Esp 161 Final

Front 1

Wetland

Back 1

Army Corps Definition:
Areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.

Front 2

Ecological functions wetlands may serve

Back 2

Nutrient Cycling
Reduce Flooding, Erosion
Absorb excess nutrients, sediment, pollutants before they reach rivers or lakes
Breeding area for waterfowl

Front 3

Section 404 of the CWA

Back 3

Wetlands Regulation
-wetland with dredge or fill material

Front 4

Riverside Bayview
(Case)

Back 4

Congress chose to define the covered waters broadly. Congressional intent.
Corps has jurisdiction to regulate and require permits for discharge of fill material into wetlands adjacent to "waters of the US"
Regulation adopted by the Corps to interpret what a wetland is is fully authorized by the state

Front 5

SWANCC
(Case)

Back 5

Solid Waste Agency of Northern Cook County is a consortium of towns and villages. Was looking for a solid waste disposal site.
Purchased property that was abandoned sand and gravel pit mining operation
Proposed to fill some ponds. Corps asserted jurisdiction under the "Migratory Bird Rule"
--> Section 404(a)'s jurisdiction included waters which were or would be used as bird habitat by birds protected by Migratory Bird Treaties, are or would be used as habitat by migratory birds that cross state lines
Issues: Section 404 does not give the Corps authority to regulate an isolated intrastete wetland
"Navigable" must mean something. To rule otherwise would interfere with state's rights over land use

Front 6

Borden Ranch
(case)

Back 6

Disagreement between Corps and developer over Corps authority to regulate deep ripping in protected wetland
Defendant argued: deep ripping is not adding pollutant because it only churns up soil that is already there
Court rejects, reasoning: past court precedent holds that redeposit of materials is addition of a pollutant
Defendant argued: even if deep ripping is discharge of pollutant, it is exempt under "farming exception"
Court rejects, reasoning: converting ranch land to vineyards is bringing land to a use it did not have before and farming exception does not apply
Holding: Corps and EPA had jurisdiction over deep ripping activities and a permit is required

Front 7

Rapanos/Campbell
-define Scalia Plurality

(case)

Back 7

Two cases involving Michigan wetlands generally lying near ditches that eventually emptied into traditional navigable waters
Rapanos back filled wetlands on a parcel of land with nearest body of navigable water 11-20 mi away. Regulators informed Rapanos he needed a permit
Issue: are the wetlands at issue waters of the US that are subject to CWA permit requirements
Scalia Plurality- only "those wetlands with a continuous surface connection to bodies that are waters of the US in their own right" are covered by the CWA
--> Keenedy concurring opinion, cited SWANCC, "significant nexus"- corps may assert jurisdiction based on adjacency to navigable-in-fact waters, for non navigable tributaries, must establish significant nexus on a case-by-case base

Front 8

Takings under which Amendment?

Back 8

5th Amendment
"nor shall private property be taken for public use w/o just compensation"

Front 9

Types of Takings

Back 9

Physical and Regulatory

Front 10

Regulatory Taking

Back 10

permanent physical occupation or temporary physical occupation for public purpose

Front 11

Regulatory Taking

Back 11

limitation on the use of property can be so onerous that it has essentially the same effect as a physical taking

Front 12

Penn Central
(case)

Back 12

not a taking, restrictions on remodeling historic landmarks

Front 13

To determine if there is a taking, courts look at (3) factors:

Back 13

Economic impact of the regulation
Interference with the landowner's reasonable investment backed expectations
Character of the government action

Front 14

Lucas
(case)

Back 14

beachfront property case
Holding: where a state seeks to sustain regulation that deprives land of all economically beneficial use, it may resist compensation only if the proscribed use was not allowed to begin with. Such restrictions must "inhere to the title itself"- in the restrictions that background principles place upon land ownership
Courts look to states' background principles in determining what is a regulatory taking
Regulation prohibiting a use that is a nuisance under state law, even if it severely impacts a particular owner of renders the property valueless, does not work a regulatory taking

Front 15

Palazzolo v Rhode Island
(case)

Back 15

"a regulation that otherwise would be unconstitutional absent compensation is not transformed into a background principle of states law by mere virtue of the passage of the title" Instead, courts must consider "objective factors" such as nature of the proscribed parcel
Parcel retained $200k in development value because P could build residence upland

