Environmental Law Final Exam Flashcards

These flashcards cover major concepts, legal definitions, and important case law from the lecture notes, providing an effective study tool for preparation for the exam.

What is the primary purpose of the Endangered Species Act (ESA)?

The ESA’s purpose is to conserve endangered and threatened species and the ecosystems upon which they depend. Congress intended species protection to be a top national priority, prioritizing conservation even over large federal projects.

How does the ESA define “species”?

The ESA includes taxonomic species, subspecies, and, for vertebrates, “distinct population segments” (DPS). This allows listing of significant, discrete populations that merit protection even if the entire species is not endangered.

What is a “Distinct Population Segment” (DPS)?

A DPS is a vertebrate population that is both discrete from other populations and significant to the taxon as a whole. If both criteria are met, the DPS can be listed independently of the broader species.

Why did Congress create the ESA and give it strong protections?

Congress found that unchecked economic growth had caused species declines and extinctions, so it adopted a precautionary approach. The statute reflects “institutionalized caution” and robust authorities to prevent further losses.

What makes a population “discrete” under the DPS policy?

Discreteness can be shown by physical, physiological, ecological, or behavioral separation from other populations. International borders can also mark discreteness if they separate populations.

What factors indicate a DPS is “significant”?

Significance may be shown by unique ecological settings, causing a significant gap in the species’ range if lost, being the only natural occurrence, or having markedly different genetics. This multi-factor test is flexible and fact-specific.

How is the DPS policy applied in practice?

Agencies evaluate discreteness first and then significance using available scientific data, peer review, and public comment. Courts generally defer to the agency’s technical judgments under Chevron when the policy was formally adopted.

What standard must agencies use to decide whether to list a species?

Listings must be based solely on the best available scientific and commercial data. Economic factors are explicitly excluded from the listing decision.

What are the five statutory factors for listing under Section 4?

The factors are present or threatened habitat destruction, overuse, disease or predation, inadequacy of existing regulations, and other natural or man-made factors. Agencies weigh these to determine endangered or threatened status.

How does economic analysis enter ESA decisions?

Economic analysis is not allowed for listing decisions, but agencies must analyze economic impacts when designating critical habitat and may exclude areas for economic reasons unless exclusion would result in extinction.

What is “critical habitat” and what does designation do?

Critical habitat identifies physical or biological features essential to conservation and may require special management. Designation restricts federal actions that would destroy or adversely modify those features, but it does not create a preserve or directly regulate private activities absent federal involvement.

What happens if a species is “warranted but precluded”?

It becomes a candidate species, meaning the agency recognizes the need for listing but delays due to higher-priority actions. Candidate species receive some conservation attention but lack full ESA protections until listed.

What duty does Section 7 impose on federal agencies?

Agencies must ensure their actions are not likely to jeopardize listed species or adversely modify critical habitat. This duty applies to any agency action including funding, permitting, and authorizing activities.

What triggers informal versus formal consultation under Section 7?

If an action may affect a species, agencies typically begin with informal consultation; if adverse effects cannot be avoided, formal consultation is required and culminates in a Biological Opinion (BiOp).

What are the two possible outcomes of a Biological Opinion?

A BiOp finds either “not likely to jeopardize” or “likely to jeopardize” the continued existence of a species. A “no jeopardy” BiOp includes an Incidental Take Statement, while a “jeopardy” BiOp identifies Reasonable and Prudent Alternatives (RPAs).

What is an Incidental Take Statement (ITS)?

An ITS authorizes a limited amount of incidental take and prescribes reasonable and prudent measures to minimize impacts. It provides legal protection for the specified take, conditional on compliance with the ITS terms.

What must a “reasonable and prudent alternative” satisfy?

An RPA must be consistent with the intended purpose of the federal action, be within the agency’s authority, and be technologically and economically feasible. It must also avoid jeopardy and adverse modification of critical habitat.

Why is Section 7 considered precautionary?

Because it applies even when effects are uncertain, using the “may affect” standard to trigger consultation and avoid irreversible harm to species. That low threshold reflects Congress’s intent to err on the side of conservation.

