B-198
ALTERNATE CASE PROBLEM ANSWERS
CHAPTER 46
ENVIRONMENTAL LAW
46-1A. Superfund
(Chapter 46—Page 908)
The court held that although Congress failed to address the specific issue of corporate successor liability
under CERCLA, it did intend such liability. The court further held that L-Bar was not a corporate succes-
sor to IMP and therefore was not liable under CERCLA for clean-up costs. Although a successor corpora–
tion in a consolidation or merger assumes the liabilities of the predecessor corporations, L-Bar had nei-
ther merged nor consolidated its corporation with IMP, but only purchased IMP’s assets. Under the tra-
ditional rules of successor liability, purchasers of another corporation’s assets are not liable as succes-
46-2A. Hazardous waste
(Chapter 46—Page 908)
The court ruled in favor of the EPA. The term endangerment does not require actual, demonstrated
46-3A. Strict liability
(Chapter 46—Pages 907–908)
The court ruled for the state of Florida. The court found that the activity involved a high degree of risk
APPENDIX B: ALTERNATE CASE PROBLEM ANSWERS—CHAPTER 46 B-199
46-5A. Toxic chemicals
(Chapter 46—Pages 907–908)
46-6A. Water pollution
(Chapter 46—Pages 897–898)
Common law nuisance can be caused by negligent acts. The Eighth Circuit Court of Appeals held that the
46-7A. Clean Water Act
(Chapter 46—Pages 902–904)
Ahmad was convicted in the federal district court in which he was tried, and he appealed to the U.S.
46-8A. A QUESTION OF ETHICS
1. The secretary’s regulation defining the term harm to include habitat modification that “kills or
injures wildlife” can be viewed as consistent with the use of the term take to refer to the capture or kill-
B-200 APPENDIX B: ALTERNATE CASE PROBLEM ANSWERS—CHAPTER 46
its acts that indirectly kill or injure wildlife—that is, modifying animals’ habitat with the effect of killing
2. Take, as defined in the ESA, includes “harm.” Harm, as defined in the regulation, includes
“habitat modification * * * where it actually kills or injures wildlife.” In other words, the regulation is
limited to habitat modification that causes actual, as opposed to hypothetical, death or injury to pro-
tected animals. Because habitat modification is part of the definition of harm, which is part of the defi-
nition of take, take can be construed as habitat modification.
One issue in this case, argued between Justice O’Connor in her concurring opinion and Justice
Scalia in his dissent, was whether the ESA is limited to actions that actually kill or injure individual ani-
mals (“existing generations”) or whether it applies to “populations,” which Scalia interpreted to cover
potential additions (“future generations”). In suggesting that the regulation could be extended to cover
nonexistent animals, Scalia pointed out that the regulation includes a reference to “breeding.” Scalia
argued against such an extension by claiming that “impairment of breeding does not ‘injure’ living crea-
tures.”
O’Connor explained, despite Scalia’s suggestion regarding nonexistent animals, that the regula-
tion does not apply to speculative harm: “That a protected animal could have eaten the leaves of a fall-
en tree or could, perhaps, have fruitfully multiplied in its branches is not sufficient.” In O’Connor’s opin–
ion, “the ‘harm’ regulation applies where significant habitat modification, by impairing essential behav-
iors, proximately (foreseeably) causes actual death or injury to identifiable animals that are protected
under the Endangered Species Act.” In her opinion, “merely prevent[ing] the regeneration of forest land
not currently inhabited by actual birds” is not covered.
4. Answers to this question, like responses to the previous question, can depend on fundamental
beliefs about the importance of the environment, people’s use of resources, and other extra-legal con-