Professional Documents
Culture Documents
Environmental and Natural Resources Law Outline Fall 2019
Environmental and Natural Resources Law Outline Fall 2019
1. Court ascertains whether Congress had a specific intent on the issue before the Court
a. Considers particular statutory language at issue as well as the language and design of the
statute as a whole
2. When the statute is silent or ambiguous with respect to the specific issue, the question is whether the
agency’s answer is based on a permissible construction of the statute
Cronin 1
Common Law Considerations
Law of Nuisance
Nuisance—the actionable interference with the use and enjoyment rights in land
Nuisance at law—an act, occupation, or structure that is a nuisance at all times and under any
circumstances, regardless of location or surroundings
Nuisance in fact—an act, occupation, or structure that become nuisances by reason of their location
or by the reason of the manner in which they are constructed maintained or operated
Not dependent on finding of negligence in the operation
Establishing Nuisance
Public nuisance—interferes with the rights of the public
Private nuisance—those that affect persons in their individual capacities
Intentional
Intention met when tortfeasor acts for the purpose of causing a certain outcome, or knows an
outcome is substantially certain to result from the conduct
Nontrespassory
Unreasonable
More concerned about the harm caused by conduct than on the specific conduct
To be unreasonable, harm must be more than minimal; consider:
Character of the neighborhood
Intensity and duration of the interference
Prevailing customary uses of land
Social utility of the defendant’s activities
Interference with another’s use and enjoyment of land
Right to farm defense— no ag or farming operation will be deemed to constitute a nuisance due to
alleged objectional (1) odor, (2) noise, (3) dust, (4) chemicals, or (5) water pollution, provided the
farm (1) has been operation for at least one year, (2) has not been substantially changed, and (3)
conforms to generally accepted agricultural practices
Negligent operation of a farm resulting in the nuisance may defeat this defense
Relief
Recovery or an injunction depends on if the conduct allows a single right of action or successive
rights
This depends on whether the nuisance is permanent or temporary by the character of the nuisance
to which the land is subjected and not by the quantity of resultant damages
Ask whether the harm is intended to continue and last for the foreseeable future or not
Is the harm complete or continuing
To determine whether to grant injunctive relief to abate a nuisance, courts employ a balancing test
incorporating the following factors:
The character of the interest to be protected
The relative adequacy to the plaintiff of an injunction and of other possible remedies
Plaintiff’s delay in bringing suit
Plaintiff’s misconduct
The relativize hardship to result if injunction in granted and to plaintiff if it is denied
The interests of third persons and of the public
Cronin 2
The practicality of framing and enforcing the order or judgment
Cronin 3
Law of waste
Law of waste determines rights of persons who share title to the same parcel of land
Main question is how much present use of land should be restricted (if at all) for the benefit of
holders of future interests
Waste can be:
Voluntary—caused by deliberate actions
Test is reasonableness—present possessors may use land so long as the use is “reasonable” as
judgment by:
Character and intensity of possessor’s use
Whether the use is one commonly pursued in the area
Users impact on the market value of the affected parcel
Comparison of the current use to that which the future interest holder would devote the
property upon assuming possession
The likelihood of the plaintiff securing possession of the parcel in the future
Permissive—caused by a failure to act
Persons in possession have duty to make repairs and pay all charges on the property
Failure to perform could result in forfeiture of the estate
Possessor is under no burden to assume costs that exceed economic benefits supplied by the
land
Innocent—caused by acts of third person where the possessory tenant is without fault
Available remedies include damages and injunctive relief
Cronin 4
Conservation Easements
Conservation easements protect environmental quality by restricting possessors of property from taking
actions that would compromise that quality
Generally governed by state statute
NE Conservation easement statute:
A right, whether or not stated in the form of an easement, restriction, covenant, or condition
In any deed, will agreement, or other instrument
Executed by or on behalf of the owner
Of an interest in real property
Imposing
A limitation upon the rights of an owner or an affirmative obligation upon the owner
appropriate to the purpose of retaining; or
Protecting the property in its natural, scenic, or open condition
Assuring its availability for agricultural, horticultural, forest, recreational, wildlife habitat, or
