Employment & Environmental Law — Title VII, FLSA, NLRA, CAA, CWA, NEPA

Employment and Environmental Law — Title VII, FLSA, NLRA, CAA, CWA, NEPA

This note covers two large, agency-administered statutory fields.

Both rest on a stack of mid-twentieth-century legislation:

• Employment — Title VII (1964), NLRA (1935), FLSA (1938), ADA (1990), ADEA (1967).
• Environmental — NEPA (1969), CAA (1970), CWA (1972), RCRA (1976), CERCLA (1980), ESA (1973).

Both rely heavily on federal agencies for implementation:

• EEOC, NLRB, DOL, OSHA for employment.
• EPA, CEQ, USACE, FWS, NMFS for environmental.

Both have been intensely reshaped by the post-2022 Supreme Court via the major questions doctrine, the end of Chevron deference, and renewed structural challenges to independent-agency adjudication.

This note covers:

• The default of at-will employment and its erosions.
• Title VII and the modern anti-discrimination architecture.
• ADA, ADEA, Equal Pay Act, PDA/PWFA, GINA.
• Religious accommodation post-Groff.
• Bostock and gender identity.
• SFFA and the DEI spillover.
• FLSA wages and hours.
• FMLA leave.
• NLRA collective action.
• OSHA safety regulation.
• ERISA, COBRA, HIPAA.
• State variation and non-compete bans.
• NEPA environmental impact assessment.
• CAA, CWA, RCRA, CERCLA, ESA, and the rest of the environmental statutory stack.
• Climate policy — IRA and the post-West Virginia regulatory limits.
• Citizen-suit enforcement.

Part I — Employment Law

1. The Default — At-Will Employment

The United States is unusual among developed economies in retaining at-will employment as the default rule.

Absent a contract, statute, or recognized public-policy exception, either party may terminate the employment relationship at any time, for any reason or no reason, so long as the reason is not unlawful.

Montana is the only state to have rejected at-will by statute — Wrongful Discharge from Employment Act (Mont. Code Ann. §39-2-901 et seq.).

Common-law exceptions have grown in most states:

• Public policy — whistleblowing, refusing to violate law, exercising statutory rights, serving on a jury.
• Implied contract — employee handbook representations under Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579 (1980).
• Implied covenant of good faith and fair dealing — a minority position (California, Massachusetts).

2. Title VII of the Civil Rights Act of 1964

Pub. L. 88-352; codified at 42 U.S.C. §§2000e et seq.

Prohibits employment discrimination on the basis of race, color, religion, sex, or national origin by employers with 15 or more employees.

Administered by the Equal Employment Opportunity Commission (EEOC).

2.1 Two Theories of Discrimination

Disparate treatment — intentional discrimination.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) established the burden-shifting framework:

1. Plaintiff’s prima facie case (member of protected class; qualified; adverse action; circumstances giving rise to inference).
2. Employer’s articulated legitimate nondiscriminatory reason.
3. Plaintiff’s showing of pretext.

St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) — disbelief of the employer’s reason is not automatically a finding of discrimination.

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) — pretext may be sufficient.

Disparate impact — facially neutral practices with discriminatory effect.

Griggs v. Duke Power Co., 401 U.S. 424 (1971) — high-school diploma and aptitude tests with disparate racial impact required business-necessity justification.

Codified in §703(k) by the Civil Rights Act of 1991 after Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).

2.2 Sexual Harassment

Sexual harassment is a Title VII sex-discrimination claim.

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) recognized hostile-work-environment harassment.

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) — harassment must be subjectively and objectively severe or pervasive.

Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) established employer vicarious liability for supervisor harassment.

The affirmative defense:

1. No tangible employment action.
2. Reasonable preventive measures.
3. Plaintiff’s unreasonable failure to take advantage of preventive opportunities.

Vance v. Ball State University, 570 U.S. 421 (2013) narrowed the definition of “supervisor” to those with power to take tangible employment actions.

2.3 Bostock and Gender Identity

Bostock v. Clayton County, 590 U.S. 644 (2020) — discrimination because of sexual orientation or transgender status is “because of sex” under Title VII.

Justice Gorsuch’s textualist majority opinion.

Three consolidated cases — Bostock, Altitude Express, R.G. & G.R. Harris Funeral Homes.

The reasoning has substantial spillover to other “because of sex” provisions in federal law (Title IX, FHA, ACA §1557).

