Environmental Law Midterm

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harrisone
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Environmental Law Midterm
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2013-03-13 15:39:44
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ESP 300 Midterm
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ESP Midterm 3/14/13
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  1. 1. Prescriptive Solution:
    • Payment but doesn't solve the problem for the future
    • Madison Vs Ducktown paid for damaged crops but factory remained open and continued polluting
  2. 2. For trespass a plaintiff must show:
    physical invasion of property
  3. 3. Public Trust Doctrine:
    gov't should act as the trustee to defend and protect the ecosystem
  4. 4. Supremacy Clause:
    • the constitution and laws pass by the congress are the supreme law of the land including treaties.
    • Preemption!- state/ county law fives way to the US congress
  5. 5. When can a citizen sue a polluter?
    • when the polluter violates a statute and the problem is on-going/continuous
    • they can't sue if the gov't is suing the same company (violator)
    • citizens must have standing, show it caused harm and must be traceable back to a source
  6. 6. Condemnation (taking and regulatory taking):
    • Just compensation for private properties, limits ability to protect the environment
    • taking- government builds on the land, they must pay fair market price
    • regulatory taking- environmental law that reduces the fair market value of the property to almost zero, you can sue under the 5th amendment that takings clause, cannot take property with out valid public purpose and must provide just compensation
  7. 7. 3 kinds of Preemption:
    • expressed- law ONLY governs this subject matter
    • implied- occupy the field, if feds occupy then the states and public cannot
    • conflict- anytime there is a conflict between state/local government and feds the feds win
  8. 8. What clause in the US constitution implicitly authorizes congress to enact laws relating to environmental protection?
    Commerce Clause
  9. 9. What is an injunction?
    A court order to stop doing some action
  10. 10. What is an enabling act/ organic act?
    The act of congressional power to create a new agency and defines what the agency will be in charge of.
  11. 11. What is the tragedy of the commons?
    When a common resource gets depleted because everyone has the rights but no ownership. Over use of a resource to the point where it becomes scarce.
  12. 12. Public Law:
    Laws passed by the legislature
  13. 13. Administrative Law:
    Take charge and manage laws that govern every agency designed to regulate under the APA, administrative procedures act, tells how to conduct business with public, talks about rule making
  14. 14. Administrative law and the constitution:
    • limitations for prevention of agencies getting too large
    • basic public health and safety is left to the states
  15. 15. Two principle duties of administrative agencies:
    Adopting regulations, adjudication (act as a judge) and the power to take enforcement actions.
  16. 16. What is administrative deference/ agency deference?
    Agency deference is where the court will defer to the experts who are the agencies when the regulation is unclear. Congress has made the duties of a regulation unclear so they could be filled in later.
  17. 17. What is standing?
    Standing is showing that you are a stakeholder who will be affected by the actions (injury) & you must be able to trace the actions back to defendant.
  18. 18. When does the court medal in decisions made by regulation agencies?
    • If it is unclear by what the regulation meant
    • if congress left a gap for that agency to fill/fix, then the court says we should defer to the experts (usually the agency at hand) as long as it’s reasonable
    • Commerce clause and agency deference
  19. 19. What are the 5 P’s (ways to solve a problem)
    Payments, penalties, property, prescriptive, persuasion
  20. 20. Collective Action and Free riders
    • Collective actions- group efforts organize
    • Free riders- enjoys the benefit of the resource but never paid for the resource or managed it.
  21. 21. Federalism:
    States should be allowed to rule themselves; sovereignty
  22. 22. Public Trust Doctrine:
    Roman times. Job of the government is to serve as the trustee of things, animals, airs, and waters
  23. 23. Market Failure:
    Incentive to do things as cheaply as possible (race to the bottom) market fails to recognize the externalities and intrinsic values
  24. 24. Does a citizen group have the right to challenge the govt?
    They must have standing; must be a stakeholder (the action would affect them/ impact their interest) you must show injury and you have to be able to trace back the problem to the defendant.
  25. 25. What is environmental Law?
