UCSB ES 125A Midterm- Krop

Aldo Leopold reading

Three types of ethics: individuals, individuals & society, and individuals & land (land ethics)

Federalism

a system of government in which there is a sharing of power between the states and center

Individual rights

protect us from tyranny of central government

Supremacy Clause

you could have a federal law and state law. If there is any conflict, the federal law is supreme

Preemption

only the federal government can have a law in this area. Ex: something that affects multiple states

Due Process

5th Amendment: no person shall be deprived of right to life, liberty, or property without due process of law. When it comes to environmental cases, due process usually deals with property rights.

"Procedural due process"

requires notice and opportunity to be heard (fair adjudicatory process)

"Substantive due process"

requires proper purpose for regulation affecting life, liberty, or property (protection against arbitrary governmental action)

Eminent domain

action by public agency to take ownership of private property for a public use, always requires compensation. Ex: Kelo v. City of New London

Regulatory taking

private party retains ownership, but regulation limits use of property.

Functions of administrative agencies

rule making (quasi-legislative), adjudicatory (quasi-judicial), administrative (executive), public access and accountability

limitations on administrative agencies by executive branch

appointment of agency heads, office of management and budget (OMB)- agency budget recommendations, executive orders

limitations on administrative agencies by legislative branch

oversight authority, investigative power (hearings), power to terminate an agency or amend its enabling statute, reauthorization, congressional "veto" over regulations, budget decisions ("appropriations"), consent on President's nominations for agency heads

Standing

"the legal right to bring a lawsuit". requires an interest in the subject and outcome of the litigation

Lacey Act of 1900

unlawful for any person to import, export, sell, receive, acquire, possess, or purchase any fish, wildlife, or plant taken, possessed, transported, or sold in violation of any federal, state, foreign, or Indian tribal law, treaty, or regulation

American Antiquities Act 1906

established criminal penalties for illegal looting, established permitting requirements for excavation and gathering of antiquities, authorizes the President to establish national monuments

Common law

principles of law that come through the court system

Tort

"breach of non-contractual duty". An action in tort requires: injury, causation, & responsibility of defendant (how it can be traced back to defendant)

Nuisance

"unreasonable interference with the use and enjoyment of another's land". Private nuisance: the nuisance affects a single or limited number of persons in the enjoyment of rights not common to the public. Remedies for a nuisance: injunction (a court order to do or not to do something) or damages (compensation for harm)

Trespass

a pollutant physically trespasses onto another person's property and is a significant harm

Negligence

knowledge of potential harm, failure to use reasonable care, no damage would result in the ordinary cause of events. Remedy: injunctions, damages

Strict liability

abnormally dangerous and inappropriate use of land (in context of location). Remedy: compensatory and punitive damages (for willful activity); injunction

National Environmental Policy Act (NEPA)

consider the impacts of human action on the environment, before the action is taken. consider whether such impacts can be avoided or minimized

Council on Environmental Quality

established by NEPA. advises president on environmental matters, drafts regulations to implement NEPA, helps agencies fulfill their environmental review responsibilities

Environmental Review

agencies must consider potential environmental effects of actions before taking them. agencies must provide a public environmental review process

Application of NEPA

activity must be federal: a federal agency must intend to carry out, fund, or approve proposed action. Activity must be "major": requiring a substantial commitment of resources

Categorical exclusions

categories of federal actions that do not normally have a significant effect of the environment

NEPA Process

Step 1: is the project exempt from environmental review. Step 2: analyze the potential environmental effects of a proposed activity and determine whether an Environmental Impact (EIS) is required. May involve preparation of an Environmental Asset (EA).Step 3: prepare an EIS

Contents of an EIS

purpose and need, proposed action, alternatives, affected environment, environmental consequences, mitigation measures, unavoidable adverse effects

Calvert Cliffs v. Atomic Energy Commission

All federal agencies are responsible for following NEPA, every federal agency must consider the environmental effects of its actors, environmental factors must be considered at every stage of the agency review process, agencies must consider environmental impacts to the "fullest extent available"

Hulbert v. California Portland Cement Company

court found defendant responsible, private nuisance, injunction was imposed

Weston Paper Company v. Pope

a paper mill emptied their waste into a river and polluted homes downstream, led to dead fish and odors. This was a public nuisance, as it affected a broader community. An injunction was issued

Spur Industries v. Del E. Webb Development Co.

cow feed lot, resulting in odors. Defendant was found responsible, court found public and private nuisance. Factors: lawful activity, nuisance, plaintiff's knowledge & willing encroachment. Remedy: injunction to stop harmful activity (to protect public interest) and indemnification (to compensate defendant)

Robertson v. Methow Valley Citizens

could have affected deer population in mountains, NEPA requires that agencies take a "hard look" at environmental consequences. However, NEPA does not mandate a particular result. An agency can decide that other values outweigh environmental costs