2.4 Muldrow and the Threshold of Harm

Muldrow v. City of St. Louis, 601 U.S. 346 (2024) lowered the threshold harm a Title VII plaintiff must show for a lateral transfer claim.

“Some harm” suffices; the harm need not be “significant” or rise to the level of an “adverse employment action” as that term had been narrowly understood in the lower courts.

The decision has broad implications for shift reassignments, schedule changes, and other intermediate adverse actions.

2.5 BFOQ

The bona fide occupational qualification (BFOQ) exception under §703(e) is read narrowly.

It does not apply to race or color.

Dothard v. Rawlinson, 433 U.S. 321 (1977) — gender BFOQ for maximum-security prison contact positions.

Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985) — age BFOQ for flight engineers.

3. Civil Rights Act of 1991

Pub. L. 102-166.

Overruled aspects of:

• Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) — restored Griggs business-necessity defense.
• Patterson v. McLean Credit Union, 491 U.S. 164 (1989) — Section 1981 reaches post-formation race discrimination in contracting.
• Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) — added mixed-motive provision.

Added:

• Compensatory and punitive damages, capped by employer size (§1981a).
• Right to jury trial under Title VII.
• Expansion of expert witness fees.

4. Section 1981

42 U.S.C. §1981 — descendant of the Civil Rights Act of 1866.

Protects the right to make and enforce contracts free from race discrimination.

No administrative-exhaustion requirement; longer statute of limitations than Title VII for many claims.

Comcast Corp. v. National Association of African American-Owned Media, 589 U.S. 327 (2020) — but-for causation required.

5. Americans with Disabilities Act of 1990

Pub. L. 101-336; 42 U.S.C. §§12101 et seq.

Title I prohibits employment discrimination by employers with 15+ employees against qualified individuals with disabilities, who can perform the essential functions of the job with or without reasonable accommodation.

“Reasonable accommodation” unless undue hardship.

Definition of “disability” — substantial limitation on a major life activity.

5.1 The Narrowing and the ADAAA

The Supreme Court narrowed the disability definition:

• Sutton v. United Air Lines, 527 U.S. 471 (1999) — mitigating measures considered.
• Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002) — “substantially limits” read strictly.

The ADA Amendments Act of 2008 (ADAAA; Pub. L. 110-325) broadened it, expressly disapproving those narrow readings.

Post-ADAAA, the disability inquiry is rarely the dispositive issue; focus shifts to “qualified” and “reasonable accommodation.”

5.2 Other ADA Titles

Title II — state and local government.

Title III — public accommodations.

Both have generated substantial litigation including the wave of website-accessibility cases under Title III.

6. Age Discrimination in Employment Act of 1967

Pub. L. 90-202; 29 U.S.C. §§621-634.

Protects individuals age 40 and over from age-based employment discrimination by employers with 20+ employees.

Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) — “but-for” causation required; declined to import Title VII’s “motivating factor” framework.

Disparate impact claims are cognizable but subject to a more permissive RFOA (reasonable factor other than age) defense:

• Smith v. City of Jackson, 544 U.S. 228 (2005).
• Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84 (2008).

The Older Workers Benefit Protection Act of 1990 (Pub. L. 101-433) added strict requirements for waivers of ADEA claims.

7. Equal Pay Act of 1963

Pub. L. 88-38; 29 U.S.C. §206(d).

Prohibits sex-based wage discrimination for equal work on jobs requiring equal skill, effort, and responsibility under similar working conditions.

Four affirmative defenses:

1. Seniority system.
2. Merit system.
3. System measuring earnings by quantity or quality of production.
4. Any factor other than sex.

The Lilly Ledbetter Fair Pay Act of 2009 (Pub. L. 111-2) reset the limitations clock on each discriminatory paycheck.

8. Pregnancy Discrimination Act and PWFA

The Pregnancy Discrimination Act of 1978 (Pub. L. 95-555) amended Title VII to clarify that sex discrimination includes pregnancy.

Young v. United Parcel Service, Inc., 575 U.S. 206 (2015) clarified the accommodation analysis.

The Pregnant Workers Fairness Act of 2022 (Pub. L. 117-328, Division II; 42 U.S.C. §2000gg) requires reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions.

An affirmative accommodation duty modeled on the ADA.

Effective June 27, 2023.

EEOC final regulations issued April 2024 (29 C.F.R. Part 1636).

