env law exam 1

preservation

stance that the environment should be protected rather than used

redressable

capable of being rectified or remedied

standing

the legal right to bring a lawsuit in court

intergenerational equity

current generation owes a duty to future generations to maintain the environment for enjoyment, use and benefits

reactive

responding to a previous event in the past (CERCLA)

ordinance

a municipality statute-like law

conservation

view that humans should use natural resources wisely while continuing to be available for use in the future

citizen suit provision

provision in a statute that allows for any citizen to bring legal action to enforce a law or have a governmental entity perform a specific duty (get around standing) (clean water act, CERCLA)

jurisdiction

relating to authority or ability to enforce a law

precautionary principle

idea that decision makers should act on the side of caution when decisions will affect others or the environment

statute

a law enacted by congress

pollutor pays

principle that holds the actual polluter responsible for the cost of pollution or remediation of environmental damage

transboundary

crossing of jurisdictional boundaries

gaia

name of the hypothesis that theorizes that the Earth is a living, self regulating organism

brownfield

abandoned sites that may be environmentally contaminated

ecosystem rights

perspective that the ecosystem itself has the right to exist; it values the ecosystem over individuals

proactive

anticipatory action to address an expected environmental challenge or issue (clean water act)

animal rights

perspective that animals have the right to live without interference by humans

sustainability

use of resources in a manner that does not permanently deplete them

adversary system

type of legal system the U.S. has; one side wins and another loses after both parties present evidence in the way that is most favorable to their side

plaintiff

the party who brings a suit

appellate

court that hears appealing cases

in rem

jurisdiction of a court over specific property

judicial review

court review of the action of an agency or governmental entity

common law

judge made law

Writ of Certiorari

writ for the SCOTUS to receive to choose which cases to review and decide on

voir dire

jury selection process

trial

court where evidence is submitted and questions of facts are resolved

stare decisis

a latin two-word phrase that stands for "let the decision phrase"; this requires judges to follow precedent for similar cases

compensatory

monetary awards that compensate the plaintiff for injuries

summary judgement

decision issued by court when no genuine issues of material fact exist and a party is entitled to judgment as made by law

punitive

monetary awards designed to punish intentional wrongdoing by defendants

defendant

party alleged by the plaintiff in a suit

federalism

system of shared government between a central government and other/smaller political units

venue

particular physical location where a court exercises its jurisdiction

federal question

federal jurisdiction based on substantial issue arising under national laws

criminal law

substantive law specifying what conduct constitutes a crime and the punishment for such conduct

limited

jurisdiction type for courts to hear only limited or specific types of cases

general

jurisdiction type for courts to hear all types of cases

concurrent

jurisdiction which two or more courts can exercise authority

civil law

law involving actions for legal duties owed by private parties to other individuals; may be based on statutes or common law

in personam

jurisdiction of a court over a specific person

exhaustion of administrative remedies

the abbreviation for the doctrine requiring that a plaintiff use all possible reliefs from an agency before seeking justice from courts

diversity

jurisdiction that arises when citizens of different states present a substantial issue under federal laws

injunction

court order to refrain from or perform some activity

commerce

clause in the U.S. Constitution that gives Congress the power to regulate interstate commerce

supremacy

clause in the U.S. Constitution that asserts federal law is the supreme law of the land

subject matter

jurisdictional authority over a particular kind of case

real property

land or immovable objects attached to land

chattel

any form of tangible, moveable personal property

taking

governmental seizure of privately owned property for public use

remainderman

person who has remainder interest in real property

personal property

property that is tangible or intangible not attached to land

lease

contract for possession of property for a specified period of time

life estate

ownership interest in real property measured by a specified person's life

fixtures

personal property that is attached or integrated into real property; treated as if it is real property

rule of capture

doctrine that holds the first person to capture resource(s) owns as much of that resource that they can obtain (varies by material and state)

public trust doctrine

legal doctrine or policy that states the public has permanent and superior interests in certain items such as common property

bequest

transfer of personal property by will or inheritance

title

right of ownership in property

intellectual

type of property intangible and consisting of creations of the mind

nuisance

unreliable interference with the use and enjoyment of a person's property

right of survivorship

a right included in joint tenancy for real property co-ownership

easement

right to use another's property

grantee

person who has legal interest in real property; example could be a tenant

adverse possession

acquiring property by openly taking possession of it and using it for certain period of time among other conditions (varies by state)

grantor

person who conveys interest in real property to another; example could be a homeowner

covenant

contract to do or refrain from doing something on a property; it binds any owner of the land to it throughout time

US code

where do you find federal statutes?

code of federal regulations

where do you find administrative rules and regulations?

fee simple absolute

the most comprehensive estate in land, which coveys to the grantee complete ownership of property

fee simple defeasible

a fee simple qualified by language that will cause the fee to end if and when a certain event happens

Tenancy in Common

joint ownership of property; full right of access to property no matter the share, yet all are liable Most common type of joint ownership

estate for years

type of tenancy that has a definite beginning and ending., which has a definite beginning and a definite end