What constitutes a “take” under ESA Section 9?

“Take” includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, and it also covers habitat destruction that injures or kills wildlife by impairing essential behaviors. The definition is broad to prevent indirect harms.

How are listed plants protected differently than wildlife?

Listed plants are primarily protected from removal or malicious destruction on federal lands and via commercial trade restrictions, while wildlife protections apply broadly to all persons and include the take prohibition.

How can a private party obtain protection from incidental take?

Through Section 10(a)(1)(B), a landowner may obtain an Incidental Take Permit (ITP) by developing an approved Habitat Conservation Plan (HCP) demonstrating minimization, mitigation, and that the activity will not appreciably reduce the likelihood of survival and recovery.

What are Habitat Conservation Plans (HCPs)?

HCPs are negotiated plans that identify impacts, mitigation measures, monitoring, and funding to offset incidental take. They balance development with conservation while providing regulatory certainty.

What purpose do Section 10(j) experimental population designations serve?

Section 10(j) allows reintroduced populations to be designated as “nonessential experimental,” enabling more flexible management and limited exemptions from strict Section 9 prohibitions to facilitate recovery projects.

What penalties and enforcement mechanisms does the ESA provide?

Civil penalties can be up to $25,000 per violation, and criminal penalties up to $50,000 and/or imprisonment for willful violations. The ESA also allows citizen suits to compel agency action or enjoin violations.

What is the role of citizen petitions under ESA Section 4?

Any person may petition the FWS or NMFS to list a species, prompting a 90-day finding and, if warranted, a 12-month status review. Citizen petitions are an important avenue for public participation.

Why is the “best available science” standard important in ESA cases?

It requires agencies to rely on the best scientific data at the time rather than waiting for perfect certainty, which ensures timely protections while acknowledging scientific limits. Courts usually defer to agency expertise unless decisions are arbitrary and capricious.

What was the central holding of TVA v. Hill (1978)?

The Supreme Court held that the ESA’s Section 7 mandate required halting the Tellico Dam project because construction jeopardized the snail darter, affirming that species protection may outweigh significant economic expenditures.

What principle did TVA v. Hill illustrate about ESA enforcement?

The decision showed that Congress intended the ESA to have teeth and that agencies must comply fully with Section 7 even when it frustrates major federal projects.

What issue did NW Ecosystem Alliance address?

The court considered whether the Fish and Wildlife Service reasonably applied the DPS policy in denying listing for the Washington population of western gray squirrels.

What did the court hold in NW Ecosystem Alliance regarding DPS and deference?

The court gave Chevron deference to the DPS policy and upheld the agency’s interpretation and application because it was reasonable and supported by the evidence.

Why do agencies sometimes delay listing species until populations are very low?

Limited resources, political pressures, and procedural requirements mean many species are not listed until they are severely depleted, which is why candidate species lists and proactive conservation are critical.

Why are DPS determinations often controversial?

They involve value judgments about biological significance and conservation priorities, and they can have major land-use implications for localized populations.

How do critical habitat designations influence federal projects?

They require project proponents to re-evaluate designs and mitigation measures and often trigger Section 7 consultation to avoid adverse modification, potentially altering project timelines and scopes.

What is the core federal role under the Clean Air Act?

The federal government, through EPA, sets health-based National Ambient Air Quality Standards (NAAQS) while states develop State Implementation Plans (SIPs) to achieve those standards. This cooperative federalism recognizes transboundary pollution while allowing state input on implementation.

What are the primary and secondary NAAQS?

Primary NAAQS protect human health with an adequate margin of safety, while secondary NAAQS protect public welfare such as visibility, crops, and buildings. EPA reviews both sets periodically.

Why must EPA review NAAQS every five years?

Congress mandated periodic review to ensure standards reflect current scientific understanding about health and welfare effects, enabling stricter standards where needed.

Which pollutants are regulated as criteria pollutants under NAAQS?