9. Genetic Information Nondiscrimination Act of 2008

Pub. L. 110-233; 42 U.S.C. §§2000ff et seq.

Title II prohibits employment discrimination based on genetic information.

Restricts acquisition of genetic information; family-medical history is “genetic information.”

10. Religious Accommodation

Title VII §701(j) requires reasonable accommodation of religious observance and practice unless undue hardship.

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) treated “more than de minimis cost” as undue hardship.

Groff v. DeJoy, 600 U.S. 447 (2023) discarded the Hardison gloss.

Required showing now: substantial increased costs in relation to the conduct of the employer’s particular business.

Markedly raised the bar to deny accommodation.

11. SFFA and Employment Spillover

Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. 181 (2023) banned race-conscious affirmative action in college admissions under Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause.

Although the case concerned higher education, employers operating diversity, equity, and inclusion programs face renewed legal exposure.

EEOC and DOL guidance plus a wave of reverse-discrimination litigation now target:

• Corporate fellowship programs.
• Supplier-diversity initiatives.
• Targeted recruitment programs.
• Race-conscious mentorship and sponsorship.

Muldrow (lower threshold of harm) compounds the exposure.

12. EEOC Procedure

Private right of action under Title VII requires:

1. Timely filing of a charge with the EEOC — 300 days in deferral states with a parallel state agency; 180 days otherwise.
2. Receipt of a right-to-sue letter — typically issued after 180 days or earlier on request.

90-day window to file suit after right-to-sue.

Fort Bend County v. Davis, 587 U.S. 541 (2019) — charge-filing requirement is a claim-processing rule, not jurisdictional.

13. Fair Labor Standards Act of 1938

29 U.S.C. §§201-219.

The bedrock wage-and-hour statute.

13.1 Minimum Wage

Federal floor $7.25/hour since July 24, 2009.

Over 30 states (and many cities) set higher floors:

• California — $16.50.
• Washington — $16.66.
• New York City and Long Island — $16.50/hour.
• District of Columbia — $17.50.
• Hawaii — moving toward $18 by 2028.
• Florida — $13in2024,movingto$15 by 2026.

13.2 Overtime

Time-and-a-half for hours worked over 40 in a workweek.

Calculated on the regular rate including most non-discretionary bonuses.

13.3 Exemptions

Executive, administrative, professional, outside sales, computer professional, and highly compensated employees.

The DOL April 2024 final rule (89 Fed. Reg. 32842) raised the standard salary threshold:

• From $35,568(2019)to$43,888 effective July 1, 2024.
• To $58,656 effective January 1, 2025.

Struck down by the Eastern District of Texas in State of Texas v. DOL, No. 4:24-cv-468 (E.D. Tex. Nov. 15, 2024), nationwide vacatur.

Threshold reverted to the 2019 figure.

13.4 Independent Contractor Classification

DOL January 2024 final rule (89 Fed. Reg. 1638) restored a six-factor totality-of-the-circumstances “economic realities” test:

1. Opportunity for profit or loss.
2. Investments by worker and employer.
3. Permanence of the work relationship.
4. Nature and degree of control.
5. Whether the work is integral to the employer’s business.
6. Skill and initiative.

Replaced the Trump-era 2021 rule which had emphasized control and opportunity.

The 2024 rule is subject to litigation in multiple circuits and is likely to be revised by the Trump 47 DOL.

13.5 Enforcement

The FLSA is enforced by the DOL Wage and Hour Division and by private right of action.

Collective action under 29 U.S.C. §216(b) — opt-in rather than Rule 23 opt-out.

Treble damages, attorney’s fees.

14. Family and Medical Leave Act of 1993

Pub. L. 103-3; 29 U.S.C. §§2601-2654.

Up to 12 workweeks of unpaid, job-protected leave per 12 months for qualifying reasons:

• Birth or adoption of a child.
• Serious health condition of self or family member.
• Military caregiver leave — up to 26 weeks.
• Qualifying exigency related to military family.

Eligibility:

• Employee of a covered employer (50+ employees within 75 miles of worksite).
• 1,250 hours worked in the preceding 12 months.
• At least 12 months of employment.

State paid-leave programs (California, New York, Washington, Massachusetts, New Jersey, Rhode Island, Colorado, Oregon, DC) supplement FMLA with paid-leave benefits.

15. National Labor Relations Act of 1935 (Wagner Act)

29 U.S.C. §§151-169.

Established:

• The right of private-sector employees to organize.
• Collective bargaining.
• Protected concerted activity under §7.

