Esp 161 Midterm

Front 1

Stare Decisis

Back 1

Decisions of higher courts arising from litigation between different parties bind lower courts to same facts. Advocates argue to distinguish or follow prior precedent

Front 2

Res Judicata

Back 2

Judgements between parties prevent subsequent litigation on same issues. "Claim Preclusion"

Front 3

Attorney Fees. Who pays in the US?

Back 3

In the US, each side usually pays its own court fees. Attorney fees awards generally are only by contract or statute.

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Plaintiff (petitioner)

Back 4

Participant: one who brings the lawsuit

Front 5

Defendant (respondent)

Back 5

Participant: one who is sued

Front 6

Intervener

Back 6

Participant: has interest, is made a party

Front 7

Real Party

Back 7

Participant: ex: the permit applicant

Front 8

Amicus curiae

Back 8

Participant: "Friend of the Court," not a party, but files brief on legal issues

Front 9

Types of Relief (5)

Back 9

Damages
Injunction
Declaratory Relief
Writ of Mandamus
Writ of Mandate

Front 10

Damages

Back 10

(types of relief)

Money

Front 11

Injunction (2 types)

Back 11

(types of relief)

Court order telling someone to stop doing something

preliminary- preserve status quo while case pending
permanent- stop the activity permanently

Front 12

Declaratory Relief

Back 12

(types of relief)

court declares rights

Front 13

Writ of Mandamus

Back 13

(types of relief)

order agency to do what it has duty to do

Front 14

Writ of Mandate

Back 14

(types of relief)

challenges adjudicatory agency action

Front 15

Types of Claims

Back 15

Negligence
Strict Liability
Trespass
Nuisance

Front 16

Negligence

Back 16

Duty, Breach, Causation, Harm (Injury)

Front 17

Strict Liability

Back 17

Statutes create strict environmental liability by providing for liability without knowledge, intent. Example, Leslie Salts case. Landowner liable for fill material illegally deposited on property by another.
Common law factors also can create strict liability

Factors for determining whether the activity is abnormally dangerous
-Existence of a high degree of risk of some harm to the person, land, or chattels of another
-Likelihood that the harm will be great
-Extent to which activity is unusual
-Inappropriateness of the activity to the location
-Extent to which the usefulness of activity is outweighed by risk

Front 18

Trespass

Back 18

Physical invasion of land without possessors permission. Interferes with owner's right to exclusive possession of his land (Many jurisdictions also require intent)

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Nuisance

Back 19

Unreasonable and substantial interference with the use and enjoyment of land. Now also statutory.

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Nondelegation doctrine

Back 20

Article 1, Section 1 "All legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a Sentate and House of Representatives."

Nondelegation doctrine implements separation of powers and bars "excessive" delegation of discretionary authority from congress to administrative agencies

Legislation must contain an "intelligible principle to which the person or body authorized to act is directed to conform. Legislature must make fundamental policy decisions. Legislation is permissible so long as it sets basic policy and contains criteria clear enough that Congress, the courts, and public can measure agency conduct by those standards.

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Ripeness

Back 21

Case has to be ready. Agency action has to be final.

Front 22

Mootness

Back 22

There is no longer a live or active controversy between the parties

Front 23

Reasons for standing (3)

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Injury
Causation
Redressability

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Injury

Back 24

Party must address that he/she will be injured by the action. A mere interest in the matter is not enough.

Front 25

Causation

Back 25

must be "fairly traceable" to the action that is being challenged

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Redressability

Back 26

There must be a likelihood that a favorable ruling would actually redress the harm. If the plaintiff wins, the court could grant relief.

