Environmental Law Final Exam

What is the definition of Environmental Law according to Black’s Law Dictionary?

• The field of law dealing with maintenance and protection of the environment

• Includes preventive measures, likes environmental impact statements

• Assigns liability and provides cleanup for environmental harm incidents

How does Salzman define Environmental Law?

• The use of public/governmental authority to protect the natural environmental and human health from pollution and development impacts

What is Environmental Law according to Encyclopedia Britannica?

• Principles, policies, directives, and regulations enacted and enforced by local, national, or international entities to regulate human treatment of the nonhuman world

Why is Environmental Law important? List Key reasons.

• Finite natural resources

• Protection of quality of life

• Prevention of human and animal extinction

• Avoidance of irreversible environmental impacts (soil erosion, overfishing, sea level rise, water quality)

• Preservation of biodiversity (species and plant life)

What were the impacts of the Maui Wildfire in August 2023?

• 114 confirmed dead, 850 missing, deadliest in modern US history

• Burned nearly 5000 acres and destroyed 1700+ buildings

• Considered a “compound disaster” involving climate change, invasive grasses, decline of agriculture, hurricane winds, and drought.

Summarize the 2023 Canadian wildfires statistics.

• Over 5700 wildfires across 13 provinces and territories

• Burned 52000 square miles, six times the 10-year average

• Estimated 290 million metric tons of carbon released, about 25% of total global carbon emissions to date

What was the significance of The Homestead Act of 1862 in environmental history?

• Encouraged use of resources by granting millions of acres of homesteaders

• Allowed cattle grazing and mining on public lands

• Railroads were given land to expand westward

Identify early acts of preservation in the US.

• Arkansas Hot Springs (1832)

• Yosemite Valley (1864)

• Yellowstone National Park (1872)

• Adirondacks Forest Reserve (1885)

Contrast Preservation vs. Conservation in environmental philosophy.

Preservation:

• Seeks absolute preservation of wilderness

• Minimizes human impact and maintains species/ecosystems

• Strict behavior regulations

• Credited to John Muir, founder of Sierra Club (1892)

Conservation:

• Advocated wise use of natural resources

• Supports multiple uses (forestry, grazing, hunting, water)

• Aims for the greatest good for the greatest number

• Credited to Gifford Pinchot, first US Forest Service chief (1905)

What was the Hetch Hetchy Valley controversy (1901-1913)?

• Debate over damming the Tuolumne River in Yosemite National Park

• Pros: Increase San Francisco’s water and electricity supply

• Cons: Complete destruction of the valley

• Preservationists wanted less damaging alternatives; conservationists prioritized water/electricity benefits

• Birth of grassroots environmental campaigns, notably by John Muir and Sierra Club

What key environmental legislation emerged during the 1960s?

• Wilderness Act (1964)

• Land and Water Conservation Act (1965)

• National Historic Preservation Act (1966)

• National Wild and Scenic Rivers System Act (1968)

• National Environmental Protection Act (1969)

What is the significance of Rachel Carson’s “Silent Spring” (1962)?

• Raised awareness about the harmful effects of indiscriminate chemical insecticide use

• Highlighted dangers of toxic chemicals developed during WWII, such as DDT

• Advocated for informed and cautious used of pesticides

Describe DDT and its impact.

• Dichloro-diphenyl-trichloro-ethane, synthesized in 1874, insecticide discovered in 1939

• Used to combat insect-borne diseases and agricultural pests

• Paul Muller won the Nobel Prize for its discovery

• Later shown to cause environmental harm, contributing to pesticide regulation reforms

What environmental disasters highlighted the need for stricter environmental laws?

• Santa Barbara Oil Spill (1969): 3 million gallons spilled, third-largest oil spill in US history

• Cuyahoga River fires in Cleveland, OH, notably in 1969, drew attention to industrial pollution

What major environmental laws were passed in the 1970s?

• Environmental Protection Agency (EPA) established in 1970

• Clean Water Act (1972), amended in 1977 to protect wetlands

• Endangered Species Act (1973)

• Resource Conservation and Recovery Act (1976)

What was President Nixon’s role in environmental regulation?

