ARE 309 Exam 3

Gandalf has purchased a tract of land in Randolph County, North Carolina.  His plan is to build a livestock operation, but before he purchases animals he wishes to first build some infrastructure to enhance and protect local water sources.  As it happens, the federal 2018 Farm Bill has authorized funding of the Environmental Quality Improvement Program (EQIP) which provides funding to qualified applicants for wells and stream crossing projects as incentives to improve water quality.

Gandalf applies for funding at his local Natural Resources Conservation Service (NRCS, a division of US Department of Agriculture) office, but his application is not approved.  When he goes back to the NRCS office, the local conservationist tells him he's just too old to start farming.  Incensed, Gandalf files a federal age discrimination claim with the Federal District Court for the Middle District of North Carolina.

USDA files a motion to dismiss, and the Court promptly grants it, consistent with current SCOTUS precedent.  

Why?

As for his age discrimination claim, the case is not yet ripe because Gandalf has not exhausted his administrative remedies, and the court does not know what NRCS's final agency action will be.

Remy owns a tract of land in Beaufort County, upon which lie some water-absorbing wetlands known as pocosins, which are non alluvial wetlands (i.e. are not fed by a river or stream) and support dense vegetation.  He wishes to clear the pocosins of their vegetation so he can level off the ground to plant soybean.

Emile, his down-drainage neighbor and a professional hydrologist, is concerned about losing the pocosins' storm water storage capacity, so he reports Remy to the Army Corps of Engineers (ACE) Wilmington office.  He also calls the Water Quality Division of North Carolina Department of Environmental Quality.

Assume that the Biden Administration has issued its final rule on WOTUS definition in line with Justice Kennedy's concurrence in Rapanos v US, what is likely response of the ACE?

In deciding whether to require a §404 permit, ACE must first determine whether the pocosin on Remy's land, along with other pocosins in the area, create a hydrological nexus impacting water quality of nearby waters of the United States.

Continue facts from previous question.

Assume that if Army Corps of Engineers demurs on its jurisdiction, what happens next?

If North Carolina has a statute protecting state waters and wetlands not included as waters of the United States, DEQ may regulate Remy's activity according to any granted authority.

Consider the following scenario:  T. E. Lawrence is the owner of a 100-acre tract of land on the outskirts of Raleigh that contains unique natural features.  He is approached by the Triangle Land Conservancy with an offer to purchase Rocky's development rights in return for a cash payment.  

According to a certified appraiser, the highest value of Lawrence's land - i.e. the price he could demand if he chose to sell for a subdivision of residential development - is $2,500,000 (or $25,000 per acre).  Also according to the same appraiser, if Lawrence were to sell his development rights to Triangle Land Conservancy and place a permanent conservation easement on his tract of land, his 100 acres would then be worth $500,000 (or $5000 per acre).

What is the raw value of Lawrence's development rights?

$2,000,000

Under the same scenario of the previous question, TLC can only muster sufficient grant funds to pay cash on 65% of the value of the development rights.  If Lawrence chooses to proceed with the placing of the permanent conservation easement on his property, what is the result?

Lawrence may take a federal tax deduction for 35% of the value of the development rights.

Continue basic facts from previous question.

Now, suppose that T.E. Lawrence has on his land a stream, whereby a corridor on each side of the stream is placed under separate permanent conservation easement which qualifies as a mitigation bank.  The stream mitigation bank transaction is separate from the other conservation easement transaction, and Lawrence is compensated for the mitigation bank acreage.

What effect does this not have?

The mitigation bank provides Lawrence credits to modify the terms of the other conservation easement, such as expanding his impervious surface area (build restricted roads or buildings).

The United States Army has proposed a plan to clear cut 1000 acres of forest on federal land surrounding Ft. Bragg to better facilitate training.  The target forest and surrounding area is similar to long leaf pine habitat preferred by the red cockaded woodpecker, an endangered species listed under §7 of the Endangered Species Act (ESA).  Assume the US military is not exempt from ESA in this fact pattern.

In required consultation, U.S. Fish & Wildlife Service issued a biological opinion ("BiOP") that the habitat of red cockaded woodpecker would not be impacted by the decision to clear cut the 1000 acres.  In support of its BiOp, USFWS relies heavily on one study commissioned by the Private Lands Institute demonstrating that 1000 acres is not a significant habitat reduction in the red cockaded woodpecker's range.  The BiOp makes passing reference to - without further exploration of - other studies suggesting that much smaller acreage disturbances are harmful to the species.