Prohibited:

• Employer unfair labor practices under §8(a).
• Union ULPs under §8(b), added by the Taft-Hartley Act of 1947.

Administered by the National Labor Relations Board (NLRB) — five-member board appointed by the President with Senate confirmation; General Counsel separately appointed for prosecutorial role.

15.1 Federal Preemption

San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959) — conduct arguably protected or prohibited by §§7 or 8 preempts state regulation.

Lodge 76, International Association of Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132 (1976) — conduct Congress intended to be unregulated also preempts.

15.2 Modern Developments

Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023) — Biden NLRB framework.

When an employer is presented with a majority showing, it must recognize the union or promptly file an RM petition.

If the employer commits a §8(a) violation that requires setting aside the election, a bargaining order issues.

Likely to be reversed by the Trump 47 NLRB.

Glacier Northwest, Inc. v. International Brotherhood of Teamsters, 598 U.S. 771 (2023) — state tort claims for property damage from a strike are not preempted where the union failed to take reasonable precautions for foreseeable property loss.

Starbucks Corp. v. McKinney, 602 U.S. 339 (2024) — preliminary injunctions under NLRA §10(j) must satisfy the traditional four-factor Winter test, eliminating the Sixth Circuit’s two-factor approach.

SEC v. Jarkesy, 603 U.S. 109 (2024) bears indirectly on NLRB adjudication — in-house adjudication of monetary penalties may face Seventh Amendment challenge.

The NLRB 2023 joint-employer rule (Cemex companion) was vacated by the Eastern District of Texas in March 2024 and is being reconsidered.

16. Occupational Safety and Health Act of 1970

Pub. L. 91-596; 29 U.S.C. §§651-678.

Establishes OSHA within DOL.

16.1 Two Principal Duties

General duty clause — §5(a)(1) — employer must furnish a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.”

Four-element General Duty proof:

1. Hazard present.
2. Employer recognition.
3. Likelihood of serious harm.
4. Feasible abatement.

Specific standards:

• Permissible exposure limits (PELs).
• Hazard communication (29 C.F.R. §1910.1200).
• Respiratory protection (1910.134).
• Lockout/tagout (1910.147).
• Confined spaces.
• Fall protection.
• Process safety management for highly hazardous chemicals (1910.119).
• Bloodborne pathogens.

16.2 Penalties

Under §17 (current as of 2024 inflation adjustment):

• Up to $16,131 per serious violation.
• $161,323 per willful or repeat violation.

Review by the Occupational Safety and Health Review Commission (OSHRC).

State plans approved under §18 — about half the states operate their own OSHA-equivalents.

16.3 Major Incidents

• Imperial Sugar Refinery dust explosion (Port Wentworth, Ga., February 2008) — 14 deaths.
• DuPont La Porte methyl mercaptan release (Texas, November 2014) — 4 deaths.
• Massey Energy Upper Big Branch mine (2010) — 29 deaths under MSHA.

17. Benefits and Privacy

17.1 COBRA

Consolidated Omnibus Budget Reconciliation Act of 1985; 29 U.S.C. §§1161-1169.

Continuation of group health coverage for qualifying events (termination, reduction in hours, divorce, dependent aging out).

Up to 18 months (extendable to 36 for some events).

17.2 HIPAA

Health Insurance Portability and Accountability Act of 1996 (Pub. L. 104-191).

Portability of coverage and privacy of protected health information.

Privacy Rule, Security Rule, and Breach Notification Rule administered by HHS Office for Civil Rights.

17.3 ERISA

Employee Retirement Income Security Act of 1974; 29 U.S.C. §§1001-1461.

Fiduciary duties of plan administrators (29 U.S.C. §1104):

• Duty of prudence.
• Duty of loyalty.
• Diversification.
• Adherence to plan documents.

Tibble v. Edison International, 575 U.S. 523 (2015) — ongoing duty to monitor plan investments.

Hughes v. Northwestern University, 595 U.S. 170 (2022) — provision of imprudent options is not cured by offering prudent alternatives.

ERISA broadly preempts state laws “relating to” employee benefit plans (Aetna Health Inc. v. Davila, 542 U.S. 200 (2004)).

Excessive-fee litigation against 401(k) plan fiduciaries is now a dominant practice area.

