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171 Cards in this Set

  • Front
  • Back
common law
aka:judge made law or case law, precedent.
law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action.
Doctrine of Stare Decisis
aka: precedent
using previous decisions as a basis to decide later cases with similar facts.
Cases of first impression
courts will look to holdings of other jurisdictions for persuasive authority. "reasoning by analogy"
eg "your honor, in the case of blank vs. blank..."
article 1 of constitution
-establishes legislative branch
-the legislatures create agencies (the source of administrative law- "tribunal" quality internal courts carry out laws before brought to judicial branch)
- Section 8 (the Commerce clause)
statutory law
laws passed by congress
a) the legislature will pass a bill. When the bill is passed and signed by the president, it becomes a statute.
b)statutory codes are arranged by subject matter and called the US code.
The commerce clause
(from article 1, sect 8)
grants CONGRESS the power to regulate commerce (exchange of goods) with foreign nations and among the several states
article 2
establishes the executive branch and defines presidential powers
article 3
establishes judicial branch
the 10th amendment
powers not delegated to the US by the constitution or prohibited by the constitution are reserved to the states.
the US Code
the codification by subject matter of the general and permanent *laws of the United States*. It is divided by broad subjects into 50 titles and published by the Office of the Law Revision Counsel of the *U.S. House of Representatives*. Updated every 6 years.
Administrative law process
a)the exec. branch agencies promulgate (propose, write, publish) regulations, publish them for comment, then adopt them
b) regulations are published in the Federal Register daily and yearly in the C.F.R. (code of Federal Regualtions)
Federal Register
the official daily publication for rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents. (Available online)
Code of Federal Regulations
the codification of the general and permanent *rules published in the Federal Register* by the executive departments and *agencies* of the Federal Government. It is divided into 50 titles that represent broad areas subject to Federal regulation. Updated annually.
Federal Courts System-
1st tier, bottom of hierarchy
specialty courts
eg:US court federal claims, court of international trade, US Bankruptcy court, US tax court, Admin agencies
Federal Courts System-
second tier
94 federal district courts (trial courts
Federal Courts System-
3rd tier, just before US supreme court.
Courts of appeal.
eg: court of appeals for federal circuit, circuit courts of appeal, court of appeals for D.C. circuit
State level Statutory law
-State legislature passes a bill which becomes a statute
-statutory code organized by subject matter in Wisconsin statutory code.
State level Administrative law
agencies promulgate (propose, write, publish) proposed regulations for public comment and then publish final regualtions.
-Administrative register- published chronologically
codified
1. Arrange (laws or rules) into a systematic code.

by agency,(eg NR: natural resources)
state court system hierarchy
Specialty courts (eg. municipal...limited jurasdiction)< Trial courts
(eg. county district)< Appellate Courts (court of appeals, or supreme courts in those states which do not have appleals) < Supreme Court
appellate court
- no new evidence is presented, court reviews lower court decision to determine if there was a reversible error.
* in WI the courts opinion does not have precedented value unless the state supreme court decides that the opinion should be officially published.
supreme court
-decisions must be used as precedent throughout the state.
-it;s the appellant's last chance for review unless a US treaty or federal law/constitution is involved.
Forests in 17th century England existed because...
- for the king's leisure and hunting
-to provide timber to English Navy
17th Century American Colonists & forestry?
-Plymouth Colony placed emphasis on forest presevation as early as 1626. (mayflower 1620)
1681
In Pennsylvania Forestry ROT...
For every 5 acres cleared, one must be preserved
1691-Purpose for forest reserves...
Ships masts
1849 this department was created
US department of the interior (with Secretrary of the Interior as a cabinet level authority)
year and name of first natural resource society...
1870- The
American Fisheries Society
Who is credited with the birth of the environmental movement?
Sportsmens magazines
1871-The American Sportsman
1873- Forest and Stream - now Field and Stream
first National park name and year est?
Yellowstone 1872
date of the Establishment of Arbor day?
1872
1890's
1 establishment,
2 acts
Sierra Club Established
Forest Reserve act, and Rivers and harbors act.
cities from 1870-1900
tremendous growth
-cities are centers of industry and pollution
-poor air & water quality, and poor sewage/garbage control
-
Who took the lead in cleaning up the cities in the late 19th Century?
Womens group...demanded solutions to sanitation probs and cities passed laws to control air pollution
Which entity was formed as a result of the Taylor Glazing act?
The soil Conservation Service...though it was also a result of the great depression and dust bowl.
1916 which entity was formed?
Others from early 20th Century?
The National Park service.

