November 01, 2016

Literary Resources

JoAnne L. Dunec

BOOKS

The Clean Air Act Handbook

Julie R. Domike and Alec C. Zacaroli, eds.

ABA Section of Environment, Energy, and Resources, Fourth Edition, 2016

The Clean Air Act of 1970 (as amended, CAA or Act) is one of the most influential environmental laws in the United States. As noted by the editors in the preface:

Since its inception, the Act has arguably had a greater impact on the lives of Americans than any other environmental statute, and it promises to continue this trend as new legal developments expand its reach. Most recently (and perhaps most notably), in the absence of congressional action on climate change, the Act has emerged as the sole federal authority for the regulation of greenhouse gas (GHG) emissions.

Perhaps not surprisingly, given its broad reach, “the [CAA] continues to be one of the most complex and comprehensive pieces of environmental legislation ever enacted,” the editors note. According to one of the authors, Michael R. Barr, recent “developments in the climate-change area highlight several enduring themes under the CAA,” as follows:

  • Air quality law is always changing (and usually expanding into new and very significant areas like climate change).
  • New and important initiatives can start and go anywhere (sometimes at breakneck speed).
  • The CAA is a showcase for federalism in action as states, local agencies, cities, tribes, [Environmental Protection Agency (EPA)], courts, and other players at all levels of government interact.
  • The issues are complex, highly political, and economically profound.
  • The most complex and consequential issues may not be resolved for years and may not ever be resolved by Congress.
  • There is a constant demand for legal analysis, advice, and representation on air quality issues in many forums and a need for legal practitioners to obtain information quickly and reliably.

Every chapter of the fourth edition of The Clean Air Act Handbook has been updated since publication of the third edition in 2011. According to the editors, “[a]s with the first three editions . . . this book covers the entire Act, not just the most recent amendments or developments [and it also examines the] EPA’s implementing regulations and policy guidance.” Barr explains the approach and content of The Clean Air Act Handbook as follows:

Most chapters in this handbook also describe and explain at least part of the intricate history of various [CAA] practice specialty areas since 1970. Twenty-first-century practitioners might naturally ask, what does that history have to do with the current practice of air quality law? . . .

Based on long and varied experience, the authors and editors of this handbook believe CAA practitioners should understand key aspects of CAA history and precedents before venturing far into CAA issues. They have seen that CAA history keeps repeating itself. For example, the 1970 CAA air toxics program required EPA to perform risk assessments before imposing technological controls. The 1990 amendments flipped the air toxics program, making it a technology-based system requiring the installation of the best controls at the outset with risk assessments and further controls following as needed. As EPA only now reaches the residual risk assessment stage of the revised federal air toxics program, the pre-1990 risk assessment precedents will form the starting point for their analyses—particularly since the 1990 amendments themselves actually reference these administrative precedents by Federal Register citation. In that instance, Congress expressly meant for history to repeat itself.

. . .

The 1990 and later CAA amendments did not repeal the prior CAA provisions, EPA regulations, or court case holdings. In fact, the 1990 and the later CAA amendments include express “savings clauses.” Congress is a CAA collector. The CAA’s attics and basements remain full of relics from the 1970 and 1977 amendments and even from old EPA rules that remain relevant, despite the fact that prior solutions may not fit current problems and may lead to “absurd results.”

The Clean Air Act Handbook should be an excellent starting point for understanding the CAA and its attendant complexities.

PERIODICALS

Standing

Adam Sowards, Law and Nature: The Famed Dissent of Justice William O. Douglas, 47 High Country News 1, Jan. 19, 2015, at 6, recalls Justice William O. Douglas’s dissent to the U.S. Supreme Court’s decision in Sierra Club v. Morton, 405 U.S. 727 (1972), where Douglas argued that nature itself, as well as plants and wildlife, should have standing. Douglas wrote:

Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole—a creature of ecclesiastical law—is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a “person” for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.

So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. . . . The voice of the inanimate object, therefore, should not be stilled. . . .

[E]nvironmental issues should be tendered by the inanimate object itself. Then there will be assurances that all of the forms of life which it represents will stand before the court—the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire environmental community.