18. State Variation and Modern Issues

18.1 California Worker Classification

AB 5 (2019) codified the Dynamex ABC test for independent contractor classification under the wage orders.

Proposition 22 (2020) carved out app-based drivers (Uber/Lyft/DoorDash).

Upheld in Castellanos v. State, 14 Cal. 5th 1110 (2024).

18.2 Non-Compete Bans

California has long banned non-competes (Cal. Bus. & Prof. Code §16600).

Massachusetts (2018), Minnesota (2023, comprehensive ban effective July 1, 2023), New York (vetoed 2023 then reintroduced 2024), and others have followed.

The FTC’s nationwide non-compete ban (16 C.F.R. Part 910; published April 23, 2024; effective date September 4, 2024) was struck down by the Northern District of Texas in Ryan, LLC v. FTC, No. 3:24-cv-986 (N.D. Tex. Aug. 20, 2024) — nationwide vacatur.

Appeal pending in the Fifth Circuit.

18.3 The Worker-Classification Pendulum

FLSA independent-contractor classification continues to swing with administrations.

The April 2024 DOL rule favored employee classification; the Trump 47 DOL is expected to revisit.

Penalties for misclassification include back wages, overtime, FICA contributions, and potential criminal liability for willful violations.

Part II — Environmental Law

19. NEPA — National Environmental Policy Act of 1969

Pub. L. 91-190; 42 U.S.C. §§4321-4347.

The “Magna Carta” of environmental law.

Requires federal agencies to prepare an Environmental Impact Statement (EIS) for “major Federal actions significantly affecting the quality of the human environment” (§102(2)(C)).

19.1 The Three Tiers

1. Categorical exclusion (CE) — agency-defined categories not requiring further analysis.
2. Environmental Assessment (EA) — leading to a finding of no significant impact (FONSI) or to an EIS.
3. Full EIS — for significant actions.

The Council on Environmental Quality (CEQ) promulgated implementing regulations at 40 C.F.R. Parts 1500–1508.

19.2 Recent NEPA History

NEPA history since 2020 is volatile:

• Trump 45 CEQ 2020 “modernization” rewrite (85 Fed. Reg. 43304) trimmed scope and tightened deadlines.
• Biden Phase 1 (2022; 87 Fed. Reg. 23453) restored definitions of effects.
• Biden Phase 2 (2024; 89 Fed. Reg. 35442) significantly broadened scope, incorporated environmental justice considerations, and codified deadlines from the Fiscal Responsibility Act of 2023 (Pub. L. 118-5).
• The FRA set NEPA page limits (75 pages EA, 150 pages EIS) and deadlines (one year for EA, two years for EIS).
• Mountain Valley Pipeline received a NEPA carve-out in the same FRA.
• The Trump 47 administration in February 2025 issued an executive order rescinding the CEQ regulations in their entirety, returning interpretation to agency-level NEPA procedures keyed directly to the statute.

19.3 NEPA Is Procedural

NEPA is procedural — agencies must consider environmental consequences but may proceed with the action.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).

Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) — NEPA does not require analysis of effects the agency cannot prevent.

20. Clean Air Act — 1970/1977/1990 Amendments

42 U.S.C. §§7401-7671q.

The most consequential pollution statute.

20.1 NAAQS

National Ambient Air Quality Standards under §109 for six “criteria” pollutants:

1. Ozone (O₃).
2. Particulate matter (PM2.5 and PM10).
3. Nitrogen dioxide (NO₂).
4. Sulfur dioxide (SO₂).
5. Carbon monoxide (CO).
6. Lead (Pb).

EPA must set primary standards “requisite to protect the public health” with an “adequate margin of safety.”

Cost may not be considered (Whitman v. American Trucking Associations, 531 U.S. 457 (2001)).

Tightened PM2.5 standard from 12 to 9 μg/m³ in February 2024.

20.2 State Implementation Plans

Under §110.

States design and implement programs to attain and maintain the NAAQS within their borders.

EPA approval required; SIP “Calls” trigger revisions where deficient.

20.3 NSR and PSD

New Source Review for major stationary sources.

Prevention of Significant Deterioration in attainment areas — best available control technology (BACT).

Nonattainment NSR in nonattainment areas — lowest achievable emission rate (LAER), plus offsets.

20.4 NSPS and HAPs

New Source Performance Standards under §111 for designated source categories.

Existing-source guidelines under §111(d) — rarely used until the Clean Power Plan.

