AECN 357

A judge will overrule a regulatory decision if the judge believes that the refulator did not pick the best regulatory option (T/F EXPLAIN)

False. Not unless there is a clear legal error or the choice of the regulatory option violates procedural or sustantitve due process.

EPA and Federal pollution control laws rely on self-monitoring and self-reporting, including self-reporting of violations. (T/F)

False

DEQ tries to inspect all facilities subject to a DEQ permit once a year (T/F)

True

Legal gaps in statutes and constitutions are filled by

common law

Generally, businesses prefer environmental programs that rely on market incentives rather than direct regulation. (T/F)

True

In the 1970s there was widespread bipartisan support in congress for new tough environmental protection policies (T/F)

True

Monitoring, record keeping, and reporting requirements are a standard part of state and federal environmental protection permits (T/F)

True

DEQ will inspect facilities with a history of violations more frequently than facilities with good environmental compliance records (T/F)

True

In Nebraska, committee and committee chair assignments are made in each party's caucus (T/F)

False

A governmental decision may be invalidated in court if the governmental entity did not comply with open meeting requirements (T/F)

True

False emissions or waste discharge reporting often leads to criminal prosecution where the state or EPA can prove that the false reporting was deliberate (T/F)

True

EPA may disallow an environmental permit that has been proposed to be granted by the state (T/F)

True

The 1980s were generally a period during which federal environmental policies were strengthened (T/F)

True

Direct regulation of pollution emissions is a common approach in federal pollution control statutes (T/F)

False

In Congress, every bill that is introduced must be heard at a public hearing (T/F Explain)

False. When there is specific interest in the bill, a public hearing is held.

The common law plays only a small role in the current U.S. legal system

False

About ___________ of DEQs budget comes from EPA

50%

One advantage of EPA program delegation to DEQ Is that DEQ requirements may be more lenient or more business-friends than the EPA Requirements (T/F Explain)

True

The party initiating a civil suit is called the

plaintiff

The party being sued in a civil lawsuit is called the

defendant

In Nebraska, proposed regulations must be reviewed and approved by the _________ ________ to determine whether the regulations are legal under nebraska law. Then they must be approved by the _____ ___________ before going to the ________ for final approval.

Review board, DEQ Director, Governor

Nebraska is part of EPA region 7, which is headquartered in __________.

Kansas City, MO

Before EPA can submit proposed regulations to the __________ for review, it must first prepare a ____________________________.

DOJ, cost benefit impact study.

___________ __________ refers to EPA pollution control requirements where EPA specifies what equipment may be used' whereas ___________ ____________ refers to EPA specifying how much a facility may pollute but allowing the facility to select pollution control equipment. For this second approach to work, the polluter should also install ____________.

Design standards, performance standards, equipment.

Both the legislative and executive branches have the opportunity to impact regulatory programs through the _______________________ process.

regulatory review, notice and public comment

Now, most federal agencies must perform a ______________________ to determine the costs and benefits of the proposed regulation.

impact study/cost benefit study

DEQ

Nebraska Department of Environmental Quality: State agency that administers most federal environmental programs in NE

EPA

US Environmental Protection Agency (federal): administers federal air pollution, water pollution, drinking water, pesticides, superfund, solid & hazardous waste and related programs; has regional offices

OMB

Office of Management and Budget (federal): oversees the RIA process. All federal regulations must be approved by the OMB

enabling legislation

statute that gives the department the authority to create regulations

risk assessment

formal evaluation of a rule or products impact on the business and environment

statutes

a written law passed by a legislative body

mediation

when a neutral third party attempts to help the parties resolve their differences through compromise and negotiation vs. litigation

What are the alternative dispute resolution options available in Nebraska?

mediation, arbitration, and small claims court.

