want to speak about
EISs because decisions related
to them are a focal point
of NEPA-based litigation.
But that still begs
the question,
how do we know when
an EIS required?
The Council on Environmental
Quality provides a list
of factors to consider
when evaluating whether an
agency may trigger an ERS -
EIS, pardon me.
These factors include the degree
to which a proposed action
affects public health
and safety, unique
characteristics on an area,
and impacts on local
culture, among others.
These factors are to be
considered with the context
and intensity of the action.
In terms of essential
elements of a NEPA analysis,
federal regulations lay out
all the information that has
to be listed in an
environmental impact statement.
But some major components
can be put into two buckets,
which are alternatives
and consequences,
and consequences are also
referred to as impacts.
Federal agencies are required
to consider the impacts
of their proposed
actions, alternatives
to the proposed action, and
then evaluate the environmental
impact of each alternative.
So the decision maker can make
a choice among the alternatives
or they can merge a hybrid
of two or more alternatives.
During this process, agencies
have to consider direct
and indirect impacts of the
action and alternatives.
And I'll note that until 2020,
environmental impact statements
had to also consider how
to consider direct
impacts, indirect impacts,
and cumulative impacts
of a project.
That rule has since
been modified,
and the amendments blended
the review process for direct
and indirect impacts and
eliminated the requirement
to review cumulative impacts.
And I'd like to give an
example of a project with direct
and indirect impacts
which hopefully will make it
a little easier to understand.
Direct impacts are caused
immediately by the action,
and they're pretty
easy to wrap your head
around in the abstract.
Let's say that a pending project
of an agency is building
a hydroelectric dam
across a river, and it's
triggered an environmental
impact statement under NEPA.
In terms of its direct impacts,
it's going to impact river flow,
it's going to harm
fish habitats,
it will adjust the scenery
which could impact recreation,
there will be soil erosion
and potential soil
stability issues, et cetera.
Indirect impacts, on the other
hand, are caused by the action
that may occur separate
in time or distance.
So building off the direct
impacts of dam construction
that I just listed, indirect
impacts could be things
like decreased property
values miles downriver due
to adjusted water flow.
And there's the image on
this slide that I've used is
of the Elwha River dam which
has since been removed but used
to be in Washington State.
In the Elwha dam's case,
it caused the salmon
population along the Elwha River
to decrease exponentially
which impacted not just
salmon populations,
but also wildlife populations
that rely on the fish
to survive, in addition
to Indian tribes
who had treaty fishing
rights along the Elwha River.
So hopefully this
helps illustrate direct
and indirect impacts that
should be addressed in an EIS.
And to wrap up discussion
-- our discussion on EISs,
when they are done,
something called a record
of decision or ROD is produced.
RODs document the
agency's conclusion
and state what their
decision is.
They all -- they identify
the alternatives considered,
they specify which
alternatives were considered
to be environmentally
preferable,
and they discussed factors that
were balanced by the agency
in making its decision.
The ROD states whether all
practical methods to avoid
or minimize environmental
harm or be --
were adopted, and
if not, why not,
and they include a description
of any application, enforcement,
and monitoring programs.
So statistically, it is somewhat
rare to have a NEPA case.
According to one resource I
consulted from the Council
on Environmental Quality,
there have been fewer
than 100 court cases
per year nationwide
over the last couple
decades on this topic,
even though the NEPA
review process applies
to between 50,000 and
70,000 actions each year.
And I've spoken at length
about NEPA's requirements,
but we have a lot of ground
to cover still regarding
other statutes.
So I've listed on this slide a
few recent cases involving NEPA
to help give an idea of
how it is interpreted today
over 50 years after
its original enactment.
Again, we can make these
slides available to you
with active links if
you'd like to learn more
about case law on this topic.
So now let's discuss the
Clean Air Act or CAA.
As with other pieces of
legislation that I've gone
over during the seminar,
this inspiration
but behind the Clean Air Act
came from various environmental,
and in this case air
quality emergencies
in the years preceding
the law's enactment.
In October 1948, a thick
cloud of air pollution formed
above the industrial town
of Donora, Pennsylvania.
The cloud lingered for five
days, killing 20 people
and causing sickness in 6000
of the town's 14,000 residents.
You can see a picture of Donora
from a few decades before
the event on this slide.
In 1952, over 3000 people
died in what became known
as London's "killer fog."
The smog was apparently so
thick that buses could not run
without guides walking ahead
of them carrying lanterns.
The Clean Air Act
was enacted in 1963,
but it has undergone several
amendments since that time.
As originally enacted, the
CAA established funding
for the study and
cleanup of air pollution.
But there was no
comprehensive federal response
to address air pollution
until Congress passed a much
stronger Clean Air Act in 1970.
That same year, Congress
created the EPA
and gave it the primary role
in carrying out the law.
Since 1970, the EPA has been
responsible for a variety
of Clean Air Act programs to
reduce air pollution nationwide.
In 1990, Congress revised and
expanded the Clean Air Act,
providing EPA even broader
authority to implement
and enforce regulations reducing
air pollutant emissions.
The 1990 amendments also
placed an increased emphasis
on more cost-effective
approaches
to reducing air pollution.
The modern form of the act
requires private actors,
state governments, and federal
agencies to work together
to develop and enforce key
technology-based standards
designed to address some
of America's most serious
air pollution problems.
So different levels
of government
in the U.S. have
varying responsibilities
under the Clean Air Act.
Looking first at the
federal government,
under the Clean Air
Act, the EPA sets limits
on certain air pollutants,
including setting limits
on how much of a pollutant
can be in the air anywhere
in the U.S. This helps
ensure basic health
and environmental protection
from air pollution
for all Americans.
The Clean Air Act also gives the
EPA authority to limit emissions
of air pollutants coming from
sources like chemical plants,
utilities, and steel mills.
Individual states or tribes
may have stronger air pollution
laws, but they may not have
weaker pollution limits
than those set by the EPA.
The EPA must approve state,
tribal, and local agency plans
for reducing air pollution.
If a plan does not meet
the necessary requirements,
the EPA can issue
sanctions against the state,
and if necessary, take
over enforcing the Clean
Air Act in that area.
The EPA also assists state,
tribal, and local agencies
by providing research, expert
studies, engineering designs,
and funding to support
clean air progress.
Since 1970, Congress and the EPA
have provided several billion
dollars to states, local
agencies, and tribal nations
to accomplish these goals.
And we're going to look at state
and local governments together.