• Delivered a 37-point message to Congress in 1970 pledging to repair environmental damage

• Requested funds to improve water treatment and reduce motor vehicle emissions

• Supported created of EPA via Reorganization Plan No. 3

• Signed EPA order 1110.2 establishing EPA’s initial organization

What is the Ash Council Memo and its importance?

• April 29, 1970, recommended merging key anti-pollution programs into a new Environmental Protection Administration (EPA)

• Emphasized balancing economic progress with environmental capacity

• Defined EPA’s role in policy development, research, and standard setting

What were consolidated in the EPA in 1970?

• Federal Water Quality Administration (Interior)

• National Air Pollution Control Administration (HEW)

• Environmental Control Administration (HEW)

• Pesticides research and standard-setting programs (FDA, Agricultural Research Service)

• Radiation protection functions (Atomic Energy Commission)

What are common conflicting viewpoints in environmental law?

• Political, social, and scientific disagreements

• Challenge in identifying causation of environmental harm

• Difficulty in addressing cumulative environmental effects

• Debates over precautionary versus reactive approaches

Explain the precautionary approach in environmental decision-making.

• Act immediately to prevent environmental harm despite scientific uncertainty

• Based on Rio Declaration principle: lack of full scientific certainty is not a reason to postpone cost-effective measures

What is the burden shifting dilemma in environmental regulation?

• Question of who must prove a product or activity’s safety or harm

• How much proof is necessary before permitting use?

• Balancing risk assessment and regulatory action

What economic considerations influence environmental law?

• Costs of natural resource use and pollution control

• Voluntary reductions may increase costs and affect competitiveness

• Replacement of destroyed natural resources can be prohibitively expensive (e.g., nitrogen fertilizer costs)

Explain the “Tragedy of the Commons” in environmental contexts.

• Individual use of shared resources can lead to depletion, harming the collective

• Balancing individual benefit versus communal sustainability

• Examples: driving vs. public transportation, water use, whaling

What are externalities in environmental economics?

• Costs or benefits of production/consumption not reflected in market prices

• Negative externalities: pollution

• Positive externalities: environmental benefits

• Debates on whether and how to punish or reward externalities

Summarize political shifts in EPA administration from Obama to Trump

Obama EPA:

• About 500 regulations per year

• 50B in compliance costs annually

• Emphasis on strong environmental protections

Trump EPA:

• Rolled back 100+ regulations

• reduced protections for streams and wetlands

• Criticized for favoring industry over environment

What is the significance of agency heads’ backgrounds in EPA leadership?

• Obama’s Lisa Jackson and Gina McCarthy had scientific and environmental policy expertise

• Trump’s Scott Pruitt and Andrew Wheeler had legal/political backgrounds and opposed EPA regulations

• Leadership influences regulatory priorities and enforcement

What is the Commerce Clause and its relation to environmental law?

• Article 1, Section 8 of the US Constitution empowers Congress to regulate commerce among states and foreign nations

• Enables federal regulation of environmental issues affecting interstate commerce

• Examples include pesticide distribution (FIFRA), chemical substances (TSCA), water discharges (CWA), and automobile emissions (CAA)

What is the Supremacy Clause, and how does it impact federal and state environmental laws?

• Establishes that federal law overrides conflicting state laws

• Allows coexistence where state law is stricter (e.g., California’s stricter auto emissions standards)

• Important for federal preemption and enforcement consistency

What is the Dormant Commerce Clause?

• Prevents states from discriminating against or unduly burdening interstate commerce

• States cannot impose harsher regulations on out-of-state goods or services

• Examples: waste disposal regulations, bans on recyclable exports

Define the Takings Clause relevant to environmental regulation.

• 5th Amendment provision: private property cannot be taken for public use without just compensation

• Regulatory takings occur when government regulations deprive property owners of economical use or value

• Key cases: Lucas v. South Carolina Coastal Council and Penn Central Transportation Co. v. New York City

What is the Lucas test for regulatory takings?

• If regulation renders the entire property valueless, it is considered a taking requiring compensation

• If not, Penn Central case principles apply

What factors does the Penn Central test consider in regulatory takings?