Soil Conservation Service, Civillian conservation Corps, wilderness Society, National wildlife Federation.
Post WWII recreation boom entails...
growth of national park sys, non-government conservancy growth, environ orgs expanded
influential book of post WWII
Rachel Carson's Silent Spring
Paul Ehrlich's The Population Bomb
TMDL?
Total Maximum Daily Load
(restrictions for pollutants)
Earth day
1970- mostly college students began
EPA establishment
Nixon passed executive order
What weakened support for env. issues in the 70's?
weak economy
oil embargo of 73 (OAPEC proclaimed an oil embargo (prohibition) "in response to the U.S. decision to re-supply the Israeli military")
(oapec-Organization of Arab Petroleum Exporting Countries)
1970's legistlation
(greatly expanded)
Clean Air act
Clean Water Act
Safe Drinking water Act
Resource Conservation and Recover act (controlled ACTIVE hazardous waste dumping)
-superfund for INACTIVE sites
comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
1980
AKA: Superfund
Pres Carter
Superfund is the federal government's program to clean up the nation's uncontrolled hazardous waste sites. (for inactive, RCRA for active)
Reagan admin...
budget cuts for EPA
State budget expanded:
-state superfund
-recycling-
-underground tank clean-up
-envir. audits
1987 -Montreal Protocol:
an international treaty designed to protect the ozone layer by phasing out the production of numerous substances believed to be responsible for ozone depletion.
IT WORKED!
Clinton Admin.
-republican congress emphasized regulatory burdens of env. protection
-expected:sound scientific criteria, cost-benefit analyses of regulations, reliance on markets
- gridlock... Clinton struggled to maintain the status quo
W.Bush Admin
-Pres. Bush retracted his campaign promise to regulate CO2
-Calls for more cost-benefit analysis and risk assessment
-Consistent efforts to eliminate public input and comments
-Clever names like the “Clear Skies Initiative” and the “Healthy Forests Initiative” sounded good to the public
-The strategy: maximize use of the words “safer”, “cleaner” and “healthier” and emphasize “common sense”
1950s summary
– post World War II prosperity and recreation
summary
1960s
1960s – environmental literature and activism. Federal pollution legislation begins
silent spring-1962
1970s summary
– federal env. legislation expanded (Nixon, Carter)
1980s summary
– state government env. legislation expanded (Reagan)
1990 summary
1990s – federal gridlock and compromise for environ. legislation (Clinton - "defended status Quo" but couldn't pass new legislation)
Environmental orgs
-focus on a single issue
-fill in gaps on issues
-groups form coalitions to combine resources and present a united front
Env orgs involvement with Environmental legislation
-citizen suit provisions
-technical assistance grant provisions
-litigation (lawsuits) as a strategy for noncompliance with env laws, attorneys fees, etc
Environmental Justice Movement
meeting of the civil right and environmental movements.
began in 1982!!
- task of balancing economic dev, social justice and environ. protection.
opposition to Environ. Rules
-organized labor
-industry (cost of compliance)
-trade institutions
-lobbyists supply proposed legislation
Grassroots opposition to Environ rules
-prevented increases in grazing fees
-achieved temporary moratorium on Endangered Species Act
-Sagebrush Rebellions
Media trends
-short-lived issue coverage, -emotionally sensitive issues favored
NGO's
non-government orgs.

issue driven or personality driven.
Grassroots, service or policy specific groups
IGO's
Inter-government Orgs.

...such as the UN, the World bank, or NATO (N. Atlantic Treaty Org.)
James Anderson's sequential model- 5 elements in order:
1. Problem id and agenda formation
2. policy formulation
3. policy adoption
4. policy implementation
5. policy evaluation
legislation to conserve forests was passed when?
17th Century.
(Colonists in New England)
standing
the right to initiate a lawsuit
19th century Environmental movement?
sportsman's magazines and women's groups lead urban clean-up programs
precedent
aka: authority
a legal case establishing a principle or rule that a court or other judicial body may utilize when deciding subsequent cases with similar issues or facts.
3 branches of govt?
(article 1) legislative
(article 2) executive
(article 3) judicial
why was the Soil Conservation service created?
1933- dust bowl and depression

