1
Q
scientific uncertainty
A
lawmakers don’t have all the info when making policy, so how do we know if there is enough evidence to write the laws
2
Q
mismatched scales
A
there are problems across scales (local, regional, and global) that don’t align with the jurisdiction of laws
3
Q
cognitive biases
A
pattern of error in thinking that influences decisions related to environmental issues –> can lead to less rational or effective choices
4
Q
protected interests
A
industries, property owners, or political groups can lobby to protect their interests (influence opinion)
5
Q
market failures (public good)
A
public good is smt you can’t stop people from using and it is non-rivalrous. private markets have no incentive to protect this bc users will not be charged
6
Q
market failure (tragedy of the commons)
A
a shared resource that ppl act out of their own self-interest and overuse/deplete –> property rights can help limit this
7
Q
market failure (collective action and free riders)
A
environmental protection is collective and ppl/places have an incentive to not help but still benefit from cleaner air etc. paris agreement is a good example
8
Q
market failure (externalities)
A
economic activity poses costs/benefits that aren’t reflected in market prices (full social cost)
9
Q
5P: prescriptive regulation
A
govt sets clear rules about what actors must do or must not do
10
Q
5P: property rights
A
regulators allocate rights to use or access resources
11
Q
5P: financial penalities
A
imposing costs for harmful or noncompliant behavior
12
Q
5P: financial payments
A
provide incentives or subsidies for desired behavior
13
Q
5P: persuasion
A
non-mandatory tools that use information, education, and moral persuasion to influence behavior
14
Q
how is a law passed
A
1: congress writes a bill
2: the president approves or vetoes the bill
3: the act is codified in the US code (law or statute)
4: congress authorizes certain govt agencies to make regulations
15
Q
what are regulations
A
technical, opertational, and legal requirements created to implement laws passed by congress
16
Q
legislative branch role
A
write/pass legislation, provide oversight to agencies on regulations
17
Q
executive branch role
A
set specific regulations, implements and enforces the laws
18
Q
judiciary branch role
A
interprets laws and regulations when disputes arise, decide if constitutional or not
19
Q
what does the overturning of the chevron doctrine mean for the judicial branch?
A
the judicial branch is no longer required to defer to federal agencies’ resonable interpretation of ambigous statutes
20
Q
APA (1946) what is it? what does it include? what branch? requirements? not allowed to do?
A
Administrative procedure act: governs the process by which federal agencies develop and issue regulations. there are requirements for publishing notices of proposed and final rulemaking in the federal register –> opportunity for comments
also address policy statements, licenses, and permits - also provides standards if someone has been affected or aggrieved by an agency action
executive branch
no congressional mandates
no arbitrary and capricious decisions
21
Q
APA and standing (what is it)
A
judicial concept about who has the right to bring action to court -> they must have a connection and have been harmed by the law
22
Q
requirements for standing
A
1: injury in fact: plantiff suffered injury of legally protected interest (1) concrete and particularized (2) actual or imminent (can be economic or non or both)
2: causation: must be a causal connection btwn injury and conduct - can trace to defendent action
3: redressable: only standing to sue in court if court can offer a remedy for the injury
23
Q
Chevron USA inc. NRDC (1984): facts
A
CAA mandated that states that didnt meet their air quality goals have to make a permit system for stationary sources of pollution
but term of stationary sources of pollution could be group together and regulated as a group
24
Q
Chevron USA inc. NRDC (1984): issue
A
was the EPA’s decision to let states treat the polluting devices as a group resonable for the statutory term “stationary source”
25
Chevron USA inc. NRDC (1984): holding
yes, the EPA can allow them to be in a "bubble"
26
Chevron USA inc. NRDC (1984): reasoning
Congress left ambiguity, so agencies have authority to say was language means in statutes - agencies better suited bc of expertise
27
Chevron USA inc. NRDC (1984): rule
courts should defer to agencies when guidance is needed for language
28
when evaluating cases under Chevron, what 2 questions are asked?
1: was Congress' intent clear?