Front 16

Parcel

Back 16

Parcel- one of the critical questions in the takings inquiry is how to define the unit of property
-The supreme Court- no discrete segments to determined what rights in a particular segment have been "taken", the parcel is to be viewed as a whole

Front 17

TSPC v. TPRA
(case)

Back 17

Tahoe-Sierra Preservation Council vs Tahoe Regional Planning Agency
Ordinance prohibited all construction on sensitive lands in CA and NV for 8 months
Moratoria did not effect a Lucas taking
Courts reviewing takings claims must determine whether there has been a compete taking of all economically viable use
--> the court was not willing to divide property rights into "temporal segments"
This was not a classic taking where gov't appropriates the land
The moratoria protected the interests of all the landowners, it did not unfairly single out one owner
A rule that required compensation for every delay in the use of property would render routine government processes prohibiting expensive or encourage hasty decision making

Front 18

Endangered Species Act given power under what clause?

Back 18

Commerce Clause (article I, section 8, clause 3)
Congress has the power to regulate commerce with foreign nations and among several states and with tribes

Front 19

3 Arguments for Preservation of Biological Diversity

Back 19

Utilitarian- direct benefits include domestication and use for food, genetic traits, medicinal drugs, disease testing, water and nutrient cycles
Esthetic- beauty of the natural world, hiking, pictures
Moral/Ethic- importance of continuation of the biotic community, "A thing is right when it tends to preserve the integrity, stability and beauty of the biotic community. It is wrong when it tends otherwise" Aldo Leopold

Front 20

TSA v Hill
(ESA case)

Back 20

late 1970s, TVA building Tellico Dam
Dam about 1/2 done when snail darter discovered in river
Supreme Court halted dam
-explicit provisions of the ESA require precisely that result
-section 7 requires all federal agencies to insure their actions do not jeopardize endangered species' continued existence
--> statutory language "admits of no exception"
Congress amended ESA to create Endangered Species Committee

Front 21

Protection of Plants under

Back 21

California ESS
--> plant protection based on state law

Front 22

4 Key Provisions of ESA

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Section 4: listing species as endangered or threatened
Section 7: consulting with F&WS or NMFS when federal action could affect listed species
Section 9: prohibiting "take" of endangered species
Section 10: authorizing "incidental take"

Front 23

Species

Back 23

any species or subspecies of fish, wildlife or plant and any "distinct population, segment of any species of vertebrate, fish or wildlife which interbreeds when mature"

Front 24

Endangered

Back 24

in danger of becoming extinct throughout all or a significant portion of its range

Front 25

Threatened

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likely to become endangered in foreseeable future

Front 26

Section 4: Listing

Back 26

Listing is to be on best scientific and commercial evidence
-agencies are also supposed to list critical habitat at time they list the species

Front 27

Section 7: Consultation

Back 27

Once species is listed as endangered or threatened, ESA requires federal agencies to consult with F&WS or NMFS to avoid undertaking or approving actions that are likely to jeopardize the continued existence of the species
-action agency asks what species are there, then does biological assessment
-if listed species present, consultation on impacts required. FWS or NMFS does "biological opinion"
-->Jeopardy, ESC

Front 28

Jeopardy

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if the action "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild"- reasonable and prudent alternatives required

Front 29

Endangered Species Committee (God Squad)

Back 29

Action agency proposes action --> Expert agency reports species --> action agency does biological assessment --> expert agency does the biological opinion --> BiOp decides jeopardy/no jeopardy and includes permit

Front 30

Section 9: Probation of "take"

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ESA prohibits "take" of endangered animals within the US or on the high seas. Broader protection than for plants
Taking defined as harass, harm, pursue, hunt, shoot, wound, kill, trap. capture or collect or attempt to engage in such conduct

Front 31

Defenders of Wildlife vs Bernal
(ESA case)

Back 31

Pygmy owl at high school case

A reasonably certain threat of imminent harm to protected species is sufficient to show a take under section 9
P failed to show taking (harassment of pygmy owl)

Front 32

Section 10: Incidental Take

Back 32

Limited exception to the prohibition on taking if a taking is incidental to and not the purpose of carrying out an otherwise lawful activity
Secretary must determine that the incidental take will not appreciably reduce the likelihood of the survival and recovery of the species in the wild --> Habitat Conservation Plan

Front 33

Rancho Viejo, LLC vs Norton
(ESA case)

Back 33

Arroyo Toad case

Commerce Clause in action
ESA has multiple purposes. The commercial value of preserving species diversity played as important role in Congress' deliberations

Front 34

Air Quality Criteria
42 USC 7408

Back 34

The administrator shall publish and shall from time to time thereafter revise, a list including each air pollutant-
a) emissions of which, in his judgement, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare
b) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources
c) for which each air quality criteria had not been issued before CAA enactment in 1970 but for which he plans to issue air quality criteria under this section

Front 35

Air quality criteria and NAAQS reviewe how often?