    The use of the governments power to protect public health or the environment from degradation.
  26. 26. Preservation VS Conservation:
    • Preservation- movement claims things are inherently valuable
    • Conservation- manage lands because they contain resources that are valuable/ useful so we must manage them.
  27. 27. Statutes VS Regulation:
    Statutes are passed by congress and the president where regulations are laws adopted by agencies of the government.
  28. 28. Common Law:
    English courts judge made law starting with courts overt time would adopt ruling that had been made in a similar case and is now generally accepted as the rule. Good at fixing a current problem (like by means of compensation) after damage but not future damage.
  29. 29. Legal remedies:
    Damages, Injunctions, restitutions, declaratory relief, compensatory, resolutions
  30. 30. Burden of Proof:
    Government always have the burden in a criminal case but in civil cases, all you need to show is preponderance of evidence, the court is more than 50% sure of something in order to make a ruling
  31. 31. Basic Elements of a court case:
    • Basic facts- story/ factual background
    • Legal issue- question what are they asking a judge or a jury to answer?
    • Holding- who wins
    • The rule- for future cases, setting a precident
  32. 32. What must you prove in a tort case?
    LCD, Liability- show that the defendant did not behave reasonably. Causation- must be traceable back to the defendant. Damages- pain and suffering property loss injury.
  33. 33. Tort is:
    Wrongful action, relief may come in the form of damages or an injunction
  34. 34. What are the kinds of intentional torts:
    • Private nuisance- right of an individuals property damage or loss of private property
    • Public nuisance-activity that cause a reasonable interference with the publics enjoyment of land.
    • Trespass- physical invasion
    • Strict liability- action you were engaged in was inherently dangerous and you accept the liability.
  35. 34. For trespass the plaintiff must show?
    Invasion harms interest, intentional doing of the act that results in the invasion, reasonable foreseeability that damage can occur from the defendants actions, and substantial damages to the resident.
  36. 35. Creation of a government agency says what?
    The free market has failed to control or compensate for unequal bargaining power or compensation for externalities.
  37. 36. Why would people not go to the government?
    Individuals do not get compensated, statue of limitation is longer in private trespass ( more time to sue ) and the government can act with discretion and decide if and what actions they want to take which means they can opt to do nothing, there are limited resources of lawyers for the government.
  38. 37. Permit Shield Defense:
    If you have a permit you can be protected except in common law cases, plaintiff can show liability, causation and damages
  39. 38. Cooperative Federalism:
    • Feds/ EPA creates pollution standards and states can create agencies designed to enforce the standards within their state.
    • 39. NEPA is and does what?
    • National Environmental Policy Act- stop and think have to supply an environmental impact report. Law making approach that requires you to study and analyze before you make your decision.
    • A project that involves land development, or harvesting of a natural resource that needs a permit needs to follow NEPA.
    • For any MAJOR Federal action and has to be a major action. CEQA: California environmental quality act, the California standards.
  40. 40. Why is NEPA referred to as a ‘paper tiger’?
    • Has all these goals and things that you are trying to accomplish but in reality it lacks the teeth to require the actions to happen. You do have to do the report and read it and consider it and if you never consider it and you never show that you considered it, you can lose in court.
    • Only a procedural law, it doesn’t require action, the company can still choose to do whatever they choose but their rationale is exposed.
  41. 41. EIS, EA, FEIS, FONSI, ROD. Which is the most extensive?
    • Environmental impact statement
    • Environmental assessment
    • Final Environmental impact statement
    • Finding of no significant impact
    • Record of decision
    • EIS is the most extensive, major federal action that significantly affects the quality of the human environment.
    • The point of the EA is to find out if you need to make an EIS.
  42. 42. Counsel on Environmental Quality:
    • Set up to regulate NEPA but it mainly does the job of defining rules instead of actually regulating.
    • Counsel tires to define significance for the agencies, you must consider two things- the context of where the thing will be built (the location) and second the intensity of what is being built( how big and how damaging). Is the project controversial?
