Environmental Law Flashcards

Flashcards on Environmental Law

Common Law

Based on influences of past legal decisions that evolve into the “body” or “doctrine” of law

Statutory Law

Occurs by the legislative drafting of laws by Congress

Rulemaking

When laws are directed to agencies to implement, and the law directs agencies to possess expertise that is lacking in congress

Levels of Government for Environmental Law in the US

Local (Municipal or town), State, and Federal levels

Three Levels of Court within the Federal Court System

Federal district court, US Court of Appeals/Superior court, US Supreme court

Why a Case Moves to a Different Level of the Court System

People are not satisfied by the court’s holding or decision

Two Basic Available Lawsuits

Individual suit and Class action lawsuit

Plaintiff or Litigant

The person bringing a case against a defendant(s)

Defendant

The party a suit is being brought against

Tort

The harm “imposed” upon another

Individual Lawsuit

A suit with only one plaintiff bringing a case against one or multiple defendants

Class Action Suit

A suit with multiple plaintiffs, with at least two or more parties serving as plaintiffs against a single litigant

Procedures Related to the Burden of Proof

Civil, Criminal, and Administrative procedures

Criminal Threshold of Responsibility

Crime is proven “guilty beyond a reasonable doubt

Civil Threshold of Responsibility

Crime is proven “Guilty as based upon the preponderance of evidence” which is a lesser standard of evidence than criminal

Four Outcomes of a Case on Appeal

Affirm, Dismiss, Remand, Reverse

Affirm

Agree with lower court

Dismiss

To put out of judicial consideration; refuse to hear or hear further in court

Remand

To send back to lower court with interpretive guidance or instructions on how the court should rehear the case

Reverse

To seek the opposite of the lower court’s decision in the district court

Three Branches of Government

Executive, Judiciary, Legislative

USC

United States Codes

USCA

United States Code Annotated

Who manages and publishes the USC?

The US Government

Who manages and covers the USCA?

WESTLAW corporation

Code of Federal Regulations (CFR)

Where federal regulations made by federal agencies are published

US government protocols

Federal notification procedures

What does the US gov rely on for making announcements on government hearings, meetings and developments and also notifying the public of any agency disclosure in agency actions

The Federal Register

Role of the Congressional Record

To publish the Proceedings of congress

Issue

The legal question

Merit

The substance of a legal case, a case must have it for a dispute

Standing

The recognition by the court that involved individuals or parties have sufficient legal interest to be heard

Venue

Choice of court settings

Ripeness

Timing of the case being heard

Injunction

Often involves the plaintiff in securing a court order to cause the defendant cease and desist, to stop all contested actions

Foreseeability

Reasonable expectation of foreknowledge legal contestants are expected to have about consequences of actions they take

Motion

A request before the court by a plaintiff or defendant

Standards of Reasonableness

Where participants act in a rational just and proper way

Due Diligence

Expecting legal participants to act in a particular fashion

Remoteness

A cause not anticipated

Prima Facie Case

Literally the case before us

What Happens if A Court Does Not Come to Trail

An out of court “non disclosure settlement” in the private sector

Gag Order

An order issued by a judge to prevent bias or pretrial prejudice form the media in influencing jurors in an improper fashion

Who wrote "Tragedy of the Commons"?

Garret Hardin

Who wrote "Sand County Almanac"?

Aldo Leopold

Who wrote "Silent Spring"?

Rachel Carson

What do companies argue for “justified non compliance”

Lack of available technology, Lack of sufficient funding, Permit non compliance

Terms Refer to Alleged Wrong Doers

RP and PRP

RP

Responsible party

PRP

Potential responsible party

Three means industries typically used to argue against their being non compliant?

A solution is too costly, Technology is not available, Permit defense - their permits allow them to use such disposal (or they can argue that at least)

Property ownership 12 rights

Land rights, That are held IN the land NOT by the owner

12 Land Rights

Development, Solar, Groundwater, Riparian, Air, Timber, Mineral, Transit, Agricultural, Grazing, Ingress/Egress/Regress, The rights of Hunting/Fishing

1st Land Right

Development the right to build on or develop land

Solar Right

The right of access to light

Riparian Right

Right of adjacent access and acquisition of water without diminishing quality downstream

Air Right

Air quality and exclusive right to air column

Timber Right

The rights if someone can cut their own trees

Mineral Right

The purchase of subsurface mineral rights by others

Transit Right

Passage

Takings

The possession or adverse use of land by a party other than the owner

Eminent Domain Proceedings

What the government relies one to acquire land from private owners, usually against their wishes--Usually involves a lack of proper compensation

Inverse Condemnation

The taking of property by a government agency which so greatly damages the property that is the equivalent of condemnation of the entire property. The land owner would then claim entitled payment for the loss of the property

Adverse Land Claims

Used by private parties, including prescriptive easements and implied dedications

Prescriptive Easements

An easement acquired through open and notorious use of an owner’s land which is adverse to the owners rights

Implied Dedication

An express dedication of one where the property is donated in writing by deed

Historic or Customary Uses

People may allow others to use their property on a singular basis but the public uses it beyond the original intent of the property owner, thereby gaining a legal interest of ownership in the property

Determine if a Taking Has Occurred

Conduct a Diminution to determine if any reasonable uses still exist or conduct a Residuum Test (to determine if any reasonable uses still exist)

Private Right

Legally enforced privilege enjoyed individually

Public Right

Legally enforceable privilege enjoyed collectively

Public Trust Doctrine

The relationship between the government in protecting the public’s right and the term “In public interest”possesses a meaning of public concern, with no legally enforceable dimensions associated with it.

Police Powers

Health, Safety, Welfare, general morals

Health Police Power

Inoculations and food prep

H.A.C.C.P

Hazard analysis and critical control point

Safety Police Power

Building codes for hazards such as forest fires, flooding, hurricanes, earthquakes, mudslides etc. Police safety → speeding

Zoning

Focuses on land use

Ordinances

Focuses on activities

Subdivision Regulations

Establishes minimal acceptable standard for municipalities regarding the construction, annexation or acquisition of local Infrastructure

Restrictive Covenants/Deed restrictions

Private sector tool, which is in the form of an agreement between seller and purchaser made to restrict land use and activities