Front 27

Cooperative Federalism
-two key components

Back 27

States, within limits established by federal minimum standards, enact and administer their own regulatory programs structured to meet their own particular needs

Two key components:
-Fostering of state administrative programs
-Delegation of tailored standard-setting

Carrot-and-stick approach

Front 28

Three types of water rights law

Back 28

Riparian
Appropriative
Prescriptive

*These are surface water rights, separate laws governing groundwater

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Usufractuary

Back 29

Have the right to use, but not own (water rights)

Front 30

Riparian Water Rights

Back 30

"relating to or living or located on the bank of a natural watercourse (as a river) or sometimes of a lake or tidewater"

Not gained by use, nor lost by disuse
Subject to "reasonable use" doctrine
No right of storage

Front 31

Lands to which riparian water rights attach

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1. Contiguous to the watercourse
-length not relevant
2. The smallest tract held under one title in the chain of title leading to the present owner-"source of title"
-meaning riparian parcel may never become larger than the original parcel size, but may become smaller if parcel is subdivided
3. Within the watercourse watershed
-when water used on the land, or rain runoff from the land, naturally runs to the stream. Thus any unused water will return to the watercourse, for the benefit of natural downstream riparian users

Front 32

Appropriative water rights

Back 32

Permit system to allow the water commission to allocate the states unappropriated surface waters and subterranean streams.
Requires filing a permit application with the State

Land ownership not required, water can be used elsewhere
Rights can be lost/severed

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Public Trust Doctrine

Back 33

State is guardian or trustee of certain natural resources for the protection of the public's rights of use. The sovereign owns all navigable waterways and the lands lying beneath them as "trustee of a public trust for the benefit of the people."
-seek to protect recreational and ecological values

Front 34

Federal Clean Water Act

Back 34

Goals:
"Restore and maintain the chemical, physical, and biological integrity of the nation's waters" It is the national goal that the discharge of pollutants into navigable waters be eliminated by 1985"
Attain "water quality which provides for the protection and propagation of fish, shellfish and wildlife and provides for recreation in and on the water"

Front 35

Waters of the United States

Back 35

Not all surface waters are legally "waters of the US:
Includes:
-all interstate waters
-intrastate waters used in interstate and/or foreign commerce
-tributaries of the above
-territorial seas at the cyclical tide mark
-wetlands adjacent to all of the above

Water Quality Standards

Front 36

Water Quality Standards

Back 36

WQS's translate the broad goals of the CWA into water body-specific objectives. Expressed in terms that allow quantifiable measurement. Components:

Designated uses: water body goals
-ex: drinking water (treated/untreated), recreation, fishing, agriculture or industrial water supply

Water Quality Criteria
-descriptions of conditions in a water body necessary to support designated uses. Expressed as ex: concentrations of pollutants, temperature, pH, turbidity units. Can be narrative: "no unsightly scum"

Antidegradation policies
-designated to protect existing uses of water and protect high quality waters

Front 37

Impaired Water Bodies

Back 37

States must develop strategy, subject to EPA approval

TMDL
-determine allowable load
-calculate margin of safety
-allocate among sources of pollutant

Front 38

Point Source of Pollution

Back 38

If you can point at it, it is a point source

Does not include agricultural storm water discharges and return flows from irrigated agriculture

Front 39

National Pollutant Discharge Elimination System (NPDES) permits

Back 39

the CWA makes it illegal to discharge pollutants from a point source to the waters of the US without a permit

EPA sets technology-based effluent limitations for categories of sources that must be included in permits. Extent of control required depends on type of pollutant.

Front 40

Section 401 Certificate

Back 40

Before a federal permit can be issued for activities that may result in any discharge into navigable waters, the state must certify that any such discharge will comply with the applicable provisions of the State's water quality control plans
Certification may contain effluent limitations or other limitations, and monitoring requirements necessary to assure that the applicant will comply with water quality standards

Front 41

Nonpoint Source Pollution

Back 41

Pollution that comes from many diffuse sources
-caused by rainfall or snowmelt moving over and through the ground
-most significant source of pollution in the country

Front 42

Waters of the State

Back 42

means any surface water or groundwater, including saline waters, within the boundaries of the state

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What are the principal state agencies with primary responsibility for coordination of water quality?