2: if the intent is unclear, was the agency's action a reasonable interpretation of the statute (was the agency's decision arbitrary or capricious)
29
Loper Bright Enterprises v. Raimondo (2024): facts
commercial fisherman sued the National Marine Fisheries Service after the agency created a rule that required industry to fund at-sea monitoring programs
they said that the agency failed to follow proper rule-making procedure
30
Loper Bright Enterprises v. Raimondo (2024): issue
should the Court overrule Chevron or at least clarify whether staturory silence on controversial powers creates ambiguity requiring deference to the agency
31
Loper Bright Enterprises v. Raimondo (2024): holding
chevron doctrine should be overturned
32
Loper Bright Enterprises v. Raimondo (2024): reasoning
APA requires courts to "decide all relevant questions of law" when reviewing agency decisions - the Chevron doctrine contradicts this principle
33
Loper Bright Enterprises v. Raimondo (2024): rule
APA says courts need to use their own judgement on deciding if an agency has acted within its statutory authority - courts cant defer to an agency interpretation of the law just bc its ambiguous
role of the court to interpret statutory language, not the agency
34
Scenic Hudson Preservation conference v. federal power commission (1965): facts
storm king was at risk of being destroyed bc they wanted to build a hydroelectic power plant
35
Scenic Hudson Preservation conference v. federal power commission (1965): issue
does the Federal power commission have a duty to consider any available alternatives to a prospective project?
36
Scenic Hudson Preservation conference v. federal power commission (1965): basis of appeal
aesthetic impacts, conservation impacts, recreational impacts
37
Scenic Hudson Preservation conference v. federal power commission (1965): court finding/holding
set aside the storm king license, wanted FPC to consider additional evidence on alternatives to the project
38
Scenic Hudson Preservation conference v. federal power commission (1965): significance
led to the passage of NEPA in 1970
standing of citizen groups to sue over envs and aesthetic harms that go beyond just economic
need to consider alternatives rather than economic aspects
39
NEPA: about
National Environmental Policy Act
federal agencies must consider envs impacts of their actions and ALTERNATIVE actions that result in lesser imapct on the envs
40
NEPA pillars
requires: transparency, informed decision making, public input, accountability
41
what can NEPA do with projects
they can delay project that impact envs, allow time to organize opposition, making the porject so costly that it expires bc prepping an EIS (environment impact statement) is complex and takes time
42
NEPA present day
narrower NEPA procedures for speedy reviews - might cause uncertainty
courts must defer to agencies’ EIS decisions and that NEPA only requires review of the immediate project, not separate or future projects. The Court reaffirmed that NEPA is purely procedural
43
citizen suits
for federal envs laws, they allow regular ppl and groups to sue violators of the law in federal court
they can ask for the court to impose civil penalites for their violations
44
when do citizen suits make sense
1: individuals do not suffer from direct damages that would entitle them to compenation
2: there is a strong public interest in enforcement
45
what do ppl have to show for citizen suits?
show that they have suffered a concrete, imminent injury to have standing --> generalized grievances not allowed (to sue from org, the individual suffering injury must be part of that org)
46
citizen suits vs. common law: when are they allowed?
citizen suits are only allowed when they are explicitly written in statutes. you can’t file a citizen suit unless the statute specifically allows it.
Common law comes from court decisions over time, not from written statutes --> more about private harm, not enforcing things
47
sierra club v. morton (1972): facts
forest serice approved plan by Disney to build resort in mineral king valley
sierra club wanted to prohbit the approval bc they had a "special inerest in the conservation"
48
sierra club v. morton (1972): issue
does the sierra club have standing under the APA
49
sierra club v. morton (1972): holding
the sierra club DOES NOT have standing
50
sierra club v. morton (1972): judgement Stewart
must show "injury in fact" - requires more than injury, and the person must be part of org
51
sierra club v. morton (1972): dissent - douglas
protecting ecology should have standing bc envs can sue for themselves
52
sierra club v. morton (1972): critique and implications
precedent: when trying to prove standing, must find individual who has r will suffer harm
mineral king never build - went to court showing injury in fact
53
Lujan v. Defenders of Wildlife (1992): facts
amendment to the ESA applies to species and habitats within the US or High Seas
Defenders of Wildlife argued this rule was wrong because U.S.-funded projects abroad (like dams or construction) could harm endangered species overseas.
They sued the government (Secretary of the Interior, Manuel Lujan), claiming U.S. aid projects were hurting species like the Nile crocodile and Asian elephant.
54
Lujan v. Defenders of Wildlife (1992): procedural history
district court - reject case bc lack of standing
court of appeals - found respondents had stadning, denied secretary's motion for summary judgement
55
Lujan v. Defenders of Wildlife (1992): issue
do the defenders of wildlife have standing to sue?
