Environmental Law Exam 2

What is a Taking?

A taking occurs when the government physically invades or heavily restricts property in a manner that renders it unusable. The Constitution requires compensation when this occurs to protect private property rights

What is a Physical Taking?

A physical taking involves the government occupying, seizing, or permanently appropriating private property. Compensation is always required. These are the clearest category of takings.

What is a regulatory taking?

A regulatory taking occurs when a law or regulation goes “too far” and deprives the owner of reasonable use or value of property. Courts evaluate these case-by-case using balancing tests. Compensation is not automatic.

Why are regulatory takings harder to prove?

Because the government is allowed to regulate property under its police powers. A regulation must be extremely burdensome to qualify as a taking. Courts balance fairness against public interest.

Penn Central Balancing Test

The Penn Central test balances economic impact, interference with investment-backed expectations, and the character of the regulation. No single factor controls the outcome; the test evaluates overall fairness.

What is the Penn Central test?

Penn Central balances economic impact, interference with investment-backed expectations, and the character of the government action. No single factor is determinative. It is the core test for regulatory takings.

What is an Exaction?

An exaction is a condition the government places on a development permit requiring land, money, or improvements. They are legal only when they relate to the project’s impacts. Otherwise, they become unconstitutional takings.

Why can exactions be unconstitutional?

Because they can become coercive or unrelated “shakedowns.” If the government demands something disproportionate or irrelevant, it violates the Fifth Amendment.

Exactions & Takings

Exactions become takings when government conditions feel more like leverage or a “shakedown” than a fair exchange. This happens when conditions are unrelated or disproportionate to the development’s impacts, violating constitutional protections.

Nollan v. California Coastal Commission/  Essential Nexus

Nollan requires a direct connection between the impact of the proposed development and the condition imposed. If the condition solves an unrelated problem, it fails the nexus test and becomes an unconstitutional exaction.

What is an example of failing the Nollan test?

Requiring a beachfront access easement when the proposed project does not impact public beach access. This was the exact issue in Nollan.

Dolan v. City of Tigard/ Rough Proportionality

Even with a valid nexus, the condition must be proportional to the project’s impact. Governments cannot demand more than what the harm justifies.

Why was Dolan important?

It created a second requirement beyond nexus. Exactions must be both related and proportionate.

Koontz v. St John’s River Water Mgmt

Koontz clarified that monetary demands must satisfy Nollan and Dolan just like land exactions. Governments cannot avoid constitutional scrutiny by charging fees instead of demanding property.

What did Koontz add to Nollan and Dolan?

Koontz held that monetary exactions also require nexus and proportionality. Governments cannot avoid constitutional limits by demanding money instead of land.

What is a monetary exaction?

A fee, payment, or financial condition placed on a permit. Koontz confirmed these are treated the same as land exactions.

What makes an exaction a taking?

Failing nexus, failing proportionality, or being coercive in nature. If a developer is pressured to “pay to play,” it becomes unconstitutional.

When does an exaction fail?

Fails nexus, proportionality, or is coercive.

What are wetland exactions?

Requirements to restore, replace, or improve wetlands before development can occur. These are valid only when linked to wetland impacts.

What is the Wetland Exaction Example?

It’s when a developer must restore or improve wetlands in exchange for a permit. This is only valid if the requirement relates directly to the project’s impact and is roughly proportional. If it’s excessive, it becomes an unconstitutional taking.

When are wetland exactions unconstitutional?

When the required mitigation is disproportionate or unrelated to the actual impact on wetlands.

What is a “rough proportionality” example?

If a development removes one acre of wetlands, requiring mitigation of one acre is proportional; requiring ten acres is not.

Can exactions be required even if the project is denied?

Yes — Koontz held that unconstitutional demands still count even without issuing the permit.

Why do exactions exist?

To ensure developers help offset the public burdens their projects create, like infrastructure strain or habitat loss.

What is the difference between a fee and a tax (in takings)?

A fee is tied to a specific project impact, while a tax funds general services. Fees tied to impacts must satisfy Nollan/Dolan.

