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Environmental Law > Environmental Law Midterm > Flashcards

Environmental Law Midterm Flashcards

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1
Q

Executive Order 12898

What was the need?

A

make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.

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2
Q

Executive Order 12898

What does it do?

A

That order is designed to focus Federal
attention on the environmental and human health conditions in minority communities and
low-income communities with the goal of achieving environmental justice. That order is also
intended to promote non-discrimination in Federal programs substantially affecting human
health and the environment, and to provide minority communities and low-income communities
access to public information on, and an opportunity for public participation in, matters relating to
human health or the environment.

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3
Q

Executive Order 12898

What does it not do?

A

This memorandum is intended only to improve the internal management of the Executive Branch
and is not intended to, nor does it create, any right, benefit, or trust responsibility, substantive or
procedural, enforceable at law or equity by a party against the United States, its agencies, its
officers, or any person.

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4
Q

Five Sources of Authority

A 
Constitution 
Legislation
Judicial Decisions 
Administrative agency regulations and rulings 
Executive action
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5
Q

Constitution

A

describes the structure of government and the basic rights of the governed

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6
Q

Legislation

A

code or statute intended to govern future conduct and applies to large groups

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7
Q

Judicial decisions

A

common law, case law or precedent generally determines consequences of past conduct and deals with individual situations

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8
Q

Administrative agency regulations and rulings

A

the EPA is an example.

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9
Q

Executive action

A

executive orders signed by the president or governor and treaties signed by the president and approved by the senate

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10
Q

Federal Agencies

A

EPA, USDA.

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11
Q

State Agencies

A

Minnesota Department of Natural Resources, Minnesota Pollution control agency, Minnesota department of public health.

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12
Q

Local Agencies

A

municipal planning and zoning boards, wetlands commissions, open space, and preservation departments.

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13
Q

EPA budget

A

Most of it goes to keeping the air and water clean. Generally 8 billion a year, Trump wants to cut it down to 6 billion because he is an asshole.

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14
Q

State: Agency Statutory authority

A

is a body set up by law which is authorized to enact legislation on behalf of the relevant country or state.

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15
Q

State: Ultra Vires

A

beyond authority enacted in enabling act

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16
Q

State: Enabling act

A

law creating administrative agency and defining its powers

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17
Q

Statute 84.0895

Protection of Threatened and Endangered Species

A

no person may take, import, transport, or sell any portion of an endangered species. the commissioner shall adopt rules to designate

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18
Q

Statute 6134.0200

Animal Species

A

Mammals

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19
Q

Agency Functions:

Rule Making

A

intended to apply to a large group, rather than an individual, and is directed at future conduct rather than the past.

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20
Q

Rule Making: CFR

A

Code of federal regulations–compilation of the rules and regulations of federal agencies

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21
Q

Agency Functions: Investigation and enforcement: Self Reporting

A

Doing your taxes for the IRS.

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22
Q

Agency Functions: Investigation and enforcement: Search Warrant

A

a document issued by a judge or magistrate authorizing a search.

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23
Q

Agency functions: Investigation and enforcement: Subpoenas

A

an order to provide testimony or evidence

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24
Q

Agency functions: Investigation and enforcement: Adjudication: ADR in agencies

A

Alternative dispute resolution, resolving conflicts wtihout court involvement

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25
Q

Agency functions: Investigation and enforcement: Adjudication: Mediation

A

Form of ADR in which a neutral party facilitates resolution crafted by parties.

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26
Q

Agency functions: Investigation and enforcement: Adjudication: Arbitration

A

Form of ADR which neutral party imposes a decision.

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27
Q

Who presides over hearings?

Is discovery available?

A

ALJ- administrative law judge. Discovery is available.

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28
Q

Exhaustion of Administrative Remedies

A

Requirement that a party pursue all levels of administrative review before seeking judicial review

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29
Q

Judicial Review

A

Available if all administrative remedies have been exhausted if they have standing in the court of proper jurisdiction

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30
Q

Obtaining information from Agencies: FOIA

A

Freedom of information act law requiring that agencies disclose non-exempt information upon request

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31
Q

Obtaining information from agencies: DPA

A

Minnesota Data practices act is a state law that controls how government data are collected, created, stored (maintained), used and released (disseminated).

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32
Q

When would you use FOIA and when would you use DPA?

A

You use DPA when it is a state matter, you use FOIA when it crosses state lines in turn becoming a federal matter.

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33
Q

Common Law Causes of action

A

a recognized basis for a lawsuit

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34
Q

Trespass

A

to enter or cause entry on to property of another

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35
Q

Nuisance

A

must establish that the defendant unreasonably interfered with use or enjoyment

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36
Q

The difference between trespass and nuisance

A

trespass involves an invasion of plaintiff’s property, activities that constitute a nuisance usually happen on the defendants property.

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37
Q

Strict Liability

A

liability without regard to fault

38
Q

Why is strict liability easier for the plaintiff

A

The plaintiff recovers damages for harm suffered as a result of a defendant engaging in abnormally dangerous activity regardless of whether the defendant intentionally caused the harm or was careless.

39
Q

Sovereign Immunity

A

government cannot be sued without its consent

40
Q

FTCA Federal Tort Claims Act

A

limits sovereign immunity

41
Q

Private attorney general action

A

private citizens sue to enforce environmental laws

42
Q

Who must be notified of a private attorney general action

A

The agency with responsibility for enforcement and gives that agency the option of stepping in and bringing enforcement action in lieu of the citizens action.

43
Q

E-Discovery

A

discovery of electronically stored information

44
Q

Spoliation of evidence

A

destruction, alteration, or mutilation of evidence

45
Q

How to prevent a spoliation charge?