• Extent of interference with investment-backed expectations

• Nature of the governmental interference with property rights

• Public purpose served by regulation

How does rulemaking work in environmental law?

• Agencies publish proposed rules in the Federal Register

• Public comment periods (60-90 days) allow input

• Final rules respond to comments and are published

• Rules regulate conduct and are often preventive, eliminating the need to prove negligence

Differentiate between prescriptive and persuasive regulation.

Prescriptive:

• Directly controls actions or resources use (e.g., limits on harvest or pollution)

Persuasive:

• Regulates information disclosure to influence behavior (e.g., labeling laws)

What standards do courts use to review agency rulemaking under the Administrative Procedure Act (APA)?

• Authority: Did the agency have power to act?

• Scope: Was the agency’s action within its permitted scope?

• Abuse of discretion: Was the action arbitrary, capricious, or contrary to law?

Explain Chevron deferences and its recent legal status.

• Courts defer to agency interpretations of ambiguous statutes if reasonable

• Established in Chevron USA, Inc. v. NRDC (984)

• Overturned by the US Supreme Court in 2024, limiting agency discretion in statutory interpretation

What is standing in environmental litigation?

• Injury in the fact: concrete and particularized harm

• Causation: harm traceable to defendant’s actions

• Redressability: likelihood that court decision will remedy the harm

• Zone of interest: plaintiff’s interests are within the scope of the law

Summarize Lujan v. Defender of Wildlife (1992) regarding standing.

• Plaintiffs lacked standing due to speculative future injury without concrete plans

• Court emphasized actual or imminent injury is required

• Redressability issues when relief depends on actions of third parties

Summarize Massachusetts v. EPA (2007) regarding standing and agency authority.

• State had standing due to harm from rising sea levels affecting coastal property

• EPA arbitrarily refused to regulate greenhouse gases as pollutants

• Court held EPA must regulate if pollutants endanger public health or welfare

What are National Ambient Air Quality Standards (NAAQS)?

• Set by EPA under the Clean Air ACT

• Primary standards protect public health, including sensitive groups

• Secondary standards protect public welfare (visibility, crops, buildings)

• Based on scientific criteria with an adequate margin of safety

What is the difference between attainment and non-attainment areas under the CAA?

• Attainment: areas meeting NAAQS standards

• Non-attainment: areas not meeting standards and requiring stricter pollution controls

What role do State Implementation Plans (SIPs) play under the Clean Air Act?

• State develop SIPs to demonstrate how they will achieve and maintain NAAQS

• EPA reviews and approves SIPs

• Federal Implementation Plans (FIPs) apply if SIPs are inadequate

Explain the concepts of “bubbling” and “netting” in air pollution regulation.

• Bubbling: regulating total emissions from a group of sources as a sing source

• Netting: allows emission trading within a facility to avoid triggering new source review

• Both help facilities manage emissions flexibility but can lead to loopholes

What is Cap-and-Trade?

• Regulatory system setting a cap on total emissions

• Polluters receive or buy allowances to emit a certain amount

• Allowances can be traded, incentivizing reductions where cheapest

• Benefits include economic efficiency and pollution reduction flexibility

• Drawbacks include “pay-to-pollute” criticism and pollution hotspots

What are Hazardous Air Pollutants (HAPs) and how are they regulated?

• Pollution known or suspected to cause cancer or serious health effects

• Regulated under § 112 of the CAA

• Standards set through Maximum Achievable Control Technology (MACT)

• Risk-based evaluations may impose stricter controls beyond technological feasibility

Describe the Federal preemption of state motor vehicle emission standards.

• States generally prohibited from setting their own new motor vehicle emission standards

• Exception: California waiver allows stricter standards if approved by EPA

• California standards can serve as a model for other states

What was the significance of Sierra Club v. Ruckelshaus (1972)?

• Court held EPA could not allow air quality degradation in attainment areas

• Reinforced CAA’s goal to protect and enhance national air quality

• No EPA regulation may permit deterioration of air standards

What is the Resource Conservation and Recovery Act (RCRA)?

