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.
Clean Air Act
Federal law that regulates all sources of emissions. It is intended to reduce and control air pollution nationwide.
NAAQS
National Ambient Air Quality Standards
Maximum amount of pollutants averaged over a specified period of time that can be present in outdoor air without harming public air.
Regulate criteria pollutants
Criteria Pollutants
Ozone-ground level
Nitrogen
Carbon Monoxide
Sulfur Dioxide
Particulate Matter (PM)
Lead
For each pollutant EPA sets 2 types of NAAQS:
- Primary Standards-protect public health
- Secondary Standards-protect plants, forests, crops, etc.
SIP
State Implementation Plan
Primary legal mechanism by which states participate in fulfilling the goals of CAA.
-Plan created by states to show how NAAQS requirements will be met, maintained and enforced.
-Required to designate areas as:
1. Attainment areas
2. Non-attainment areas
3. Unclassified areas
Attainment Area
Area that meets NAAQS
Non-attainment Area
Area that does not meet NAAQS
Ambien Air
non-contaminated air
BACT
Best Available Control Technology
technology-based standard required for new major or modified sources in attainment areas.
BART
Best Available Retrofit Technology
Updating current technologies that you have.
Cap and Trade
Market based program to regulate greenhouse gases. Allocates annual allowances to the operators of affected units.
Annual allowance: One ton of sulfur dioxide.
To stay within one ton allowance, facility can purchase additional allowances from facilities that wont reach the one ton limit.
CCS
Carbon Capture and Sequestration
Process of capturing carbon dioxide (CO2) emissions and storing them away from the atmosphere.
FIP
Federal Implementation Plan
Air plan developed by EPA to help states attain or maintain NAAWS for criteria pollutants.
If state fails to create SIP, EPA will create a FIP for the state.
Stationary Source
Non-moving sources such as power plants, chemical plants, oil refineries, manufacturing plants, etc.
NSR
New Source Review
Permit when a new facility is constructed, or an existing facility under goes a major modification that will cause signifiant increase in emissions. If facility will stay within limit; you will only need this permit; if not: PSDNSR.
PSDNSR
Prevention of Significant Deterioration New Source Review
When facility is going to exceed air quality standards.
Tools to determine what requirements the facility will need under PSDNSR
Best Available Control Technology-best emission control technology or technique that is available for a process, considering feasibility and economical reasonableness.
Air Quality Analysis-determine whether new pollutant emission from the source will cause or contribute to NAAQS violation.
NSPS
New Source Performance Standards
Technology-based standards set by EPA for non-criteria pollutants emitted from new or modified stationary sources.
Also apply to stationary sources that are not major.
Hazardous Air Pollutants
-Not criteria pollutants that present or may present a threat of adverse human health (like cancer) or adverse environmental effects.
-All facilities that produce hazardous air pollutants are subject to NESHAP.
NESHAP
National Emission Standards for Hazardous Air Pollutants
Standards set to provide safety to protect public health.
TSCA
Toxic Substances Control Act
Regulate chemical substances or combination of substances that result in chemical reaction which present an unreasonable risk of injury to health or environment.
Gives EPA authority to:
-screen new chemicals not listed by EPA
-require testing that may present risk to human health or environment
Substances NOT regulated by TSCA
Pesticides
Tobacco and tobacco products
Radioactive Materials
Food, food additives, drugs, cosmetics
TSCA Inventory
Inventory of chemicals regulated by TSCA
Requires every chemical manufacturer and importer to notify EPA of each chemical substance it manufactured or imported.
CBI
Confidential Business Information
-Chemical identity, production volume, and specific manufacturing process may be sensitive and proprietary to businesses.
-If EPA grants CBI protection, the agency will keep the information confidential and use it for specific regulatory purposes.
-EPA may need to disclose the CBI to certain individuals and organizations (state, health officials)
Citizens Suit Provisions
Standing
Notice Requirement
Remedies
Government Involvement
PNM
Premanufacture Notification Program
Must be filed with EPA before manufacturing or importing new chemicals. EPA requires
-common name of substance
-chemical identity and molecular structure
-estimated production levels
-proposed use and method of disposal
-levels of exposure
Hazardous Waste
Solid waste, which due to its quantity, concentration or characteristics, may cause serious illness or create a threat to human health of the environment if its not properly disposed of or managed.
Solid Waste
any discarded material, which includes material that is abandoned, recycled, or waste-like.
RCRA
Resource Conservation and Recovery Act
Regulates the ongoing generation, transportation, storage treatment, and disposal of hazardous waste.
