Outline Flashcards
Torts
Negligence
Strict Liability
Nuisance Tresspass
Negligence elements and environmental law application
Elements:
-Duty
-Breach
-Causation
-Damages
Environmental Law Application
-Pollution and Contamination
-Duty to Warn
-Failure to Comply with Regulations
-Environmental Impact Assessment
-Duty of Care foro conservation
Strict Liability elements and environmental law application
Elements:
-Activity or Condition
-Injury or Harm
-Causation
-Doesn’t require proof of intent, fault, negligence
Environmental Law Applicaton
-Toxic Substances
-Hazardous Waste Disposal
-Environmental Accidents
-Endangered Species + Habitats
Trespass elements and environmental law application
Elements:
-Lack of Consent
-Intentional Entry
-Physical Presence
Environmental Law Application
-Access to water bodies
-Entry into private property
-Intrusion onto contaminated sites
-Unauthorized access to protected areas
Nuisance elements and environmental law application
Elements:
-Unreasonable
-Interference
-Causation
-Substantial and continuing
Environmental Law Application:
-Environmental Pollution
-Odor and noxious fumes
-Excessive noise
-Interference with natural resources
What does the plaintiff need to show in toxic tort cases to prevail?
General and specific causation
Precautionary Principle
Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
What are the barriers to toxic tort cases?
-Costly
-Difficult to prove exposure to toxic substance
-Difficult to identify the source
Environmental Justice definition
Is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.
Executive Order No. 12898
Directs federal agencies to:
-Identify and address the disproportionately high and adverse human health or environmental effects of their actions on minority and low income populations, to the greatest extent practicable and permitted by law.
-Develop a strategy for implementing environmental justice.
-Promote non discrimination in federal programs that affect human health and the environment as well as provide low income communities access to public information and public participation.
Executive Order No. 14096
Every person must have clean air to breath, clean water to drink, safe and healthy food to eat; and an environment that is healthy and sustainable, and free from harmful pollution and disruption. Restoring and protecting a healthy environment is a matter of justice and a fundamental duty of the federal government.
What are the differences between formal and informal rule making?
Formal-Requires hearing on the record
Informal-requires notice to the public
What are the differences between civil and criminal enforcement?
Civil-Strict Liability
Criminal-Intent
Standing elements
- injury/harm
- causation
- redressability (something the court can do)
Standing in Organizations: Lujan v. Defs of Wildlife
A party does not have standing to litigate against the government if she suffered no personal injury other than the harm suffered by all citizens.
Massachusetts v. EPA
States have standing if they can prove injury.
Congressional Authority
-Interstate Commerce Clause- gives Congress the power “to regulate commerce with foreign nations, among states, and with the Indian tribes.”
-Property Clause-gives Congress the power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.
-Treaty Clause-
Limits on State Authority
-Dormant Clause-Prohibition against states posing legislation that discriminates or excessively burdens interstate commerce.
-Supremacy Clause-The constitution and federal laws take priority over conflicting state law.
-Cooperative Federalism-Relationship between federal and state government in which both work together.
Civil Enforcement
Legal Standard: Strict
Burden of Proof: Preponderance of the evidence
Results: monetary penalties, injunctive relief, environmental improvement.
Type of enforcement actions: settlements, civil penalties, supplemental environmental projects and mitigation.
Criminal Enforcement
Legal Standard: Intent
Burden of Proof: Beyond reasonable doubt
Results: Monetary fines, Restitution, Incarceration
Type of enforcement actions: Criminal penalties, incarceration
What is NEPA?
National Environmental Policy Act
Signed into law on January 1, 1970. NEPA requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions.
What are two triggering requirements of NEPA?
-Federal action
-Significant impact on the quality of human environment
What is an EIS? When do you need it?
Environmental Impact Statement
Needed when NEPA is triggered.
What is an EA? What are two potential results of an EA?
Environmental Assessment
- FONSI-Finding Of No Significant Impact
- EIS-Environmental Impact Statement
NEPA Requirements
- EIS-detailed analysis of the proposed action, its environmental consequences, and reasonable alternatives.
- EA-a more concise analysis that determines if a project will have a significant impact on the environment.
- Consideration of alternatives-examination of different project designs, locations and techniques that may have lesser environmental impact or better achieve the projects objectives.
- Public Participation-Opportunity to review and comment on draft EIS and EA.
- Cumulative Impact Statement-evaluation of the incremental effects of a proposed action when combined with other past, present, and reasonably foreseeable future actions.
- Council of Environmental Quality (CEQ) Regulations-work in t he development of environmental and energy policies and initiatives.
What is CWA?
Clean Water Act.
Regulates discharges of pollutants into U.S. waters, and regulates quality standards for surface waters.
What is a water of the United States?
Navigable waters connected from the surface.
What is the significant nexus test?
Test that clarifies if wetlands, are subject to the Clean Water Act based on their ecological and hydrological connections with navigable waters.
(previous test before “surface” waters)
What was the effect on Sacket v. EPA (2023)?
Rule that the use of the significant nexus test is incorrect and the connections between wetlands and navigable waters must be from the surface.
Definition: Point Source
Discrete
Identifiable source of pollution from which pollutants are discharged.
Definition: Non-point source
Diffused
Pollution that comes from many different sources, rather than a single point.
Examples: run-off waters, snowmelt
Definition: Effluent Limitation
Limit or maximum amount of pollutants discharged from a point source.
Section 303 requirements
Water quality standards
Anti-degeneration policy
Triennial review
Public participation
Approval and review by the EPA
Compliance and enforcement
Section 404 purpose
Enforce and prohibits unpermitted discharges of dredge and fill in wetlands.
Ensures no-net loss (when wetland is damaged, mitigation process required to bring wetland to the state it was before).
Definition: TMDLs
Total Maximum Daily Loads
For impaired bodies of water. Action plans restore clean waters
Impaired water = water contaminated by pollutants
calculations that determine the maximum amount of a pollutant that can enter a body of water while still meeting water quality standards.
Can EPA and Corps change the definition of “waters of the United States” simply because they are directed to do so by the President?
What are the agencies legal obligations in making such a change?
It depends. If the agencies actions are inconsistent and unreasonable with the statute.
Engage in informal rule making process.
What is NPDES
National Pollutant Discharge Elimination System
A permit program that controls water pollution by regulating point sources that discharge pollutants into waters of the U.S.
NPDES elements
Permitting
Regulatory Requirements
Compliance and Monitoring
Enforcement
Stormwater Management
State Implementation
Chevron two part test
- whether statute is clear and unambiguous. If there’s no ambiguity, the court analyzes whether the agency followed the clear meaning of the statute from an objective standpoint.
- If statute is ambiguous, court must defer to agencies interpretation, assuming it is reasonable.
Rapanos v. USA rule
Under the CWA, the “waters of the U.S.” includes only relatively permanent, standing or flowing bodies of water and does not include lands only intermittently saturated by water.
