Environmental Law: Clean Water Act, NEPA, ESA & Related Statutes

What does the Clean Water Act prohibit?

The discharge of any pollutant from a point source to navigable waters without a permit.

How are 'navigable waters' defined under the Clean Water Act?

Defined as 'the waters of the United States'.

What was the significance of Riverside Bayview Homes v. Corps (1985)?

The court upheld the Corps' jurisdiction over wetlands adjacent to navigable waters.

What did the SWANCC decision (2001) determine about isolated wetlands?

The Corps exceeded its authority by extending jurisdiction to isolated wetlands used as habitat for migratory birds.

What was the Obama EPA's Waters of the US rule (2015)?

It further defined 'waters of the US' to include wetlands with a 'significant nexus' to covered waters.

What did the Trump EPA rule finalized in April 2020 entail?

It limited coverage to more permanent bodies of water and excluded wetlands with no surface water connection.

What was the outcome of Sackett v. US regarding adjacent wetlands?

Only adjoining wetlands that are 'indistinguishable' from waters of the US are included.

What is the two-part test established in Sackett v. US?

1) The adjacent body of water must be a 'water of the United States'; 2) The wetland must have a continuous surface connection to that water.

What does NEPA stand for?

National Environmental Policy Act.

When must an Environmental Impact Statement (EIS) be prepared under NEPA?

For major federal actions significantly affecting the quality of the human environment.

What was established by Calvert Cliffs v. AEC?

EIS must be considered in decision-making, not merely written and filed.

What does NEPA require from federal agencies?

It requires a process for decision-making that includes environmental considerations.

What was the ruling in Strycker's Bay v. Karlen (1980)?

The court emphasized procedural duties over substantive duties in NEPA compliance.

What is the role of the courts under NEPA?

To ensure that agencies consider environmental impacts at all stages of decision-making.

What is the legacy of NEPA in environmental decision-making?

Increased transparency and participation in federal agency decisions.

What is the significance of the term 'significant nexus' in the context of the Clean Water Act?

It refers to the connection required for wetlands to be considered 'waters of the US'.

What does the term 'point source' refer to in the Clean Water Act?

A discrete conveyance from which pollutants are discharged.

What is the main focus of the Clean Water Act?

To protect the quality of navigable waters in the United States.

What challenges arise from the interpretation of 'waters of the US'?

Debates over the breadth of the definition and the need for permits.

What is the importance of wetlands in the context of the Clean Water Act?

Wetlands play a crucial role in the hydrologic cycle and water quality protection.

What was the dissenting opinion in Sackett v. US regarding the definition of navigable waters?

Justice Kavanaugh argued that the new test for 'continuous surface connection' departs from established precedent.

What does the term 'discharge' refer to in the context of the Clean Water Act?

The release of pollutants into navigable waters.

Country of Maui v. Hawaii Wildlife Fund

Waste water treatment plan was disposing of waste through groundwater into the ocean w/o a permit, established that a permit is required when there is a direct discharge, or a functional equivalent of a direct discharge, of pollutants from a point source into navigable waters

What is a major federal action under NEPA?

Includes federal approval of private projects, projects with federal funding, and substantial federal control and responsibility.

What is the purpose of an Environmental Impact Statement (EIS)?

To analyze the environmental impacts of proposed federal actions.

What are common legal challenges related to NEPA?

Failure to perform an EIS or inadequacies in analyzing environmental impacts.

What did the court rule in SCIC v Eagle County, CO regarding EIS?

The court upheld that NEPA is a procedural cross-check and agencies have discretion in EIS scope.

What is the significance of Executive Order 12898?

It mandates federal agencies to address environmental justice in their programs and policies.

What was the outcome of City of Port Isabel v FERC?

The court required a Supplemental Environmental Impact Statement (SEIS) due to new information showing disproportionate impacts.

When was the Endangered Species Act (ESA) enacted?

1973

What is the primary goal of the Endangered Species Act?

To protect threatened and endangered species from extinction.