    • Adequacy- did the company do a thorough job of documenting? Did they take a ‘hard look’ detailed science base to the decision making process. Cant just look at the proposed project you have to look at the impacts of alternative ways you could perform your project.
  43. 43. Factors that determine if you do a EIS:
    ‘Major’ federal action ‘significantly affecting’ quality of the human environment.
  44. 44. Corporate disclosure laws, EPCRNA:
    • Emergency planning community right to know, forces companies to audit their emissions and look at future effects,
    • Requires the private companies to disclose toxic substances and hazards.
    • TRI- toxic release inventory document must provide this to EPA and responding emergency agencies so the gov’t (firefighters, hazmat) know what they may be dealing wit.
    • Why force companies to disclose so people have knowledge and citizen environmental groups might want to bring this to the attention of the public.
  45. 45. Harm Based Approach for Air Quality:
    • the approach of environmental statutes and regulations Set on harm based standards how much the public can tolerate then decrease the limit to provide a adequate margin of safety.
    • the clean air act requires the EPA to set the standards for the 6 criteria: sulfur dioxide, ozone, particulate, lead, etc. picked these because they are the most question.
    • EPA’s job is to identify the max air borne pollution that the human population can tolerate and then decrease the limit to provide an adequate margin of safety.
  46. 46: NAAQS:
    • national ambient air quality standards, quality of the surrounding air pollution levels of certain (six) pollutants.
    • Under the CAA- clean air act EPA must set standards, numeric limits
  47. 47. CAA:
    • Clean Air Act
    • technology forcing- makes companies change their technology
    • Technology approach we require you to use a specific mechanism/ technology
    • Market approach- cap and trade market, the theory of net emission.
  48. 48. Whitman VS American trucking:
    • Inner city kids aren’t a fair proxy group for setting standards for air quality, the trucking company though the standards were too strict. They were angry that they didn’t take the economic impact into account.
    • Court said proxies are find, goes back to chevron and NRDC, agencies know what they are doing, the court upheld the standards as long as the agency has facts of sound science and are reasonable.
    • Court said the EPA doesn’t need o take economic cost into account when making standards, the standards should be based solely on science and are harm based NOT politics or economics.
  49. 49. CAA of 1990:
    Clean air acts of 1990 were meant to amend the original clean air act. If you are not in attainment, they now require you to make reasonable progress to getting into attainment in a certain number of years. If you don’t, the worse thing they do is threaten they will withhold federal money.
  50. 50. NAAQS:
    congress took the harm based approach- setting a numerical concentrations are below the level that scientists have said will hurt people or the environment.
  51. 51.Problems that come with the harm-based/ health-based approach:
    Data intensive (need a lot of science) and you need a lot of support for why you should set this standard.
  52. 52. Attainment:
    EPA sets numerical limits and a state is in attainment if the concentrations of the pollution are at or under the level that has been set. The states can divide their state into regions. You can be out of attainment even if you are under the limit for 5 out of 6 of the pollutants.
  53. 53. Prevention of significant deterioration:
    set limits in an area that is not damaged and you want to protect. Doesn’t have to stay pristine, quality of air or water can get worse but only very slowly.
  54. 54. In what ways has the CAA been successful?
    Money saved in productivity of human beings (spending less money on health of people, lower rates of cancer) cost benefit analysis. The money saved on health is greater than the money lost by forcing business to comply.
  55. 55. Why did they choose the harm based method for air pollution?
    Air pollution has a weight, you can measure it in tons.
  56. 56. Two phases of NAAQS:
    one set of standards for human health and another for the environment
  57. 57. SIP:
    State implementation Plan- EPA sets standards on a national standard. Clean air act requires states to make a plan to lower emissions to comply with NAAQS. EPA then reviews the states plan and either approves or rejects the plan. States want federal money but also don’t want to drive away industries or hurt the industries already present. EPA gives states a few chances until the gov’t makes a FIP. States are allowed to consider money and economics when making their SIP.