*Clinton changed name to Natural Resources Conservation Service
reasoning by analogy
used when a lawsuit appears to be unique and/or precedents are conflicting.
courts responsibility with environmental law
settle disputes
interpret congressional content
enforce regulations
(but the never have to WRITE detailed regulations)
sagebrush rebellions' primary interest??
land use
Which court is an appeals court which chooses the cases it hears?
Supreme
Who may comment during regulatory public comment periods?
anyone
"stake holders"
Anyone who has an interest in proposed env. legislation

In general-a person, group, organization, or system who affects or can be affected by an organization's actions
regulatory relief
legislation that balances burden reduction and sound public policy, often called for by businesses and industry
easiest way for President to undercut Env Legislation?
personnel appointments and budget decisions rather than having congress repeal a law.
10th amendment??
powers not granted to the federal government nor prohibited to the states by the Constitution of the United States are reserved to the states or the people.
Who has most power with environ politics?
Executive branch AGENCIES, not president, but president does appoint staff.
executive agencies?
- all are regulatory agencies
- all depts. have cabinet level secretaries in charge
-agencies WRITE regualations

*EPA is part of Dept of interior which has a cabinet member.
Regulations implementation?
After congress passes law, agencies write the detailed regulations.
- public comment period
-finalization
-often periodic reauthorization, (but a "not reauthorized" does not mean repealed....reauth is for adjustments and improvements)
EPA
part fd Dept of Interior
-emphasis on public health
William Ruckelshaus has been the admin off and on and is responsible for the EPA's structure.
-Created by Nixon- executive order.
Department of Interior's job?
Responsible for public lands
congressional policy making
Env. issues adressed by numerous committees
-congress lacks time and expertise, so this decentralizes (and fragments) the decision making process.
Executive branch rule-making
agencies interpret congressional intent and write regulations.
-lawyers draft rules
-Notice of Proposed Rulemaking appears in Federal Registrar for comment.
-comments go on the record (sometimes from experts with additional info)
-There may be hearings facilitated by committee chair (with subcommittees and dueling experts)
-final rules also appear in Fed. Registrar.
What parties are involved in env. lawsuits? (people/groups)

Lawsuits delay ___________.
private enterprises
agencies
environmental groups (often on behalf of the public)
individual with standing
Lawsuits delay implementation of regulations.
using the constitution, the courts duties are:
-excercise Judicial review (review the constitutionality of a statute or treaty)
-interpret statutes
-interpret congressional intent
What important decision was made by Montana supreme court in 2000?
state constitution guarantees a fundamental right to a clean environment.
Who are the implementing agencies for the federal govt?
States.

Federal Govt supplies funds for research, planning, monitoring and mamgt though.
meet it or beat it
states can only as strict or more strict than fed govt, NOT less strict.

Some states are stricter because of wealth, severity of problems, or partisan arguments.
Antiquities act
President can bypass congress and pass protective legislation. T. Roosavelt used this EXTENSIVELY.
Trends in land use
from divestiture (Selling off lands) to:
conservation, to preservation
Problems agencies have with legislative mandates?
vague and contradictory
sometimes congress is unwilling to be more explicit
Public views on land use?
for wilderness preservation EXCEPT when it affects them financially.
- largely uninterested in public hearings where land use policy if formed. Language used is often misunderstood.
Originally what was designated as "public lands"?
land between the Appalachians and the Mississippi.
ordinance of 1785
sold public land to highest bidder
minimum $1/acre and 640 acres

From 1812-1946 the General Land office sold or gave away over 1 billion acres of land
How much land was granted to railroads following the ordinance of 1785?
132 million acres
-ordinance raised money by selling unsettled land.
Revised Mining act in 1872
-encouraged further west settlement
-set terms for sale of public lands
Mineral leasing act: year and purpose?
1920
authorized leases rather than sales- government was no longer encouraging large scale settlement
*in 1865 they considered sending an army to expel the miners (end of civil war, westward expansion though 1890)
When was yellowstone est?
1872
by Ulysses S. Grant
(same year as mining act which encouraged westward expansion)
Forest reserve Act: year and purpose?
1891
by congress under Benjamin Harrison
protected timber supplies, it was later repealed
The American antiquities act
gave the president authority to withdraw certain federal lands from settlement and development.
-signed into law by Teddy Roosevelt.
first national monument?
Devil's tower
Taylor Grazing Act
-Established the division of Grazing in the Bureau of Land Management (BLM).
-Estalished districts, fees and permit structures.
-Est. Animal Unit Month
-land access limited to local base
AUM
Animal Unit Month
Criticisms of Taylor Grazing act?
led to over grazing
in '74 the nat. Resource defense council lawsuit forced BLM to dev. environmental impact statements for grazing permits
Grazing fees
cost of program?
permittees pay $1.90/ AUM on Federal lands