56
Lujan v. Defenders of Wildlife (1992): holding
the plantiffs DO NOT have standing to sue
57
Lujan v. Defenders of Wildlife (1992): judgement Scalia
they needed to show that not only was the species threatened by US funded activities abroad, but that one or more of the respondents memebers would be directly affected apart from their special interest in the subject
they said 2 members had visited the area and inteneted to return to observe the species
BUT this doesnt show perceptible or specific harm
58
Lujan v. Defenders of Wildlife (1992): critique/lujan test (3)
standing:
litigant must demonstrate that he has suffered an injury that is (1) concrete, actual or imminent, (2) particularized/traceable, and (3) redressable
59
common law
system of tort claims - help individuals seek remedies for localized environmental harm to prop and health through courts, independent of statutes
complementary avenue for remedies
60
trespass definition
the physical invasion of the landowner's property
KNOWINGLY entering another's property/land without permission, which encroaches on the owners' privacy or prop interests
can be pollution if they allow a physical contaminant escape from their control
PHYSICAL, TANGIBLE INVASION
usually requires intent, but for envs this can be intentioanl action that causes harm to escape
HARM NOT REQUIRED - the physcial intrusion is enough
61
diff btwn nuisance and trespass
nuisance: addresses an unreasonable interfernce with the use and enjoyment of the land
tresspass: physical invasion of the property itself
62
private nuisance def
unreasonable interference with the quiet enjoyment of land
violates a private right not common to the public - causes damage to one+ individuals
complement trespass actions - interferes w land without physically touching it (noise, odors, vibrations)
63
determining nuisance reasonableness
whether the plantiff had the property before the nuisance began
the level of harm versus the usefulness of the defendant's activity
whether the action would be annoying to the average person
64
not a nuisance because...
where harm is caused by unique attributes of the plantiff rather than actions of the defendant (like if someone is sensitive to noise)
Boomer v atlantic cement company - vibrations were unreasonable, so they were liable for the damage
65
Madison v. Ducktown Sulfur (1904): facts
2 companies operating plants reducing copper ore near ducktown cause large volumes of smoke to issue from their roast piles
the smoke descends upon the surrounding lands via wind currets - injures trees and crops, makes land less profitable and house
plantiffs sue to stop the operation
66
Madison v. Ducktown Sulfur (1904): holding
injunction denied, damages awarded
67
Madison v. Ducktown Sulfur (1904): judgement
they didnt intent to injure the plantiffs. the plants cant operate in a diff way
68
Madison v. Ducktown Sulfur (1904): why no injunction?
economic and public interest: shutting down would destroy industry, harm econ - greater than the harm
good faith: they used the only avail method for smelting copper at the time
balancing: had to balance interests, they both have prop rights
69
Madison v. Ducktown Sulfur (1904): implications
"balancing of equities" - early environmental law often favored industry when envs protection conflicted with econ growth
70
Boomer v. Atlantic Cement (1970): facts
defendant has large cement plant near albany
actions for injunction and damages - injury to property from dirt, smoke, and vibrations
71
Boomer v. Atlantic Cement (1970): holding
a nuisance has been found, damages granted to compensate for total econ loss to property
injunction denied
72
Boomer v. Atlantic Cement (1970): judgement
total damage to prop is small in comparison with the value of the defendant's operation and with the consequences of the injunction the plaintiffs seek
paying the damages incentivizes the company to research and develop tech advances to help eliminate the nuisance (so the court things the harm is redressed bc of that)
73
Boomer v. Atlantic Cement (1970): dissent
"we are setting a bad precedent" danger in overruling long-establish rule of granting injunction where a nuisance resutls in substantial continuing damage --> recommends that the company is prohibitied from polluting for a bit so that can R&D
74
Boomer v. Atlantic Cement (1970): critique/implecations
even if the injunction was awarded, the factory could have paid the platiffs off to keep from needing to shut down
75
public nuisance def
unreasonable interference with a public's interests
something the general public shares in common - like smt that affects the whole city: usually for health and safety
76
georgia v. tennessee copper co (1907): facts
wanted to prohibit copper companies from discharging noxious gas from heir activities in Tennessee over Georgia
bc of pollution there was destruction of forests, orchards, and crops
77
georgia v. tennessee copper co (1907): holding
injunction issued
78
georgia v. tennessee copper co (1907): judgement
the state has an interest "independent of and behind the titles of its citizens"
didn't need to own the foests to care about them