Prevents contamination
Solid waste is deemed hazardous under 2 tests
- Hazardous waste by EPA
- Exhibits hazardous waste characteristics
Hazardous waste characteristics
- Ignitability
- Corrosivity
- Reactivity
- Toxicity
Ignitability
Poses a fire hazard during routine management
Corrosivity
has the ability to corrode standard containers or dissolve toxic components or other waste
Reactivity
has the tendency to explode under normal conditions, to react violently with water, or to generate toxic gases
Toxicity
exhibits the presence of one or more specified toxic materials
List of Hazardous Waste
F-listed = waste from industrial processes
K-listed = waste from certain industries known to be hazards
P-listed = commercial chemical products that are hazardous
U-listed = discarded commercial chemical products
TSDF
Treatment, Storage, and Disposal Facilities
Hazardous waste facilities that treat, store, and/or dispose of waste are called treatment, storage, and disposal facilities
Non hazardous waste
Not classified as hazardous waste, but may still be subject to certain management requirements.
In the industrial sector, non-hazardous waste is often generated during the production of goods and services.
CERCLA
Comprehensive Environmental Response Compensation and Liability Act
Regulates the cleanup process when hazardous wastes have been improperly disposed and have caused damage
Retrospective. Focus on sites that has existing contamination.
Two Primary Aims of CERCLA
- Promote cleanup hazardous waste sites.
- Ensure that costs of such cleanup efforts were borne by those responsible for the contamination.
CERCLA applies to:
-A release
-Of a hazardous substance
-Into the environment
PRP
Potentially Responsible Parties
Any “person” who may be held liable for the costs of cleaning up hazardous substances released into the environment.
Potential Responsible Parties under CERCLA
-Current and Former Owners and Operators
-Generators and Transporters
-Arrangers for Disposal
-Accepters of Hazardous Substances
-Corporate Officers and Directors
Defenses to liability under CERCLA
- BFPP-Bonafide Prospective Purchaser
- Innocent Landowner
- Contiguous Property Owner
- Act of God or Act of War
- Third Party Defense
BFPP
Bonafide Prospective Purchaser
Person must:
1) not be potentially liable for contamination on or at a property;
2) acquire the property after 2002;
3) establish that all disposal of hazardous substances occurred before the person acquired the facility;
4) make all appropriate inquiries into previous ownership
Third Party Defense
CERCLA
Ecological terrorism, protestors. If third party comes and is responsible, you’re not liable.
Innocent Landower
conducted all appropriate inquiries prior to purchase and complied with other pre- and post-purchase requirements.
Ignorance alone does not qualify.
Contiguous Property Owner
Owners of property that is contingent, located nearby or adjacent to contaminated sites.
If you show the property next to you was the reason your property was contaminated and you didn’t know, you won’t be liable.
Act of God, or Act of War
Release of hazardous waste were caused by natural disasters. You took every possible precaution.
It is unforeseen, inevitable.
Greenhouse gases
Gases in the earth’s atmosphere that trap heat.
How does the government require the reduction of greenhouse gases emissions?
-technical and financial support
-economic incentives
-regulatory standards at all levels of government
-cap and trade based regulations
Biodiversity
the variety of life in the world or in a particular habitat or ecosystem.
Threats to Biodiversity
Habitat loss and fragmentation
Deforestation
Climate change
Pollution
Over exploitation
Invasive Species
Genetic Pollution
Disease and Pathogens
ESA
Endangered Species Act
Protect and conserve endangered and threatened species and the ecosystems they depend on.
Who oversees the administration of ESA?
Fish and Wildlife Service
National Marine Fisheries Service
Primary Objectives of ESA
-Listing and Recovery
-Critical habitat protection
-Prohibition of harm
-Consultation and Cooperation
-Recovery planning and implementation
-Public participation and education
ESA Process
- Petition and Evaluation
- Candidate Assessment
- Listing Decision
- Final Listing
- Recovery Planning and Implementation
Section 9 of ESA
Prohibits:
1.harassing, hunting, shooting, capturing, trapping, killing, collecting, wounding, harming, or pursuing an ESA-listed species, or attempting any of these activities.
2.Interstate and International Commerce-possessing, selling, delivering, carrying, transporting, or shipping endangered species or plants.
- Prohibition of Harm to
Critical Habitats
Also provides penalties and enforcement
Exception to ESA takings prohibition
ITP
Incidental Take Permit
Incidental take is an unintentional, but not unexpected.
Occurs as a result of a lawful activity.
For example, incidental take could occur during resource extraction, commercial development, or energy development
Obtaining and ITP
Obtaining an ITP
-Habitat Conservation Plan
-U.S. Fish and Wildlife Service and
-National Marine Fisheries Service
-Evaluation Process
What are PCBs?
Polychlorinated biphenyls (PCBs) are toxic, persistent manmade chemicals that were widely used as an oil additive in electrical equipment and as a plasticizer in building materials. Congress banned the manufacture and use of PCBs in 1978.
