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CHAPTER 45
ENVIRONMENTAL PROTECTION
ANSWERS TO QUESTIONS
AT THE ENDS OF THE CASES
CASE 45.1—LEGAL REASONING QUESTIONS
1. In what circumstance might the Port Authority—or anyone else—take 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.
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
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
CASE 45.2—CRITICAL THINKING
WHAT IF THE FACTS WERE DIFFERENT?
Suppose that O’Malley had been licensed to remove the asbestos. Would the result have
CASE 45.3—CRITICAL 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.
GLOBAL
In analyzing the costs and benefits of an action that affects the environment, should a
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
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
4A. Information
Under the Safe Drinking Water Act, as amended, suppliers of drinking water are required to
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
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
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?
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
45-2A. Environmental protection
As a general rule, a property owner is free to use his or her property in any manner desired so
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ANSWERS TO BUSINESS CASE PROBLEMS
AT THE END OF THE CHAPTER
45–3A. SPOTLIGHT ON THE GRAND CANYON—Environmental 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
45–4A. 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
45–5A. BUSINESS CASE PROBLEM WITH SAMPLE ANSWER—Environmental 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
45–6A. 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 system—the National
45-7A. SPECIAL CASE ANALYSIS—Environmental 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.
U.S. Court of Appeals for the Second Circuit.
(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
(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
(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
45–8A. A QUESTION OF ETHICS—Clean 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
(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
(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
ANSWERS TO LEGAL REASONING GROUP ACTIVITY QUESTIONS
AT THE END OF THE CHAPTER
45–9A. LEGAL REASONING GROUP ACTIVITY—Clean-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
(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