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64 Cards in this Set

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Friant Dam Case

Enough water shall be allowed to flow around, through, or pass over to keep fish in good condition that may exist below dam

Goals of Fish and Game Code from Friant Dam Case

1. Restore and maintain fish pops


2. min loss of water to water contractors

National Audobon Case vs LADWP

Is the water from navigable Mono Lake's non- navigable tribuatries protected?




Ended up that non-navigable tributaries from navigable water ways are now protected!




Doctrine logically prevents extraction of water that would harm navigable waterways and public trust interests

State as Trustee

Does public trust function independently of CA Water Rights Systems?




Neither, they are equal




State has obligation to take public trust into account when allocating water resources




State has power to grant rights to appropriate water




State should consider affects and attempt to minimize or eliminate harms

Federal vs State Water Quality Acts

Federal: Clean Water Act




State: Porter Cologne Water Quality Act


CA regulates groundwater and nonpoint sources




Not completely separate!

4 Important Principles

1. Don't have right to discharge pollutants to waters of US




2. Permit needed




3. Treat wastewater with best water quality treatment




4. Limit pollution based on technology

Waters of US

-all interstate waters




-intrastate waters and tributaries used in interstate and foreign commerce




-Terretorial seas at cyclical high mark




-Wetlands adjacent to (or having significant nexus to) all of above

TMDL

Total Maximum Daily Load


-amount of pollutant water can have and still meet water quality standards




-states and tribes have to develop TMDLs for waters on 303(d) lists




-TMDLs approved or disapproved by EPA and if approved EPA makes TMDL

Elements of TMDL

-allowable pollutant load (cap)




-Margin of safety (MOS)




-allocation of cap among sources

CWA makes it illegal to....

1. discharge pollutants


2. from point source


3. to the waters of US


4. without a permit

NPDES

National Pollutant Discharge Elimination SystemPermits set discharge limitsStatutory Exemptions

Types of violations of NPDES

-discharge without a permit


-permit exceeding amounts


-Other permit violations


a. don't submit monitoring reports


b. falsifying monitoring/data


c. don't meet schedule deadlines

Gwaltney vs Chesapeake Bay

Gwaltney violated NPDES permit repeatedly


They installed a new treatment


Mootness




Need to prove that:


violation is ongoing


violation is happening repeatedly

Waters of the State

Any surface or groundwater, including saline waters in the boundaries of the state

State Water Board

Oversees Regional Water Boards

Regional Water Quality Control Boards

-coordinate with agencies about water issues


-help with waste disposal programs


-enforce porter cologne

State Permit Process

Regional boards give permit authority




Report of Waste Discharge




Waste Discharge Requirements


-permits issued under CA water code


-also do NPDES if from point source to navigable waters



Takings Amendment

From the 5th amendment


can't take private property for public use without compensation

Regulatory Takings Considerations

-Economic Impact


-Reasonable expectations


-Governmental Purpose



Background Principles

Courts look at state's background principles to determine a regulatory taking



Lucas

Wanted to expand land, he could when he bouth the house, then after he bought it laws went into place that said he couldn't


They said it was a regulatory taking


no economically benefical land left

Palazzo

Wanted to develop beach club and fill wetland


They said he couldn't bc it wasn't a regulatory taking since there are other places he could develop his land, and the law was alrady in place when he bought it

Tahoe Case

Moratoria did not create a taking


They have to determine the WHOLE taking of all the land


moratoria protected interests of all landowners



Wetlands Definition

Any area that has enough water enough times of the year that make the plants that live there adapted to saturated soil conditions. Include swamps, bogs, marshes.

Section 404

Wetlands Regulation


Permit for discharge of dredged or fill materials into navigable waters




Admin of US EPA can veto Corps permits




Some exceptions ie ag, ranching, siviculture that was going on before




Navigable waters = waters of US including territorial seas



Riverside Bayview

Congress defined waters broadly


Ruled that Govt has power to control intrastate wetlands as waters of US


Ruled that the waters Riverside Bayview homes was filling were wetlands

SWANCC

Does CWA 404 give Corps authority to regulate isolated intrastate wetland?


Tried to use Migratory Bird Rule, didn't work


They were able to use wetland as pleased

Plurality Opinion

No single opinion received majority


Did not receive support of more than half of justices but received more support than any other opinion

Rapanos

Rapanos backfilled wetlands on land he wanted to develop


Land had a lot of land with sometimes saturated soil conditions


Nearest navigable water body was far away




Holding: Wetlands that do not join main state waters but are either adjacent or of significant nexus (affect chemical, biological, physical aspects of other waters) can still be called navigable

SB 4

Defines terms




Required Sec of Nat Resources Agency to do study on well treatments




Owners/operators of wells record and include data on well treatments




Adoption of regulations specific to well stimulation




Permit




Copy of permit and post permit on internet



NAAQs

National Ambient Air Quality Standards


Need to have NAAQs for each air pollutant that "air quality criteria" issued under CAA




Must review it at 5 year intervals and make revisions if needed




Primary: Protect public health


Secondary: Prevent environmental & property damage


-margin of safety


-EPA cannot consider costs

EPA's role

EPA sets limits




Can also limit emissions of air pollutants coming from chemical plants, utilities, and steel mills