Ozone (O₃), particulate matter (PM₂.₅/PM₁₀), sulfur dioxide (SO₂), nitrogen dioxide (NO₂), carbon monoxide (CO), and lead (Pb). These pollutants pose widespread health risks and are monitored nationwide.

How do states show compliance with NAAQS?

Through SIPs that include emissions inventories, monitoring networks, enforceable regulatory measures, and contingency plans for nonattainment areas. SIPs translate national goals into state actions.

What is “nonattainment” and what does it trigger?

Nonattainment occurs when an area fails to meet a NAAQS, triggering stricter SIP requirements, attainment planning, mandatory reductions, and, for severe cases, sanctions and federal oversight.

What is a State Implementation Plan (SIP)?

A SIP is a state’s legally enforceable plan describing how it will achieve, maintain, and enforce NAAQS, covering permitting, monitoring, emissions controls, and contingency actions.

Can EPA reject a SIP because it’s economically infeasible?

No; under precedent like Union Electric, EPA cannot reject a SIP solely because compliance appears economically infeasible, because the CAA is technology-forcing and meant to drive improvements.

What happens when a state fails to submit an approvable SIP?

EPA can issue a Federal Implementation Plan (FIP) to ensure NAAQS are achieved and may impose sanctions, funding restrictions, or require additional measures.

What does “technology-forcing” mean in the CAA context?

It means Congress intended standards to push industry to develop or adopt new pollution controls, even if such technologies are initially costly or not fully proven. Courts have upheld this rigorous approach.

What was Union Electric’s lesson for SIPs?

The decision reinforced that EPA and states cannot give up on meeting statutory goals simply because compliance seems difficult or expensive; regulatory ambition is required.

What are New Source Performance Standards (NSPS)?

NSPS are technology-based performance limits for emissions from new, modified, or reconstructed sources within specific categories. They reflect the “best system of emission reduction” that is achievable considering costs and other factors.

Do NSPS mandate particular technologies?

No; NSPS set emission performance levels, and regulated entities can choose technologies or operational methods that achieve the standard. This flexibility encourages innovation while ensuring outcomes.

Why are NSPS important for future emissions control?

Because they set the bar for new sources, preventing modernization from worsening air quality and encouraging adoption of advanced controls over time.

What is the purpose of New Source Review (NSR)?

NSR ensures new or substantially modified major sources obtain pre-construction permits and undergo air quality review so they do not cause or worsen NAAQS violations.

What does an NSR permit application generally require?

Modeling of expected emissions, demonstration of Best Available Control Technology (BACT) in attainment areas or Lowest Achievable Emission Rate (LAER) in nonattainment areas, and public notice and comment.

Why does NSR matter to communities?

NSR provides a procedural and substantive check on large projects, allowing technical review and public engagement to minimize health impacts on neighboring areas.

What changed for Hazardous Air Pollutants (HAPs) in the 1990 Amendments?

Congress required EPA to set technology-based MACT (Maximum Achievable Control Technology) standards first and then assess residual risk, reversing a prior risk-first approach that had stalled progress.

Why did Congress prefer technology-based limits for HAPs?

Because risk-based standards had proven difficult and slow, Congress intended technology-first rules to secure immediate emission reductions while leaving risk analyses for later fine-tuning.

How many HAPs are regulated under NESHAPs?

The law targets a large group of toxic pollutants (historically 187 listed HAPs) from industrial sources, with standards tailored to source categories.

What is the Acid Rain Program and how does it work?

Title IV established a market-based cap-and-trade system targeting SO₂ emissions from power plants, allocating allowances and allowing trading to achieve cost-effective reductions.

What were the Acid Rain Program’s emission reduction goals?

The program aimed to reduce SO₂ emissions by about 10 million tons per year and NOₓ by around 2 million tons per year, producing substantial environmental benefits.

Why is the Acid Rain Program considered a milestone?

It showed that market mechanisms can achieve large environmental gains at lower costs than command-and-control approaches, inspiring similar programs internationally.

What is the purpose of Title V operating permits?