open space use, protecting air quality, water quality, or other natural resources or for such other
conservation purpose as may qualify as a charitable contribution under the Internal Revenue
Code of 1955
In order to minimize conflicts with land use planning, these easements must be approved by the
appropriate governing body
Once created, they may be released to the holder of the servient estate, if approved
However, they can also be assigned to any governmental body or charitable corporation or to a trust
authorized to secure such an easement
Conservation easements may be modified or terminated upon a showing that they are no longer “in the
public interest” or no longer serve the conservation or preservation purpose for which they were created
Tax concerns
Tax-deducible by the federal Tax Reform Act of 1976
The value of the donated servitude for tax purposes is its fair market value, typically the
difference between the land’s fair market value with and without the servitude
In certain states, tax amount will increase
Try to keep land in agricultural classification by retaining the right to graze or bale
Propose tax for specific acres, e.g., 67 acres a agricultural and 3 acres as recreation
Land trusts—organizations that protect land and water by buying or accepting donations of land or
development rights in land
Advantage of conservation easements is that it keeps land in private ownership, making people much
more likely to commit it
Cronin 5
Environmental Impact Statements
Environmental Impact Statements are a component part of the National Environmental Policy Act (NEPA)
NEPA establishes the broad national framework to protect the environment from actions by the united
states government
NEPA’s basic policy is to assure that all branches of government give proper consideration to the
environment prior to undertaking any major federal action that significantly effects the environment
NEPA requirements are invoked when federal activities are proposed
The agency carrying out the federal action is responsible for complying with the requirements of NEPA
Federal, state, tribal, or local agency may need to act as a cooperating agency to assist the lead agency
in complying with NEPA by providing information or resources
Environmental Assessments (EAs) determine whether or not a federal action has the potential to cause
significant environmental effects; they discuss:
The need for proposal
Alternatives (when there is an unresolved conflict concerning alternative uses of available resources)
Environmental impacts of the proposed action and alternatives
A listing of agencies and persons consulted
After an EA, an agency either issues a Finding of No Significant Impact or determines there is a
significant impact warranting an Environmental Impact Statement
Environmental Impact Statements (EISs) are assessments of the likelihood of impacts from various courses of
action and are required from all Federal agencies
The judiciary wants an analysis, not just a report of statistics
When required:
EISs are required if a proposed major federal action is determined to significantly affect the quality of the
human environment
Action—actions taken by federal agencies qualify as federal actions
Effects—requisite effects include ecological, aesthetic, historic, cultural, economic, social, or health,
whether direct, indirect, or cumulative
Limits on what effects are important for NEPA purposes:
General rule: effects that are essentially unrelated to the physical environment are not
relevant
Purely economic effects of a federal action do not trigger a requirement to prepare an EIS
Psychological effects are not relevant to NEPA
Psychological effects are too remote and insufficiently casually related to a change in the
physical environment to be reviewable in an EIS
Predominantly aesthetic effects are not relevant to NEPA
Socioeconomic effects—only consider socioeconomic impacts that are closely related to
adverse effects on the physical environment
Where an agency has no ability to prevent a certain effect due to its limited statutory authority
over the relevant actions, the agency cannot be considered a legally relevant “cause” of the effect
A supplement to a draft or final EIS is required when:
An agency makes substantial changes to the proposed action that are relevant to its environmental
concerns
Cronin 6
There are significant new circumstances or information relevant to the environmental effects that
have bearing on the proposed action or its impacts
Cronin 7
Exceptions, i.e., when the government does not need to prepare an EIS
Statutory conflicts
Nondiscretionary actions
Functionally equivalent actions
Emergencies
Categorical exclusion
A categorical exclusion is not an exemption from compliance with NEPA, but merely an
administrative tool to avoid paperwork for those actions without significant environmental effects
Appropriation requests
Extraterritorial actions