You - a dedicated birdwatcher who spends weekends observing the red cockaded woodpecker - have filed for an injunction under the citizen suit provision of the ESA to stop the clear cut.  

What is best answer below to describe result?

The judge rules in your favor if you can prove USFWS failed to adequately consider the "best scientific data available" in its BiOp.

In 2007, the Center for Biological Diversity (CBD) and Oceana, two non-profit organizations, petitioned the federal government under §4 of the Endangered Species Act to list the Loggerhead Sea Turtle population in the western Mid-Atlantic region as an endangered species.  This petition resulted in the listing of the Loggerhead as an endangered species.

The Loggerhead Sea Turtles lay their eggs on coastal beaches - including North Carolina's Outer Banks (OBX) and the Cape Hatteras National Seashore (CHNS) - and vehicular access to beaches has been shown in studies to have an impact on their reproductive habitat from crushing of eggs and impeding hatchling access to the sea.

Consider this hypothetical:  The National Park Service management plan for the CHNS placed no restrictions on vehicular access, allowing unrestricted day and night year-round access to beach driving for off road vehicles (4x4s). 

CBD and Oceana petitioned NPS to develop a vehicle access plan, and NPS refused stating that it was their mission to protect public trust access to North Carolina's beaches, and besides surf fishing is a major economic driver of the OBX economy.  

CBD and Oceana file an action in federal court upon refusal of their petition.  Which statement below best explains the likely result.

CBD and Oceana succeed in compelling NPS to develop a vehicular beach access plan if they can demonstrate that NPS failed to consider - in their denial of the rule-making petition - whether beach driving jeopardizes the habitat supporting the reproductive capabilities of loggerhead sea turtles.

[The following question is a composite of several student-generated questions in a previous semester]

Five years into the global Covid-19 pandemic, a mutation in the corona virus causes a disease that decimates and greatly reduces the range of Odocoileus virginianus, known commonly as the Virginia deer or white-tailed deer.  Though eventual immunity has saved the deer from extinction, the species is greatly reduced.  Alarmed by various factors, including habitat destruction and coyote proliferation, an NCSU graduate student petitions the US Fish and Wildlife Service to list Odocoileus virginianus as a threatened species.  

The petition is denied.  The student sues the USFWS under the citizen suit provision of the Endangered Species Act to compel listing.

Which below is the best answer to describe what may follow?

The court orders USFWS to list the species unless the agency can demonstrate, using the best scientific and commercial data, that the species is not under the threat of extinction.

Consider this illustration of a coal fired electricity generation facility.  Match the pollution source with its required permit.

A (A stack pullting smog into the air):

B (a river where pollution is being dumped into):

C: (a landfill leachate dumping into a river)

Subtitle D solid waste permit, Title V Operating Permit (stationary source), National Pollution Discharge Elimination System permit (point source)

A: stationary source

B: point source

C: Subtitle D

The Mountain Valley Pipeline, a private project to transfer natural gas from the Marcellus Shale play in the Allegheny region of Pennsylvania, New York, and West Virginia to southern Virginia and North Carolina, must cross several areas of public lands managed by federal agencies in the mountains of Virginia.  The pipeline route must be certified by the Federal Energy Regulatory Commission (FERC) as specifically required by the Natural Gas Act.

The public lands at issue are managed by the US Forest Service (USFS).  The FERC certificate requires each agency to grant a right of way to allow the pipeline to transverse public lands under their jurisdiction. The decision to grant a right of way is called a Record of Decision (ROD).  

Each distinct unit of federal forest lands (in this case the Jefferson National Forest) must have a natural resource management plan (NRMP) pursuant to the National Forest Management Act (NFMA), and each NRMP is developed pursuant to requirements of the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA).  Pursuant to the NFMA, the grant of right of way must be consistent with the NRMP.

First Question:  Drawing on your general knowledge of federal administrative law and judicial review thereof, which statement below is definitely NOT TRUE of each natural resource management plan developed by the US Forest Service.

Any alleged shortcomings in the administrative development process of a particular natural resource management plan may be challenged in court by any member of the public in the United States, regardless of their connection to the area affected by the particular natural resource management plan.

Refer to the facts of the previous question.

As noted the National Forest Management Act (NFMA) specifically requires that the grant of a right of way to the pipeline route must be consistent with the natural resource management plan (NRMP).  The NRMP has specific requirements regarding removal of trees on steep slopes and resulting sediment control.  Changes in a NRMP are subject to the requirements of the Administrative Procedures Act.

Assume that the Forest Service grants the right of way without amending its plan.