These governments have
air pollution agencies
that take the lead in
carrying out the Clean Air Act.
They do this because
they're generally better able
than the federal government
to develop solutions
for pollution problems that
require a special understanding
of local industries,
geography, housing,
and travel patterns,
among other factors.
State, local, and tribal
governments also monitor air
quality, inspect facilities
under their jurisdictions,
and enforce the Clean Air Act.
States have to develop state
implementation plans also called
SIPs that outline how each
state will control air pollution
under the Clean Air Act.
A SIP is a collection of
the regulations, programs,
and policies that a state will
use to clean up polluted areas.
The states must involve
the public and industries
through hearings and
opportunities to comment
on the development
of each state plan.
Finally, let's look
at tribal nations.
In the 1990 amendments
to the Clean Air Act,
Congress recognized that Indian
tribes have the authority
to implement air
pollution control programs.
EPA's tribal authority
rule gives the ability
to develop air quality
management programs,
write rules to reduce air
pollution, and implement
and enforce their rules
in Indian country.
While state and local
agencies are responsible
for all Clean Air Act
requirements, tribes may develop
and implement only those
parts of the Clean Air Act
that are appropriate
for their lands.
So the Clean Air Act is
a pretty complex statute
with a lot of moving parts.
It's also the basis
for many programs
across the country aimed
at reducing air pollution
from a variety of sources, from
automobiles to chemical plants.
But because of time
limitations, I'm going to focus
on just a couple Clean
Air Act protocols,
which are called NAAQS and SIPs.
NAAQS, or National Ambient
Air Quality Standards,
apply to six common
air pollutants
which are often referred
to as criteria pollutants,
and they're found across the
U.S. These pollutants are
particle pollution, also
called particulate matter,
ground level ozone, carbon
monoxide, sulfur oxide,
nitrogen oxides, and lead.
These pollutants are
closely monitored
because of the harm they can
present to a person's health,
property, and the
overall environment.
And they're called
criteria air pollutants
because the EPA regulates them
by developing human health-based
or science-based guidelines
for setting permissible levels.
The standards for
criteria pollutants are put
into two buckets, primary
and secondary standards.
Primary standards apply
to the set of limits based
on human health while secondary
standards refer to the set
of limits intended to
prevent environmental
and property damage.
A geographic area with
air quality that's cleaner
than the primary standard is
called an attainment area,
while areas that do not meet
the primary standard are called
non-attainment areas.
When the EPA establishes
new NAAQS
or revises an existing standard
for a criteria air pollutant,
it sets in motion a series
of actions aimed at ensuring
that air quality throughout the
country meets those standards.
First, the EPA must
designate attainment
and non-attainment areas.
If you want to learn more
about non-attainment areas,
I recommend consulting
the EPA's Green Book
which includes detailed
information
about max designations
and attainment
in non-attainment areas.
You can also use this resource
to download reports, maps,
and other data on this topic.
On this slide, I've included
a screen capture of one
of the maps available
in the Green Book.
This one demonstrates
sulfur dioxides --
dioxide non-attainment
areas in the U.S.
as of September 30, 2021.
So once an area is
designated as non-attainment,
the Clean Air Act requires
states to develop a general plan
to attain and maintain
the air quality standards
in that geographic region.
These plans are known
as, as I mentioned,
state implementation
plans or SIPs.
So here's a schematic
or timeline
to give you a brief overview
of the SIP development process.
Within two years after
setting new NAAQS
or revising an existing
standard, the EPA,
after receiving input from
states and tribes, must identify
or designate attainment
and non-attainment areas.
Designations are based
on the most recent set
of air monitoring or modeling
data characterizing an area.
Within three years
after setting new NAAQS
or revising an existing
standard.
All states must submit
SIPs or SIP plan revisions
to show how they have all the
basic Air Quality Management
Program components in place to
implement new or revised NAAQS
as specified by the
Clean Air Act.
And these plans are often
called infrastructure SIPs
because they talk about
the infrastructure
for having the program in place.
Within 18 months
after designations,
each non-attainment area's SIP
must outline the strategies
and emissions control measures
that show how the area
will improve air quality
and meet the new
or revised NAAQS.
You'll notice that there
is a time range here.
Due dates for non-attainment
area SIPs are based
on the area designation date,
and they vary by pollutant
and area classification.
By law, SIPs must -- states must
develop SIPs with public input,
formally adopt SIPs into
state law, and submit SIPs
by the governor's
designee to the EPA.
After reviewing submitted SIPs,
the EPA proposes to approve
or disapprove all or
part of each plan.
The plan has an opportunity -
or the public has an opportunity
to comment on the
EPA's proposed action.
The EPA considers public input
before taking final action
on a state's plan.
If the EPA approves
all or part of a SIP,
those control measures are
enforceable in federal court.
If a state fails to
submit an approvable plan,
or if the EPA disapproves of
a plan, the EPA is required
to develop what's called a
federal implementation plan
or a FIP.
So here are a couple
of Supreme Court cases
that have addressed
the Clean Air Act.
I'll go over each
of them briefly.
Whitman discussed
the Clean Air Act
at Section 109a,
which covers NAAQS.
In 1997, Carol Browner, the
Administrator of the EPA,
revised the ozone and
particulate matter NAAQS.
These were challenged
in the Court of Appeals
for the District of
Columbia Circuit by industry
and environmental
groups in a number
of states on various grounds.
And they included an argument
that the Clean Air Act
was unconstitutional
because it delegated
legislative power to the EPA.
The Supreme Court found that
the Clean Air Act provision
requiring the EPA to
establish NAAQS was not an
unconstitutional delegation of
legislative power to the agency.
But in another way, this opinion
affirms the EPA's authority
to issue air quality standards.
Massachusetts v. the EPA was
a case involving pollutants
connected to global
warming, Massachusetts
and several other
states petitioned the EPA
to regulate emissions of
carbon dioxide and other gases
that contribute to global
warming from new motor vehicles.
Massachusetts argued
that the EPA was required
to regulate these greenhouse
gases under the Clean Air Act,
which states that Congress
must regulate any air pollutant
that can reasonably
be anticipated
to endanger public
health or welfare.
The EPA denied the petition,
arguing that the Clean Air Act
does not authorize the agency
to regulate greenhouse
gas emissions.
Even if it did, the EPA argued,
the agency had discretion
to defer a decision until
more research could be done
on the causes, extent, and
significance of climate change
and the potential
options for addressing it.