Back 35

On 5 year intervals

Front 36

National Ambient Air Quality Standards (NAAQS)
42 USC 7409

Back 36

the administrator shall publish regulations prescribing a national primary and secondary ambient air quality standard for each air pollutant for which air quality criteria have been issued

--> national primary ambient air quality standards
--> national secondary ambient air quality standards. Preven environmental and property damage
--> human health based: Whitman v Trucking Ass'ns, EPA in setting standard cannot consider cost

Floor not a ceiling, can establish more stringent standards

Front 37

EPA's Role in Air Quality

Back 37

under the CAA, EPA sets limits on certain air pollutants, including setting limits on how much can be in the air anywhere in the US. This helps ensure basic health and environmental protection from air pollution for all Americans

Front 38

Federal/State roles in Air Quality

Back 38

States/tribes may have stronger air pollution laws than EPA but not weaker

Front 39

State Implementation Plans (SIP)

Back 39

Required for areas with unhealthy levels of criteria pollutants
-describes how they will attain NAAQS

Front 40

Air Quality Permits

Back 40

Clean Air Act in 1990
Include info on which pollutants are being released, how much may be released and what steps the source's owner or operator is required to take to reduce pollution
Permits must include plans to measure and report the air pollution emitted

Front 41

Criteria Air Pollutants

Back 41

Can harm your health and the environment, cause property damage
Areas that meet primary standards = "attainment"
Areas that don't= "non-attainment" area

Front 42

American Trucking Association v EPA

Back 42

EPA revised primary and secondary NAAQS for PM and ozone
EPA accused of failing to determine whether attainment of the old standard would result in an unacceptable health risk
Courts Response: EPA need only to qualitatively describe the standard of a particular governing its selection of a particular NAAQS

Front 43

OZONE Standards

Back 43

EPA's proposed standard switches from a one to an eight-hour averaging time to reduce risk of short term exposures but also limits cumulative exposure and further reduces variability in ozone levels across geographic areas
Ozone is a non-threshold pollutant. It is not possible to select a level at which there are no health effects

Front 44

California Global Warming Impacts

Back 44

Loss in Sierra Snow Pack
Sea level rise
More heatwave days in major urban centers
More critically dry years
More heat related deaths in major urban centers
Increase electricity demand
Increase in days meteorologically conductive to ozone formation
Impact on forest yields

Front 45

AB 32: Global Warming Solutions Act

Back 45

requires state's GHG emissions to be reduced to 1990 levels by 2020
CARB regulations adopted under AB 32 are designed to achieve max technology feasible and cost effective reductions in GHG sources or categories of sources
CAP AND TRADE

Front 46

Massachusetts vs EPA

Back 46

19 private organizations filed rule-making petition to regulate GHG emissions from new motor vehicles under CAA, states and local governments joined
EPA denied petition- does not have authority
GHGs are air pollutants subject to regulation
EPA must consider whether to regulate
-DOT's mileage mandate does not equal EPA's mandate
-If EPA finds endangerment, it must regulate but it has discretion on timing, content and coordination of regulations with other agencies

Front 47

Two types of Environmental Enforcement

Back 47

Administrative and Citizen

Front 48

Administrative Enforcement
(Environmental Enforcement)

Back 48

Reasons: (generally) less expensive, build record, differential standard of review, allow quick action
Generally "escalating": notice of violation, increased reporting requirements, administrative cleanup orders, administrative liability (penalties)

Front 49

Citizen Enforcement
(environmental enforcement)

Back 49

before filing suit, citizen must give "60-day notice"
-give violator a chance to correct/cure

Front 50

Gwaltney of Smithfield v Chesapeake Bay Foundation

Back 50

citizen-plaintiff may not bring suit for wholly past violations
need a good faith "allegation" of ongoing violation --> continuous or intermittent
Mootness- show conduct cannot reoccur and citizen plaintiff cannot proceed