Georgia is "quasi-sovereign": standing to protect its natrual environment
79
georgia v. tennessee copper co: implications
establish "quasi-sovereign" environmental rights: states act as guardians of public resources
80
Clean Water Act: key objective
prevent, reduce, and eliminate pollution in the nation's waters to restore and maintain the chemical, physical, and biological integrity of the Nation's waters
81
clean water act categories
1: point source pollution: regulated thru NPDES, factory pipe dumping wastewater into a river needs a permit
2: state requirements to set water quality standards for surface waters within their borders and to limit dischareges as needed. states set "cleanliness goals" for their waters and enforce limits to meet them
3: pollution doesn't come from a singe source like farm runoff, erosion...states must identify nonpoint source pollution problems and develop managment programs and use federal grants to reduct this type of pollution
82
what does the CWA NOT cover
groundwater contamination, air pollutants that end up in water, exemptions exist for pollutions from farms, nuclear sites, and major industries
83
NPDES
National Pollutant Discharge Elimination system:
illegal to discharge pollutants from a point source into navigable waters without an NPDES permit
tech approach - requires best AVAIL tech, not based on health or water quality standards
standards vary by type of source and type of pollutant
permits set limits on discharges and must align with the TMDL goals
states can tighten permits or regulate nonpoint sources to meet TMDL targets
however, permits often ignor actual water quality - the system can overregulate clean waters and underregulate polluted ones
84
waste load allocations
how much of that total pollution limit can come from point sources (like factories or sewage plants)
permits must match what the water body can handle
85
Tech standards: CWA
CWA doesnt set limits based on how clean the water SHOULD be...but on what a facility can resonably use
there are different standards for different situations; exisitng sources held to less strict standards, use best tech they can afford
new sources: best and cleanest tech
86
water quality standards
set by states for every water body or segment
define what the water is used for
consider aquatic life, wildlife, recreation, and downstream waters
developed with public input
87
water quality standards: designated uses (cleanest --> least clean)
drinkable (public water supply), swimmable (recreation), fishable (support fish etc), navigable (ag, industry, transport)
88
water quality criteria
chemical, physical, biological measures that ensure desginated uses are met (numeric or narrative)
89
anti degredation policy water quality standards
prevents lowering water quality below stadnards
triggers review/stricter NPDES limits if quality declines
90
TMDL
Total maximum daily loads: calc of the mac safe amount of a pollutant for a waterbody and a plan for the cleanup of a polluted river,lake, or coastal water
91
TMDL calculated (big 3)
load allocation, water load allocation, margin of safety
92
EI du Pont de Nemours & Company v. Train (1977): facts
Federal Water Pollution control act (FWPCA) wanted to eliminate water pollution by setting national pollution control goals
made it illegal to discharge pollutants from a point source unless had an EPA permit
there was a regulation for all industries --> chem companies thought unfair and said there should be limits for each plant
93
du pont case: decision
supreme court agree with EPA: bc of the statute, there should be industry wide regulations, not case by case permits - too burdensome
94
Entergy Corp v. Riverkeeper (2009): facts
entergy corp has power plant that discharges heated water itno rivers, kills fish
epa made a less strict rule to reduce this harm bc stricter tech would be too expensive
riverkeeper (envs group) sued - says EPA shouldnt consider cost under the CWA
95
Entergy Corp v. Riverkeeper (2009): issue
can the EPA consider cost when deciding what the "best tech available" is under the CWA?
96
Entergy Corp v. Riverkeeper (2009): holding
yes, the EPA can factor cost when setting BTA standards
97
Entergy Corp v. Riverkeeper (2009): reasoning
"best" in best tech could mean: the absolute best tech, most practicable, cost-effective (cost-beenfit)
follows chevron rule
98
WOTUS
CWA amendments: federal jurisdiction over navigable waters (apply to waters of the US)
99
Wetlands (section 404)
restricts dredging and filling of wetlands without a permit bc they have effect on water quality
you need a permit
100
how to get 404 wetland permit
no practical alt, no significant adverse impacts, mitigation, compliance with other laws like ESA
101
US v. Riverside Bayview homes (1985): facts
company owned 80 acres of marshy land next to navigable river. they dumpled fill material (to build houses) without getting a permit from Army corp of engineers
Corp said that the land was wetlands connected to covered waters and sued to stop constructrion
court said no clear line to separate
102
US v. Riverside Bayview homes (1985): issue
are wetlands directly next to open water protected under the CWA?