Massachusetts appealed
the denial of its petition
to the Court of Appeals
for the D.C. Circuit,
and a divided panel ruled
in favor of the EPA.
The Supreme Court
reversed the lower court.
Specifically the court
rejected the EPA's argument
that the Clean Air Act
was not meant to refer
to carbon emissions in the
section giving the EPA authority
to regulate air pollution
agents.
The act's definition of
air pollutant was written,
and these are the Supreme
Court's words, "with sweeping
and capacious language so that
it would not become obsolete."
However, the Supreme
Court did not rule
that the EPA was required to
monitor carbon dioxide emissions
or just generally monitor them.
So let's turn to
the Clean Water Act.
The Federal Water
Pollution Control Act
of 1948 was the first major U.S.
law to address water pollution.
Growing public awareness
and concern
for controlling water pollution
led to major amendments in 1972.
As amended in 1972, the
law became commonly known
as the Clean Water Act, or CWA.
The 1972 amendments
has many major effects.
For example, they
established the basic structure
for regulating pollutant
discharges into the waters
of the U.S. They gave
the EPA the authority
to implement pollution
control programs
such as setting standards
for industry.
They maintained existing
requirements
to set water quality standards
for all contaminants
in surface waters.
They made it unlawful
for any person
to discharge any pollutant from
what's called a point source
into navigable waters unless
a permit was first obtained
under the Clean Water
Act's provisions.
The amendments funded
the construction
of sewage treatment plants under
the Construction Grants Program,
and they -- it recognized
the need for planning
to address the critical
problems posed
by what's called
nonpoint source pollution.
As an aside, I know I used a
lot of industry jargon just now,
but I hope that by the time we
get through this set of slides,
you'll have a better
understanding of what terms
like point source
and nonpoint source
and navigable waters mean.
Over the years, many other
laws have changed parts
of the Clean Water Act.
Title One of the Great Lakes
Critical Programs Act of 1990,
for example, put
into place parts
of the Great Lakes Water
Quality Agreement of 1978
which was signed by
the U.S. and Canada,
in which the two nations agreed
to reduce certain toxic
pollutants in the Great Lakes.
That law required the EPA to
establish water quality criteria
for the Great Lakes,
addressing 29 toxic pollutants
with maximum levels that
are safe for humans,
wildlife, and aquatic life.
It also required the EPA to
help the states implement the
criteria on a specific schedule.
The Clean Water Act
makes it unlawful
to discharge any pollutant
from a point source
into navigable waters, as
I mentioned previously,
unless a permit is
first obtained.
So I just used a
couple specific terms,
point source and
navigable waters.
According to the statute, and
this is the law's language,
not mine, so bear with me.
A point source is any
discernible, confined,
and discreet conveyance
from which pollutants
are or may be discharged.
These conveyances can, to name
a few examples, include pipes,
ditches, channels,
tunnels, conduits or wells.
This term does not include
agricultural stormwater
discharges or return flows
from irrigated agriculture.
The term "navigable waters"
means the waters of the U.S.,
including its territorial seas,
and not to get ahead of myself,
but these terms will be
important in a couple slides
when I discuss a recent Supreme
Court case involving the Clean
Water Act.
The EPA's National Pollutant
Discharge Elimination System,
or NPDES, permit program
controls these discharges.
Individual homes
that are connected
to a municipal system
use a septic system
or do not have a service
discharge do not need a
NPDES permit.
Industrial minister -- municipal
and other facilities
must obtain permits
if their discharges go
directly to surface waters.
NPDES' permit program helps
address water pollution
by regulating point sources
that discharge pollutants
into the waters of the U.S.
The permit provides two levels
of control, technology-based
limits
and water quality-based limits.
Under the Clean Water Act,
the EPA authorizes the NPDES
permits program to state,
tribal, and territorial
governments, enabling them
to perform many of the
permitting, administrative,
and enforcement aspects
of the NPDES program.
In states authorized
to implement Clean
Water Act programs,
the EPA does retain
oversight responsibilities,
and currently 47 states and
one territory are authorized
to implement the NPDES program.
So a NPDES permit is typically
a license for a facility
to discharge a specified
amount of a pollutant
into a receiving water
under certain conditions.
Permits may also authorize
facilities to process,
incinerate, landfill, or
beneficially use sewage sludge.
The two basic types of NPDES
permits issued are individual
and general permits.
An individual permit is a
permit specifically tailored
to an individual facility.
Once a facility submits the
appropriate applications,
the permitting authority
develops a permit
for that particular
facility based
on the information contained
in the permit application.
So this will include
the type of activity,
the nature of the discharge,
and the receiving water
quality, for example.
The authority issues the
permit to the facility
for a specific amount of
time not to exceed five years
with the requirement the
facility reapply prior
to the permit's expiration date.
A general permit covers
a group of discharges
with similar qualities within
a given geographical location.
General permits may offer
a cost-effective option
for permitting agencies
because of the large number
of facilities that can be
covered under a single permit.
The NPDES administrative
procedures require
that the public be notified
and allowed to comment
on NPDES permit applications.
When the EPA authorizes a
state-issued NPDES permits,
the EPA requires that the
state provide the public
with the same access.
There are various methods used
to monitor NPDES
permit conditions.
The permit will require
the facility
to sample its discharges
and notify the EPA
and the state regulatory
agency of these results.
In addition, the permit
will require the facility
to notify the EPA and the
state regulatory agency
when the facility determines
it is not in compliance
with its permit requirements.
The EPA and state regulatory
agencies also will send
inspectors to companies in
order to determine if they're
in compliance with
the conditions imposed
under their permits.
Federal laws provide the EPA
and authorized state regulatory
agencies with various methods
of taking enforcement
actions against violators
of permit requirements.
For example, the EPA and state
regulatory agencies may issue
administrative orders
which require facilities
to correct violations and that
assess monetary penalties.
The law has also allowed EPA and
state agencies to pursue civil
and criminal actions that may
include mandatory injunctions
or penalties, as well as
jail sentences for people
who are found willfully
violating requirements
and endangering the
health and welfare
of the public or
the environment.
Equally important is how the
general public can enforce
permit conditions.
The facility-monitoring
reports are public documents
and the general public
can review them.
If any member of
the public finds
that a facility is
violating its NPDES permit,
that person can independently
start a legal action unless the
EPA or state regulatory
agency has already taken an
enforcement action.
So let's talk about a recent
case addressing the Clean Water
Act, which is County of Maui,
Hawaii versus Hawaii
Wildlife Fund,
and this case was
decided in 2020.