Muckleshoot Indian v. Forest Service

Cumulative impacts: impacts from this project may seem inconsequential, but combined with impacts from other projects can be significant. Alternatives need not be within the jurisdiction of the lead agencies. The statement of purpose must not be so narrow as to restrict the range of alternatives

Purpose of ESA

preserve ecosystems upon which endangered and threatened species depend; conserve and recover listed species

ESA Findings

various fish, wildlife, & plant species have been rendered extinct; other species are in danger of becoming extinct; these species have important aesthetic, ecological, educational, historical, recreational, and scientific value for our country and people

Causes of Extinction

urban & agricultural development, habitat loss or degradation, disease, predation, over-utilization of species for commercial, recreational, scientific, or educational

Responsible Agencies for ESA

U.S. Fish & Wildlife Service: terrestrial and freshwater species; U.S. National Marine Fisheries Service: marine species

Protections under ESA

once a species is listed, it is eligible for protection, as is its habitat; prohibiting "take" of species. Designating critical habitat; duty to conserve species; requiring consultation before undertaking activities that may harm listed species; planning for the recovery of listed species

Listing Species

ESA Section 4; Endangered- a species is in danger of extinction throughout all or a significant portion of its range; Threatened- a species is likely to become endangered within the foreseeable future; listing decisions; listing decisions must be based on "the best scientific and commercial data possible". Definition of species: any species or subspecies of fish or wildlife or plants, and any distinct population segment or any species of vertebrate fish or wildlife which interbreeds when mature. Agencies must consider only the species' biological status and threats to its existence.

Listing Factors

disease or predation; over-utilization for commercial, scientific, or educational purposes; present or threatened destruction, modification, or curtailment of a species' habitat or range; inadequacy of existing regulatory mechanisms; other natural or manmade factors affecting the species' survival

Listing Process

two processes for listing species: candidate species (proposed by the agency) & petition (proposed by the public). Formal rule-making process (public notice and comment). Most important thing about listing process: it's a public process

Candidate Process

Agency develops list of species that may warrant protection under ESA. Notice is published to obtain additional information. Agency develops priorities for listing action. Agency can prepare interim candidate conservation agreements. No deadline to initiate listing action.

Petition Process

Public files petition hearing. Within 90 days, agency must determine whether there is substantial information indicating that the listing may be warranted. Decision on petition must be made within 1 year of receipt of petition. Decision can be deferred if listing is "warranted but precluded". "Warranted but precluded" decisions must be reviewed annually until a decision is made.

Critical Habitat

ESA Section 4. Must be designated at time of listing. However, the deadline can be extended by one year (and usually is) if designation is not "prudent" or "determinable". Critical habitat includes areas that are essential to the conservation of the species and which may require special management or protection. May included "unoccupied areas" and may exclude areas based upon economic consideration.

"Take" Prohibition

Section 9. "Take" includes harming, killing, annoying, harassing, pursuing, hunting, shooting, trapping, capturing, or collecting of wildlife. Does not apply to plant species. Sweet Home v. Babbitt: "take" includes harm to critical habitat. "Take" exemptions: Section 10- Incidental Take Permit & Section 4(d)- Threatened Species

Incidental Take Permit

A party can obtain a permit for an "incidental take". The take must be incidental to an otherwise lawful activity. The "take" must be incidental to an otherwise lawful activity and must not jeopardize the species. The permit must include a Habitat Conservation Plan (HCP).

Habitat Conservation Plan (HCP)

subject to public notice and comment, agency must find that the HCP minimizes harm to the maximum extent practicable, and provides for conservation of species

4(d) Rule

Allows take of threatened species during certain type of activities. Formal rule-making process. Requires showing that species will be "conserved"

Duty to Conserve Species

Section 7(a)(1). All federal agencies must aid in the conservation of listed species. Conserve= take any action necessary to bring a species to the point at which the protections of the ESA are no longer necessary

Consultation

Section 7(a)(2). All federal agencies must ensure that their actions do not jeopardize the continued existence of listed species or adversely modify critical habitat. Requires consultation with FWS and NMFS

Biological Opinion (BO)

part of consultation process. Whether the proposed action would be likely to jeopardize the species or adversely modify its critical habitat. If so, the BO must identify any reasonable and prudent alternatives.

TVA v. Hill (1971)

Dam was threatening the existence of snail darter (which was found only in this area)

Recovery Planning

Section 4(f). Recovery= process by which decline of species is reversed and species survival is ensured; protection under ESA is no longer required. Recovery plans identify specific actions that are needed for recovery

Recovery Plan

no deadline. However, courts can enforce this requirement if the agencies have arbitrarily delayed action. Provisions may be unenforceable, but can guide other decisions.

De-listing

Grounds: successful recovery of the species. Findings: review same factors as for listing. Formal rule-making process. Same requirements for "down-listing" from endangered to threatened