Second Question:  Given what you know about administrative law and procedural law, what is a court likely to rule about the Forest Service's record of decision (ROD) to grant the right of way?

The court finds US Forest Service's ROD was arbitrary and capricious if the ROD failed to take a hard look at potential sedimentation problems caused by clearing the forest for the pipeline right of way.

Consider these facts:  a new U.S. presidential administration wishes to reverse a previous administration's regulation which banned oil and gas exploration on the Outer Continental Shelf (OCS) off of North Carolina.  Assume that such action is categorically included under NEPA, and requires lead agency - Bureau of Ocean Energy Management (BOEM) (part of the Department of Interior) to prepare an Environmental Impact Statement (EIS).  The EIS in detail reviews three alternative courses of action, including "no action."  Alternative A opens lands off the southern NC Coast opposite Morehead City.  Alternative B - which opens the submerged lands closest by Nags Head, NC, contained a disclosure of comparatively greater likelihood of leaked oil reaching the beach front from Oregon Inlet to Duck. Alternative B is chosen by the BOEM for its convenience to the ports in Hampton, Virginia, and BOEM has opened a bidding window to issue exploration leases.    

The Town of Nags Head sues BOEM under the National Environmental Policy Act, alleging that Alternative B will have much greater environmental impact than Alternative A.  

Which answer below best describes what happens next?

The federal district court rules against the Town of Nags Head's complaint because NEPA does not impose a substantive duty on agencies to choose the least environmentally damaging alternative.

Carry forward to the facts from the previous question.

Now consider that, in its EIS, BOEM made a finding in Alternative A about the impact of seismic exploration for oil on the tuna fishery.  However, no such impact was discussed in alternative C, the "no action" alternative.

The Town of Nags Head has amended its complaint and alleged such non-disclosure as fatal to BOEM's NEPA analysis.

How might the court rule and why?

The court rules for Town of Nags Head if failure to disclose environmental impacts in a "no action" alternative is a failure to take a hard look at environmental impacts.

During the second term of President Barack Obama, the Bureau of Ocean Energy Management (BOEM) prepared a leasing plan for oil and gas exploration on the outer continental shelf.  The plan - subject to NEPA - limited oil and gas leasing to the Western Gulf of Mexico and Alaska's Cook Inlet.  The Atlantic Coast was not included as a permissible leasing area.  There were no successful court challenges to the plan.

During the first term of President Donald Trump, the BOEM prepared a revised plan to permit oil and gas leasing in an area off of the North Carolina coastline.  The environmental impact statement (EIS) prepared by BOEM and published in the federal register discussed five alternatives, including no leasing in the target area.  The other four alternatives - all of which permitted varying number of leases - disclosed varying mortality rates among ocean fish and mammals, as well as potential impacts to coastal tourism.  Comments were made on the EIS through appropriate channels, and all comments received some measure of response from BOEM.

Assume BOEM's Record of Decision (ROD) chose to allow the highest number of leases, which was disclosed in the EIS to have the highest mortality among ocean life.

You are a lawyer for World Wildlife Fund and challenge BOEM's choice of alternatives.  What result?

Your case is dismissed if BOEM can demonstrate that the harm caused by its chosen alternative was fully evaluated and disclosed to the public in the EIS.

Assume the basic facts of the previous question (except where changed below).

Assume that BOEM's EIS discloses the impact of oil and gas leasing on the Atlantic Right Whale, an endangered species listed under §4 of the Endangered Species Act (ESA).  The EIS discloses that the alternative allowing the lowest number of leases will result in a mortality of 5 whales, ranging to the alternative allowing the highest number of leases resulting in a mortality of 10 whales.

BOEM Record of Decision (ROD) chooses the "lowest lease" alternative.

On behalf of World Wildlife Fund, you file a challenge under ESA attacking BOEM's ROD.  What result? 

World Wildlife Fund wins because, regardless of whether BOEM met its NEPA procedural disclosure requirements, the Endangered Species Act does not permit government action that will jeopardize a listed species beyond an incidental take.

Jack Straw owns the tract (shown below) located on the Cape Fear River in Lee County.  The land is in a part of Lee County that is zoned "R-A (Residential Agricultural)."  According to the Unified Development Ordinance (UDO) for Lee County, the only allowable uses of land in an RA zone are farming, forestry, residential living, and home-based businesses.

