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Business Law Chapter 45 Homework Environmental Protection Parties Each Liable

Page Count
9 pages
Word Count
5759 words
Book Title
Business Law: Text and Cases 14th Edition
Authors
Frank B. Cross, Kenneth W. Clarkson, Roger LeRoy Miller
1
CHAPTER 45
ENVIRONMENTAL PROTECTION
ANSWERS TO QUESTIONS
AT THE ENDS OF THE CASES
CASE 45.1LEGAL REASONING QUESTIONS
1. In what circumstance might the Port Authorityor anyone elsetake a migratory bird
without a permit and not be sanctioned? The Port Authority, or anyone else, might take a
migratory bird without a permit and not be sanctioned if the bird presented a direct threat to
aircraft.
Migratory birds that congregate near airports pose a well-known threat to human safety.
To reduce the risks at New York City’s John F. Kennedy International Airport (JFK), the Port
Authority of New York and New Jersey, which operates JFK, obtained a permit from the U.S.
Fish and Wildlife Service (FWS) to take (kill or capture) birds that threaten to interfere with the
aircraft. The permit listed eighteen species of migratory birds that the Port Authority could take,
according to quota. The permit was issued pursuant to 50 C.F.R. Section 21.41.
2. Under the plaintiff’s suggested reading of the regulation at issue in this case, what
difficult choice would the Port Authority face? Under the plaintiff’s asserted reading of the
regulation at issue in the Friends case, the Port Authority would face the difficult task of
choosing between violating federal law and deliberately ignoring serious threats to human
safety.
In this case, the Port Authority of New York and New Jersey, which operates New York
City’s John F. Kennedy International Airport (JFK), obtained a permit from the U.S. Fish and
Wildlife Service (FWS) to take (kill or capture) birds that threatened to interfere with aircraft at
JFK. The permit listed eighteen species of migratory birds that the Port Authority could take,
according to quota. The permit was issued pursuant to 50 C.F.R. Section 21.41.
3. Why is the taking of birds, or any wildlife, protected by treaty and federal law? What
should be the limit to this protection? The Migratory Bird Treaty Act (MBTA) implements a
series of treaties as federal law to protect the depredation of certain birds. The MBTA prohibits
the taking of any bird protected by those treaties without a permit issued by the U.S. Fish and
Wildlife Service (FWS) and compliance with certain conditions. Protected birds include members
of endangered species.
Protections for birds and other wildlife under treaties and federal law should be subject to
at least the limit of threatening human safety. This limit provides the reason for the issuance of
CASE 45.2CRITICAL THINKING
WHAT IF THE FACTS WERE DIFFERENT?
Suppose that O’Malley had been licensed to remove the asbestos. Would the result have
been different? Why or why not? No, if O’Malley had been licensed to remove asbestos, it is
not likely that the result in this case would have been substantially different. O’Malley was hired
to remove and dispose of the asbestos insulating the pipes in Pinski’s building. Regardless of
whether the removal and transport of the asbestos was done properlythe facts in the case
CASE 45.3CRITICAL THINKING
ETHICAL
In this case, aquatic organisms were most directly at risk. Is it acceptable to apply cost-
benefit analyses to situations in which the lives of people are directly affected? Explain.
Yes, because funds are limited and costs can become prohibitive. In the environmental law
context, for example, is it worth billions of dollars to clean water that may harm only a few
GLOBAL
In analyzing the costs and benefits of an action that affects the environment, should a
line be drawn at a nation’s borders? Why or why not? Yes, because a nation’s borders are
the limits of its legal powers. No, because pollution and other environmental harm does not
respect political borders.
ANSWERS TO QUESTIONS IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
1A. Requirement
To establish a common law cause of action for nuisance, each plaintiff would have to identify a
distinct harm caused by the pollution that was separate from that affecting the general public. In
other words, they would need to show how each of them was individually harmed by Cotton
Design’s emissions.
4 UNIT NINE: GOVERNMENT REGULATION
2A. Equipment
Major stationary sources of air pollution are required to use the maximum achievable control
technology to reduce emissions. The EPA issues guidelines as to what equipment meets this
3A. Fines
For violations of the Clean Air Act in these circumstances, the EPA can assess fines of up to
$25,000 per day.