In the american legal system, the ___________ law may legally be overruled by a statute.

common

Legislative enactments are referred to as

statutes

If a defendant does not appear in court for trial, the defendant can automatically lose the case by a

default judgement

The three bases of US law in historical order are ______________, ___________, and ____________.

common law, torts law, and statutory law

statute means the same thing as

law

In Nebraska, if a statute does not specify a statute of limitations for a specific type of lawsuit, the default limitation period is

four years

the limit for small claims cases in Nebraska is

$3500

arbitration

A form of alternate dispute resolution or a way to resolve issues outside the courts. The dispute is decided by one or more persons, which renders the "arbitral award"

default judgement

A binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law.

Nebraska version of the loser pays principle only applies when

an award of attorney fees is authorized by statute or when a recognized/uniform procedure allows such a recovery

small claims court

legal proceeding where disputes involving relatively small amounts of money can be solved in an informal trial

statute of limitations

a lawsuit must be filed within a certain time period or else the legal right to file the lawsuit is lost. The time period is referred to as the statute of limitations

trial court

a court of law where cases are tried in the first place, as opposed to an appeals court.

bench trial

the judge serves as both judge and jury

common law

fills the gaps left by constitutions, statutes, and administrative regulations. Mostly state law rather than federal law. Represents 1/2 legal rules used to decide in Nebraska.

contempt of court

failure to obey an order of the court

frivolous lawsuit

lawsuit filed with the intent of harassing, annoying, or disturbing the opposing party

loser pays principle

if a plaintiff loses the lawsuit, he/she would be required to pay the defendants legal fees in the case

List two things a judge attempts to do at the pretrial hearing

settle the case out of court and stipulate things to which both parties can agree to shorten trial

DOI

US Department of the Interior (federal): agencies include Bureau of Land Management (grazing), fish and wildlife service (endangered species), bureau of reclamation (federal irrigation projects), national park service (NPS)

USDA

US Department of Ag (federal) : includes forest services (national forests,), 1996 farm bill (soil and water conservation cost-sharing; wetland easements & cost-sharing)

DOD

US department of defense (federal) : army corps of engineers administers 404 dredge and fill (wetlands protection) permit program with EPA oversight; constructs and manages navigation projects; flood control projects

BLM

bureau of land management (federal) : branch of the DOI; manages federal grazing land in southwest; pro-rancher, anti-environmental tradition

FWS

US Fish and Wildlife Service: branch of the DOI; administers national wildlife refuge system; administers federal endangered species act; habitat oriented tradition

USFS

us forest service: branch of the USDA; administers national forest system; multiple use-sustained yield tradition

A judge will overrule a regulatory decision if the judge believes that the regulator did not pick the best regulatory option (T/F explain)

False. The court does not substitute its judgement for the administrators (the judge will not overrule the agency solely on the basis that the judge would have made a different decision had the judge been the regulator)

For an administrative decision to be sustained on appeal, the decision must be supported by a preponderance of the evidence (T/F)

False

The governmental decision may be invalidated in court if the governmental entity did not comply with open meeting requirements (T/F)

True

Either house of Congress alone may legislatively veto a proposed administrative regulation by adopting a legislative resolution opposing it (T/F)

False

Both the legislative and executive branches have the opportunity to impact regulatory programs through the budget process (T/F)

True

All major proposed federal regulations must go through the RIA process (T/F)

True

All federal regulations must be approved by OMB (T/F)

True

The most common type of administrative rule-making procedure is "notice and comment" rule-making (t/f)

True

The legislature can require a periodic review and reconsideration of a statute by including what is called a sunset clause in the statute (t/f)

True

If a proposed EPA regulation would create an unfunded mandate for public and private entities of at least $25 million, then the EPA unfunded mandate review requirements are triggered. (t/f explain)

False. If the proposed regulation is not of states (or most likely local governments) then the administrative unfunded mandate review does not apply. Public only.

EPA must perform an unfunded mandate review on regulations that have projected business compliance costs of at least $25 million per year. (t/f explain)

False. Businesses would like this but it hasn't happened yet.