“Quid Pro Quo”

Exactions must be a fair “this for this” exchange. The government may ask for conditions only if they address impacts caused by the development, preventing coercive permitting.

What is an example of a legitimate exaction?

Requiring a developer to add a stoplight because their large project increases traffic at that intersection.

What is an example of an illegitimate exaction?

Requiring a developer to fund a public art project unrelated to the development’s impacts.

Are impact fees always exactions?

Only when they are tied to individual permit approval. Broad, general fees set by legislation may not be exactions.

Why is takings law important in environmental regulation?

Because environmental restrictions—land use limits, habitat protections, etc.—can trigger takings claims if they overly burden owners.

What is the purpose of takings doctrine?

To prevent individuals from bearing burdens that should be shared by the public as a whole.

Supremacy Clause

Federal law overrides conflicting state law, ensuring national consistency. States cannot undermine or contradict federal environmental standards.

Commerce Clause Definition

The Commerce Clause gives Congress the power to regulate commerce among the states, with foreign nations, and with tribes. It ensures a unified national market by preventing states from creating trade barriers. Nearly anything can count as “commerce” today.

Commerce Clause Purpose

The Commerce Clause prevents states from interfering with interstate trade and ensures a free national market. It allows Congress to regulate activities affecting commerce, including goods, water, waste, and wildlife.

Why is the Commerce Clause so broad today?

Courts interpret “commerce” expansively, allowing Congress to regulate goods, water, waste, wildlife, pollution, and even activities that indirectly affect markets. This modern interpretation gives the federal government wide regulatory power.

Dormant Commerce Clause (DCC)

The DCC is an implied constitutional restriction that prevents states from discriminating against out-of-state commerce. It stops states from protecting their own economies at the expense of others. Most discriminatory laws are struck down under this doctrine.

Why does the DCC exist?

To prevent economic Balkanization — where states create protectionist trade rules favoring their own industries. The DCC preserves a free national market and prevents trade wars between states.

DCC Exceptions

Three:

The item is NOT an article of commerce (very rare).

Legitimate local interest with no nondiscriminatory alternatives.

Congress explicitly approves the discrimination

What counts as discrimination under the DCC?

Treating out-of-state goods, businesses, or people worse than in-state ones. This includes bans, higher prices, additional barriers, or extra requirements on outsiders.

Is almost everything an “article of commerce”?

Yes. Courts treat goods, water, waste, wildlife, and even certain services as commerce. “Not commerce” is an extremely rare exception.

Why can states not discriminate against out-of-state water users?

Because that disrupts the national market and favors in-state residents unfairly. Conservation must be evenly applied if used as justification.

Why is water considered commerce?

Water can be bought, sold, transported, and used across state lines, making it part of economic exchange. States must regulate it neutrally.

What is the “legitimate local interest” exception?

States may discriminate if they are protecting a legitimate local interest like health or ecology and no reasonable nondiscriminatory alternatives exist. This is extremely hard to prove. Only a few cases have succeeded.

What is an example of a legitimate local interest?

Preventing the introduction of harmful invasive species or diseases. In rare cases, courts allow discrimination if the ecological risk is proven.

Local Interest Exemption

States may discriminate only to protect legitimate local needs, such as preventing invasive species. They must also prove no nondiscriminatory alternatives exist, which is an extremely difficult burden to meet.

Oregon Waste Systems

Oregon charged higher fees for out-of-state trash, which the Court found unconstitutional. States must treat all waste equally, regardless of origin, reinforcing nondiscrimination principles. $0.85/ton vs $2.25/ton → unconstitutional discrimination.

Why was Oregon Waste unconstitutional?

Because waste is an article of commerce, and Oregon charged different prices solely based on origin. The Court rejected Oregon’s justification and found no legitimate local interest.

Sporhase v Nebraska

The Court ruled that groundwater is an article of commerce. Nebraska could not block exports simply because the water was to be used in Colorado; conservation rules must apply equally to all.

What did Sporhase say about conservation?