• Regulates hazardous and non-hazardous solid waste from generation to disposal (“cradle to grave”)

• Governs treatment, storage, and disposal facilities (TSDs)

• Sets standards for waste handling to protect human health and environment

What types of waste does RCRA regulate?

• Solid waste including garbage, refuse, sludge, and other discarded materials

• Excludes domestic sewage, irrigation return flows, and nuclear materials

• Waste classified as hazardous or non-hazardous under Subtitle C or D respectively

What is the Toxic Substances Control Act (TSCA)?

• Federal law regulating manufacture, use, and distribution of chemical substances

• Require risk-benefits analysis and premanufacture notification for new chemicals

• Maintains as inventory of chemical substances in commerce

What is the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)?

• Regulates registration, distribution, sale, and use of pesticides

• Requires labeling, including warning and directions for use

• Uses risk-benefit analysis, focusing on unreasonable risk

What are the key goals of the Clean Water Act (CWA)?

• Protect fish, shellfish, and wildlife

• Provide for recreation in and on water

• Restore and maintain the chemical, physical, and biological integrity of waters

• Eliminate all pollutant discharges by 1985 (ambitious and largely unmet)

What is the difference between point source and nonpoint source pollution under the CWA?

• Point source: identifiable pollution discharge points (pipes, channels)

• Nonpoint source: diffuse pollution source (runoff, agriculture)

• CWA regulates point sources strictly via permits; nonpoint sources largely regulated by states

What is the National Pollutant Discharge Elimination System (NPDES)?

• Permit program controlling point source discharges into waters

• Permits set effluent limitation based on technology and water quality standards

• Administered by EPA or delegated states

What is Section 404 of the Clean Water Act?

• Regulates discharge of dredged or fill material into navigable waters and wetlands

• Administered by the Army Corps of Engineers with EPA veto power

• Requires avoidance, minimization, and compensation for unavoidable impacts

What is “Waters of the United States” (WOTUS) and why is it significant?

• Defines the scope of waters protected under the CWA

• Includes navigable waters, tributaries, wetlands adjacent to protected waters

• Interpretations vary in administration, impacting regulatory reach

What is CERCLA or Superfund?

• Comprehensive Environmental Response, Compensation, and Liability Act

• Provides cleanup authority and funding for hazardous waste sites

• Establishes liability for potentially responsible parties (PRPs) on a strict, joint, and several basis

Who can be liable under CERCLA?

• Current and pas owners/operators of contaminated sites

• Parties who arrange for disposal or transport of hazardous substances

• Lenders under certain conditions

What is the Endangered Species Act (ESA) and its key provisions?

• Protects endangered and threatened species and their habitats

• Prohibits “take” of listed species, including harm and habitat modification

• Requires federal agencies to consult with Fish and Wildlife Service or National Marine Fisheries Service to avoid jeopardy to species

What is a “take” under the ESA?

• Harass, harm, pursue, hunt, capture, or kill a listed species

• Includes habitat modification if it kills or injures species

• May require Incidental Take Permits with Habitat Conservation Plans

What is the National Environmental Policy Act (NEPA)?

• Requires federal agencies to assess environmental impacts of major federal actions

• Mandates preparation of Environmental Impact Statements (EIS) or Environmental Assessments (EA)

• Focuses on informed decision-making, not mandating outcomes

When is an Environmental Impact Statement (EIS) required?

• For federal projects or legislation with significant environmental effects

• Includes federally funded or permitted private projects

• The significance depends on context, intensity, controversy, and environmental sensitivity

What is the role of the Council on Environmental Quality (CEQ) in NEPA?

• Oversees NEPA implementation and issues regulations

• Its authority to issue binding rules has recently been challenged and limited by courts

What is the God Squad under the ESA?

• Seven-member Endangered Species Committee with power to exempt federal agency actions from ESA prohibitions under strict criteria

• May exempt actions even causing extinction if no alternatives exist and benefits outweigh species preservation

What are Environmental Justice (EJ) concerns?