The process for estimating how many lives will be saved if a proposed environmental regulation is implemented is called:

risk assessment

Informal rule making means the same thing as ________________ rule making.

notice and comment

An administrative decision will be sustained on appeal to court if the administrator's legal authority was authorized by enabling legislation and if the administrator's decision was supported by ______________________

the substantial evidence rule

Federal regulations must be approved by the _______ before they can be adopted.

OMB

Now, most federal agencies must perform a ______ to determine the costs and benefits of the proposed regulation.

RIA

Both the legislative and executive branches have the opportunity to impact regulatory programs through the ___________

budget process

The most common type of administrative rule-making is _________ rule-making, also referred to as __________________ rule-making.

informal, notice and comment

The legislature can require a periodic review and reconsideration of a statute by including what is called a _________ clause in the statute

sunset

If proposed federal legislation would create an unfunded mandate of at least ____________ per year, then congressional unfunded mandate review procedures are triggered.

$100 million

If a proposed EPA regulation would create an unfunded mandate for public entities of at least _________ per year, then EPA unfunded mandate review requirements are triggered.

$25 million

________________________ refers to the process for estimating how many lives will be saved if a proposed environmental regulation is implemented; ________________________ refers to further analysis to determine whether the proposed regulation is cost-effective.

Risk assessment; cost-benefit

The federal government requiring states or local government to pay the cost of a federally required program is called an _____________________

unfunded mandate

If an EPA regulation has implementation costs of at least $25 million, EPA must review the regulation to determine if it is ________________________, ____________________________, OR _______________________.

the cheapest regulation, the most flexible regulation, or the EPA must justify why the more expensive and less flexible approach was necessary.

___________________ refers to EPA pollution control requirements where EPA specifies what equipment may be used; whereas _____________________ refers to EPA specifying how much a facility may pollute but allowing the facility to select pollution control equipment. For the second approach to work, the polluter should also install ____________.

design standard, performance standard, CEMS.

If a congressional proposal would create an unfunded mandate, the options available to Congress are to: ____________________, _____________________, OR ____________________.

provide funding, delete the program, or impose the unfunded mandate (make states pay)

Administrative regulations may be overruled by:

Congress

APA

Administrative Procedures Act - establish a legal framework for federal agencies to adopt and implement administrative regulations.

RIA

Regulatory impact analysis - determines whether the regulation's benefits are greater than the costs.

FOIA

Freedom of Information Act

EO

Executive Order - a rule/order issued by the president to an executive branch of government and having the force of law

CBO

Congressional Budget Office (Federal) - Provides budget and economic information to Congress.

CEMS

Continuous Emission Monitoring Systems

Crucial to regulatory cost-benefit analysis in that it determines what the human health benefits are of a proposed environmental regulation. How many lives will a regulation save?

Risk assessment

The direct regulation of an industry or activity by legislation that what is permitted and what is illegal. In this case, it deals with how much flexibility polluters should have in meeting EPA pollution control requirements.

Command and control regulations

Standards for the pollution control equipment that polluters must install. Must follow unless they can prove that different equipment will work just as well. Emissions don't have to be monitored.

Design standards

EPA specifies how much pollution a polluter can emit, but polluter can choose the best technology to meet performance standards. This is preferred by economists and businesses.

performance standards

when the federal government requires state or local government to implement a regulatory program but the states, cities, or counties have to pay for it themselves.

unfunded mandate

discuss the purpose of a sunset clause

Ensures periodic legislative review of administrative programs

discuss how difficulty in valuing environmental amenities complicates the process of regulatory cost-benefit analysis

It is hard to put a dollar value on reduced human/wildlife mortality, improved water quality, species preservation, and better recreation opportunities. It is easy to see the dollar amount on higher priced consumer goods and increased taxes. If we decide the natural environment is priceless then we lose the ability to use cost-benefit analysis to inform the decision.

describe how proposed environmental regulations are evaluated in the regulatory cost-benefit process

Environmental regulations must provide greater environmental benefits (measured in dollar amounts) than the regulations cost the regulated community (polluters). If they don't they can't be imposed and are usually modified to be made less expensive.