This case discusses the
interpretation of point sources
versus nonpoint sources
under the statute.
As I discussed, the Clean Water
Act requires NPDES permits
for the discharge of
pollutants to navigable waters
from point sources, which
the Clean Water Act defines
as discernible, confined,
and discreet conveyances.
In contrast, all other sources
of pollution are characterized
as nonpoint sources and are
controlled through the EPA
and other non-Clean
Water Act programs.
The Clean Water Act
also distinguishes
between groundwater
and navigable waters,
and navigable waters as
I mentioned are waters
of the U.S., but they're
generally exclusive
of groundwater.
So a little bit of background.
The County of Maui's Lahaina
Wastewater Reclamation facility
was constructed with EPA
funding in the 1970s.
It -- prior to this
lawsuit, and today --
it continues to treat
wastewater generated by homes
and businesses within
the western part of Maui,
and it injects treated
wastewater,
which is called effluent,
into underground
injection control wells.
This is a common method
used by municipalities
to dispose of effluent.
Before injection,
effluent is treated
to meet Hawaii's standards
for recycled water.
Some of the treated
effluent is used for resort
and golf course irrigation.
Upon injection, effluent
immediately mixes
with groundwater and then
disperses before eventually
migrating to the ocean.
Over 90% of the effluent
groundwater mixture
in this case enters the
ocean through a diffuse flow,
and it has no identifiable
entry point.
Reports from 1973, 1991, and
1994 indicated that both the EPA
and the Hawaii Department
of Health understood
that the wastewater from this
facility entered the ocean
after being distributed through
a point source to groundwater.
However, neither
agencies suggested
that this required
a NPDES permit.
So in other words,
the government actors,
in this case county, state and
federal, knew that the water
from this plant was
eventually making its way
to navigable waters, in this
case, the Pacific Ocean.
But they believed that because
it was first being discharged
through groundwater, it bypassed
the NPDES permit requirements.
So the question for the
court was whether the journey
that the water took
from the treatment plant
to the ocean met the
definition of a point source
under the statute, thereby
triggering a NPDES permit.
The federal district court ruled
that the county violated
the Clean Water Act
by discharging this effluent
through the groundwater
and into the ocean without
a NPDES permit as required
by the Clean Water Act, and
that the county had fair notice
of its violation.
The Court of Appeals for the
Ninth Circuit affirmed the
federal district court's
holding, but for --
but based on a different
analysis and applied
by the federal district court.
The Supreme Court then accepted
review of the case and was asked
to decide whether the Clean
Water Act requires a permit
when pollutants originate from
a point source but are conveyed
to navigable waters
by a nonpoint source
such as groundwater.
So in a six-three opinion,
the Supreme Court held
that the Clean Water
Act requires a permit
when there is a direct discharge
or the functional equivalent
of a direct discharge of
pollutants from a point source
into navigable waters.
The court described
a non-exhaustive list
of seven factors to consider
when deciding whether a
discharge is the functional
equivalent of a direct
discharge.
The most important factors
are time and distance
between the discharge and entry
into the navigable waters.
The court in this case did not
decide whether the facts here
satisfied its functional
equivalent test,
but instead vacated the
Ninth Circuit's judgment
and remanded the case for
application of the new test
by the lower court, the
federal district court.
So let's now turn to the
Endangered Species Act.
The -- or also referred
to as the ESA.
The general purpose of
the ESA is to conserve
and protect endangered
species and their habitats.
Turning to the ESA's
goals, the first
and most urgent goal is
preventing wildlife, both plants
and animals, from going extinct.
In the decades leading
up to passing the ESA,
Congress took note of
several species going extinct,
including the Carolina parakeet
in 1918 and the near extinction
of the American bison
among other examples.
And based on this,
Congress decided that we
as a nation had a
moral imperative
to protect the ecosystems within
our borders and prevent species
from being lost forever.
But it's not enough to prevent
extinctions which brings us
to goal number two of the act.
Congress also wanted
species to be recovered
so they could be returned
to their natural
environments rather
than having a small supply
of a species confined
in zoos or sanctuaries.
So another way to think about
it is Congress doesn't want a
species to be on
life support forever.
That means that one of the major
questions is how many species
can be recovered, and another
is how many will have to be
on the endangered list forever?
Which leads us to
our third goal.
Recovered plants and
animals need an ecosystem
in which they can flourish.
So a major part of the law is
making sure that endangered
and recovered wildlife
have an environment
that can sustain them.
And I also want to add that
the Endangered Species Act has
provisions relating
to international wildlife
conservation treaties,
and it solidifies the U.S.'s
participation in these treaties.
One of these is the Convention
on International Trade
in Endangered Species
of Wild Fauna and Flora
which is called CITES.
CITES is an international
trade agreement
that regulates the
import and export
of endangered plants
and animals.
So put another way,
the ESA protects plants
and animals both
domestically and abroad.
So let's start by talking
about who is responsible
for implementing these goals.
The statute gives the
primary responsibility
for enforcing these
matters to two agencies.
One is the Department
of Fish and Wildlife --
excuse me, the Fish and
Wildlife Service, which is part
of the Department
of the Interior.
Fish and Wildlife is
in part responsible
for the vast majority of all
listed endangered species.
Currently, there are about
1600 animals and plants listed
as threatened or endangered
that are under Fish
and Wildlife Service's
responsibility
in the U.S. The other agency
is the National Oceanic
and Atmospheric Administration
fisheries or NOAA, and they are
under the Department
of Commerce.
NOAA is responsible
for roughly 160 marine
and anatomist aquatic species.
And it's also important to keep
in mind that while NOAA and fish
and wildlife are responsible
for monitoring species
and enforcing key components
of the Endangered Species Act,
all federal agencies have
their role to play as well.
The law itself provides,
and I quote,
"All other federal agencies
shall utilize their authorities
in furtherance of the purposes
of this chapter by carrying
out programs for the
conservation of listed species."
This catch-all for federal
agencies is provided
for in the law because it
just simply isn't possible
for two agencies to do all the
work in protecting endangered
and threatened species.
So the Federal Aviation
Administration,
the Environmental Protection
Agency, and the Department
of Defense, for example, all
are supposed to do their part
within their powers to
protect these species.
Today, since its enactment,
approximately 35 species
have been confirmed
to have gone extinct.
As of a few days before this
recording was done in 2021,
23 species were newly
issued by the Fish
and Wildlife Service as extinct.
