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Environmental Law
Class involving environmental laws and how they are made
| Question | Answer | |
|---|---|---|
| sources of law | the federal Constitution set up three branches of government (legislative, judicial, and executive), each branch creates a different type of law | |
| statutes | are passed by the legislative branch (congress or state legislatures) | |
| commerce clause | gives congress the authority to regulate interstate commerce | |
| statutes (definition) | a rule of general applicability passed by the legislative branch of a government. | |
| commerce clause (definition) | a section of the constitution that allows regulation of commerce between the states | |
| common law (definition) | a body of case law based on generally accepted legal principles adopted from England and modified over the years. | |
| common law | interprets statutes and sometimes creates legal principles to "fill in the gaps "where no statutory law exists | |
| Administrative Procedure Act (definition) | a federal act that sets forth the procedures that agencies must follow in adopting regulations and making administrative decisions | |
| APA | administrative procedure act | |
| administrative procedure act | which has been the model for many similar state acts, sets forth the procedures that executive agencies must follow when adopting regulations and making administrative decisions. Requirements of prior notice | |
| 1 of 6 key concepts worth remembering about administrative law | administrative agencies have only "delegated" authority; they have no ability to create their own authority | |
| 2 of 6 concepts worth remembering about administrative law | administrative agencies must abide by the provisions of the administrative procedure act or other applicable external procedural requirements, as well as whatever rules the agency itself adopts concerning its activities | |
| 3 of 6 concepts worth remembering about administrative law | administrative agencies must maintain a record of their activities that can be reviewed by the public or a court | |
| 4 of 6 concepts worth remembering about administrative law | in rendering decisions, an administrative agency may not act in an "arbitrary and capricious" manner; in other words, there must be a legal and evidentiary reason for the action | |
| 5 of 6 concepts worth remembering about administrative law | the decisions of administrative agencies may be appealed once the decision is final and there are no other administrative avenues of relief for a party; that is, a party must "exhaust its administrative remedies" prior to any appeal. only one appeal | |
| 6 of 6 concepts worth remembering about administrative law | if proper administrative procedures are followed, the decisions of administrative agencies will be given great deference by the courts | |
| Environmental Protection Agency | the federal agency tasked with administering and enforcing most of the federal environmental acts. | |
| EPA. | Often in administrative proceedings, as in litigation, there is significant disagreement concerning the facts related to a particular matter. | In environmental law, this is particularly true because of the voluminous amount of scientific info. necessary for the proper resolution of an env. issue. The APA requires the EPA, if the EPA intends to promulgate a regulation or rule |
| Freedom of Information Act (FOIA) | a federal act giving the public access to records kept by governmental bodies and agencies. with very few exceptions for certain confidential information | |
| Environmental Assessment (EA) | the beginning of the process found in the National Environmental Policy Act (NEPA) to determine the impact of certain proposed federal actions. | |
| Environmental Impact Statement (EIS) | a detailed analysis of the environmental impact of a proposed federal action. follows the Environmental Assessment (EA) as part of the NEPA process | |
| FOIA | National Environmental Policy Act. They are an excellent tool for obtaining environmental information on almost any subject or case. | |
| Tort and criminal law | tort is civil case brought by another person and criminal is a criminal case always brought by the government (federal, state, or local) | |
| damages | Money payments for injuries | |
| negligence | a breach of a duty to another person that causes and injury | |
| reasonable person test | this is part of the test for negligence, and is based upon whether a person of ordinarily prudent care would have exercised that care under the particular circumstances of a case | |
| proximate cause | the act (or failure to act) without which an injury would not have occurred; the event that produces an injury without an intervening cause | |
| negligence per se | a situation where conduct is treated as negligence even when there is no actual evidence concerning a breach of duty | |
| strict liability | the person engaging in the hazardous activity is strictly liable for the damages they cause. | |
| nuisance | a tort that results from a annoyance or disturbance that unreasonably interferes with the enjoyment of property | |