According to Sowards, “[Douglas’s] passionate dissent in Sierra Club v. Morton marks a pivotal point in environmental legal battles, one that still shapes advocacy today and points the way toward a potentially different way of thinking about nature.” The case arose in opposition to a proposed ski resort in the Sierra Nevada mountains of California. The Sierra Club sought an injunction to restrain federal officials from approving development of the ski resort, which would have been located in the Sequoia National Forest and would have included a road and power lines through the adjacent Sequoia National Park. The organization argued that the proposed resort would “constitute an injury to Mineral King Valley,” Sowards explains. The Sierra Club did not, however, specify injuries to its members that the development might cause. Accordingly, Sowards notes:

In 1972, the Supreme Court rejected the club’s reasoning, unwilling to accept that natural objects had standing to sue in court. Instead, the court urged the Sierra Club to amend its complaint to show how the club’s members, rather than the valley, would be injured. The club did so, and the ski resort was stopped.

“However,” Sowards notes, “one justice, William O. Douglas, was persuaded by the Sierra Club’s original reasoning.” The author continues:

In his dissent, Douglas advocated for a federal rule that would allow for litigation “in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage.” The proper labeling of the case, he argued, should have been Mineral King v. Morton.

In support of his position, Douglas cited Should Trees Have Standing?—Toward Legal Rights for Natural Objects,” 45 S. Cal. L. Rev. 450 (1972), written by Professor Christopher D. Stone.

“Natural objects,” argued Stone, “would have standing in their own right, through a guardian; damage to and through them would be ascertained and considered as an independent factor; and they would be the beneficiaries of legal awards.” He observed:

[E]ach time there is a movement to confer rights onto some new “entity,” the proposal is bound to sound odd or frightening or laughable. This is partly because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of “us”—those who are holding rights at the time.

He posited that “if ‘rights’ are to be granted to the environment, then for many of the same reasons it might bear ‘liabilities’ as well—as inanimate objects did anciently.” For example, he noted, “[r]ivers drown people, and flood over and destroy crops; forests burn, setting fire to contiguous communities.” According to Stone, conferring rights on the environment, does not mean that “would stand it on a better footing than the rest of us mere mortals.” Instead, he noted, “[w]hat the environment must look for is that its interests be taken into account in subtler, more procedural ways. . . . The National Environmental Policy Act [(NEPA)] is a splendid example of this sort of rights-making through the elaboration of procedural safeguards.” Furthermore, he argued that “[t]he rights of the environment could be enlarged by borrowing yet another page from [NEPA] and mandating comparable provisions for ‘private governments.’” He continued:

Similarly, courts, in making rulings that may affect the environment, should be compelled to make findings with respect to environmental harm—showing how they calculated it and how heavily it was weighed—even in matters outside the present [NEPA].

Sowards concludes that “Douglas’ day may still come.” However, according to Peter Lehner, then Executive Director of the Natural Resources Defense Council, Douglas’s day has come to a degree.

Also citing Stone, Lehner pondered in his blog “Revisiting ‘The Lorax’—Do Trees Have Rights?” (Mar. 8, 2012) whether Stone read The Lorax (originally published in 1971), noting “Dr. Seuss’s title character, of course, famously stated (again, and again): ‘I am the Lorax. I speak for the trees.’” Lehner points out that “[s]oon after [Sierra Club v. Morton] with the Clean Water Act of 1972 and CERCLA of 1980, Congress finally granted legal rights to natural resources—albeit in different language from the plainspoken Lorax’s.” He continued:

Under the “natural resource damages” provisions of these laws, governments can sue for compensation for injury to natural resources—on behalf of those resources. Most tellingly, the law says that governments, in so doing, are acting as “trustees” for natural resources, not suing in their own right as governments. . . .

“Trustee,” importantly, is [a] very specific term used in law to describe a situation where an entity has a right of its own but cannot speak for itself (e.g., an infant or a disabled person) on behalf of that right.

In his groundbreaking article, Stone concluded:

How far we are from . . . where the law treats ‘environmental objects’ as holders of legal rights, I cannot say. But there is certainly intriguing language in one of Justice Black’s last dissents. . . . Was he, at the end of his great career, on the verge of saying—just saying—that “nature has ‘rights’ on its own account”? Would it be so hard to do so?

JoAnne L. Dunec

Ms. Dunec is vice president, underwriting counsel with Old Republic Title Company in San Francisco, California, and a member of the Natural Resources & Environment editorial board. She may be reached at jdunec@ortc.com.