Hazardous Air Pollutants under §112 — 187 listed; technology-based MACT (maximum achievable control technology) standards.

Mercury and Air Toxics Standards (MATS) for power plants finalized in 2011.

Michigan v. EPA, 576 U.S. 743 (2015) held EPA must consider cost in deciding whether regulation is “appropriate and necessary.”

20.5 Mobile Sources

Under Title II:

• CAFE standards (jointly with NHTSA).
• Greenhouse gas emissions standards for light- and heavy-duty vehicles.
• Tier 3 vehicle emission and fuel standards.

20.6 The Greenhouse Gas Saga

Massachusetts v. EPA, 549 U.S. 497 (2007) — GHGs are “air pollutants” under §202(a)(1); if EPA finds endangerment, it must regulate.

Endangerment finding issued 2009.

Vehicle GHG standards followed.

Power-sector GHGs proved more difficult.

The 2015 Clean Power Plan was stayed and ultimately struck down in West Virginia v. EPA, 597 U.S. 697 (2022), which announced the major questions doctrine.

EPA’s May 2024 successor rule (final §111 GHG standards for coal- and gas-fired power plants) faces ongoing litigation in the D.C. Circuit.

20.7 The Renewable Fuel Standard

CAA §211(o).

Volume requirements for biofuels — conventional, advanced, biomass-based diesel, cellulosic.

Administered by EPA; ongoing litigation over annual volumes and Small Refinery Exemptions.

21. Clean Water Act — 1972

33 U.S.C. §§1251-1389.

Goal: “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

21.1 The Two Core Permits

NPDES (§402) — National Pollutant Discharge Elimination System for point-source discharges to “waters of the United States.”

Technology-based effluent limits:

• BAT (best available technology) for toxic.
• BCT (best conventional technology) for conventional.
• BPT (best practicable technology) for existing sources.

Plus water-quality-based effluent limits.

§404 — Dredged and fill material discharges.

Administered by the U.S. Army Corps of Engineers with EPA oversight and veto under §404(c).

21.2 The WOTUS Saga

The jurisdictional saga of “Waters of the United States”:

• Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) — Migratory Bird Rule struck.
• Rapanos v. United States, 547 U.S. 715 (2006) — splintered.
• Justice Scalia’s plurality required “relatively permanent” waters and a “continuous surface connection.”
• Justice Kennedy’s concurrence required a “significant nexus.”
• Obama 2015 WOTUS rule (Kennedy-derived).
• Trump 2020 Navigable Waters Protection Rule (Scalia-derived).
• Biden January 2023 rule attempting a hybrid.
• Sackett v. EPA, 598 U.S. 651 (2023) — adopted the Scalia plurality formulation.
• CWA jurisdiction extends only to wetlands with a “continuous surface connection” to traditional navigable waters.
• Dramatically narrowed scope; revised final rule issued September 2023 conforming to Sackett.

21.3 Other CWA Programs

CWA §303(d) — states identify impaired waters and develop Total Maximum Daily Loads (TMDLs).

CWA §401 — state water-quality certification; held essential to federal permits and the subject of pipeline-permitting disputes.

CWA §311 — oil and hazardous-substance spills.

CWA §404(c) — EPA veto authority over §404 permits; rarely used but constitutionally controversial (Mingo Logan Coal Co. v. EPA line).

22. RCRA — Resource Conservation and Recovery Act of 1976

42 U.S.C. §§6901-6992k.

“Cradle-to-grave” regulation of hazardous waste under Subtitle C (40 C.F.R. Parts 260-279).

Solid waste under Subtitle D.

Underground storage tanks under Subtitle I.

22.1 Hazardous Waste Identification

Hazardous waste is identified by:

• Listing — F, K, P, U lists.
• Characteristic — ignitability, corrosivity, reactivity, toxicity (via TCLP).

22.2 Generators, Transporters, TSDFs

Generators, transporters, and treatment-storage-disposal facilities (TSDFs) are regulated separately.

Manifest requirements; large-quantity vs. small-quantity vs. very-small-quantity generators.

22.3 Land Disposal Restrictions

LDRs prohibit untreated hazardous waste from land disposal.

Treatment standards keyed to BDAT (best demonstrated available technology).

23. CERCLA — Superfund, 1980

42 U.S.C. §§9601-9675.

The Comprehensive Environmental Response, Compensation, and Liability Act.