*Compared to $12-$13 on similar state land and $14.50 on private land

Program costs exceed $28 AUM.
5 major uses of public lands with short descriptions
1. wilderness - always undeveloped
2. National Forests -some development permitted
3. National Parks- recreational purposes only
4. National Wildlife refuges- permanent habitat
5. Rangelands- livestock grazing
development can be....
housing, logging, grazing, mining, energy production, recreation
Even a wildlife refuge can be developed.
Who is responsible for public lands? (agencies)
The Department of the Interior, including agencies Bureau of land mngt, US Forest Service and US Fish and Wildlife.

The Dept of the Defense
tab;e 4.1 shows fragmentation in mngt.
MUSY
year and purpose
1960
Multiple use sustained yield act.

Directs the Secretary of Agriculture to develop and administer the renewable resources of timber, range, water, recreation and wildlife on the national forests for multiple use and sustained yield of the products and services.
Classification and Multiple Use Act
*year and purpose
1964

gave the Secretary of interior further authority to classify lands for the purpose of either disposal or retention by the Federal Government.
Federal LAnd Policy and Mngt Act
*year & purpose
1976
-Congress reiterated the multiple use policy
-public participation in land mngt decisions was now required by law.
-federal land can now be sold in the national interest
Multiple Use
requires shared jurisdiction among regulatory agencies
-multiple use provisions in US law generate competitive pressure among groups for permit rights
sustained yield
taking out more than nature puts in is contrary to the national interest
national parks idea
recent additions?
-has been copied by 120 nations

Clinton designated land to national parks in 41 states
How many national parks?
400
How much land is forest and how much of that is owned by government?
~1/3 of 2 billion...730 mill

27% of that is Govt. (just over 1/4)
Issues that arise with sustained yield and Multiple Use in national forests?
economic success, jobs, habitat, endangered species, global warming,
also, trees are considered crops, so Dept of Ag shares jurisdiction.
How has US forest policy changed from the 70s to today?
- organized env. movement.
-now law for rangelands and forests
-more congressional control, judicial scrutiny and REQUIRED public participation
-US forest service must analyze costs and benefits before logging.
conflicts between forestry and environmental protection?
ban on logging spotted owl habitat-forest ecosystem management Assesment team (100 scientists) now works with US forest service.
We now cut 80-85% less than we did in the 80's
sagebrush rebellion
-wanted federal public land transferred to states.
-demanded monetary support for legal challenges and public Ed. programs
- disputes involved grazing and mineral extraction on federal lands
Who opposed sagebrush rebellions?
hunting/fishing lobbies and sierra club, on the grounds that states are ill equipped to manage the land.
1998 omnibus Parks and Public Lands Act
Defeated in 1998
would have eliminated wilderness protections, given and sold land to private interests and increased logging.
BLM
bureau of land management
3 programs used by Bush (W) to increase natural resources production (rather than the previous conservation oriented rules).
the grazing program
hardrock mining program
US forest service handling of "Roadless area policy"
These programs limited public access in land use decision making and used an extreme interpretation of existing laws, an were thusly thrown out by federal judges.
Restrictions on property use are not considered taking. How does the public feel about compensating land owners fro restricting property use?
They disapprove. They would rather not compensate landowners for environmental restrictions.
conflicts with devils tower?
popular for rock climbing
spiritually significant to Indians
compromise- voluntary climbing ban in June and public education campaign to explain site's significance....still a lawsuit was filed. :P
waste definition
material with no obvious significant economic or other benefit
5 major waste categories and %'s:
94% industrial non-hazardous waste
5% hazardous waste
>1% Municipal solid waste
>1% Medical Waste
>1% Radioactive waste
criteria for hazardous waste
1 or more of criteria:
ignitable
corrosive
explosive
toxic
radioactive waste includes:
Spent reactor fuel
weapons materials
RCRA
Resource conservation and Recovery act
*The most comprehensive waste management law.
-detailed solid waste regs and hazardous waste regulations for active hazardous waste diposers.
-partnerships have been encouraged between EPA and industry to encourage non-mandatory hazardous waste reduction and recycling.
"cradle to grave" tracking of hazardous waste
CERCLA
Comprehensive Environmental Response, Compensation, and Liability Act

aka Superfund
1980- to address the problem of remediating abandoned hazardous waste sites

Strict liability statute- the only defenses allowed are : act of god, act of war, or, in some circumstances, an action of a third party.
*third party clause protects innocent land owners with no reason to know of previous use.
sanitary landfills
- what and when?
landfills with dirt dumped on top
began in 1930's
Where is waste disposal of greatest concern?
Urban areas.

