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Natural Resources Law
University of Mississippi School of Law
Showalter-Otts, Stephanie

a.    Shift in last 30 years / utilitarianism to intrinsic worth
b.    Conservationalism: protecting (Yellowstone) so we can use it later
                                          i.    Initiated by Roosevelt (limited to extraordinary places / things)
                                        ii.    Balancing values / competing interests
a.    Renewable resources
                                          i.    Balancing profits / not depleting renewable resources to the point that they cannot reproduce or regenerate.
                                        ii.    Tragedy of the Commons: Everyone depletes a resource, even knowing it is scarce, because there is no incentive for any one person to conserve. (One person will be economically disadvantaged because nobody else is conserving).
                                       iii.    Externalities: (Lorax: the Oncler doesn’t have to pay anyone to use the Truffufla trees to make Thneeds. Represents TOC problem and market failure). When the user doesn’t have to pay for the use of the externality (like water or air) so it skews the real cost of the market good.
a.    Air, water, noise
2.    Require companies to install pollution equipment or clean up services, paying to relocate animals, restoring land elsewhere, etc.
b.    ANWR Case Study:
                                          i.    Nonrenewable: oil
                                        ii.    Renewable: trees, wildlife, fisheries
                                       iii.    Ecosystem services: breeding grounds
                                       iv.    Aesthetic value
                                        v.    Spiritual value from Caribou
                                       vi.    Cultural values
1.    Problems
a.    Competing values, different understanding of “use” and whose ideas of “use” trumps? Scientific uncertainty, acting before you have the whole picture
2.    Uncertainties
a.    Caribou have actually increased, might not be as much oil as they think, how will drilling impact villages, who would staff the operations, etc
a.    Two main tests:
                                          i.    Chevron
                                        ii.    Overton Park
b.    EPA controlled by 3 branches
                                          i.    Leg: congress gives EPA statutory authority, substantive requirements, sets out requirements for rulemaking, funding.
                                        ii.    Exec: appointment power, executive orders, budgets through the office of budget and management. Requires agencies to adhere to the budget.
                                       iii.    Jud: judicial review of agency actions for conformity with procedures set out by congress. Has become large part of regulatory system.
c.    What does Administrative Procedure Act do?
                                          i.    Creates basic framework through which federal agencies act.
                                        ii.    Substantive agency acts can overrule or supersede the APA.
d.    Four part grid:
Rule Making
–          Formal adjudication: resembles regular adjudication. When a ALJ hears a permit dispute or something.
–          Formal rulemaking: procedure or guidelines for future rulemaking.
–          Formal proceedings: similar to trial. Witnesses, closed records, officers, etc.
–          Informal procedure: only requires notice, comment and brief synopsis of basis and purpose.
–          Agencies usually only choose informal rulemaking and formal adjudication.
o   Standard of review:
§ Formal: Substantial evidence
§ Informal: Arbitrary and capricious
This case is the reason why I-40 doesn’t connect all the way through to Arkansas. This is where the zoo is. This day was adjudicated the morning MLK was killed.
–          prohibited secretary to use federal funds to build a road through a park if feasible alternatives existed.
o   Can only be built if all possible alternatives have been exhausted.
o   Under APA, any adversely affected party can challenge an action. Here, the citizens were residents around overton park and clearly had standing.
o   When can a review in court overturn an action in the APA?
§ List on 227 of Applegate reading.
o   First step: are petitioners entitled to judicial review? § 701
§ Exceptions in APA:
·         where precluded by statute
·         committed to agency discretion.
o   Second step: determine proper standard of review § 6
§ Unconstitutional, procedurally flawed
§ Arbitrary and capricious
§ Not supported by substantial evidence
§ When is de novo review considered?
·         When unwarranted by the facts. Often where adjudicatory in nature, the fact finding was inadequate and …..
o   Third step: Whether the action was within the statutory authority
§ Usually a question of statutory interpretation
o   Fourth step: (because this was informal rulemaking, step four is:
§ Arbitrary and capricious standard.
o   Fifth Step: whether the procedural requirements were followed.
–          APA rather short …. Most comes from 701 and 706.
“hard look review” another name, more or less, for arbitrary and capricious standard as set out in Overton Park.
Agencies want to really d

deral Action[1]                                        iv.    Determining Significant Impact: 40 CFR 1508.27
1.    Context
a.    Effects on locale (tourism, unique areas )
2.    Intensity
a.    Refers to severity of impact.
1.      [1] DETERMINING A MAJOR FEDERAL ACTION (this is how she would like us to approach exam answers). This question is tailored to 251 the San Padre question.
a.       First, define what ruling regulations are pertinent. Look to the statute “major federal action,” then look to the regulation. For NEPA, each agency tends to have their own guidelines, but they have to be consistent with the CEQ regulations. The pertinent regulation in § 1508.18 : “Major federal actions are actions with effects that may be major and potentially subject to federal control and responsibility.”
b.      Then, look to the actual proposed action to see if it would have a significant impact.
                                                                                                                                       i.      Blowing holes in sand
                                                                                                                                     ii.      Noise pollution
                                                                                                                                   iii.      If successful, MAJOR impact.
c.       Federal control: while the company is concerned with the mineral rights, this undoubtedly affects the surface so the NPS is in control in this sense. The approval of the operating plant is the “federal control” that satisfies the NEPA requirement.
                                                                                                                                       i.      The people who want to drill actually OWN the mineral rights, but it affects the national park which is why they need the NPS to approve it, though it isn’t clear if the NPS could have rejected it. A surface owner, in Texas, cannot interfere with the owner of a mineral rights under their land.
1.      But, maybe in this case the NPS needed to sign off, which would be enough to trigger the NEPA.