103
US v. Riverside Bayview homes (1985): holding
yes, wetlands immediately adjoining open water are covered by the CWA
104
US v. Riverside Bayview homes (1985): judgement
supreme court UNANIMOUSLY agreed that army corp saying the wetlands next to water affect the water is a valid legal basis to treat adjacent wetlands as WOTUS
105
US v. Riverside Bayview homes (1985): implication
confirmed that the CWA's protection extends to wetlands directly connected to navigable water
106
SWANCC v. Army Corp of Engineers (2001): facts
army corp eng: used "migratory bird rule" to protect isolated ponds that served as habitats for migratory birds
the corps tried to apply the CWA to these non-navigable, isolated ponds, arguing they still affected interstate ecosystems
107
SWANCC v. Army Corp of Engineers (2001): issue
can isolated, non-navigable waters be regulated under the CWA just bc migratory birds use them?
108
SWANCC v. Army Corp of Engineers (2001): holding
NO: court said these ponds and wetlands withno connection to navigable waters are not covered under the CWA
109
SWANCC v. Army Corp of Engineers (2001): judgement
these areas don't have a "singificant nexus" (dont meaningfully affect the health of navigable waters
110
SWANCC v. Army Corp of Engineers (2001): singficiant nexus test
a waterbody is covered only if it significantly impacts the chemical, physical, or biological integrity of larger, naviagable waters
111
SWANCC v. Army Corp of Engineers (2001): implication
narrowed the CWA reach, removing protection from isolated wetlands and ponds
112
Rapanos v. US (2006): facts
John Rapanos filled 54 acres of wetlands in Michigan wihtout a CWA permit
the quesiton was whether those wetlands counted as WOTUS under the CWA
113
Rapanos v. US (2006): issue
how far does "navigable waters" reach under the CWA - do welands far from actual rivers or lakes count?
114
Rapanos v. US (2006): holding
split 4-1-4 decision
Scalia: CWA only covers "relatively permanent" waters (rivers/lakes). wetlands must have a "continous surface connection" to those waters - not just remote links
kennedy: concurrence - "significant nexus" test: wetlands are covered if they significantly affect the chemical, physical or biological integrity of downstream navigable waters
stevens: dissent: CWA should broadly protect all adjacent wetlands that connect (even indirectly to naviagble waters)
115
Rapanos v. US (2006): result
no majority rule - confusion over WOTUS: usually use the "significant nexus" test
116
Sackett v. EPA (2023): facts
sacketts filled their idaho prop to build a house, the land was 30 feet away from a ditch that flowed into a navigable water
EPA said the wetlands were protected under the CWA and they violated it
Sacketts sued saying their wetlands were not WOUTS bc they weren't directly conencted to a navigable water
117
Sackett v. EPA (2023): issue
do wetlands without a direct surface connection to navigable waters fall under the CWA's jurisdiction?
118
Sackett v. EPA (2023): holding
NO. wetlands without a continous surfae connection to navigable waters are not covered by the CWA
119
Sackett v. EPA (2023): judgement
CWA only wetlands that are "indistinguishable" from WOTUS due to contiguous surface connection
120
Sackett v EPA: implication
narrows WOTUS - some wetlands lose federal protection
non-naviagbel streams and wetlands near them are excluded even if pollution from them reaches larger waters
critics: no ecologgically practical ignores how ecosystems connect
121
redlining
refuse (a loan or insurance) to someone bc they live in an area deemed to be poor financial risk
maps color coded by "risk" where red areas were deemed "hazardous" and were not given loans
122
environmental justice
everyone has the right to equal protection and equal enforcemnt of envs laws and regulations
climate change disproportionately affects disadvantaged communities
123
ESA
most robust US envs law bc of strict requirements: absolute roadblock, no balancing, no weighing costs, no discretion
124
TVA v. Hill (1978): facts
Tennessee Valley Authority (corp of US) started constructing the Tellico Dam --> almost done
previously unknown species of snail darter discovered, listed as endangered and it would be extinct w the dams completion
125
TVA v. Hill (1978): questions/issue
Does the ESA prohibit completion of the Tellico Dam?
is the snail darter protected by the ESA, even tho congress contiued to fund the dam project and stated that it should be completed?
126
TVA v. Hill (1978): holding
ESA prohibits completion of the dam
127
TVA v. Hill (1978): judgement
bc it would eradicate the pop. ESA require it should be saved despite the cost, endagered species should be afforded the highest prioriites
128
TVA v. Hill (1978): implications
ESA can stop federal projects no matter the stage they are at. NO BALANCING - cost should not factor into consideration
129
god squad
grant exemptions from ESA for specific projects if strict conditions are met: the project is of extreme national importance, no resonable alternatives axist, benefits of the projects outweight the harm to the species
130
LAW 4330
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