  58. 58. FIP:
    Federal implementation plan. When the state can’t come up with a plan that the EPA likes for following the NAAQS. States don’t like this, it is very rare that the EPA actually makes a FIP. Clean air act allows states to consider money and economics when making their SIP but EPA is not supposed to.
  59. 59. What is considered to be a NEW source of pollution?
    • A new factory is considered a new source, if you have a factory and are taking out an old part and putting in a new one or retrofitting you can be considered a new source.
    • New sources have to be less polluting than old sources, but most of the polluters have been around for a long time.
    • Court Cases are popping up about whether or not a company has substantially modified their facility. Companies employ engineers that don’t drastically change the factory but make new upgrades and repairs slowly over time to replace parts. Grandfathering, if you can show through a paper trail that you’ve never dramatically altered, just made repairs, this makes the company exempt.
  60. 60. Technology based approach B.A.T.:
    • The most current technology must be applied
    • Best available technology must be applied to a new source
  61. 61. What approach did congress take in regulating mobile sources of air pollution?
    • Cars and trucks- Technology forcing approach
    • Forced manufactures to install a technology to lower emissions within a certain time frame. They don’t say what kind of technology but they have to make or use but the EPA uses a specialist to find out what the best that technology can do.
  62. 62. Cap and Trade Approach to Air Quality:
    market based approach, cap and trade tries to inventory the emissions and say how much companies can emit and by doing so it created an artificial market where pollution ( the ability to) has a monetary value. It has worked with sulfur dioxide.
  63. 63. What is bubbling?
    An imaginary bubble over each company. If you are a factory with many smoke stacks you can lower pollution of some of your stacks and continue at original levels as long as the over all effect is within the permit standards. They are regulated as a whole instead of regulating each individual smoke stack.
  64. 64. What is Netting?
    Similar to bubbling but one of your smoke stacks can pollute more as long as the others cut back, just have to stay within your limit.
  65. 65. What are Offsets?
    Imagine it different from netting and bubbling because it is not one factory but sources at a regional level.
  66. 66. Hazardous Air Pollutants:
    • Class of air pollutants (120 of them) EPA was supposed to make harm based limits for all of them and the 1990 CAA amendments took that out.
    • Hazardous Pollutants have a technology-based standard instead of harm based.
    • Use Best available technology
  67. 67. Cleveland Electric Illuminating Company Vs EPA:
    • Defendant- EPA, Plaintiff Cleveland Electric Co.
    • Claimed the standards for air quality were set too high, state of Ohio didn’t make a SIP and the EPA was going to write a FIP. Judge said the EPA wasn’t wrong it’s standards were accurate and rational. May not be perfect but the EPA doesn’t have to be perfect just good enough.
  68. 68. Montreal Protocol:
    • Ozone depleting chemicals CFC’s
    • nations got together an looked at images of ozone at the south pole, no one ever really thought that the chemicals being used and made were causing damage.
    • It was the first big international program; fix the problem by regulating the import and export. Ban on manufacturing, import and export can’t sell it anymore.
    • Got poorer countries on board by giving them monetary aid so they could afford to buy substitutes. China India and Brazil received a pass for 10 years
  69. 69. Kyoto Protocol:
    • Global warming/ climate change
    • Tried to get a similar resolution to the Montreal protocol. Climate change was harder to control, it’s happening everywhere by everyone at all times (discharge of CO2)
    • Proposed global cap and trade, also tried to set up a grace period for different types countries for how long they have to reduce their emissions by 2012. Only countries trying to do this were the European Countries. The idea was that you have to replace your old technology with new, less polluting technology. Also tried to establish a policy for poorer countries.
    • US never signed.
  70. 70. Citizens complain about agency capture. What is agency capture?
    The pressure from industry lobbists on state agencies, the public interests often get lost. Public feels that the govt is no longer looking after public interest.
  71. 71. What do you need to discharge a pollutant in a water of the US?
    • No person can discharge a pollutant into the waters of the United States from a point source with out a permit.
    • Basic command of the CWA- Clean water act.
    • Make every surface water fishable or swimmable.