A

Most firms outsource their computer forensic needs and their management of information coming in or being sent.

46
Q

Commerce clause

A

basis for most federal regulation of the environment

47
Q

Where is the commerce clause found?

A

Article 1 Section 8 of the Constitution

48
Q

What does the commerce clause say

A

gives congress power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

49
Q

What amendment is used to challenge the reach of the national government into the affairs of the states?

A

Tenth Amendment.

50
Q

Supremacy Clause

A

establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority constitute the supreme law of the land

51
Q

Where can the supremacy clause be found

A

Article 6 Clause 2 of the Constitution

52
Q

Savings Clause

A

statutory provisions preserving state or local law against preemption

53
Q

Two types of preemption

A

Implied and Explicit

54
Q

Implied preemption

A

federal law trumps state and local law that conflicts with or interferes with federal law. CA also be implied if the federal law is so pervasive that there is no room for state or local regulation.

55
Q

Explicit preemption

A

congress can explicitly preempt state and local laws when it enacts new laws.

56
Q

NIMBY

A

Not in my backyard. a person who opposes undesirable land uses in his or her community.

57
Q

What are the basic differences between state and federal courts?

A

Federal courts are established under the U.S. Constitution to decide disputes involving the Constitution and laws passed by Congress. The differences between federal and state courts are defined mainly by jurisdiction.

58
Q

Basic levels of courts in the federal system

A

U.S. District Court, U.S. Circuit Court of Appeals and the U.S. Supreme Court.

59
Q

Basic levels of courts in the state system

A

district courts (the trial court), circuit courts which are the first level of appeal, and the Supreme Court

60
Q

What federal court of appeal is Minnesota located in

A

8th Circuit court of appeals

61
Q

Ramsey county is what district?

A

Second judicial district

62
Q

Hennepin county is what district?

A

Fourth judicial district

63
Q

NEPA

A

National environmental policy act: promotes the enhancement of the environment and established the president’s council on environmental quality.

64
Q

CEQ

A

Council of environmental quality responsible for overseeing NEPA and establishing regulations

65
Q

What types of actions would trigger the application of NEPA?

A

if it involves federal funding or the decision on a federal agency to issue a permit or license, even if the project is primarily under taken by private interests.

66
Q

The main differences between Environmental assessment and environmental impact statement.

A

EA environmental assessment-no known environmental impact, but significant federal dollars. Process to say hey are we missing something? Can this have an environmental impact? Can take months.
EIS environmental impact statement-situation where you know there is going to be an environmental impact, or there was an environmental assessment, that said there were some identifiable environmental impacts. Can take years or even decades.

67
Q

FONSI

A

Finding of no significant impact the EA must focus on environmental issues and be concise, objective, and well balanced so that the public can understand the basis for the agency’s decision to prepare and EIS or FONSI

68
Q

What is a notice of intent?

A

if an EIS is required, the responsible agency publishes the NOI indicating intent to prepare a draft environmental impact statement DEIS

69
Q

DEIS

A

Draft environmental impact statement.

70
Q

FEIS

A

Final environmental impact statement

71
Q

Scoping

A

process of evaluating the purpose, impacts, and alternatives for the project. It is important because during scoping all relevant federal, state, and local legislation, executive orders, and agency regulations are identified.

72
Q

Cumulative impacts

A

impact of action when considered with other past, present or future actions.

73
Q

Typical components of an EIS?

A

Scoping, tiering, contents,

74
Q

ROD

A

Record of decision this approves project after EIS. It is the final step in the EIS process and may not be issued sooner than 30 days after the approved final EIS is distributed

75
Q

Navigable waterway?

A

waterway that is if it is deep, wide and slow enough for a vessel to pass or walk

76
Q

Basic differences between riparian and littoral rights?

A

Riparian is a system for allocating water among those who possess land along its path, common law. concerning properties that abut static water, like an ocean, bay, delta, sea, or lake, rather than flowing water

77
Q

Difference between a point and nonpoint source?

A

Point sources are discreet, identifiable, source of discharge, such as a pipe. A nonpoint source is pollution is not discharged from an identifiable source, but comes from various sources like stormwater.

78
Q

Point source

A

pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container or rolling stock.

79
Q

Nonpoint source

A

melting snow, running toward a stream and picking up animal waste, leakage from vehicles, and pestisides.

80
Q

CAFO

A

confined/concentrated animal feeding operation, nonpoint source.

81
Q

Indirect discharger

A

source that discharges pollutants into publicly owned treatment works (POTW)

82
Q

Water quality Criteria

A

technical standards for achieving designated issues

83
Q

What entity determines water quality standard

A

EPA

84
Q

Anti-degredation standards

A

standards for water of high quality

85
Q

TMDL

A

Total maximum daily load of pollutants allowable for a body of water, consisting of wasteload and loan allocation

86
Q

NPDES

A

National pollution discharge elimination system; permit system for regulating point sources.

87
Q

Types of NPDES permits

A

Individual and general permits

88
Q

NPDES Individual permit

A

specifically tailored to an individual facility.

89
Q

NPDES general permit

A

covers multiple facilities within a category.

90
Q

What agency regulates Section 404 dredge and fill permits? Does the EPA have a role?

A

Army corps of engineers. the EPA can veto a decision by the Corps to issue a permit.

91
Q

Wetland mitigation

A

a wetland, stream, or other aquatic resource area that has been restored, established, or enhanced, or preserved to compensate for unavoidable harm to aquatic resources permitted under section 404 or similar state or local wetland regulation.

92
Q

What is the MPCA proposing in its sulfate rule?

A

120 micrograms per-liter of water.

Environmental Law (1 decks)

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