4A. Information
Under the Safe Drinking Water Act, as amended, suppliers of drinking water are required to
send an annual statement describing the source of its water, the level of contaminants
ANSWER TO DEBATE THIS QUESTION IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
The courts should reject all wetlands cases in which the wetlands in question do
not consist of actual bodies of water that exist during the entire year. The Army Corps of
Engineers brings numerous cases to court each year that involve areas that are not “wet” part of
the year. Some are only wet during storms. Congress never created wetlands legislation to
protect such areas. The U.S. is a huge country such that the U.S. Army Corps of Engineers
should spend its scarce resources protecting real wetlandsbodies of water that are wet all
year long.
ANSWERS TO ISSUE SPOTTERS
AT THE END OF THE CHAPTER
1A. Resource Refining Company’s plant emits smoke and fumes. Resource’s operation
includes a short railway system, and trucks enter and exit the grounds continuously.
Constant vibrations from the trains and trucks rattle nearby residential neighborhoods.
CHAPTER 45: ENVIRONMENTAL PROTECTION 5
The residents sue Resource. Are there any reasons that the court might refuse to enjoin
Resource’s operation? Explain. Yes. On the ground that the hardships that would be imposed
on the polluter and on the community are greater than the hardships suffered by the residents,
2A. ChemCorp generates hazardous wastes from its operations. Disposal Trucking
Company transports those wastes to Eliminators, Inc., which owns a site for hazardous
waste-disposal. Eliminators sells the property on which the disposal site is located to
Fluid Properties, Inc. If the EPA cleans up the site, from whom can it recover the cost?
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980
regulates the clean-up of hazardous waste disposal sites. Any potentially responsible party can
ANSWERS TO BUSINESS SCENARIOS
AT THE END OF THE CHAPTER
45-1A. The Clean Water Act
Fruitade has violated a number of federal environmental laws if such actions are being taken
without a permit. First, because the dumping is in a navigable waterway, the River and Harbor
Act of 1886, as amended, has been violated. Second, the Clean Water Act of 1972, as
45-2A. Environmental protection
As a general rule, a property owner is free to use his or her property in any manner desired so
long as such use is not in violation of any statute or does not interfere with the property rights of
others. When such use interferes with another’s property rights, an action may be brought as a
6 UNIT NINE: GOVERNMENT REGULATION
ANSWERS TO BUSINESS CASE PROBLEMS
AT THE END OF THE CHAPTER
453A. SPOTLIGHT ON THE GRAND CANYONEnvironmental impact statement
The appeals court found that the plaintiffs failed to establish that the NPS acted in an arbitrary
and capricious manner when it adopted the Plan. When an agency acts in an arbitrary and
454A. Superfund
All of the parties are potentially liable for the costs to clean up the site. Under the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also
known as Superfund, when a release or a threatened release of hazardous chemicals occurs at
a site, persons who may be held liable for the cost of cleaning up the site include the person
who generated the wastes disposed of at the site, the person who transported the waste to the
site, the person who owned or operated the site at the time of the disposal, and the current
owner or operator. These are referred to as potentially responsible parties. Liability cannot be
avoided through transfer of ownership. Thus, selling a site does not relieve the seller of liability,
and the buyer also becomes liable. Liability also extends to those that merge with or buy
corporations that have violated CERCLA. Liability under Superfund is usually joint and several.
CERCLA authorizes a party who has incurred clean up costs to bring a contribution action
455A. BUSINESS CASE PROBLEM WITH SAMPLE ANSWEREnvironmental impact
statements
Yes, an environmental impact statement (EIS) is required before the U.S. Forest Service
(USFS) implements its proposed travel management plan (TMP). An EIS must be prepared for
every major federal action that significantly affects the quality of the environment. An action is
“major” if it involves a substantial commitment of resources. An action is “federal” if a federal
agency has the power to control it. An EIS must analyze (1) the impact on the environment that
the action will have, (2) any adverse effects on the environment and alternative actions that
might be taken, and (3) irreversible effects that the action might generate.
Here, the resources committed to the implementation of the USFS’s TMP could include
the resources within the wilderness and the time and effort dedicated by the agency. The
wilderness resources would include the soil, the vegetation, the wildlife, the wildlife habitat, any
threatened or endangered species, and other natural assets impacted by the TMP. The
456A. The Clean Water Act
No, ICG’s discharge of selenium into the water surrounding ICG’s coal mining operation does
not violate the Clean Water Act (CWA). The CWA established a permit systemthe National
Pollutant Discharge Elimination System (NPDES)to regulate discharges from point sources of
45-7A. SPECIAL CASE ANALYSISEnvironmental regulatory agencies
Case No. 45.1
Friends of Animals v. Clay
United States Court of Appeals, Second Circuit, 2016
811 F.3d 94
(a) Issue: What regulation was at issue in this case? What activity did it regulate? The
regulation at issue in the Friends case was 50 C.F.R. Section 21.41. Under this section, the U.S.