Conservation is legitimate, but rules must apply equally to in-state and out-of-state users. States cannot fake conservation to hide discrimination.

Maine v Taylor

Maine v. Taylor is one of the very few cases where the Supreme Court allowed a state to discriminate against interstate commerce. Maine proved that banning out-of-state baitfish was necessary to protect its waters from parasites and that no reasonable nondiscriminatory alternative existed. It is the strongest example of the “legitimate local interest” exception actually succeeding under the Dormant Commerce Clause.

Why is Maine v. Taylor important?

It shows the legitimate local interest exception can be met, but only with strong scientific evidence and no alternatives. The case is used as the gold standard for states defending discriminatory environmental laws.

What is the “item not commerce” exception?

If the item being regulated is not an article of commerce, the DCC may not apply. This is rare because almost everything today affects commerce. Courts interpret “commerce” very broadly.

What is market participant exception?

When a state is acting as a market participant (not a regulator), it can favor its own residents. This rarely applies in environmental cases.

Can a state charge different rates as a market participant?

Yes — but only when the state is directly selling or purchasing goods. If it is regulating, DCC restrictions still apply.

Why is the market participant exception rarely relevant?

Most environmental actions involve regulation, not direct state commerce. States are usually acting as regulators, not sellers.

Congressional Approval Exception

If Congress explicitly authorizes discrimination, a state law can violate the DCC legally. This is rare but provides a narrow pathway for states to discriminate

Is congressional approval common?

No. Congress rarely authorizes discrimination because it disrupts national uniformity. When it does, it must be explicit and unmistakable.

What is the Pike balancing test?

When a state law is nondiscriminatory but burdens interstate commerce, courts weigh the burden against local benefits. If burdens clearly outweigh benefits, the law fails.

When does the Pike test apply?

Only when the law is not discriminatory on its face or in effect. It is used for neutral laws that still impact commerce.

Do discriminatory laws ever use Pike balancing?

No — discriminatory laws receive “virtually per se invalidity.” They fail unless they meet strict exceptions.

Why Commerce Clause is broad now

Courts interpret almost any activity with economic ripple effects as commerce. This expands federal power and limits discriminatory state laws.

Why is everything considered commerce now?

Because modern economies are interconnected; even water, wildlife, and waste cross state lines or affect markets. This gives Congress broad regulatory authority.

Why is the DCC important for environmental regulation?

It prevents states from selfishly hoarding resources or pushing environmental burdens onto neighbors. It creates nationwide fairness.

Can states ban imports of harmful materials?

Only if they meet the legitimate local interest exception. They must prove real danger and lack nondiscriminatory alternatives.

Why do most state bans fail under DCC?

Because they are usually based on economic protectionism, not legitimate health or ecological evidence. Courts demand strict proof.

What is federalism?

Federalism divides power between the federal government and the states. Both levels regulate land, water, and environmental issues, creating overlap and conflict. This sharing of authority is the root of many environmental legal disputes.

Why is federalism messy?

Because state and federal powers often overlap in environmental regulation. Each claims authority over water, pollution, and land use. This leads to lawsuits, conflicting policies, and constant power struggles.

What is the Supremacy Clause?

The Supremacy Clause makes federal law override conflicting state law. If a state law frustrates federal policy, it becomes invalid. This ensures nationwide uniformity.

Why is the Supremacy Clause important in environmental law?

Because federal environmental statutes often conflict with state attempts to regulate resources. Federal law usually wins these conflicts. This keeps state laws from weakening national protections.

What is preemption?

Preemption occurs when federal law displaces state law. It can be explicit or implied. Preemption prevents states from passing conflicting or weaker environmental regulations.

What is express preemption?

When Congress explicitly states that federal law overrides state law. This leaves no ambiguity. It appears clearly in statutory text.

What is implied preemption?

When Congress does not say it directly but federal law still overrides state law due to conflict or comprehensive federal regulation. Courts infer Congress’s intent.

What is field preemption?

When Congress occupies an entire regulatory field, leaving no room for state regulation. Even complementary state laws are preempted.

What is conflict preemption?