Meanwhile, 54 species
have been recovered,
and 56 species have
been downgraded
from endangered to threatened.
So here's a flowchart
that's somewhat similar
to the NEPA chart I showed
you on an earlier slide.
This chart explains
the big-picture steps
that the ESA provides
for, and we'll go
into a little more
detail on these steps
in the following slides.
So what does listing
a species mean?
A species can be listed if it
is endangered or threatened.
An endangered species
is one that is presently
in danger of extinction.
Roughly 70% of currently listed
species fall into this category.
A threatened species is one that
is likely to become endangered
in the foreseeable future.
And at this point, I should
note that when I mean species,
the definition of species in
the statute includes species,
subspecies, and distinct
population segments
of vertebrates.
So now we know what can
be listed, but let's talk
about how they're listed.
The listing process
almost always begins
with a petition from
a nonprofit.
The petition lists the
threats, population numbers,
and reasons why a species
should be protected.
After the submission, the Fish
and Wildlife Service has 90 days
to make an initial decision.
After those 90 days
have passed, the Fish
and Wildlife Service has
12 months to determine
if the listing is warranted.
During this period,
the service has
to consider five threat factors
in making its determination.
Those are habitat loss,
overuse, disease and predation,
inadequate regulations, and
the catch-all of other factors.
The decision on whether
to list of species
or whether it's warranted
must be based solely
on the best scientific and
commercial data available.
So there are three potential
outcomes at this point.
First, one outcome
is not warranted
which means the species will
not be listed as a threatened
or endangered species
under this statute.
When this decision made --
is made, the analysis ends.
Another potential outcome
is yes but can't proceed.
This means that the species
does not qualify as threatened
or endangered under the act,
but there are insufficient --
or excuse me -- does qualify
as threatened or endangered
under the act, but there
are insufficient funds
to address the species or
its habitat upon listing.
If there was not enough money
to continue with the next steps,
the species will become what's
called a candidate for listing.
Finally, if the species
qualifies,
and there is sufficient funding,
a determination will be made
that listing is warranted.
When this happens, there will
be a proposed listing made
available for public comment
and scientific peer review.
Based on the comments and
scientific peer review,
the proposed listing may be
withdrawn, leaving the species
in either the candidate
or unwarranted category.
After the comment
period has expired,
the species may be listed
which will be published
in something called
a final listing rule
in the Federal Register.
Once the species is listed,
it receives legal protection
under the Endangered
Species Act.
When a species is
listed under the act,
their critical habitat should
be listed simultaneously.
The critical habitat must have
the physical and/or biological
features essential for
conservation and may require --
requires special management
considerations for protection.
However, in the interest
of time, I won't go too
into the weeds on
critical habitats.
If you want to learn more,
I've linked a brief explainer
from the Fish and Wildlife
Service for you to review.
So I'm going to spend a little
time speaking about prohibitions
and authorizations
under the act.
A popular section of the
Endangered Species Act
where prohibitions can be
found is called Section 9.
This section is really the teeth
of the act because it identifies
and defines what cannot be done
to species once they're listed,
and the prohibitions are broad.
As you can see from the left
column, it includes major topics
like importing and exporting,
but a couple sentences
in Section 9 use
the term "take."
For example, under the ESA,
it is a violation to, quote,
take any such species within
the U.S. or the territorial seas
of the U.S. So what
does take mean?
As you can see on the slide,
take can mean harassing
or wounding illicit species
or generally harming it.
Harm is also defined and
can include direct harm
to the species such as killing
it or damaging its environment
in such a way that the species
could be injured or killed.
And I should note that Section
9 applies to private parties.
But there is a separate
section of the act
that addresses government
activities,
the impact-listed species,
which is Section 7.
Section 7 of the act requires
federal agencies to ensure
that actions they
authorize and/or carry
out do not jeopardize the
existence of any species listed
under the ESA or destroy
or adversely modify
designated critical habitat
of any listed species.
So an important takeaway here
is that government agencies
and private property owners have
to look to different sections
of the ESA to learn about
their responsibilities
and the procedures they
have to follow as outlined
in the statute and federal
regulations, which differ
as well, depending on
the actor involved.
So let's move on
to authorizations.
Authorizations can
come into play
under two general scenarios.
One involves the federal
government or government action,
and the other does not.
So let's look first
at a circumstance
where someone is a private
property owner who learns
that a listed species like a
bird lives on their property,
and they want to
help that species
by removing invasive plants.
In this process,
however, it is possible
that the owner could
harm the bird
by removing the invasive plants.
However, they can work with
the Fish and Wildlife Service
to get a permit to do this harm,
which is called an
enhancement of survival permit.
The major idea behind
this kind of permit is
that even though there
will be some harm done
to the listed species,
at the end of the day,
the property owner is trying
to help the species
and its habitat.
So once the property owner gets
the permit, they're good to go
as long as they act within
the permit's limitations.
But there are circumstances
where activities are not
done to help a species.
So in a second hypothetical,
let's say that the property
owner who has the listed bird
on its property is
removing 100 acres
of trees to build a ski slope.
Yes, this person
in my hypothetical has a fair
amount of disposable income.
But it's fair to assume that
by removing this many acres
of trees, nothing will be done
to help the listed
threatened or endangered bird.
However, the ESA creates
a structure for this kind
of development to happen.
To construct the slope,
the owner in this hypothetical
would get a permit called an
incidental take permit.
Incidental take permits
require the property owner
to submit a habitat conservation
plan which has to be submitted
to Fish and Wildlife
for its review.
The habitat conservation
plan within the permit needs
to include mitigation
measures, which are meant
to offset the damage done to
the species and its habitat.
These measures can really run
the gamut and can include things
like planting trees in
a neighbor's backyard
or contributing to a nonprofit
organization that does work
to preserve the threatened
species.
The two hypotheticals
I just went
over involve a private
property --
involved private property owners
with no government involvement.
However, when the government
is involved in projects
that trigger the
Endangered Species Act,
the situation is a
little bit different.
Lots of activities fall
under this category,
including airports,
renewable energy projects,
road construction, et cetera.
So if a federal agency
wants to carry on a project,
it has to first ask the question
whether a listed species will
be affected.
If the answer is yes,
they have to determine
if the species will be
affected negatively.
If there's no negative
consequence, the review ends.
If the answer is yes,
however, the agency has
to determine whether the action
will jeopardize the species
or destroy or modify
its critical habitat.
At this point, there are
three possible outcomes.