• Disproportionate environmental harms borne by minority and low-income communities

• Issues including siting of hazardous facilities and inadequate regulatory protections

• Federal initiatives like Justice 40 aim to address EJ through equitable resource distribution and enforcement

What was the Flint, Michigan water crisis an example of in environmental law?

• Environmental injustice disproportionately impacting a majority African-American, low-income community

• Governmental neglect and delayed federal response

• Led to lawsuits, criminal charges, and regulatory reforms

Summarize the Montreal Protocol.

• International treaty to phase out ozone-depleting substances (ODS)

• Signed in 1987; binding commitments by developed and developing countries

• Successful global cooperation, reducing ODS by 98% since 1990

What lessons were learned from the Montreal Protocol?

• Science-driven policymaking and global cooperation are effective

• Industry participation benefits regulatory success

• Preventive regulation can work before full scientific certainty

What are the key features of the Paris Agreement?

• Adopted in 2015; successor to Kyoto Protocol

• Bottom-up approach; countries set own emission reduction targets (NDCs)

• Goal to limit global warming to below 2°C above pre-industrial levels

• Includes financial support to developing countries

• Less punitive mechanisms than Kyoto

What is the Green New Deal?

• A non-binding congressional resolution framework introduced in 2019

• Aim for net-zero emissions, high-wage jobs, clean air and water, and resilient communities

• Seeks long-term efforts in infrastructure and environmental cleanup

• Has faced political opposition and legislative stalling

What is the Public Trust Doctrine?

• States hold certain natural resources in trust for public use and preservation

• Applies traditionally to navigable waters and associated resources

• Individual rights are secondary to state stewardship responsibilities

How are environmental rights recognized?

• In some state constitutions (e.g., Hawaii, Montana)

• In International declarations (e.g., Rio Declaration, Stockholm Declaration)

• Rights include the right to a clean and healthful environment and to participate in environmental decision-making

What are some criticisms of environmental rights as legal doctrines?

• Vague and difficult to enforce

• Potentially redundant with existing laws

• Could shift power from elected officials to judiciary

• Risk of excessive litigation

What is the role of citizen suits in environmental law enforcement?

• Allow citizens or groups to enforce environmental laws when government lacks resources or will

• Typically seek injunctions, penalties to government, and legal fees (not compensation)

• Require current or imminent violation and that government is not already pursuing enforcement

What is the significance of the Clean Water Act Section 319?

• Requires states to develop nonpoint source pollution management programs

• Includes identification of sources, planning, and implementation of the best management practices (BMPs)

• Enforcement is largely voluntary, with minimal federal penalties for non-compliance

What are Total Maximum Daily Loads (TMDLs)?

• The maximum amount of a pollutant that a water body can receive and still meet water quality standards

• Includes allocations for point sources (WLA), nonpoint sources (LA), and margin of safety (MOS)

• Used to restore impaired waters

How does the Clean Water Act regulate wetlands?

• Section 404 requires permits for dredge or fill activities in wetlands

• Permitting process requires proof of no practicable alternatives and mitigation for unavoidable impacts

• Administered by Army Corps of Engineers with EPA oversight

What is the principle of “significant nexus” in wetlands regulation?

• Wetlands must have a significant ecological or hydrological connection to navigable waters to be protected under the CWA

• Used in Supreme Court’s Rapanos decision and subsequent regulatory interpretations

Describe the role of Environmental Assessments (EA) and Findings of No Significant Impact (FONSI) under NEPA.

• EA is a concise evaluation to determine if an EIS is necessary

• FONSI is a formal finding that the project will not have significant environmental effects, this no EIS needed

What are some challenged to effective NEPA implementation?

• Agency discretion and self-regulation

• Judicial challenges over adequacy of EIS or EA

• Political and legal uncertainty over CEQ’s regulatory authority

What is the significance of the TVA v. Hill (1978) case?

• Supreme Court upheld ESA’s protection of endangered species over completion of Tellico Dam

• Affirmed that federal agencies must ensure actions do not jeopardize listed species regardless of economic consequences

What is a Habitat Conservation Plan (HCP) under the ESA?