When obeying both federal and state law is impossible, or state law frustrates federal goals. State law must give way.

Why does environmental law frequently trigger preemption issues?

Because federal statutes like the Clean Air Act and Clean Water Act are comprehensive. States often want stricter or looser rules. This causes clashes.

Can states pass stricter environmental laws than federal law?

Sometimes — depending on the statute. Some federal laws allow stricter state standards; others expressly forbid them.

Why does overlapping authority cause conflict?

Because states traditionally control land and water, while the federal government controls interstate commerce and public lands. Their powers collide on major issues.

How does federalism affect public lands?

States often want more control over federal lands, but the Property Clause gives Congress full authority. This leads to political tension, especially in the West.

What is cooperative federalism?

When federal and state governments share responsibility for environmental programs. States implement federal standards if they meet federal requirements.

Why can cooperative federalism be unstable?

Because states vary in political will, funding, and priorities. Federal oversight is required to ensure consistency.

What are interstate compacts?

Compacts are binding agreements between states to manage shared resources, usually water. Once Congress approves them, they function as federal law and provide legal stability.

Why do states create compacts?

To avoid litigation and establish predictable water allocations. Compacts provide stability in long-term water sharing.

Why Use Compacts?

Compacts provide predictable water allocation and reduce lawsuits between states. They allow states to manage shared rivers cooperatively rather than through conflict.

Why do compacts require congressional approval?

Because agreements between states can affect national interests. Approval ensures they don’t harm other states or federal policies.

What happens once Congress approves a compact?

The compact becomes binding federal law. States cannot later claim it violates federal statutes.

Why are compacts difficult to change?

Because all signatory states must agree to amendments. Changing water allocations is politically and legally complex.

Why do compacts become outdated?

Because climate, hydrology, and population patterns change. Compacts made decades ago may no longer reflect current realities.

Downsides of Compacts

Compacts are difficult to modify because all states must agree to changes. They often become outdated as climate and hydrology shift, creating long-term management challenges.

Examples of Compacts

Water-sharing, river management, fisheries, power transmission, and interstate infrastructure. These issues frequently cross state borders.

Why does Congress like compacts?

They reduce interstate conflict and lessen the federal government’s workload. States handle disputes locally.

Why do states prefer compacts over litigation?

Litigation is expensive, uncertain, and slow. Compacts offer stability and control.

Can compacts violate federal environmental laws?

Yes — but only if Congress explicitly approves them. Congressional approval shields compacts from conflict.

What are local watershed groups?

Collaborative regional groups that manage shared watershed resources. They help coordinate conservation efforts across jurisdictions.

What is the basic principle behind Native American treaty law?

Treaties with tribes are legally binding contracts between sovereign nations. Because tribes had less power during negotiations, courts interpret treaties in a pro-tribal way. This protects tribes from unfair historical practices.

Why are treaties considered the “supreme law of the land”?

The Constitution says treaties are equal to federal statutes in legal force. States cannot override or ignore them. This gives tribes powerful legal protection.

Indian Removal Act (1830)

A federal law that forced Native peoples from their homelands, often through violence or deception. This history shapes how courts interpret treaties today. It explains why ambiguities are interpreted in favor of tribes.

What was the purpose of forced relocation?

To open Native land to white settlement and resource extraction. It disregarded tribal sovereignty and rights. This legacy strongly influences modern tribal law.

Treaty of Guadalupe Hidalgo

The treaty ending the Mexican-American War was signed in 1848. It promised to protect the land rights of Indigenous and Mexican people, but was widely ignored. It is a historical example of broken treaty commitments. The U.S. failed to honor land grants, creating lasting injustice.

Why is the Treaty of Guadalupe Hidalgo relevant to environmental law?

Many land and water rights promised in the treaty were never honored. This influences modern disputes over water, land grants, and Indigenous resource rights in the Southwest.

What are reservations?

Federal lands set aside for tribes, often located on poor, remote, or arid land. Tribes do not “own” the land in full title—the federal government holds it in trust. This makes implied rights like water legally essential.