| trespass to land | occurs when there is an unlawful entry onto another's real property. this entry need not be a person setting foot on the property; courts have held that sending noxious orders or water onto someone else's land constitutes trespass | |
| injucntion | a court order to do (or refrain from doing) a specific act | |
| contempt of court | when a party to a court proceeding fails or refuses to abide by an order of court, that party may be held in contempt of court | |
| standing to sue | an appropriate individual interest in the outcome of the suit. Plaintiffs connot sue defendants just because they believe the defendants are wrong; the plaintiffs must have real interests in the suit that affects them. By showing injury in fact. | |
| injury in fact | a showing that a person has suffered from individual, concrete harm rather than a speculative future harm. Or the action will cause harm without any doubt. | |
| burden of proof | the responsibility of one or the other parties to litigation to produce evidence to prove a fact in dispute | |
| beyond a reasonable doubt | the standard of proof in criminal cases | |
| preponderance of evidence | a standard of proof that requires a party to produce slightly more evidence that their opponent | |
| rules of evidence | are the procedural rules that address items such as expert witnesses, physical evidence, and other matters concerning admissibility of information to the court | |
| LULUs | Locally undesirable land uses | |
| article III of the constitution, which creates the federal judicial branch, limits the power of federal courts to decide only CASES AND CONTROVERSIES. | a phrase describing, collectively, the restraints on federal jurisdiction, such a prohibition against advisory opinions | |
| requirements for standing | 1) the plaintiff must have suffered an actual injury or be actually threatened to suffer an injury | |
| requirements for standing | 2) the injury must be traceable to the defendant's conduct (the casual connection) | |
| requirements for standing | 3) the injury must be redressable by a favorable court decision; in other words, the court must be able to prevent or compensate for the injury suffered by the plaintiff | |
| advisory opinions | are requests for a court to rule on e legal question without an actual dispute between parties a kind of "what-if" court ruling. | |
| advisory opinions- limitation | federal courts cannot issue advisory opinions because such situations do not constitute a "case or controversy" as required by article III of the Constitution." | on federal jurisdiction formed bu the cases and controversies language is the requirement that plaintiffs in federal court have standing to sue. Parties must have standing to sue in order to bring an action in a federal court |
| cases and controversies | a phrase describing, collectively, the restraints on federal jurisdiction, such as prohibition against advisory opinions | |
| private attorney general provivions | permit individuals to act as if they were government counsel to enforce the provisions of the statute. Many environmental statutes do not contain these private atty general provisions(including the APA)person must have a stake in the outcome of litigation | |
| associational standing | requires that the members of the association have standing in their own right, the interests of the members must be those of the association | |
| FWPCA | federal water pollution control act | |
| LFAS | low frequency active sonar | |
| SURTASS LRAS | surveillance towed array sensor system low frequency active sonar | |
| ESA | endangered species act | |
| MMPA | marine mammal protection act | |
| NEPA | national environmental protection act | |
| APA | administrative procedure act | |
| CWA | clean water act | |
| CWA addresses only | the waters of the United States "all waters of the US including the territorial seas." | |
| waters of the US definition | any surface water (ground waters are not covered unless they connect hydrologically with with the waters of the US)in which the US does or might have an interest, that can or could be used or navigation, that connects or could with an interstate waterway | or that is or used for interstate commerce will be considered a water if the US. |
| waters of the US cont | include an arroyo (a watercourse in an arid region) also include wetlands (such as marshes and bogs) artificially created canals, and even mangrove swamps. | |
| pollutant | dredged spoil,solid waste,incinerator residue,sewage,garbage,sewage sludge, munitions,chemical wastes, biological materials,radioactive materials,heat,wrecked or discarded equipment,rock,sand,cellar dirt & industrial,municipal & agricultural waste. | |
| definition of HEAT as a pollutant | consider the effect of temperature changes on fish and other water life. even small changes in temp. can be deadly to many types of fish and plant life | |
| NPDES | national pollutant discharge elimination system. | this is the permit system used in the CWA designed to keep track of the substances being put in the water and the concentration levels of those substances |
| the clean water act prevents | the discharge of pollutants into the water of the US from a point source | |