Tenancy by periodicity

A type of tenancy that lasts for a period of time and is automatically renewed until either party gives notice that it will end

Tenancy at will

A type of tenancy characterized by an indefinite duration

Tenancy at sufferance

type of tenancy that arises when a person in pos- session refuses to leave after its right to possession has ended

Joint tenancy/tenancy by entirety

Form of co ownership that includes right of survivorship includes right of survivorship - upon death of co-owner, the ownership interst automatically vests in other owner(s) If their is disputes; the property can be partitioned or sold with divided profits

Easement by prescription

similar to adverse possession

Easement by appurtenant

type benefits particular possesor or piece of land

Easement in gross

benefits are public regardless of possessor or owner

Negative

owner has right to prevent other from using property

Positive

owner has a right to use another’s land

express

owner gives right for another to use property for solely specific purpose (it is specific)

Implied

easement that arises out of necessity

Riparian Rights Doctrine

East of Mississippi River Reasonable use of water and immediately nearby Can stay long as property is kept or held

Prior Appropriation Doctrine

Specific diverted reasonable use of rights, regardless of riparian rights Some folks have more priority on rights, they must direct water from supply for specific beneficial use “First come, first serve”

West of Mississippi River

Note: this is used where most of nation’s water sources are scarce Can lose these rights if not adhered to

Riparian Rights

Continuous adjacent of property rights

Prah v Maretti

Solar panel and solar energy case Plaintiff has standing and neighbor cannot obstruct energy This case highlights right to light, a growing hot topic in case law. Going forward private property rights will be more limited.

Lateral Support principle

Uphold of land by the land next to it

GA v Cleveland Electric Co

Cant limit GA flying over

GA claims nuisance, but doesnt make sense

The stack will not impact “peace and easy enjoyment of land” and does not present hazard for flight operations

600 ft stack is standard for air pollution control

CE has right to build stack. However, they must obtain proper easement or surrounding land from neighbors (lateral support). GA has to adjust

CE did not do above fully

As such, case dismissed for both parties.

Doctrine of ancient lights

U.S. rejects this 20 year uninterrupted use law

It can inhibit development

Right to light

Maybe be acquired by contract, easement, covenant

Can also be protected going forward in statutes and backed by common law

Will be big point of environmental law especially in relation to solar power

This varies between states

trespass

voluntary and intentional entry onto the land of another without permission; trespass to land is a tort

original

jurisdiction allowing a district court to determine an initial ruling on a case

Diary Foods Asso v Boggs

* In this case, the Sixth Circuit U.S. Court of Appeals rejected a Commerce Clause challenge
and accepted a freedom of speech claim brought by out-of-state dairy processors to an Ohio
law requiring the inclusion of certain information on the labels of milk products sold within the
state.
* Plaintiffs, dairy food associations, seek a declaratory judgment and preliminary and permanent
injunction to prevent the Director of the Ohio Department of Agriculture from enforcing the laws
of Ohio that restricts the labeling of dairy products including the use of rbST
* Defendants dont like the label because they claim that the use of “rbST-free” labeling is
misleading and imply other dairy products are not as good
* Court ruled in partial favor of defendant citing high possibility for many consumers to be
misled. This means the labeling of “rbST-free” items or those alike should be restated for clarity
or prohibited. The original Ohio rule is not limiting or protectionist but rather may be misleading
considering certain types of labels
* This court ruling is in despite of freedom of speech claims, commerce clause claims,
preemption claims, and product disclaimer claims.
* However the appellate court remanded the case to the district court after this advisement
ruling since the disclaimer is reasonable but the prohibition of asterisk use on a label in Ohio is
irrational for producers, in state or out of state

elements of standing

Injury in fact, causation, redressable

beyond a reasonable doubt

standard of proof for criminal law

preponderance of evidence

standard of proof for civil law

Sierra club v Morton

\-Disney wanted to build million dollar facility

\-Sierra nevada mountains / sequoia national park in california

\- mineral king valley

\-3 years to come up with project

\-USFS approved it (note this is a conservation agency within the Dept. of Interior)

\-Sierra club sued usfs

\-Trial court granted injunction

- disney loses because sierra shows standing as stakeholder in the land of interest no real injury in fact

\-9th circuit court of appeals rules in favor of disney and in favor of their appeal

\- states that sierra had no standing, no real injury in factor direct impact from defendant, and no ability to sue for judicial review under the APA for permit granting agencies such as the usfs

\-SCOTUS

\- in favor of appellate court ruling; sierra had no standing because of no personal injury and cannot site public goods or general interest as substantial injury

-Resolution

\- Disney did not build because there was:

\-Public backlash

\-Grassroots effort

\-Sierra adjusted their case after SCOTUS ruling and dissenting opinions, one of which suggested sierra to change their complaint during the granted injunction, and another stating for the APA and/or courts to consider and allow for plaintiffs to sue on behalf of the land or environment