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Environmental Law
South Texas College of Law Houston
Moya, Olga

Environmental Law Outline
Moya, Fall ‘14
Environmental Policy Perspectives: Chp 1
·         Hardin – Tragedy of Commons
o   Market based mechanisms
§  Tax and credit
o   Government intervention for those things with hard to obtain property rights
o   Letting commons be overused
·         Leopold – Sand County Almanac
o   Man feels no ethical relation to the land such as it does to society
o   Land ethic is so that the relation of community is extended to the biosphere
o   Hard to put economic ties to things such as wildflowers
·         Baxter – People or Penguins
o   We should only preserve the environment if it is to the benefit of man
o   The word nature has no normative connotation
·         Sagoff
o   Economic value is not the best measurement of how valuable the environment is used to us
·         Tarlock
o   Use both environmental ethics or science to manage biodiversity
Administrative Law Review Summary: Chp 3
·         Law that governs all governmental agencies
·         Agencies can govern so long as they do not unduly usurp any branches of power
·         Courts are to interpret the laws when there is conflict as to their interpretation
·         Administrative law Chart
o   Legislative
o   Judicial
§  Great deference given to agency
o   Executive
§  Control agency by appointment, termination, rule review, check status, and can guide agency on policy directions
National Environmental Policy Act (NEPA): Chp 5
·         Signed into law by Nixon on New Year’s Day 1970
o   The law forced federal agencies to consider the environmental consequences of their actions before implementing a proposal or recommendation
o   It also created the Council on Environmental Quality (CEQ)
§  CEQ provides compliance guidelines, and expert advice to the president
§  In 1977 Carter granted CEQ ability to create binding regulations
·         NEPA is narrowly interpreted by the courts, but still nearly every federal action goes through the NEPA process
·         NEPA declared the national environmental policy in §101(a) & §101(b)(1-5): to use all practicable measures, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans
·         The courts have read NEPA to mean that agencies follow certain procedures, not that they obtain specific outcomes
·         Judicial Rulings of NEPA
o   The environmental consequences must be considered, no matter the project’s size or economic value (Calvert Cliffs’ Coordinating Committee, Inc. v. United States Atomic Energy Commission)
o   A court can not make a decision to select an alternative for an agency, if the agency complied with the NEPA procedural requirements (Strycker’s Bay Neighborhood Council, Inc. v. Karlen)
§  This allows for an agency to make a decision based upon other circumstances besides the environmental impact of an action (Id.)
·         i.e. delay or cost
o   An Environmental Impact Statement (EIS) is required when something more than contemplation of an action has taken place (Kleppe v. Sierra Club)
o   An agency does not have to have an EA before considering action or before it can lend support to a proposal (Metcalf v. Daley)
o   To be part of the same action, the action(s) must be similar, connected, and cumulative (Soutch Carolina Ex Rel. Cambell v. O’Leary)
§  **
o   To become a “major” federal action the court will look at 1) the nature of the federal funds used and 2) the extent of federal involvement in control and decision making (Ka Makani ‘O Kohala Ohana Inc. v. County of Hawai’I Department of Water Supply)
o   The president may not be sued under NEPA (Department of Transportation v. Public Citizen)
§  In addition, if an agency has no power in a decision they do not have to evaluate those actions (Id.)
o   An EA can not be substituted for an EIS (Sierra Club v. Marsh)
o   CEQ requires agencies to take account of indirect effects that are later in time but still reasonably foreseeable, not those that are speculative or indefinite impacts (Sierra Club v. Marsh); (§101(a))
§  If indirect effects are found, than an EIS should be made (Id.)
o   NEPA requires alternatives to actions proposed, but CEQ states that these alternatives need only be reasonable or feasible to be discussed (Citizens Against Burlington, Inc. v. Busey)
§  Reasonable means to bring about the same ends of the proposed action (Id.)
o   Sometimes national security will trump the interests of the environment (Winter v. Natural Resources Defense Council)
·         Environmental Assessment (EA)
o   EA leads to either an EIS or a FONSI (Finding of No Significant Impact)
o   Includes
§  Need for the proposal
§  Alternativ

clusions (CATXs)
o   Pre-determined activities that do not individually nor cumulatively have a significant effect on the environment (§1508.4), (§1508.4(a)(2)), (§1507.3(b)(2)(ii))
·         NEPA Steps
1.   Does a CATX apply?
a.    Yes, are there extraordinary circumstances that make a CATX inapplicable?
                                                         i.    NOà Done
                                                       ii.    YESà Step 2 or go straight to EIS if certain it is needed (Step 3) [§1501.3(a)] b.   NO à Step 2 or go straight to EIS if certain it is needed (Step 3) [§1501.3(a)] 2.   Prepare an EA, will the project have a significant impact on the human environment?
a.    NOà FONSI (§1501.4(c),(e))
                                                         i.    The agency’s decision is now subject to judicial review (arbitrary and capricious standard)
                                                       ii.    A FONSI has a 30 day minimum public comment period in which it may be eliminated and a EIS may be pursued
b.   YESà Step 3
3.   Prepare an EIS
a.    Must be prepared before deciding what action to take
                                                         i.    To contribute to decision making process
b.   Be prepared before irreversible commitment of resources is made
c.    Notice of Intent should be issued after decision to prepare EIS and before scoping process
d.   Scoping – determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action (§1501.7)
                                                         i.    Must designate a lead agency, if disagreements arise, lead agency will be based upon
1.   Magnitude of an agency’s involvement
2.   Project approval/disapproval authority
3.   Expertise concerning the actions environmental effects
4.   Duration of an agency’s involvement
5.   The sequence of an agency’s involvement