Moving targets—a goal or objective that is unattainable by the act due to changing circumstances or a
lack of authority, e.g., NAFTA
Procedures
Agency publishes a Notice of Intent in the Federal Register
Starts the scoping process. i.e., the period in which the federal agency and the public collaborate to
define the range of issues and possible alternatives to be addressed in the EIS
Draft of EIS is published for public review and comment for minimum of 45 days
Final EIS is published with responses to substantive comments, which begins the minimum 30-day “wait
period” before a final decision can be made on a proposed action
Agency issues a record of decision (ROD) that (1) Explains the agency’s decision, (2) describes the
alternatives the agency considered, and (3) discusses the agency’s plans for mitigation and monitoring, if
necessary
An EIS includes:
Cover sheet identifying lead agency (and cooperating agencies if any), contact info, title and location of
proposed action, paragraph abstract of EIS, and the date when comments must be received
Summary, including (1) the major conclusions, (2) area(s) of controversy, and (3) the issues to be
resolved
Purpose and need statement—explains the reason for the proposed action and what agency expects to
achieve
Environmental impact of the proposed action
Environmental consequences—discussion of direct and indirect environmental effects and their
significance
Direct—effects that are caused by the action and occur at the same time and place
Indirect—also caused by action, but later in time or farther removed in distance, but still
reasonably foreseeable
Any adverse environmental effects which cannot be avoided should the proposal be implemented
Alternatives—consideration of a reasonable range of alternatives that can accomplish the purpose and
need of the proposed action
Any irreversible and irretrievable commitments of resources which would be involved in the proposed
action should it be implemented
Supplement (if required, see supra)
Cronin 8
Endangered Species Act
ESA provides a program for the conservation of threatened and endangered plants and animals and the
habitats in which they are found
The law requires federal agencies to ensure that actions they authorize, fund or carry out are not likely to
jeopardize the continued existence of any listed species or result in the destruction or adverse
modification of designated critical habitat of such species
Section 4—ESA requires the FWS to identify and list species that are “endangered” or “threatened”
Species may be listed (1) by initiative of the government, or (2) through a petition process provided
by the Administrative Procedure Act
Upon receiving a petition, FWS must determine whether the petition is supported by “substantial
scientific or commercial information”
the decision must be based solely on the best scientific and commercial data available
the Secretary is not required to find and consider any information that is arguably susceptible to
discover, i.e., the agency has to consider the petition, but doesn’t have to do the work for the
petitioners
ESA defines species to include “any subspecies of fish or wildlife or plants, and any distinct
population segment of any species of vertebrate fish or wildlife which interbreeds when mature
For distinct population segments, the species must be:
Discrete (from the remainder of the species to which it belongs)
Satisfied if population segment is separate from other populations of the same taxon as a
consequence of physical, psychological, ecological, or behavioral factors, or if a
population’s boundaries are marked by international borders
Significant (to the population segment of the species to which it belongs)
Analyzed under four nonexclusive factors:
Whether the population persists in a unique or unusual ecological setting
Whether the loss of the population would cause a significant gap in the taxon’s range
Whether the population is the only surviving natural occurrence of a taxon
Whether the population’s genetic characteristics are markedly different from the rest
of the taxon
Cronin 9
Critical Habitats
ESA requires the appropriate Secretary to designate a “critical habitat” for all listed species
ESA contemplates designation of both “occupied and “unoccupied” critical habitat
Occupied—specific areas within the geographic area occupied by the species, at the time it is
listed . . . on which are found those physical or biological features that are (1) essential to the
conservation of the species, and (2) which may require special management considerations or
protection
“occupied” critical habitat has been interpreted to mean areas within which a species is
“likely to be present,” as distinct from the relatively fewer areas within which a species
“resides”
Except in special circumstance (determined by the Secretary) critical habitat shall not include
the entire geographic area which can be occupied
Unoccupied—specific areas outside the geographical area occupied by the species at the time it is