| point source definition (1) | any discernable, confined & discrete conveyance, including, but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation...con't | vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture |
| point source (another interpretation) found in US v. Earth Sciences and others | has been held to include ships, airplanes, and even the offshore nets of a salmon farm | |
| NPDES (permits) | requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the nation's waters. the act defines the phrase "discharge of a pollutant" | is defined as "any discernable, confined and discrete conveyance, such as a pipe, ditch channel or tunnel "from which pollutants are conveyance" |
| NPDES program prohibits | discharge of any pollutant from any point source into a water of the US without a permit. | NPDES permits are issued by the EPA, in which case the state may issue the permit |
| step one to NPDES permit | application | |
| step two to NPDES permit | certification by the state | |
| step three to NPDES permit | documents released to the public, including a fact sheet or statement of bases | |
| step four to NPDES permit | opportunity for public comment | |
| step five to NPDES permit | Issuance or denial of the permit | |
| final and sixth stage to NPDES permit | If a permit is issued. it is typically effective 30 days after issuance and usually valid for five years | at this point any person may request an evidentiary hearing before an administrative law judge ALJ. The request must be made in writing within the 30 days, & must provide all legal & factual issues to be raised. It is a hearing like a trial. 1 more appeal |
| the seventh stage would be the result of the appeal brought by the public | this is treated like a trial heard before an ALI administrative law judge. The result of this hearing is considered final. | |
| BPT (1) | Best Practicable Technology | refers to the minimum level of required treatment for pollutants |
| BCT (2) | Best Conventional Technology | Applies to discharges of conventional pollutants |
| BAT (3) | Best Available Technology | Applies to discharges of toxic and non-conventional pollutants |
| BADT (4) | Best Available Demonstrated Technology | Applies a demonstrated technology level to the discharge of toxic and non-conventional pollutants |
| NPDES | designed to establish limitations that are appropriate to the activity being proposed and that are enforceable by the applicable regulatory agency | |
| (BPJ) Best Professional Judgment | The use of scientific analysis of the type, amount, location, and other relevant conditions connected with a proposed discharge | |
| (NSPS) New Source Performance Standards | Standards applicable to new source discharges | |
| (FDF) fundamentally different factor | type of variance given under the CWA when a discharger can demonstrate that factors applied to determining the technology-based standards for its facility are fundamentally different from the factors considered the EPA developed effluent guidelines | |
| Effluent limitations Guidelines BPT-BCT-BAT-BADT | the guidelines are specific to various industrial categories and types of dishargers within each industrial category. | |
| injunction | a court order to do (or refrain from doing) a specific act | |
| contempt of court | when a party to a court proceeding fails or refuses to abide by an order of court, that party may be held in contempt of court | |
| plaintiff | the party bringing a litigation action | |
| defendant | a party against whom a legal action is brought | |
| complaint | the initial pleading in a litigation proceeding | |
| answer | a pleading filed in response to a complaint in a judicial proceeding | |
| discovery | information exchanged by parties to a legal proceeding | |
| trial | the forum in which a lawsuit is adjudicated | |
| appeal | a request that a higher court or another authority review a decision by a lower court or an administrative tribunal | |
| standing to sue | no person may bring an action in court unless that person has standing to sue, which is determined by the application of numerous criteria, such as whether the person has a personal stake in the outcome of the litigation | |
| rules of evidence | the rules governing the information that may be presented to a court or an administrative tribunal. These rules specify what information can be presented and in what form | |
| water quality standards | standards established by states for waters within their jurisdiction. The standards consist of two elements; use classifications and water quality criteria | 1)use classifications 2)water quality criteria |
| (TMDL) Total Maximum Daily Load | The amount of pollutants a certain body of water can tolerate without exceeding applicable water quality standards | |
| (ICSs)Indinidual Control Strategies | Standards set for bodies of water that, even with the application of technology-based limitations, will not meet the state's water quality standards | |
| CWA | Clean Water Act | |
| OPA | Oil Pollution Act | |
| SDWA | Safe Drinking Water Act | |
| POTW | Publically Owned Treatment Works | |
| TMDL | Total Maximum Daily Load | |
| Citizen Suits | If the government misses it, a citizen can bring suit against a polluter |
Created by:
cbarnett9
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