Back 43

State water board and nine regional boards (designated by Porter-Cologne)

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State Water Board

Back 44

-the agency authorized to exercise any power delegated to the states under the CWA
-formulates policy and plans for state water quality control
-oversees activities of regional water boards in an administrative appellate oversight role, including approval of basin plans

Front 45

Regional Water Quality Control Boards

Back 45

Responsibilities:
-coordinate with the state, regional, and local agencies with respect to water quality control matters, including the prevention and abatement of water pollution and nuisance. Make reports on compliance and other items.
-Encourage and assist in waste disposal programs and coordinated regional planning and action for water quality control
-Enforce Porter-Cologne and request investigation/enforcement of water quality control laws by other agencies as appropriate

Front 46

Beneficial Uses of Waters of the State

Back 46

uses of the waters of the state that may be protected against water quality degradation include, but are not necessarily limited to,
-domestic, municipal, agricultural and industrial supply
-power generation
-recreation
-esthetic enjoyment
-navigation
-preservation and enhancement of fish, wildlife and other aquatic resources or preserves

Front 47

Waste Discharge Requirements

Back 47

Permits issued under California Water Code

Staff also drafts a NPDES permit if the discharge is from a point source to navigable waters

Permits are adopted by the Regional Board after a hearing

Front 48

National Environmental Policy Act (NEPA)

Back 48

Enunciates for the first time a national policy for the environment (statue)

Front 49

Environmental Impact Statement (EIS)

Back 49

required on major, federal, actions which could affect the human environment

an action will be federal if a federal agencies carries it out, approves it, or funds it

Front 50

Council on Environmental Quality (CEQ)
-NEPA

Back 50

adopted regulations for the implementation of NEPA
-composed of three members appointed by President and with advice and consent of President
-prepares annual Environmental Quality Report
-advises the President
-does studies, coordinates environmental work, oversees implementation of NEPA

Front 51

California Environmental Quality Act (CEQA)

Back 51

California has its own environmental act, modeled after NEPA

Front 52

Challenges Faced Regulating to Prevent Ecological Injury

Back 52

Irreversible harms
Physically and temporally distant injuries
Uncertainty and risk
Multiple causes of harm
"Noneconomic" injury

Front 53

Solutions to Tragedy of the commons (3)

Back 53

Command-and-control regulation
Privatizing the commons
Economic incentives- taxes and fines

Front 54

Command-and-Control Regulation

Back 54

Solution to Tragedy of the Commons

government creates enforceable standards and limits for pollution/use of the common resource and mechanisms to deter, detect, and enforce violations

Front 55

Privatizing the Commons

Back 55

Solution to Tragedy of the Commons

Allocate units of the commons to its users, ex: grazing allotments, tradeable permits for air emissions

Front 56

Economic Incentives- taxes and fines

Back 56

Solution to Tragedy of the Commons

Avert pollution by making it more expensive, reward innovation in pollution control, penalize excessive pollution

Front 57

Sources of the Law (3)

Back 57

Legislative, Executive and Judicial Branch

Front 58

Legislative Branch

Back 58

Sources of Law

Statutes (codes), constitutions passed by the legislature (or the people- initiative)

Front 59

Executive Branch

Back 59

Sources of Law

Regulations: agencies give more detail on how they will implement the statute

Front 60

Judicial Branch

Back 60

Sources of Law

Cases: Judges interpret the law

Front 61

Levels of Judicial Review

Back 61

Trial Courts
-District Court, Superior Court

Appeal to Courts of Appeal

Supreme Court
-review at supreme court level in environmental cases is discretionary. difficult to get grant of review

Front 62

Fifth Amendment
(Constitution)

Back 62

Grand jury, self incrimination, due process, takings, double jeopardy

Front 63

Supremacy Clause
(Constitution)

Back 63

Article 6, Clause 2

Federal constitution and laws are supreme law of the land. States cannot pass conflicting laws

Front 64

Federal Court
(Constitution)

Back 64

"limited jurisdiction"
-arising under Constitution, Treaties, federal law
-Diversity of parties
-US a party

Federal jurisdiction statutes