(landfills were located on outskirts of town and in poor communities)
Transportation was key.
Trend in management of garbage?
nuisance to health risk.
leachate
any liquid material that drains from land or stockpiled material and contains significantly elevated concentrations of undesirable material derived from the material that it has passed through.
Today's landfill rules:
-minimal leachate production
-prevent impacts to groundwater
-leachate and methane gas collection
-use exess methane to generate electricity (sometimes)
Who takes care of SOLID waste and who takes care of HAZARDOUS waste?
solid- state and local govts
hazardous- federal govt

(EPA determined who should be responsible)
Govt approach to solid waste
lead by example (standards for fed agencies)
-tax incentives
-enforceable legislated requirements
*cities with free bins & curbside pick-up
*warnings or fines for violations
waste minimization:voluntary or involuntary?
voluntary
EPA doesn't restrict.
% of waste recycled in past decades & today?
7% in past
20% today
major deterrent to recycling market?
products are more expensive
most successful recyclable?
paper
increase per capita in solid waste since WWI?
5X

*tremendous growth in packaging vol. in the 70's
what material accounts for half of waste today?
paper
us solid waste compared to Europe and japan?
we landfill....they incinerate

because of land avail.
Pollution prevention act of 1990...
EPA's strategy for solid waste source reduction
4 R's
Reduce unnecessary packaging
Reuse & Recycle products and containers
Respond- make you preferences known to manufacturers
NOT MANDATORY- things you "should" do- taken less seriously by businesses and corporations
Solid waste disposal act of 1965
Financial and technical assistance offered to local govt's.
(precursor for RCRA)
Resource Recovery Act
(precursor for RCRA)

demonstration grants were offered for state solid waste management programs.
What disaster lead to CERCLA?
(superfund)
LOVE CANAL
Cheap dumping land that has now stood up in resistance....
Africa
What activist groups take on the issues of marine life and world's oceans. (dumping)
Greenpeace
POPS
12 principal (or persistent?) organic pollutants
chemical substances that persist in the environment, bioaccumulate through the food web, and pose a risk of causing adverse effects to human health and the environment.
international solid waste concerns?
contaminated Army bases, ocean dumping, industrial contamination, radioactive waste, POPs, African dumping,
Love canal
covered chemical waste dump site with soil and built a school there.
- 1977 wet year brought chemicals to surface
toxin such as dioxin, benzine, arsenic, and other carcinogens and toxins
-placed cap and drain and treat water drained off.
Carter declared it a disaster area.
TSD
treatment storage and disposal
formerly STD
How much does govt owe to nuclear waste storage facilities for not honoring disposal agreement?
$2 billion
Runoff rules
published but never finalized because of public unpopularity.
WI adopted them later.
NPDES
national pollutant discharge elimination system
-must meet BMP (best management practices) for animal waste & nutrient mangt, pesticides, waterway mngt, livestock, wetlands, etc to be elligible for NPDES permit.
-Checklist of requirements.
WPDES
wisconsin version of NPDES
WI pollutant discharge elimination system
-must meet BMP (best management practices) to be elligible for permit.
-NPDES permits require regulated municipalities to use Best Management Practices to reduce pollutants to the "Maximum Extent Practicable."
Checklist of requirements.
-all CAFOs need WPDES permit
CAFOs
concentrated animal feeding operations
(feedlots)
must be covered under WPDES
DATCP means
Department of Ag Trade and Consumer Protection
LCD means
County land conservation dept.

(or liquid cadmium display ;) )
NRCS means
USDA natural resources and conservation service
wilderness (def/use)
always undeveloped
national forests (def/use)
some development permitted
National Parks (use/definition)
recreational only
national wildlife refuges (def/use)
permanent habitat
rangelands (definition/use)
livestock grazing
states rights, which amendment?
10th!!!