Cooperative Federalism

EPA must approve plans for reducing air pollution




EPA can take it over if doesn't meet standards

State Implementation Plans

SIPs


Fed clean air laws make areas with unhealthy levels of criteria pollutants to develop SIPs telling how they will attain NAAQs




Not single documents


Air Resources Board is CA's agency for SIPs


Must show how each area will attain fed standards

Permits

Need operating permit for stationary sources




Include info on:


which pollutants released


how much pollutants are released


what steps needto be taken to reduce pollution


Plans to measure and report pollution emitted


States, tribes, local govts issue operating permits



Criteria Air Pollutants

Particle pollution


ground-level ozone


carbon monoxide


sulfur oxides


nitrogen dioxide


lead

Global Warming Solutions Act of 2006


(AB 32)

Established 1st economy-wide climate change regulatory program in US




AB 32 sets GHGs limit for 2020 at 1990 level


80% reduction by 2050


outlines combo of regulations, programs, fees


Cap and Trade Regulation




GHGs=CO2, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride




CARB regulations designed to have max technologically feasible and cost effective reductions in GHG sources

Mass vs EPA

Mass watned EPA to regulate GHGs from cars


EPA didn't want to




Issues: Does EPA have authority to regulate GHG emissions from motor vehicles?


Can it defer this?




CO2 and GHGs are subject to regulation



Wildland Fire Laws

Laws that impose liability on those who either negligently or thru law violation kindle fire, allow it to be set, or escape control

Why make people liable?

Deterrence


Prevent fires and destruction of property




Compensation for losses




Compensation for fire suppression

Negligence

Duty


Breach


Causation


Damages




1. Negligently kindled fire


2. Negligently allowed it to burn uncontrolled or escape

"Vicarious" Liability



Sometimes people may be liable for someone else's conduct




Can be liable if: you employed the person, caused, permitted, or had reason to know about fire-causing activity




Liability on one who allowed or benefitted from fire-causing rather than injured third party

Examples of Law Violations

No fire tools


No clearance


No spark arrester


No fire walk

RCRA Purpose

RCRA = Resource Conservation and Recovery Act


Set national goals for:


-portecting human health and environment from hazards of waste disposal


-conserving energy and natural resources


-reduce amount of waste generated


-making sure wastes are managed in environmentally sound manner

What RCRA does

Defines solid waste


Tracking system for hazardous waste from creation to disposal (cradle to grave)


Handling standards from cradle to grave


Authority for clean up of polluted treatment, storage and disposal sites




Material must a solid waste that is hazardous

Listed Wastes

1. hazardous wastes from non-specific sources


2. wastes from specific manufacturing processes


3. discarded commercial chemicals

Characteristic Wastes

Ignitable


Corrosive


Reactive


Toxic

Who is Regulated

Generators


Transporters


Treatment, Storage, Disposal Facilities

Environmental Justice

Fair treatment and involvement of all people regardless of race, color, national origin, or income


This counts for development, implementation, enforcement of environmental laws, regulations, and policies

Cal EPA EJ Action Plan

EPA agencies:


Develop guidance on precautionary approaches


Develop guidance on cumulative impacts analysis


Improve tools for public participation and community capacity-building


Make sure EJ considerations w/in Governor's Environmental Action Plan

Kettleman City

EIR was done inaccurately


Predominantly Latino community was going to get waste incinerator there that already have bad air


Needed to publicly inform city people


El Pueblo won bc they did not publicly inform them

11135

No person in CA shall be unlawfully discriminated against in something run by state/state agency, funded from state, or gets money from state




can't use administration that's discriminating


can't pick sites that subject to discrimination

Comunidad en Accion v LA

Couldn't get it bc could not figure out exactly where funding came from

2 Sets of Laws of Hazardous Waste and Liability

CERCLA


Cal Health & Safety Code

3 Major Components of CERCLA

1. cleanup activity


Federal required to clean up




2. financing


Put federal dollars behind cleaning up




3. Liability Assessment


ID's responsible parties liable for cleanups

When to Apply CERCLA

1. Release or threatened release


2. of hazardous substances


3. from facility or vessel

Strict Liability

Liability w/out negligent or unreasonable content no intent required




Usually indivisible


But you can prove divisible

To get money back plaintiff has to show

-site is facility or vessel


-defendant is responsible


-release or threatened relase happene


-release aused plaintiff to get response costs


-defendant liable unless one of statutory defenses

Defenses (not liable)

-unanticipated event


-Acts of war


-Acts of independent third parties

Potentially Responsible Party

1. current owners/operators


2. prior owners/operators


3. persons who arrange for disposal/treatment of hazardous substances


4. transporters of hazardous substances who select disposal sites

Toxic Tort Action

Personal injury action based on exposure to substances presenting unusally high risk to human health or environment

Toxic Tort Causation Problems

-Long latency period of illness




-Ds attribute illnesses to other causes




-Need expert testimony, skill of experts and preparation may decide case




-Cost limit P's ability to pursue claims, power and money usually with D

Leaf River

Toxins from Paper mill


Lost

To Win a Toxic Tort

1. P was exposed to substance released by D


2. substances can cause types of harm suffered by P


3. substance caused P's harm