  72. 72. Permits for water pollution Include:
    Numbers for Effluent Limitations, chemical or physical rates or quantities or concentrations of pollutants, TBELs, or WQBEL’s
  73. 73. What is the ‘end of pipe’ technology?
    Based on effluent limitation, every point source has to comply with the standards, putting some device at the end of your pipe that reduces your pollution. Versus changing the process of your industry production
  74. 74. In the CWA, there were two things that all polluters had comply with:
    • Technology Base Effluent Limitations, every point source has to comply (end of pipe)
    • Step two everyone has to do better than TBEL’s, particularly where the water is still not clean enough after the TBEL then you have to comply with the harm based WQBEL- water quality based effluent limitations.
  75. 75. What source of pollution does the CWA not deal with efficiently?
    • Discharges from a point source. States were supposed to regulate nonpoint source pollution through their own permits.
    • Pollution to ground water is not regulated in CWA and dams are exempt.
  76. 76. What are the top three sources of pollution?
    Agriculture, Industry, Urban Runoff.
  77. 77. What makes something a point source?
    Vessel or boat, pipe tunnel, heavy machinery- doesn’t have to have an actual pipe.
  78. 78. Has the Clean Water act been successful or not?
    • Rivers, streams, and lakes are cleaner but the goal was to eliminate all discharges of pollutants and make everything fishable and swimmable by 1985.
    • The total volume has been reduced especially from point sources.
    • The volume from agriculture hasn’t gone down very much.
  79. 79. Primacy:
    State has been delegated the job of writing the National Pollutant Discharge Elimination System (NPDES) permits and has the job of enforcing the permits and limits.
  80. 80. What approach is used on sewage discharge?
    • Classic technology based approach, doesn’t prescribe an exact device for companies to use, they set the standards based on performance of technologies that they know will work. Performance based regulation.
    • three levels of treatment, primary is filters and screens in 1970’s and then the use of secondary and tertiary treatments were enforced except for a few locations that are exempt because they dump far enough out into the ocean.
    • EPA spent the first 20 years of clean water act focusing on sewage treatment plants.
  81. 81. Performance Based Regulation:
    • The EPA sets the standards based on performance of technologies that they know will work. Performance based regulation.
    • Level of performance depends on what industrial category your company is in and what kind of pollutants are coming out of your pipes.
  82. 82. BAT BCT BMP
    • Best available technology that is economically achievable, applies to toxic pollutants (harder to achieve than BCT) economically achievable means the consideration of economics has to be done only to the extent where to see if it is achievable. Feasible whether it can be done NOT cost benefit analysis (justification that the benefit to the environment out weighs the loss to the economy)
    • If you are a new source you have to use the best available technology that exists. (the strictest)
    • Best conventional technology- conventional pollutants.
    • Both of them are TBELs but which numbers your company has to meet depends on if you have toxic or conventional pollutants.
    • Best management practice- new ways of practice or the way you do you business to lessen the pollution so you don’t have to use further technology.
  83. 83. What happens if a TBEL is not sufficient?
    • Then the state must make a WQBEL- water quality based effluent limitation.
    • The state must make a list of all waters that are impaired and prioritize them by severity and assign TMDL’s total maximum daily loads (how much a company is allowed to discharge)
  84. 84. TMDL
    Every polluter gets a WLA, waste load allocation, ( pollution credit) can prohibit new companies from obtaining a NPDES because there is only so much a river can take and if there are companies already present there may be no more pollution credit for your company to use.
  85. 85. Rules of TBEL’s
    • Cannot just reduce rates and quantities and concentrations versus just diluting with water, concentration may decrease but the sum of pollutants is still going into the river.
    • Permit Shield rule- once you have a permit that lists what you are allowed to discharge, you are shielded from liability for discharging those pollutants as long as you concentrations are within the limits.
  86. 86. What must you consider if you a permit writing agency for the CWA NPDES?
    • Anti-backsliding, you can never lessen the restrictions can only make them more strict.
    • Anti-degradation- states duty to make sure the beneficial uses of the clean waters are not jeopardized because of a permit that has been issued.

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