If there's no jeopardy to
the species or its habitat,
the review ends, and the
project moves forward.
If the answer to the question
is yes, an agency must be able
to come up with something
called reasonable
and prudent alternatives
which are alternatives
that can be taken to offset
or reduce the negative
impact of the project.
If these reasonable and
prudent alternatives are noted
and undertaken, then the
project can move forward.
Third, if there's a finding
of jeopardy, and no reasonable
and prudent alternatives,
the project cannot proceed
without violating the act
unless the project received an
exemption from a committee.
This committee that makes these
determinations is called the
"God Squad," sometimes, because
any exemption it allows can
essentially result in the
extinction of a species.
In the history of the Endangered
Species Act, the committee
that makes these exemptions
has convened only three times.
In some circles, the ESA
has a negative connotation,
especially when it comes
to government projects
because it has the ability
to stop them completely
if steps cannot be taken to
preserve a listed species.
However, you can find articles
that have counted the number
of government projects that
were completely stopped
as a result of the ESA.
And those articles have
concluded that those instances
where projects are completely
stopped are relatively few
and far between.
So let's talk about
recovery and Delisting.
The ESA requires the Fish and
Wildlife Service to develop
and implement a recovery plan
for every listed species unless
a recovery plan will not help a
species recover.
You can think of the
recovery plan as a roadmap
for recovering the species.
Each of these plans must
include three components.
Site-specific management
actions, objective,
measurable criteria, and the
time and cost of recovery.
These components allow
a listed species either
to be delisted once
the criteria are met,
or moved to a lower
rating under the ESA,
such as from endangered
to threatened.
The statute also requires that
each listed species should go
under a review every five years
to analyze the available data
and determine whether the
listing should be modified.
So moving on to delisting,
the process for delisting
a species is pretty similar
to listing one.
There will be a notice
in the Federal Register
that the species
could be delisted,
and the public will be
invited to issue comments.
After reviewing comments,
the Fish
and Wildlife Service
may delist the species
which will be published
as a final delisting rule.
One thing to note, however, is
that a delisting can be based
on the criteria outlined
in the recovery roadmap.
But the act does not require
that those criteria must be
met before the species can
be delisted.
In other words, these criteria
are not binding on the Fish
and Wildlife Service in
making its determination.
After a species is
delisted, the Fish
and Wildlife Service
must work with states
to monitor the delisted
species every five years.
So I'd like to spend
a little time speaking
about a famous Supreme
Court case
that has addressed the
ESA's power and mandates.
Sort of like the Storm King
Mountain case that I spoke
about earlier, the Snail Darter
case is how the case is referred
to in passing.
The actual case name is the
is Tennessee Valley Authority
v. Hill.
So here's a little
background on the case.
When the Supreme Court
considered Tennessee Valley
Authority v. Hill in 1978,
the Little Tennessee River was
a freestone stream originating
in the hills of Georgia and
terminating at its confluence
with the Big Tennessee
River near Knoxville.
The Tennessee Valley
Authority or TVA,
intended to transform the river
into a 30-mile long reservoir
by building the Tellico Dam.
Congress had authorized
funding for the project in 1967
to generate hydroelectricity,
create recreational
opportunities and flood control,
and promote shoreline
development.
And just to emphasize, since
the ESA was enacted in 1973,
that law went into
effect several years
after this project had begun.
Also, at the time when
the controversy began,
the dam was over 90% completed.
So let's fast forward to 1973
when a scientist
discovered the snail darter
in the Little Tennessee.
In 1975, the Secretary
of the Interior declared
that the snail darter was
an endangered species.
The little Tennessee was
its critical habitat,
and the impoundment of water
behind the Tellico Dam would
result in total destruction
of that habitat.
So then came litigation.
Going from the bottom of
this table to the top,
let's discuss how each level
of court ruled in this matter.
The federal district court
recognized the likely extinction
of the snail darter but
focused its ruling on the fact
that Congress had
continued funding the project
after enacting the ESA.
Based on these facts,
it determined
that Congress was aware of
potential extinction related
to this project, and therefore,
created an implied ESA
exception for the Tellico Dam.
The Court of Appeals reversed
and granted an injunction ruling
that the construction
of the dam was
on its face a violation
of the act.
The Court of Appeals
deferred to the plain language
of the Endangered Species Act
and declined an invitation
to adopt a balancing test of
societal costs of construction
versus extinction,
and it concluded
that such a review would step
outside the court's role.
As such, the court found that
the completeness of the dam
or the money spent to date
was legally irrelevant.
The Supreme Court granted review
and Justice Berger wrote a 6-3
decision affirming the Court
of Appeals.
While the Court recognized
the perceived absurdity
in forfeiting tens of millions
of dollars in public funds
for a small fish, it interpreted
both the plain language
of Section 7 of the ESA
and its legislative history
as giving highest priority
to the preservation
of endangered species.
After this case was published,
Congress amended Section 7
of the ESA to add the so-called
"God Committee" that I spoke
about a couple slides ago,
this committee was charged
with considering the economic
implications of a plan
in order to grant exemptions.
Additionally, Congress
eventually passed a rider
on an appropriations bill
that exempted the Tellico Dam
from the Endangered Species Act.
Construction was
completed in 1979.
But TVA v. Hill is nonetheless
considered a conservation
success in that it demonstrated
the court's willingness
to enforce the ESA.
So we've covered a lot of
ground in this lecture.
But please remember that there
are several laws and cases
that could not be
discussed today.
On this slide, you'll
find summaries
of environmental statutes and
links to government websites
where you can learn more about
who administers their programs
and what the laws
generally cover.
So now I'd like to - now that
you have a better understanding
of the substance of
some environmental laws,
I'd like to show you how you can
use the Law Library's resources
to learn more about this topic.
So I'll be doing this portion
of the presentation as a demo.
So I'm going to hop off
PowerPoint and go to law.gov,
the Law Library of Congress's
website where I'm going to run
through a few of the resources
that are listed on this slide.
Alright, so here
we are at law.gov,
the Law Library's homepage.
We have a ton of
information on this page,
but I'll highlight
a few resources
that may be helpful to you.
At the top of the screen, you'll
see our main navigation menu
which includes headings
for about the Law Library,
collections, Researcher
Resources,
news and events,
and legal reports.
Next, you'll see a link to
the Legal Research Institute
in this carousel where
you can find information
about the Law Library's
educational offerings.
If you keep scrolling down, a
little further down the page
on the left-hand side is
a link to Ask a Librarian.
