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64 Cards in this Set

  • Front
  • Back
Stare Decisis
Decisions of higher courts arising from litigation between different parties bind lower courts to same facts. Advocates argue to distinguish or follow prior precedent
Res Judicata
Judgements between parties prevent subsequent litigation on same issues. "Claim Preclusion"
Attorney Fees. Who pays in the US?
In the US, each side usually pays its own court fees. Attorney fees awards generally are only by contract or statute.
Plaintiff (petitioner)
Participant: one who brings the lawsuit
Defendant (respondent)
Participant: one who is sued
Participant: has interest, is made a party
Real Party
Participant: ex: the permit applicant
Amicus curiae
Participant: "Friend of the Court," not a party, but files brief on legal issues
Types of Relief (5)
Declaratory Relief
Writ of Mandamus
Writ of Mandate
(types of relief)

Injunction (2 types)
(types of relief)

Court order telling someone to stop doing something

preliminary- preserve status quo while case pending
permanent- stop the activity permanently
Declaratory Relief
(types of relief)

court declares rights
Writ of Mandamus
(types of relief)

order agency to do what it has duty to do
Writ of Mandate
(types of relief)

challenges adjudicatory agency action
Types of Claims
Strict Liability
Duty, Breach, Causation, Harm (Injury)
Strict Liability
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
Physical invasion of land without possessors permission. Interferes with owner's right to exclusive possession of his land (Many jurisdictions also require intent)
Unreasonable and substantial interference with the use and enjoyment of land. Now also statutory.
Nondelegation doctrine
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.
Case has to be ready. Agency action has to be final.
There is no longer a live or active controversy between the parties
Reasons for standing (3)
Party must address that he/she will be injured by the action. A mere interest in the matter is not enough.
must be "fairly traceable" to the action that is being challenged
There must be a likelihood that a favorable ruling would actually redress the harm. If the plaintiff wins, the court could grant relief.
Cooperative Federalism
-two key components
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
Three types of water rights law

*These are surface water rights, separate laws governing groundwater
Have the right to use, but not own (water rights)
Riparian Water Rights
"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
Lands to which riparian water rights attach
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
Appropriative water rights
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
Public Trust Doctrine
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
Federal Clean Water Act
"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"
Waters of the United States
Not all surface waters are legally "waters of the US:
-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
Water Quality Standards
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
Impaired Water Bodies
States must develop strategy, subject to EPA approval

-determine allowable load
-calculate margin of safety
-allocate among sources of pollutant
Point Source of Pollution
If you can point at it, it is a point source

Does not include agricultural storm water discharges and return flows from irrigated agriculture
National Pollutant Discharge Elimination System (NPDES) permits
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.
Section 401 Certificate
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
Nonpoint Source Pollution
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
Waters of the State
means any surface water or groundwater, including saline waters, within the boundaries of the state
What are the principal state agencies with primary responsibility for coordination of water quality?
State water board and nine regional boards (designated by Porter-Cologne)
State Water Board
-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
Regional Water Quality Control Boards
-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
Beneficial Uses of Waters of the State
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
-esthetic enjoyment
-preservation and enhancement of fish, wildlife and other aquatic resources or preserves
Waste Discharge Requirements
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
National Environmental Policy Act (NEPA)
Enunciates for the first time a national policy for the environment (statue)
Environmental Impact Statement (EIS)
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
Council on Environmental Quality (CEQ)
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
California Environmental Quality Act (CEQA)
California has its own environmental act, modeled after NEPA
Challenges Faced Regulating to Prevent Ecological Injury
Irreversible harms
Physically and temporally distant injuries
Uncertainty and risk
Multiple causes of harm
"Noneconomic" injury
Solutions to Tragedy of the commons (3)
Command-and-control regulation
Privatizing the commons
Economic incentives- taxes and fines
Command-and-Control Regulation
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
Privatizing the Commons
Solution to Tragedy of the Commons

Allocate units of the commons to its users, ex: grazing allotments, tradeable permits for air emissions
Economic Incentives- taxes and fines
Solution to Tragedy of the Commons

Avert pollution by making it more expensive, reward innovation in pollution control, penalize excessive pollution
Sources of the Law (3)
Legislative, Executive and Judicial Branch
Legislative Branch
Sources of Law

Statutes (codes), constitutions passed by the legislature (or the people- initiative)
Executive Branch
Sources of Law

Regulations: agencies give more detail on how they will implement the statute
Judicial Branch
Sources of Law

Cases: Judges interpret the law
Levels of Judicial Review
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
Fifth Amendment
Grand jury, self incrimination, due process, takings, double jeopardy
Supremacy Clause
Article 6, Clause 2

Federal constitution and laws are supreme law of the land. States cannot pass conflicting laws
Federal Court
"limited jurisdiction"
-arising under Constitution, Treaties, federal law
-Diversity of parties
-US a party

Federal jurisdiction statutes