23.1 Liability Standard

Strict, joint and several, and retroactive liability for “potentially responsible parties” (PRPs):

1. Current owners and operators.
2. Past owners/operators during disposal.
3. Arrangers (generators who arranged for disposal).
4. Transporters who selected the disposal site.

23.2 EPA Authority

EPA may:

• Order cleanup under §106.
• Perform cleanup and recover costs under §107.
• Proceed via consent decree.

PRPs face contribution claims under §113.

23.3 Burlington Northern

Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009):

• Narrowed arranger liability.
• Permitted apportionment of harm where reasonable basis exists.

23.4 Defenses

The Brownfields Amendments of 2002 (Pub. L. 107-118) created:

• Innocent landowner defense.
• Bona fide prospective purchaser defense.
• Contiguous property owner defense.

23.5 NPL

National Priorities List currently lists approximately 1,340 sites with substantial cleanup backlog.

24. EPCRA — Emergency Planning and Community Right-to-Know Act of 1986

42 U.S.C. §§11001-11050.

Toxic Release Inventory (TRI).

Tier II reports for hazardous chemicals on-site above threshold.

Local emergency planning committees (LEPCs).

Enacted in response to the Bhopal disaster.

25. TSCA — Toxic Substances Control Act of 1976

15 U.S.C. §§2601-2697.

Premanufacture notice (PMN) for new chemicals.

Significant new use rules (SNUR).

Risk evaluations and risk-management rules under §6.

Significantly overhauled by the Frank R. Lautenberg Chemical Safety for the 21st Century Act of 2016 (Pub. L. 114-182), which mandated risk-based prioritization.

PFAS (per- and polyfluoroalkyl substances) have been a central focus:

• EPA’s October 2024 final rule designating PFOA and PFOS as CERCLA hazardous substances.
• April 2024 SDWA national primary drinking water regulation setting MCLs for six PFAS.

26. Other Major Statutes

26.1 FIFRA

Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§136-136y).

Pesticide registration and labeling.

26.2 ESA — Endangered Species Act of 1973

16 U.S.C. §§1531-1544.

• §4 — listing and critical-habitat designation.
• §7 — federal-agency consultation with FWS or NMFS.
• §9 — prohibition on “take” — including significant habitat modification per Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).
• §10 — incidental take permits and habitat conservation plans.

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) — the snail darter case; absolute injunction against Tellico Dam.

The Endangered Species Committee (“God Squad”) may grant narrow exemptions.

26.3 MBTA

Migratory Bird Treaty Act of 1918 (16 U.S.C. §§703-712).

Interpretation of “incidental take” liability has swung between administrations.

26.4 SDWA

Safe Drinking Water Act of 1974 (42 U.S.C. §§300f-300j-27).

Maximum Contaminant Levels (MCLs) for public water systems.

Lead and Copper Rule (2024 rule revisions).

PFAS national primary drinking water regulation (2024).

26.5 OPA

Oil Pollution Act of 1990 (33 U.S.C. §§2701-2762) — post-Exxon Valdez.

Liability framework for oil spills; OSLTF Oil Spill Liability Trust Fund.

27. Climate Policy

Federal climate policy currently operates through three interacting channels.

27.1 CAA Regulatory Authority

• Vehicle GHG standards.
• §111 power-sector standards (subject to West Virginia/Loper Bright constraints).
• Methane regulations on the oil and gas sector under §111(b)/(d) (2024 final rule).

27.2 Inflation Reduction Act of 2022

Pub. L. 117-169.

• Production tax credits (26 U.S.C. §45) and investment tax credits (§48) for clean electricity.
• Advanced manufacturing (§45X).
• Clean hydrogen (§45V).
• Nuclear (§45U).
• Carbon sequestration (§45Q).
• Home energy rebates.
• Methane fee under CAA §136.
• Environmental and climate justice block grants.

CBO scored at ~$369 billion; updated estimates run substantially higher because of uncapped tax credits.

Combined with the Infrastructure Investment and Jobs Act and the CHIPS Act, projected to cut US GHG emissions by 40-50% below 2005 baseline by 2030 (Rhodium Group, REPEAT, Energy Innovation modeling).

27.3 California Waiver and §177 States

California’s CAA §209 waiver permits more-stringent vehicle emissions and the Advanced Clean Cars II ZEV mandate.

Other states adopt under §177 — currently 17 states plus DC.

Trump 47 expected to revoke.

