Chapter 9 1 University Efforts To prevent The Current Owner The

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CHAPTER NINE. ENVIRONMENTAL LAW

LEARNING OBJECTIVES

• To understand the roots of environmental law in the common law

• To understand the role of the Constitution in the development of environmental law

• To understand the three major statutes relating to protection of the environment

CHAPTER SUMMARY

Like administrative law in the last chapter, environmental law is probably less familiar to

most students. The introductory material provides the basis for environmental law and shows that

use of the legal system to protect the environment is not really new. The chapter illustrates how

the concept of property law (introduced in a subsequent chapter) provides the foundation for

environmental law. Then, the constitutional basis of environmental law is discussed because as a

nation possessing a written constitution, there must be a legal basis for legislation that protects the

environment.

The next part of the chapter focuses on three major pieces of environmental law—the

National Environmental Policy Act, the Clean Air Act, and the Endangered Species Act—to

introduce the student to the role of statutory law in the protection of the environment. The

chapter identifies and examines some of the major problems and criticisms associated each act.

CHAPTER OUTLINE

I. Introduction

II. Environmental Law Jurisprudence

A. Common Law and the Environment

B. Constitutional Law and the Environment

III. Major Environmental Legislation

A. The National Environmental Policy Act of 1969

C. The Endangered Species Act

IV. Issues of Environmental Law

A. Standing

B. Takings

V. Two Case Studies in Environmental Law

A. Rapanos v. United States

B. Kelo v. City of New London

VI. Conclusion

TERMS/CONCEPTS/PEOPLE

Nuisance Private nuisance

Public Nuisance Positive law

Legal relations Takings Clause

CHAPTER TEST QUESTIONS

Multiple Choice Questions

1. The underlying philosophy of environmental law is:

A. Government has unlimited power and authority and may regulate at will;

B. Private ownership interests will always prevail;

C. Rights of property owners cannot be protected by the Constitution;

D. Public good may take precedent over the rights of individual property owners;

E. All of the above.

2. Eminent domain under the Fifth Amendment:

A. Provides for just compensation of a private landowner for property seized for public

purposes such as economic development;

B. Is always exercised without controversy;

C. May result in a jury trial to determine fair market value of the property;

D. A and B;

E. A and C.

3. Echinacea laevigata or the smooth coneflower, an endangered plant species, was found in one

acre of Lucy’s 140 acres of timberland. She is prevented from cutting any of the timber on the tract

and files a lawsuit based on:

A. Standing;

B. The Takings Clause of the Fifth Amendment;

C. The treaty power of the national government;

D. Nuisance;

E. All of the above.

4. According to the text, which of the following is a controversial aspect of the Endangered Species Act?

A. Inclusion of plants and animals on the list;

B. Removal of plants and animals form the list;

C. Interference with economic and other development because of the protection of certain

species;

D. All of the above;

E. None of the above.

5. You wish to open a pet–grooming business in your home. This is in an area of single–family dwellings.

You must obtain permission from the City because of:

A. Sector planning;

B. Zoning;

C. Eminent domain;

D. Covenants;

E. All of the above.

6. Internationally-renowned artist, Georgia O‘Keefe, taught at West Texas A&M University. Efforts to

prevent the current owner of the boarding house where she resided from altering or destroying the

property:

A. Will fail because of the property owner‘s absolute property interests;

B. Will primarily focus on the economic benefit to the owner;

C. May be successful because the state may use its police powers to provide a public benefit such

as historic preservation;

D. Will be successful because of the theory of easement;

E. None of the above.

7. In environmental law, which of the following is most frequently the determinative factor in initiating

litigation?

A. Standing of the plaintiffs to bring the challenge;

B. Power of government to issue regulations;

C. Available remedies;

D. Efforts of defendants to mitigate the damages suffered;

E. None of the above.

8. The type of legal injury that occurs when a landowner uses his or her own property in a way that

interferes with another‘s use or enjoyment of his or her property is:

A. An aggravation;

B. Eminent domain;

C. An apocalypse;

D. A nuisance;

E. Adverse possession.

9. The keeping of a bawdy house or storing explosives on private property is classified as:

A. A public nuisance;

B. A private nuisance;

C. Eminent domain;

D. An issue of zoning;

E. None of the above.

10. From a constitutional standpoint, the power of Congress to regulate matters relating to the

regulation of the environment comes under:

A. The Taxing Power;

B. The Spending Power;

C. The Commerce Power;

D. The War Power;

E. None of the above.

11. A major part of the National Environmental Protection Act was the requirement that prior to

the start of a major government project there had to be:

A. Probable cause to believe that injury to the environment would be serious;

B. An environmental impact study to determine the possible effects on the environment;

C. Some assurance that no one’s property rights would be affected;

D. A cost/benefit analysis to make sure the benefits outweigh the cost;

E. None of the above.

12. Which of the following is true under the Clean Air Act?

A. Fines up to $25,000 a day may be imposed for major violations of the Act;

B. The EPA is virtually powerless to enforce violations of the Act;

C. Fines imposed by the EPA must be approved by the state environmental agency where the

violation occurs;

D. The maximum fine that may be imposed by EPA is $2500;

E. None of the above.

13. The criticism that the Endangered Species Act is “over–inclusive” means that the law:

A. Makes it almost impossible to protect endangered species;

B. Does not go far enough to protect certain species of plants and animals;

C. Makes it too easy to include species that are not really endangered;

D. Does not protect plants and animals on private property;

E. None of the above.

14. Which of the following is true concerning the “takings clause” of the U.S. Constitution?

A. If a state makes a formerly legal activity (beer making) illegal, there is no taking under the

Constitution;

B. For a taking to occur, in most cases the government must take possession of the property.

C. The constitutional name for a “taking” is eminent domain;

D. If a true taking occurs, the property owner must receive just compensation;

E. All the above.

15. Which of the following is true regarding Kelo v. City of New London?

A. Susette Kelo was allowed to stay in her home in its original location;

B. The Pfizer Company built their project and the city of New London was economically

revived;

C. Reaction to the decision was widespread approval;

D. In the aftermath of the decisions, many states revised their laws regarding eminent domain;

E. All the above.

Essay Questions

1. Identify and discuss the common law roots of environmental law.

2. Discuss the constitutional authority to regulate the environment.

3. Discuss the nexus between Due Process Clauses of the Fifth and Fourteenth Amendments and

environmental regulation.

4. Discuss the legislative acts that represent the centerpieces of the nation’s environmental policy

and the issues in their application.

5. Discuss the issue of government “taking” property regarding diminution of value, zoning,

historic preservation, and other issues of land use.

6. Identify and discuss various goals and the means by which government regulates the

environment.