This is where you can submit
online reference questions.
In the center of the page,
you'll see information
about the Law Library's
blog, In Custodia Legis.
We have a blog team
that publishes multiple
posts each week,
and you can follow these links
to be redirected to the blog.
Continuing down the page,
you'll find information
about the Global Legal Monitor
which is an online publication
from the Library of
Congress covering legal news
and developments worldwide.
And I'll talk more about this
resource a little bit later.
But I want to first focus on
the section of the website
that I think will be most
helpful for those of you
who are just getting
started with your research
which is the Researcher
Resources section.
Alright, so I've selected
Researcher Resources
from the top of the
homepage, and it's opened
up several menu options on the
left-hand side of my screen.
Because this presentation
already covers
so much information, I won't
go into too much detail
about everything listed.
But I'll show you how to
access research guides,
the Legal Research
Institute, Legal Reports,
which is at the top
horizontal menu,
and our Digital Collections,
and the Global Legal Monitor,
which can be accessed
from the Collections menu.
So let's start with
research guides.
The Law Library currently
has over 130 guides
on different topics, and
we're creating new guides all
the time.
These are curated and organized
collections of resources
on a specific subject.
And they're also called
Subject Guides for LibGuides.
So here on this page,
you'll see a sampling
of some of our guides.
But if you want to go
to a full list of all
of the Law Library's guides,
I recommend following
this embedded link
in the introductory text on
this page which I'll do now.
Alright, so I want to note
that as reference librarians,
we use Research Guides every day
to help answer patrons'
questions.
LibGuides are a big time saver
when researching a new topic.
There we go.
I'll zoom in a little bit.
That should help.
So they are a big time saver
when you're researching
a new topic
because we've consolidated
a number of resources
on a given subject in one place.
So you don't have to
spend a ton of time going
through 100 different
resources to find the answer
to your question, or to learn
how to navigate these resources.
As of the date of this
recording, we are working
on an environmental
law research guide,
but it's not quite ready yet.
So I recommend returning
to this page
in the future for
more information.
But keep in mind, you can
also reach out to us directly
if you want to learn more
about any of our resources.
So even though we're finalizing
an environmental law guide,
you may find that some of
our other guides are useful,
especially if you're new to
legal research generally.
For example, we discussed
a lot of federal statutes
for in particular
during this presentation.
If you want to learn more
about federal statutes,
I recommend visiting
this guide right here.
I also spoke about
administrative law.
If you want to learn more about
that general topic, you can look
at our guide on administrative
law, or our guide to case law,
which is right next
to administrative law.
And I want to give
you an example
of what these guides look like.
So let's go back to the
federal statutes guide and dig
through it a little bit.
So all of our guides
have introductory text
which gives a general
background of what is available
in the guide, and they have
subpages on different subjects.
In this case, this guide
discusses federal statutes,
so each page is dedicated
to a different step
in the legislative process.
For example, before
Congress enacts a statute
or enacts a new law,
it's introduced
as a bill or resolution.
And so this guide --
this page, for example,
lists online resources where
you can find information
about bills.
It also lists subscription
databases and print resources
where you can find
information on this topic.
And I want to note that our
guides vary in complexity,
but I recommend visiting
this page to learn more
about these resources.
Let's go back to the guide page
so I can show you a couple
tricks for navigating it.
So in addition to browsing
our full list of guides,
you can search the Law
Library Research Guides
in multiple ways.
You can browse by subject
by selecting "by subject,"
that button at the
top of the screen.
This option will group guides
that have been organized
under similar categories such
as Historic American Law,
or U.S. States and Territories.
Also, you can do a keyword
search that's limited
to the Law Library's
collection of guides.
So based on the subject
we've been covering today,
let's do a search for
the term "environmental."
I'm going to type that into the
search bar and enter search.
Alright, so it looks like
it's retrieved 19 pages
from our guides.
These results have
retrieved everything
in the Law Library's collection
that contain our search term.
You could see that some of these
results include state guides
such as Vermont and Hawaii.
And they also include the
administrative law guide
that I directed you to earlier.
So let's go back to law.gov,
and specifically the
Researcher Resources page.
While we're discussing
the collections
under Researcher Resources,
I want to show you the
Legal Research Institute.
So in addition to accessing
the Legal Research Institute
for under Researcher Resources,
from the Law Library's homepage
law.gov, you could you saw
that it was in a carousel with
other pages under our website.
You could go ahead and click
the link from that page
in case you can't find it
while scrolling around.
Okay, so, from the
LRI, you can learn
about upcoming webinars
on U.S. law.
The Law Library has
multiple webinars each month
on U.S. legal research,
including how
to use the Library's
collections,
navigating congress.gov,
which is a resource we
did not discuss today,
and researching laws
from all branches
of the federal government.
These classes are
free, but we do ask
that you preregister
online via Zoom.
You can also use this left-hand
navigation menu to look
at past recordings of
some of our webinars.
Additionally, we do at least
one presentation each month
on a foreign or comparative
law topic.
So if you want to learn
about upcoming webinars on --
that fall under this category,
you can select Foreign
and Comparative Law Webinars to
learn about future offerings.
So we're going to go shift the
focus a little bit and look
at some of the Law
Library's digital collections.
To get there, I'm going to
select that Collections button
from the horizontal menu.
And then select Digital
Collections
from the left-hand
vertical menu.
So you can see that our digital
collections include multiple
subpages on U.S. law,
foreign comparative
and international law
and Indigenous law.
And on this page, you'll also
find a listing of information
about our digitized materials,
the Law Library's
rare book collections
and our web archives.
Our digitized materials on U.S.
law primarily include federal
legal resources,
including the U.S. Code,
which includes federal
laws drafted by Congress
and are organized by subject.
The U.S. reports, which is the
official publication containing
the U.S. Supreme Court cases,
and U.S. Treaty Resources.
So I'm going to start by
scrolling down to U.S. Reports,
which is a pretty
popular collection.
And again, it's the
official opinions of U.S. --
of the U.S. Supreme Court.
We have fully digitized
and fully searchable copies
of this collection available
online from 1754 to 2013,
and you have a few options
for navigating them.
You can browse U.S.
Reports by volume,
author and justice or topic.
You can also search for
a case using keywords
in the search box
in the upper right.
Because the collection is
searchable, you could look
for cases on a legal term
like copyright or Medicaid,
and the search should retrieve
cases within our collection
that contain your search term.