Title V consolidates all Clean Air Act requirements for a source into one permit, clarifying obligations and improving enforcement and public awareness.

Who must sign and certify compliance under Title V?

A “responsible official” for the source must annually certify compliance, creating accountability for facility managers and enabling regulatory oversight.

How often must Title V permits be renewed?

Generally every five years, although administrative schedules can vary.

How significant are motor vehicles to urban pollution?

Motor vehicles can account for up to half of smog-forming VOCs and NOₓ in many urban areas and up to 90\% of CO, making mobile-source regulation essential for air quality improvements.

How does the CAA regulate mobile sources?

Through tailpipe emission standards, fuel formulation rules, inspection and maintenance programs, and clean-fuel incentives for fleets and heavy-duty vehicles.

Why are older cars a challenge in mobile-source regulation?

Older vehicles often lack modern controls and remain on the road for years, slowing the rate of emissions reductions despite stricter standards for new vehicles.

What is the “grandfathering” loophole in the CAA?

Many older facilities are exempt from new source standards unless they undergo major modification, allowing them to emit at higher levels than modern plants.

Why are airsheds a policy complication for the CAA?

Air pollution flows across jurisdictional lines, so state-level SIPs must account for upwind emissions and regional transport, complicating attainment strategies.

How can inconsistent state implementation affect the CAA’s goals?

Differences in ambition, enforcement, and funding can lead to uneven air quality outcomes and interstate disputes, sometimes forcing federal intervention via FIPs.

What is RCRA’s central purpose?

RCRA governs the generation, transportation, treatment, storage, and disposal of solid and hazardous waste to prevent future contamination. It is primarily a preventive statute focusing on proper waste management “cradle to grave.”

What is the jurisdictional prerequisite for RCRA regulation under Subtitle C?

A material must first be a “solid waste” (i.e., discarded) before it can be characterized or listed as hazardous and regulated under Subtitle C.

How is “solid waste” commonly understood in RCRA?

It generally means discarded material—abandoned, disposed of, or thrown away—and not materials legitimately and continuously reused in a production process.

What was the American Mining Congress v. EPA dispute about?

Petitioners argued that EPA overreached by regulating in-process secondary materials that were reused rather than discarded, claiming those materials weren’t “solid waste.”

What did the D.C. Circuit hold in AMC?

The court limited EPA’s reach, holding that “solid waste” should be read to mean materials that are discarded, and that immediate in-process recycling is not the same as disposal.

Why does AMC matter for RCRA enforcement?

It constrains EPA’s authority to regulate internal recycling streams, requiring regulators to draw clearer lines between waste and beneficial reuse.

What four characteristics make waste hazardous?

Ignitability, corrosivity, reactivity, and toxicity. Wastes that meet any of these characteristics are subject to regulatory controls.

What is ignitable hazardous waste?

A liquid with flash point under 140^{\circ}F or solids capable of spontaneous combustion. These wastes pose fire and explosion hazards.

What is corrosive hazardous waste?

Waste with pH \le 2 or \ge 12.5, capable of corroding metal containers and posing chemical hazards to handlers and the environment.

What is reactive hazardous waste?

Waste that is unstable, explosive, or reacts violently with water, posing acute safety risks.

How is “toxic” defined under RCRA?

Toxic waste is identified by leaching tests (e.g., the TCLP) that show the potential to release harmful concentrations of contaminants into groundwater.

What are “listed wastes” under RCRA?

Wastes specifically enumerated by EPA due to their hazardous constituents or the processes that generate them, and they are regulated regardless of characteristic test results.

What is “acute hazardous waste” and how is it treated?

Acute hazardous wastes are extremely toxic even in small amounts and are subject to the strictest regulatory controls and management procedures.

What is a Conditionally Exempt Small Quantity Generator (CESQG)?

A generator producing \le 220 lbs/month of hazardous waste, subject to minimal federal requirements but still obliged to avoid improper disposal and to follow some regulations.

When does a CESQG become a Small Quantity Generator (SQG)?

