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env. law midterm
| Term | Definition |
|---|---|
| precautionary principle | people shouldn't carry out activities that might pose environmental risks until they demonstrate that those activities are safe |
| Washington v. Davis EPC importance | to show violation of EPC, there must be proof of racially discriminatory intent/purpose (inquiry into circumstantial and direct evidence of intent) |
| elements of negligence | (1) duty; (2) breach (failure to exercise reasonable care); (3) causation; (4) damage |
| trespass | a person is liable for trespass if he enters land in the possession of another, or causes a person or thing to do so (could be applicable to pollution entering someone's land). there must be actual and substantial physical damage to property |
| private nuisance | nontrespassory invasion of another's interest in the private use and enjoyment of their land. Must be either intentional & unreasonable, OR unintentional and otherwise actionable |
| public nuisance | an unreasonable interference with a right common to the general public (conduct that significantly interferes with public health, like air/water pollution) |
| final agency action doctrine | precludes lawsuits until the agency has reached the end of its decision-making process. |
| requirements for "final agency action": | (1) the action be final; and (2) the action be one from which rights/obligations have been determined or from which legal consequences will flow |
| statutes of limitation | stringent up to 60 days; begins to run when a party is harmed, NOT when the agency action is finalized (begins at accrual of injury) |
| standard of review | a litigant must show that the agency has acted in a manner that is "arbitrary, capricious, or an abuse of discretion" |
| Chevron deference | courts defer to the AGENCY'S INTERPRETATION of a statute when there is ambiguity |
| Loper Bright deference | statutes have a single best meaning, fixed at the time of enactment, and it is the COURT'S RESPONSIBILITY to determine the meaning |
| Skidmore deference | gives agencies the "power to persuade" but the court doesn't necessarily need to listen |
| Auer deference | courts give deference to an agency's interpretation of its REGULATION if the language is ambiguous |
| major questions doctrine | when there is a strong political or economic significance, the court should leave that question to congress |
| Interstate Commerce Clause | congress can enact statutes pertaining to "commerce among the several states"; used as justification for federal pollution statutes that regulate commercial conduct |
| Property Clause | gives congress the power to enact legislation to protect resources that are property of the US (federal land and water protection) |
| Treaty Clause | gives the president the power to enact treaties |
| Dormant Commerce Clause | state laws that affect interstate commerce in ways that are discriminatory are invalid; laws relating to the environment that are motivated by an economic interest can be struck down |
| Supremacy Clause | federal law preempts state law (but most environmental laws exist in a space that permits both federal and state regulatory authority) |
| cooperative federalism | the federal government passes a statute that applies nationwide, and then states have the option of assuming responsibility for implementing the statute |
| elements of standing | (1) injury; (2) causation; (3) redressability |
| elements of organizational standing | (1) one member has constitutional standing (injury, causation, redressability); (2) the interests sought to protect are germane to the org's purpose; (3) participation of individual members is unnecessary |
| precursors | substnaces that, when emitted into air, react to form air pollutants (not necessarily regulated) |
| secondary air pollutants | air pollutants formed in the air from precursors |
| performance based standards | specifies the outcome that a regulated entity must achieve, but not the method by which it must reach that outcome |
| technology based standards | federal rules that require industrial polluters and vehicles to use the best available, cost-effective pollution control methods rather than only relying on ambient air quality goals |
| elements for criteria air pollutants | (1) emissions that cause or contribute to air pollution which endangers public health/welfare; (2) numerous diverse or mobile sources; (3) no criteria before Dec. 30, 1970 |
| NAAQS | standards that set goals for the concentration of air pollutants in the ambient air (help lead to regulations); reviewed every 5 years |
| SIP | a plan that provides for implementation, maintenance, and enforcement of NAAQS |
| Elements of SIPs | (1) attainment of NAAQS; (2) reasonable further progress; (3) emissions limitations; (4) permits for new sources; (5) emissions offsets |