Jack has been approached by Cypress Strata Solar, LLC to develop a solar facility, and two sites on his land are proposed (see map).  Assume that Jack's site is suitable according to the NC Utilities Commission's most recent request (RFP) for proposed solar sites. Assume also that solar facilities are considered a "light industrial" use under Lee County's UDO.  Assume also also that this particular site - as an energy facility - requires a federal permit issued by the Federal Energy Regulatory Commission (FERC).  The next four questions concern issues associated with this proposed project.

QUESTION ONE:  As an initial zoning matter, may Jack Straw develop his property for solar generation as a matter of right?

Yes, but only if Jack is granted a special use permit by Lee County after proper public hearings as required by the UDO.

(Facts and map have been pasted and are identical to previous question.  Any new fact is in bold)

Jack Straw owns the tract (shown below) located on the Cape Fear River - a traditional navigable waterway - in Lee County.  The land is in a part of Lee County that is zoned "R-A (Residential Agricultural)."  According to the Unified Development Ordinance (UDO) for Lee County, the only allowable uses of land in an RA zone are farming, forestry, residential living, and home-based businesses.

Jack has been approached by Cypress Strata Solar, LLC to develop a solar facility, and two sites on his land are proposed (see map).  Assume that Jack's site is suitable according to the NC Utilities Commission's most recent request (RFP) for proposed solar sites. Assume also that solar facilities are considered a "light industrial" use under Lee County's UDO.  Assume also also that this particular site - as an energy facility - requires a federal permit issued by the Federal Energy Regulatory Commission (FERC).  The next four questions concern issues associated with this proposed project.

QUESTION:  The solar developer - in trying to work out the best location for the site - is concerned about the "wet areas" and whether there will be restrictions on disturbing them during facility construction.  You are the solar developer's environmental lawyer, as an initial matter, what do you tell them about the nature of the wet area?

That the wet areas are likely jurisdictional waters of the United States under the federal Clean Water Act because they abut a continuous surface connection to a navigable waterway.

(again, this question concerns the below fact pattern repeated from previous questions.  Any new fact is in bold)

Jack Straw owns the tract (shown below) located on the Cape Fear River in Lee County.  The land is in a part of Lee County that is zoned "R-A (Residential Agricultural)."  According to the Unified Development Ordinance (UDO) for Lee County, the only allowable uses of land in an RA zone are farming, forestry, residential living, and home-based businesses.

Jack has been approached by Cypress Strata Solar, LLC to develop a solar facility, and two sites on his land are proposed (see map).  Assume that Jack's site is suitable according to the NC Utilities Commission's most recent request (RFP) for proposed solar sites. Assume also that solar facilities are considered a "light industrial" use under Lee County's UDO.  Assume also also that this particular site - as an energy facility - requires a federal permit issued by the Federal Energy Regulatory Commission (FERC).  The next four questions concern issues associated with this proposed project.

QUESTION (related to the previous question):  The solar developer - based on your counsel regarding the wet area - has consulted with the Army Corps of Engineers (ACE) and the NC Department of Environmental Quality (DEQ) - and both have confirmed that this is a federal jurisdictional wetland, requiring a §404 permit if it is to be disturbed.

As part of your §404 permit application, which below is likely least beneficial to your application?

Off-set credits purchased from the broker of a mitigation bank located in Georgia.

(again, this question concerns the below fact pattern repeated from previous questions.  Any new fact is in bold)

Jack Straw owns the tract (shown below) located on the Cape Fear River in Lee County.  The upper Cape Fear River has been identified as part of the range of the Cape Fear Shiner (Notropis mekistocholas), a small fish listed as endangered under the Endangered Species Act.  The land is in a part of Lee County that is zoned "R-A (Residential Agricultural)."  According to the Unified Development Ordinance (UDO) for Lee County, the only allowable uses of land in an RA zone are farming, forestry, residential living, and home-based businesses.

Jack has been approached by Cypress Strata Solar, LLC to develop a solar facility, and two sites on his land are proposed (see map).  Assume that Jack's site is suitable according to the NC Utilities Commission's most recent request (RFP) for proposed solar sites. Assume also that solar facilities are considered a "light industrial" use under Lee County's UDO.  Assume also also that this particular site - as an energy facility - requires a federal permit issued by the Federal Energy Regulatory Commission (FERC).  

An application for the project permit is filed with FERC, who conducts an Environmental Assessment that results in a Finding of No Significant Impact.

QUESTION:  You are a grad student in Marine Sciences at NC State specializing in study of freshwater fish species.  Somehow you become aware of the project, and locating the environmental assessment, study it diligently.  You find no mention of the Cape Fear Shiner.  Who do you sue?

FERC, for failing to consult with US Fish and Wildlife Service regarding potential impact on any listed species.