Fish and Wildlife Service (FWS) may issue “depredation permits” that authorize the taking (or
possession or transport) of migratory birds that are causing injury to certain human interests.
Take means kill or capture.
The taking of migratory birds is governed generally by the Migratory Bird Treaty Act
(MBTA). The MBTA prohibits the taking of any bird protected by treaty or federal law. But
unchecked, migratory birds can interfere with human activity. For example, migratory birds that
(b) Rule of Law: What rule of statutory interpretation did the court apply to construe
this regulation? The U.S. Court of Appeals for the Second Circuit applied the plain language rule
to construe the permit regulation (50 C.F.R. Section 21.41). Under this rule, a court gives effect
to the plain language of a statute or regulation.
Section 21.41 provides for the U.S. Fish and Wildlife Service (FWS) to issue a permit that
authorizes the taking of migratory birds causing injury to certain human interests. FWS issued a
CHAPTER 45: ENVIRONMENTAL PROTECTION 9
permit to the Port Authority of New York and New Jersey, which operates New York City’s John
F. Kennedy International Airport (JFK), to take birds of certain listed species that threatened to
interfere with aircraft at JFK. Under the permit’s emergency-take provision, the Port Authority
(c) Applying the Rule of Law: How did the plaintiff want the regulation to be
interpreted? What was the court’s response? In a suit challenging the issuance of a permit
under 50 C.F.R. Section 21.41 by the U.S. Fish and Wildlife Service (FWS) to take (kill or
capture) migratory birds otherwise protected by treaty or federal law, Friends of Animals (FOA)
asserted a reading of the regulation under which no bird could be taken if its species were not
listed in the permit. The court rejected this reading, and on FOA’s appeal, the U.S. Court of
Appeals for the Second Circuit affirmed.
Authority to take migratory birds that threaten air safety.
(d) Conclusion: How did the court’s construction of that language lead to the result?
The court construed the language of the regulation to reach a result in favor of the defendants,
upholding the issuance of a permit under 50 C.F.R. Section 21.41 by the U.S. Fish and Wildlife
Service (FWS) to the Port Authority of New York and New Jersey, which operates New York
City’s John F. Kennedy International Airport (JFK).
458A. A QUESTION OF ETHICSClean Air Act
(a) The court held that the fuel economy standards and GHG regulations did not cover
the same subject and that the rules are not “an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress” in requiring NHTSA to set fuel economy
standards. The state rules “embrace much more than a simple requirement to improve fuel
(b) The plaintiffs argued that Vermont's GHG regulations “intrude upon the foreign
policy of the United States and the foreign affairs prerogatives of the President and Congress of
the United States.” They claimed that “the regulation conflicts with the United States' pursuit of
multilateral agreements to reduce international GHG emissions, diminishes its bargaining
power, and interferes with the ability of the United States to speak with one voice upon matters
of global climate change.”
The court disagreed. The court cited the “U.S. Dept. of State, U.S. Climate Action
Report—2006’” that “applauds nonfederal policies and measures that limit GHG emissions: ‘In
addition to the national effort, state and local governments and private and nonprofit
organizations are taking a variety of steps that contribute to the overall GHG intensity reduction
(c) The court acknowledged that “the GHG regulations present great challenges to
automakers.” But, said the court, ”the automotive industry bears the burden of proving the
regulations are beyond their ability to meet.” The court pointed out that “[p]olicy-makers have
CHAPTER 45: ENVIRONMENTAL PROTECTION 11
used the regulatory process to prompt automakers to develop and employ new, state-of-the-art
technologies, more often than not over the industry's objections. The introduction of catalytic
converters in the 1970s is just one example. In each case the industry responded with
technological advancements designed to meet the challenges.
ANSWERS TO LEGAL REASONING GROUP ACTIVITY QUESTIONS
AT THE END OF THE CHAPTER
459A. LEGAL REASONING GROUP ACTIVITYClean-up costs
(a) One way to reduce administrative costs is to spend less money on administration:
allocate dollars strictly for clean-up. Administrative costs would also be reduced if business and
property owners would voluntarily clean up their dump sites. If insurance companies, lenders,
(b) Congress can change the laws pertaining to hazardous waste clean up if that
legislative body has the will to do it. Federal and state administrative agencies that implement
and administer those laws can also change them within the parameters of their authority. By any
means, those laws should be changed to reduce the costs to government, and it is not likely that

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