When accumulated waste exceeds 2,200 lbs, at which point more extensive SQG rules apply including weekly inspections and emergency preparedness.

What characterizes a Large Quantity Generator (LQG)?

LQGs generate large volumes of hazardous waste, must comply with comprehensive training, contingency planning, manifesting, and may store waste for up to 90 days under specific rules.

Why are manifests important in RCRA?

Manifests track hazardous waste from generator to final disposal, providing chain-of-custody evidence to prevent illegal dumping and ensure regulatory compliance.

What training and emergency preparedness are required?

Generators must train employees for safe handling and prompt emergency response, maintain contracts with emergency service providers, and keep up-to-date contingency plans.

What are SQG/LQG weekly inspection requirements?

Inspect containers, labels, storage conditions, and aisle space to ensure safety and identify leaks or corrosion early. Inspections reduce the risk of releases and regulatory violations.

Why is aisle space regulated in hazardous waste storage areas?

Proper aisle space enables emergency access, reduces fire risk, and prevents accidental container damage during handling.

How are hazardous waste containers labeled and managed?

Containers must be compatible with stored waste, properly labeled with contents and hazard warnings, maintained closed except during loading/unloading, and stored to avoid releases.

What issue did Chicago v. EDF resolve concerning incinerator ash?

Whether municipal solid waste incinerator ash was exempt from Subtitle C hazardous waste regulation. The case forced courts and regulators to decide if ash is “generated” waste.

What did the Supreme Court rule in Chicago v. EDF?

That ash is generated and not categorically exempt; it must be tested and regulated under Subtitle C if it exhibits hazardous characteristics. The Court emphasized that congressional omission of “generating” in exemptions was deliberate.

Why was the ash ruling important practically?

It closed a potential loophole that would have allowed hazardous ash to be disposed of in ordinary landfills, protecting groundwater and human health.

What do RCRA’s Land Disposal Restrictions (LDRs) require?

LDRs generally prohibit land disposal of untreated hazardous wastes unless treatment ensures no migration during the waste’s hazardous lifetime. This prevents long-term groundwater contamination.

What is BDAT under RCRA?

Best Demonstrated Available Technology is the EPA-prescribed treatment that generators or disposers must apply before land disposal to minimize leaching and migration risks.

Why were LDRs enacted in 1984?

To correct dangerous disposal practices and require treatment technologies, reducing the long-term risk posed by hazardous wastes in landfills.

What major waste categories are excluded from RCRA’s “solid waste” definition?

Domestic sewage, CWA-regulated industrial wastewater, and household wastes are typically excluded due to other regulatory schemes and policy choices. Some mining and agricultural wastes also receive special treatment.

Why are household wastes excluded from Subtitle C?

Because they are extremely numerous and politically sensitive, and states manage municipal waste through other means. The exclusion reflects pragmatic and resource-stratification choices.

How are mining and agricultural wastes treated?

They often receive statutory or regulatory exclusions or special frameworks due to their large volumes and distinct management challenges, though particular hazardous constituents may still be regulated.

What is CERCLA’s main purpose?

CERCLA addresses cleanup and liability for abandoned, leaking, and hazardous waste sites by authorizing EPA to respond and recover costs from responsible parties. It combines emergency removal authority with long-term remedial programs.

When does CERCLA apply to a site?

When there is a “release” or substantial threat of release of a hazardous substance into the environment from a “facility,” prompting removal or remedial action under the National Contingency Plan.

How does CERCLA define a “release”?

“Release” includes spilling, leaking, pumping, pouring, emitting, discharging, escaping, leaching, or dumping into the environment. Both active spills and chronic leaking qualify.

What is a “threatened release”?

Conditions creating a significant risk of future release, such as corroding tanks, deteriorating drums, and unmaintained containment systems, which may prompt preemptive action.

Who are Potentially Responsible Parties (PRPs) under CERCLA?

PRPs include current owners/operators, owners/operators at the time of disposal, arrangers who sent waste for disposal, and transporters who selected the disposal site. These categories are broad to ensure cleanup funding.