• A plan that allows incidental take of listed species during lawful activities

• Require minimization and mitigation of impacts to the maximum extent practicable

• Key to balancing development and species protection

What is the role of the God Squad in the ESA context?

• Seven-member committee that may exempt federal projects from ESA requirements under strict conditions

• Allows consideration of national/regional importance and lack of alternatives

• Mitigation is required if exemption granted

What is the concept of “environmental justice” and its historical emergence?

• Recognition that marginalized communities disproportionately bear environmental harms

• Emerged prominently in the 1980s

• Presidential orders (e.g., Clinton 1994) mandated federal consideration, though some were revoked later

How do international environmental agreements influence US environmental law?

• Examples include Montreal Protocol, Kyoto Protocol, Paris Agreement

• Shape domestic regulation on climate change and ozone protection

• Reflect global cooperation and shared responsibilities

What are the implications of the overturning of Chevron deference?

• Courts may no longer defer to agency interpretations of ambiguous statutes

• Increased judicial scrutiny may affect regulatory consistency and agency authority

• Potential for increased litigation and slower rulemaking

What is the role of scientific uncertainty in environmental regulation?

• Precautionary principle advocates action despite uncertainty to prevent serious harm

• Balancing risk and cost is complex and politically charged

• Regulatory frameworks vary in their tolerance for uncertainty

How does economic analysis influence environmental regulation?

• Cost-benefit analyses inform feasibility and extent of regulation

• Some statutes prohibit economic considerations in setting health-based standards (e.g., NAAQS)

• Balancing economic growth and environmental protection is an ongoing challenge

What is the role of public participation in environmental law?

• Public comment periods in rulemaking

• Citizen suits as enforcement tools

• Environmental Impact Statements involve public disclosure and input

What is the significance of “standing” in environmental lawsuits?

• Determines who may bring a case

• Requires proof of injury, causation, and redressability

• Often a barrier to environmental litigation

Describe the relationship between federal and state environmental regulation.

• Federal laws set minimum standards

• States may set more stringent rules (e.g., California’s auto emissions)

• States primarily regulate nonpoint pollution under CWA, with limited federal enforcement power

What is the role of the EPA in environmental protection?

• Implements and enforced federal environmental laws

• Conducts research, sets standards, issues permits, and enforces compliance

• Coordinates with states and other agencies

What is meant by “regulatory takings” and why is it important?

• Occurs when government regulation limits property use to an extent comparable to eminent domain

• Raises constitutional issues under the 5th Amendment

• Balances private property rights with public environmental goals

What are the challenges in balancing environmental protection and economic development?

• Determining acceptable risk levels

• Managing finite natural resources sustainably

• Addressing conflicting social, political, and scientific interests

• Ensuring equitable distribution of costs and benefits

What is the role of international law in addressing climate change?

• Frameworks like the Paris Agreement set global targets

• Encourage national commitments and cooperation

• Challenges include enforcement, equity, and differing national interests

How do environmental laws address cumulative and indirect effects?

• NEPA requires consideration of cumulative impacts in EIS

• ESA considers habitat modification affecting species survival

• Complex causation issues complicate liability and regulation

What is the role of citizens advocacy and grassroots movements in environmental law history?

• Sierra Club’s Hetch Hetchy campaign exemplifies early grassroots impact

• Public pressure influences legislation and enforcement

• Citizen suits empower communities to enforce laws

How has environmental law evolved in response to disasters?

• Major events (oil spills, wildfires, water contamination) prompt legislative reform

• Public awareness and scientific research drive regulatory changes

• Examples: Santa Barbara oil spill led to stronger offshore drilling regulations; Flint water crisis led to drinking water reforms

What are the primary federal agencies involved in environmental law enforcement?

• Environmental Protection Agency (EPA)

• Department of the Interior (Fish and Wildlife Service)

• Department of Commerce (National Marine Fisheries Service)

• Army Corps of Engineers (wetlands and waterways)

What is the significance of “justifiability” in environmental law?

• Courts decide if a case is suitable for judicial resolution

• Includes standing, ripeness, mootness, and political question doctrines

• Environmental cases often face challenges related to standing and political questions