Front 51

Supplemental Environmental Project (SEP)

Back 51

alternative to penalties
respondent agrees to undertake in settlement an environmentally beneficial project that he/she/it is not otherwise legally required to perform
project must benefit public health or environment and must have a nexus to the violation

Front 52

RCRA purpose

Back 52

amended the Solid Waste Disposal Act of 1965
Protecting human health and the environment from the potential hazards of waste disposal
Conserving energy and natural resources
Reducing the amount of waste generated
Ensuring that wastes are managed in an environmentally-sound manner

Front 53

What RCRA Does

Back 53

Defines solid waste
Cradle to Grave
Establishes holding standards for waste from generation to disposal
Provides authority for mandatory cleanup of polluted treatment, storage and disposal sites (TSDs)

Front 54

Characteristic Hazardous Wastes

Back 54

Ignitable: burns easily, posing a threat of fire

Corrosive: strong acids and bases, capable of eating through metals

Reactive: unstable, with potential to explode, react violently with water or produce toxic fumes

Toxic: having potential to release toxic substances in toxic concentrations if handled improperly

Front 55

Who Is Regulated for Haz Wastes?

Back 55

1. Generators
2. Transporters
3. Treatment, Storage and Disposal Facilities
(cradle to grave)

Front 56

People V Roscoe

Back 56

Civil lawsuit against Roscoes and Customer company for release of over 3000 gallons of petroleum from underground storage tank
Cleanup did not proceed timely and adequately. Multiple notices of violation were sent
Responsible Corporate Doctrine- applies liability to corporate officer

Front 57

Environmental Justice

Back 57

fair treatment of all people with respect to the development, implementation and enforcement of environmental laws, regulations and policies
Grew out of civil rights movement

Front 58

In Re Chemical Waste Management of Indiana, Inc.

(keywords=hazardous waste liability, omnibus clause of RCRA, no environmental justice violation)

Back 58

Region should exercise discretion to assure early and on-going opportunities for public involvement in the RCRA permitting process

Regions should employ the “omnibus clause” of RCRA

Omnibus Clause: it ensures that adverse impact on the health or enviro. of the surrounding communities are mitigated w/ permit conditions, if permit conditions cannot be conditioned in a way to protect health and environment of surrounding communities, the agency has discretion to deny the permit

Front 59

Kettleman City

Back 59

Citizen's group wanted to issue conditional use permit for the construction and operation of a hazardous waste incinerator
Incinerator to burn toxic waste in a predominately latino town

Court Findings: EIR inaccurately reasoned under CEQA that the air quality impacts of emissions from incineration operations would be mitigated to a level of significance
Needed Spanish translation of the report and public hearing documents

Front 60

CERCLA

Back 60

after love canal, EPA relied on RCRA and CWA abatement authority but found them insufficient to deal with hazardous waste dump cleanups
CERCLA passed as the main federal law governing hazardous waste cleanup

Front 61

CERCLA applies when... (3 parts)

Back 61

a release or threatened release;
of hazardous substances from;
a facility or vessel

Front 62

Strict Liability

Back 62

liability without negligent or unreasonable conduct, no intent required
-generally joint and several because harm is "indivisible"

Front 63

To recover costs (for hazardous waste), a plaintiff must show:

Back 63

the cite is a "facility"
the defendent is a responsible person under 42 USC section 9607(a)
a release or threatened release has occurred
the release caused plaintiff to incur response costs
defendant is liable unless it has one of statutory defenses

Front 64

Potentially Responsible Party (for Haz Wastes)

Back 64

1) current owners/operators
2) prior owners/operators
3) persons who arrange for disposal/treatment of haz substances
4) transporters of haz substances who select disposal sites

Front 65

Toxic Tort

Back 65

a personal injury action based on exposure to substances that present an unusually high risk to human health or the environment
--> basic negligence case

Front 66

What mus a toxic tort plaintiff show to prevail? (3 parts)

Back 66

1) P was exposed to substances released by D
2) those substances can cause the type(s) of harm suffered by P
3) the substances did cause P's harm
--> most difficult to prove, Expert is KEY

Front 67

Toxic Tort Causation Problems

Back 67

Carcinogens do not show up for years
D's attibute illness to other causes, forcing P to "disprove"
Scientific uncertainty makes expert testimony key
Cost limits P's ability to pursue claims. D usually has $$