| NSPS | standards that limit emissions of certain pollutants from categories of new stationary sources. must reflect the BEST SYSTEM OF EMISSION REDUCTION |
| NSR | an individualized inquiry into minimizing emissions from new sources (related to obtaining a permit to build the new source) |
| PSD NSR | used for new sources in attainment zones. requires: (1) BEST AVAILABLE CONTROL TECH (bact); and (2) air quality analysis |
| Nonattainment NSR | used for new sources in nonattainment zones. requires: (1) LOWEST ACHIEVABLE EMISSIONS RATE (laer); and (2) offsets |
| major for one, major for all | if a source exceeds the threshold for any pollutant under the PSD program, it is considered major and subject to NSR for all pollutants |
| hazardous air pollutants | pollutants known to be particularly dangerous |
| NESHAP | requires sources to employ the MAXIMUM ACHIEVABLE CONTROL TECHNOLOGY to limit their emissions or hazardous air pollutants (MACT is different for different types of sources) |
| mobile sources | states have the option of adhering to federal law or CA state law (in if nonattainment zone). emissions limitations must be good for the "useful life" of the vehicle |
| water quality standards | (1) designated uses of water sources; and (2) non-degradation policy |
| TMDL (total maximum daily loads) | pollution budgets set to bring water bodies into compliance |
| CWA jurisdiction | navigable waters (waters of the US, including the territorial seas) |
| navigable waters | waters in actual use, waters that used to be navigable, waters that could be navigable with reasonable improvements, and nonnavigable tributaries affecting navigable streams |
| Sackett definition of "waters of the US" | relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlace as "streams oceans rivers and lakes" |
| what must a party asserting jurisdiction over a wetland establish? | (1) the adjacent body of water is a relatively permanent body of water connected to interstate navigable waters; and (2) continuous surface connection with that water |
| point source | any discernible, confined, and discrete conveyance (NOT agricultural stormwater discharges and return flows from irrigated agriculture); also "functional equivalents of direct discharges". Industrial or municipal discharges only |
| important factors for "functional equivalent of direct discharge" | time, distance |
| NPDES | main mechanism that allows for the discharge of pollutants that would otherwise be illegal |
| indirect discharges | facilities that discharge into sewer systems (potws = publicly owned treatment works) |
| direct discharges | facilities that discharge into waters of the US |
| conventional pollutants (definition) | naturally occuring, biodegradable substances that are generally the focus of wastewater treatment |
| five conventional pollutants in CWA | (1) biological oxygen demanding; (2) suspended solids; (3) fecal coliform; (4) pH; (5) oil and grease |
| toxic pollutants | toxic and persistent substances that cause serious biological abnormalities or malfunctions in organisms |
| non-conventional pollutanst | pollutants that are not classified as either conventional pollutants or toxic pollutants |
| effluent limitations | rules that specify an amount of pollutants that can be present in discharges covered by the CWA |
| BPT (best practicable technology) | standard: average of best performing existing sources. applies to: direct discharges, all pollutants, existing sources |
| BCT (best conventional pollutant control technology) | standard: more stringent than BPT. applies to: direct discharges, conventional pollutants, existing sources. two part cost test: industry cost-effectiveness test and POTW test |
| BAT (best available technologically economically achievable technology) | standard: best pollution control technology. main question: what is the best pollution control tech that is economically and technologically achievable? applies to: direct discharges, non-conventional/toxic, existing |
| NSPS (new source performance standards) | standard: best available demonstrated control technology. question about economically/techologically feasible stays. applies to: direct discharges, all pollutants, new sources. |
| PSES (pretreatment standards for existing sources) | standrd: best pollution control technology. question about economically/techologically feasible remains. applies to: indirect discharges, non-conventional and toxic pollutants, existing sources. |
| PSNS (pretreatment standards for new sources) | standrd: best available demonstrated control technology. question about economically/techologically feasible remains. applies to: indirect discharges, non-conventional and toxic pollutants, new sources |
| Section 404 | applies to: dredge and fill actions. regulations prohibit discharge if there is a "practicable alternative that would have less adverse impacts on aquatic ecosystems" |
Created by:
nitsakehoe