What did the Supreme Court rule in TVA v. Hill regarding the ESA?

ESA section 7 is an affirmative command that prioritizes endangered species over federal agency actions.

What is the God Squad Exemption in the ESA?

It allows exemptions from ESA requirements if no alternatives exist and the project jeopardizes species.

What is the difference between NEPA and ESA in terms of procedural requirements?

NEPA is procedural, while ESA includes both procedural and substantive requirements.

What does Section 9 of the ESA prohibit?

It prohibits taking, selling, importing, or exporting any protected species.

What is the definition of 'take' under the ESA?

To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect a protected species.

What was the ruling in Babbitt v. Sweet Home regarding habitat modification?

The court limited 'take' to habitat modifications resulting in actual death or injury to wildlife.

What is the significance of the term 'substantial difference' in NEPA cases?

It refers to the deference given to agencies in determining the scope and content of an EIS.

What are some biodiversity statutes mentioned alongside the ESA?

Marine Mammal Protection Act, Migratory Bird Treaty Act, Lacey Act, CITES.

What is the role of wildlife agencies under the ESA?

They determine jeopardy and make decisions regarding actions affecting endangered species.

What does the term 'environmental justice' refer to in federal law?

Addressing disproportionately high and adverse human health or environmental effects on minority and low-income populations.

What is the relationship between NEPA and environmental justice?

NEPA can be used to identify and address environmental justice issues in federal actions.

What does the term 'cool analysis' refer to in NEPA?

It emphasizes a rational and objective evaluation of environmental impacts.

What is the moral outrage perspective in ESA considerations?

It highlights the ethical obligation to protect endangered species regardless of economic impacts.

What is the significance of the phrase 'highest of priorities' in the context of the ESA?

It reflects Congress's intent to prioritize the protection of endangered species above other federal agency missions.

What does the term 'incalculable value' refer to in ESA cases?

It refers to the intrinsic value of endangered species that justifies legal protections.

What is the primary product of NEPA processes?

Environmental Assessments (EA) or Environmental Impact Statements (EIS).

What is the difference in the application of NEPA and ESA to federal and private conduct?

NEPA applies to federal agencies and permits, while ESA applies to both federal and private actions.

Adjacent vs. adjourning

WOTUS: adjacent means located nearby, adjourning means they are touching/bordering. Sackett determined that "adjacent" meant "adjourning"

ESA section 4

-longest and perhaps most important section

-outlines listing provisions, recovery plans, critical habitat

ESA Section 7

requires federal agents to minimize harm to listed species or their habitats, requires consultation between agencies and FWS/NOAA, FWS/NOAA must release a biological opinion for consulting agency to move ahead with their activities

Biological assessment

Done by agency to determine whether there will be adverse effect on species

ESA section 9

prohibits take, possession, or selling of listed species or their parts

"Take"

to harass, harm, persue, hunt, wound, kill, trap, capture, or collect

"Harm"

a subset of take to include significant habitat modification

Habitat Conservation Plan

a land-use plan that attempts to protect threatened or endangered species across a given area by allowing some trade-offs between harm to the species and additional conservation commitments among cooperating parties

procedural vs substantive

Procedural law focuses on the steps required before an environmental decision is finalized, substantive law establishes the actual rights, prohibitions, and environmental standards that must be met

United States v. Plaza Health Laboratories

It established that an individual person cannot be considered a "point source" of pollution, ruling that the CWA primarily regulates industrial or engineered conveyances, not human actions.

Functional Equivalent

a permit is required if pollutant discharge from a point source that reaches navigable waters via groundwater is the "functional equivalent" of a direct discharge.

Aspects of functional equivalent test

Transit time (how long) and distance traveled (how far) are the primary considerations. also:

The nature of the material the pollutant travels through.

The extent of dilution or chemical change.

The total amount of pollutant entering navigable waters.

The manner of entry.

Rapanos 2006

resulted in no majority, so lower courts used "significant nexus" and "continuous surface connection" until Sackett adopted the "continuous surface test"