But if you're researching
environmental law,
you may be well served
by starting
out by browsing by
major case topic.
So I went ahead and selected
the major case topic link.
You can see that once I click
-- once I click through,
a long list appears with
subjects that are organized
in alphabetical order.
If I look at Environmental Law,
it appears that 146 cases have
been indexed with this subject.
So once I click on that
subject, all 146 cases
that have been indexed with
it should appear in this list.
If I want to organize this list,
I can go ahead and reorganize it
by case title, by date,
or by shelf order.
Once you click into a case, it
will retrieve a full PDF copy
of the case including
its syllabus, opinion,
and any concurrences or
dissents if they're available.
So I'm going to give
you an example of how
to do a keyword search
using this collection.
Earlier in the presentation,
I spoke about the
Snail Darter Case
which is called Tennessee
Valley Authority v. Hill.
So at the top of the screen, I'm
going to enter the case name.
Click the magnifying glass
to search, and it appears
that our case was retrieved.
So I'm clicking through,
and once I click
through to the case's page,
and then I click on the PDF,
it is uploaded for me.
And you can either print it or
download it if you would like.
So let's go back
and look at some
of our other digital
collections.
Alright. That's for the
digital collections.
I'm sorry.
I got into the Library's
digital collections;
let's look at the Law
Library's digital collections.
So I referenced one periodical
that the Law Library publishes,
which is called the
Global Legal Monitor.
To access the Global Legal
Monitor from law.gov,
you can select Collections
from the horizontal menu,
and then Digital Collections.
And it's also -- it's
available on this list
of all our collections.
It's also available among our
featured collections at the top.
So let's go ahead and
look at this collection.
So as I mentioned, this
is an online periodical,
and it's updated
Monday through Friday.
It has brief articles
addressing legal issues
across the world
including the United States.
The GLM can be searched by
author, topic or jurisdiction.
You can also search
it using keyword.
And I want to show you
how to browse it by topic,
similar to how we browsed
U.S. Reports by topic.
So, I went ahead and
selected Browse all topics.
And you can see automatically
that there are far more
precise subject terms
under the Global Legal Monitor
than were available
under U.S. Reports.
So I'm going to use the
alphabet list up here.
And I want to find articles
about the environment.
So I'll select E, and it
will redirect me to a list
that includes terms
that begin with E.
Over on the right you can see
that Environment has 193
articles linked to it.
But around Environment, you can
see similar topics including
environmental mitigation,
and environmental technology.
Now notice that ecology
is also listed here
which could be relevant
to your research.
If you click through
the environment heading,
you can see from the
results that the title
of the article begins with
the jurisdiction followed
by the date it was published,
the first sentence or two
from the article, and
information about the article -
excuse me -- the
author and jurisdiction.
One nice feature about these
articles is that they're indexed
or tagged with multiple topics,
depending on the
contents of the article.
So if we open up this first
article, we can scroll down
and see the other topics that
are relevant to the Environment.
This will allow you to browse
different related subjects
that you may not have
initially considered
when you begin scrolling
through the topics list.
As I mentioned, you
can also search the GLM
by keyword using the search
bar at the top of the screen
from this page, so when you see
that it's searching
this collection,
it means it's searching
whichever collection you're
looking at.
In this case, it's only
going to limit your search
to the Global Legal
Monitor collection.
So I'm going to look
for the phrase
"climate change" and search.
And it looks like it
retrieved about 86 results.
So in addition to organizing
the results by title, date,
shelf order, or relevance,
you can use the filters
on the left side of the screen
to limit your results even
further and refine them by date,
topic, jurisdiction or author.
So now I'm going to
shift gears and talk
about another Library product
which are called Legal Reports.
And I'll go back to law.gov,
our homepage, to get you there.
So Legal Reports.
We're very proud of them, and
they are displayed prominently
as a horizontal link
on our homepage.
So Legal Reports are different
from the Global Legal Monitor
in that Legal Reports provide
a very in-depth analysis
and frequently compare a legal
topic across different nations.
GLM articles, on the other hand,
are more like a newspaper
article,
and they discuss a specific
topic affecting a single nation
or jurisdiction.
Legal Reports are written
by foreign-trained lawyers,
foreign law specialists,
and they're created
to support the work of Congress.
From the landing
page, you can see
that you can browse
legal reports by topic,
region, date, or author.
So let's do a topic search.
So, this topic lists -- this
topic list runs quite a range
from art and culture to
transportation and public works.
You can also link to
a full list of reports
from the embedded link in
the introductory text here.
But let's go ahead and
click on Environment.
If you click that link,
you'll be directed to a list
of search results that
contain the keywords related
to the environment and pollution
et cetera which ultimately
in our case returned
to 138 reports.
These reports are organized
by default by relevancy.
But you can read
a little more --
a little about the
contents of each report
and see its publication
date from this screen.
If you want to narrow these
results, you can use the filters
on the left-hand menu.
And you can scroll down the page
to see that you can narrow them
by contributor, by
location, by date, et cetera.
So let's take a look at one
of these reports looks like.
Let's look at regulation
of air pollution.
So you'll see that in
addition to listing the title
of each report, you can
learn when it was published,
the nation or nations
addressed in the report,
and you can download a PDF copy
of the entire report
if it's available.
So if you move down the page,
you can see the nations address
in this report under
the notes section.
For some more recent reports,
these are under a
heading called Contents.
So if we wanted to open up this
report, similar to U.S. Reports,
we would just click on the item.
And there it is, the full
report, all 156 pages of it.
And you can see at the outset,
it lists the nations addressed
in this report and the
date of publication.
So, and I want to note
that my colleagues
in the Digital Resources
division are working to make all
of the reports that the
Law Library has published
available online.
And these reports date
back to the 1940s.
But so far, they have about
2000 different reports
on unique legal topics available
online for you to review.
So before I take you back to the
PowerPoint, I want to go back
to law.gov and show you how
you can sign up for updates
on our resources and events.
From the homepage or
on any law.gov page,
go to the left-hand
side of the screen
and select Stay Connected.
From here, you can sign
up for alerts on --
from the Global Legal Monitor,
from In Custodia Legis,
our blog, news and events, legal
research reports, et cetera.
Alright, so let's take a
look back at the PowerPoint.
I know I threw a lot
of information at you.
If you have any questions on
legal research, whether state,
federal or international,
please contact us
through Ask a Librarian.
And again, that brings
me to the end.
If you have questions
on this topic or others,
we look forward to
answering them.
Thank you for attending,
and take care.