28. State Environmental Law

28.1 California

California Environmental Quality Act (CEQA; Cal. Pub. Res. Code §§21000 et seq.) — state NEPA-analog with private enforcement and frequent project-blocking.

CARB greenhouse gas regulations.

AB 32 cap-and-trade.

SB 32 / SB 1383 methane and short-lived climate pollutants (SLCP).

28.2 Massachusetts and §177 States

Massachusetts CARB-equivalent regulations.

New Jersey, New York, Connecticut, Oregon, Washington, and others adopt California ZEV and LEV standards.

28.3 New York

Climate Leadership and Community Protection Act (CLCPA), 2019.

• 40% reduction below 1990 by 2030.
• 85% by 2050.

Implementation through DEC and the Climate Action Council.

28.4 Texas

Energy regulation through PUC and Railroad Commission.

ERCOT grid governance.

See ferc-and-grid-policy for FERC’s parallel jurisdiction.

29. Citizen Suits

Most environmental statutes include citizen-suit provisions:

• CAA §304 (42 U.S.C. §7604).
• CWA §505 (33 U.S.C. §1365).
• RCRA §7002 (42 U.S.C. §6972).
• ESA §11(g) (16 U.S.C. §1540(g)).
• EPCRA §326.
• SDWA §1449.
• CERCLA §310.

Common requirements:

• 60-day pre-suit notice.
• Ongoing violations — Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987) — wholly past violations not actionable under CWA.
• Proper venue.

Standing remains the principal hurdle — Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000) confirmed standing where members had recreational and aesthetic interests in affected waters.

Part III — Cross-Cutting Themes

30. Agency Administration and the Post-Chevron World

Both fields rely heavily on agency administration.

Both have been reshaped by the post-Chevron environment.

Loper Bright makes statutory ambiguities resolved by EPA, EEOC, DOL, and NLRB more susceptible to judicial reversal.

The major questions doctrine constrains transformational rules in both spaces:

• Clean Power Plan.
• OSHA vaccine ETS.
• DOL overtime rule.
• FTC non-compete ban.

Jarkesy threatens NLRB and OSHA in-house adjudication where civil penalties resemble common-law claims.

Corner Post extends APA limitations exposure on long-standing rules.

31. The Trump 47 Regulatory Agenda

The Trump 47 administration’s regulatory priorities will dominate the 2025-2028 docket:

• Schedule F expansion of at-will civil service.
• Withdrawal of Biden-era rules across both fields.
• NEPA categorical-exclusion expansion.
• Methane and power-sector rule rollback.
• California waiver revocation.
• DOL overtime and contractor rule revisions.
• NLRB reversal of Cemex and joint-employer.
• EPA reconsideration of PM2.5 NAAQS tightening.

32. The Litigation Vector

Both fields see the same litigation dynamic post-2024:

• Plaintiff-side incentives to forum-shop to the Fifth and Eighth Circuits.
• Corner Post exposure for long-standing rules.
• Standing pushback (Murthy, Alliance for Hippocratic Medicine).
• Aggressive use of preliminary injunctions and nationwide vacatur.

The pre-enforcement challenge has become the dominant procedural vehicle for both employment and environmental rule challenges.

33. Related Reading

The APA framework that governs every rule cited above lives in administrative-law.

Discovery in environmental and toxic-tort cases is shaped by Daubert and Rule 26 — see civil-procedure-and-evidence.

The tort backdrop to environmental harm — public nuisance, climate suits — is in torts.

The macroeconomic and emissions accounting of the IRA + IIJA is in climate-policy-economics.

The physical-science basis for climate regulation is in climate-policy-mechanisms.

The interaction with grid and wholesale markets is in ferc-and-grid-policy.

Adjacent

• administrative-law — APA, Chevron/Loper Bright, major questions, and structural limits on EPA/NLRB/DOL.
• civil-procedure-and-evidence — class actions, FLSA collective actions, discovery, Daubert in toxic torts.
• torts — workplace torts, public nuisance climate suits, Restatement (Third) of Torts.
• climate-policy-mechanisms — endangerment science underpinning CAA GHG regulation.
• ferc-and-grid-policy — interplay of EPA §111 power rules with wholesale market design.
• climate-policy-economics — IRA tax-credit accounting; social cost of carbon; CBA in environmental regulation.
• sec-disclosure-regime — SEC climate disclosure rule and ESG reporting.