FAIR v. PaleoTech: An Environmental Mock Trial Under the State of Industry’s Clean Air Act and Nuisance Law
Published by (2009)
The Fact Situation
Hazy Valley, a city in the state of Industry, is surrounded by mountains on three sides (the North,4 South, and West). PaleoTech, a coal-fired power plant, sits on the East edge of town. PaleoTech is one of the largest employers in the Hazy Valley area, and it makes significant donations each year to local schools, homeless shelters, and charities to preserve open space.
Hazy Valley has had major air quality problems for decades. It is listed as a "non-attainment area" for four pollutants (ozone, nitrogen dioxide, particulate matter, and sulfur dioxide) under the Industry state Clean Air Act (CAA), which closely resembles the federal Clean Air Act. A "non-attainment area" is a location where one or more pollutants exceed the levels that are considered safe under the CAA.
Two years ago, a local environmental justice advocacy group-Fresh Air Is a Right (FAIR)- asked some scientists at nearby Industry State University to help them with some neighborhood specific air quality sampling around Hazy Valley. FAIR worried in particular about the neighborhood Workville, which lies just west of PaleoTech. Two-thirds of the households in Workville make less than $20,000 per year, and people of color make up 75% of the community. FAIR members had been hearing anecdotal reports of unusually high rates of asthma and other respiratory diseases in Workville.
The scientists' initial tests confirmed FAIR's fears. Dr. Alex Martinez found that Workville consistently had air pollutant levels that exceeded both CAA requirements and pollutant levels throughout the rest of the region. Dr. Morgan Williams advised FAIR that these pollutant levels could be causing the high asthma rates in the area. FAIR's president, Devin Jackson, brought this information to the Industry state Environmental Protection Agency (EPA), in hopes that they would force PaleoTech to reduce their emissions. Jackson also brought the information to PaleoTech's president, Cameron Chen, hoping that PaleoTech would choose to reduce its emissions.
The EPA assigned agent C.J. Lee to investigate the case. Upon inspecting PaleoTech's factory, the agent found numerous violations of PaleoTech's permit. However, when agent Lee brought this information to the heads of the EPA, they decided not to bring an enforcement suit against PaleoTech. The EPA asked C.J. Lee to leave the agency soon afterward.
As for PaleoTech, Cameron Chen decided that it would be too expensive to bring the plant into full compliance with its existing permit. In order to reduce pollutants down to the levels in the permit, PaleoTech would have to layoff 85 employees, and might even have to close its doors, making electricity more expensive for people all around Hazy Valley. Instead, PaleoTech decided to apply for a new tradable permits program that the Industry EPA was piloting.
The tradable permits program would allow PaleoTech to buy pollution credits from other, cleaner factories around the state. It would then allow PaleoTech to increase its emissions above its current permit levels.
When FAIR heard that PaleoTech would not reduce its emissions levels-and was actually planning to increase them-the group decided to sue PaleoTech. FAIR sued for an injunction to force PaleoTech to comply with its current permit and to prevent PaleoTech from being able to increase its emissions through the tradable permit program.