listed . . . upon a determination by the Secretary that such areas are essential for the conservation
of the species
EPA requires a designation of critical habitat concurrent with the listing of the species “to the
maximum extent prudent or determinable”
Designation should be made on the basis of the best scientific data available and taking into
account economic impact (and any other relevant impact) that results from specifying a particular
area as critical habitat
Agencies must conduct a full analysis of all of the economic impacts of a critical habitat
designation, regardless of whether those impacts are attributable coextensively to other cases
Pursuant to §7 of ESI, all Federal agencies must take such action as is necessary to ensure that
actions authorized, funded, or carried out by them do not result in the destruction or modification of
critical habitat area
Critical habitat designation is not prudent when:
The species is threated by taking or other human activity, and identification of critical habitat can
be expected to increase the degree of such threat to the species; and/or
Such designation of critical habitat would not be beneficial to the species
Injuries
Direct—obvious action that kills or physical injures animals in a way that they do not or cannot free
or defend themselves or an environmental pollutant that causes the animal to suffer physical
complications
Indirect—impairment of an animal’s ability to survive as a species (i.e., feeding, breeding, shelter)
Cronin 10
Take Prohibition
§9 of ESA makes it unlawful for any person to “take” any endangered or threatened species
Take—to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage
in any such conduct
Harm—an act which actually kills or injures wildlife; such act may include significant habitat
modification or degradation where it actually kills or injures wildlife by significantly impairing
essential behavioral patterns, including, breeding, feeding, or sheltering
Both indirect as well as deliberate takings are prohibited, i.e., intent encompasses the natural
outcome of your actions
Cronin 11
Cronin 12
Water Rights
Surface water and ground water have been treated independently by law, even though they
interrelate and extracting groundwater can lower flow levels on surface streams and diverting
surface waters can lower the water table
Water uses are:
Consumptive—removes water from its source and precludes its return
Non-consumptive—does not result in permanent loss of water from that source
Out-of-stream—water direct from a source for use on land near or far from the source
Instream—water serving a use while remaining in its natural location
Riparian regulation
One who owns a defined parcel of land bordering a water source is a riparian and has rights to
water in the stream
Water can be taken out of the stream for use on the riparian land
The right to water is secured by virtue of land ownership, and is lost upon transfer of title to the
riparian land
Basic features of the riparian system:
Only applies to canalized surface waters (excludes rivers, lakes, and some ponds)
Water must be used on the riparian land itself
No gallonage limitations, but water must be dedicated to a “reasonable use”
Correlative right, i.e., in times of shortage, riparian must share the burden of reducing water
use
Cronin 13
Ground water—water which occurs or moves, seeps, filters, or percolates through the ground under the
surface of the land
Methods of property rights in groundwater:
Overlying rights—the right to use groundwater arises by virtue of land ownership; the owner of
overlying land has rights to extract water for use on that overlying land
In many (but not all) “overlying rights” jurisdictions, water use is permissible only on the
overlying land itself; transfer of water for use on other parcels is prohibited
While there are no quantitative limitations in place in overlying rights jurisdictions, use of
more than a reasonable amount (however determined) is disallowed
This is not based on harm to others
Overlying rights to groundwater are essential correlative; consequently, in times of shortage,
all users must reduce their amounts for use for the benefit of all other users
Prior appropriation—
Groundwater rights are separate from interests in land, and therefor may be used on other
than overlying land
A right to the water is superior or inferior in relation to another’s right based on the time at
which the right is secured
The rights are quantified
Cessation of use (i.e., abandonment) extinguishes the right
The use to which water is applied must be “beneficial”
Rights are not correlative—juniors must yield to seniors
Managed by state regulatory agencies, and requirements specified by statute and agency
regulation
NE water law
Surface water—prior appropriation
The right to unappropriated water is never denied unless detrimental to public welfare
Ground water—correlative rights (modified scheme)
Groundwater in NE is owned by the public; in times of shortage, priority is gen in order of:
Household
Ag
Industrial
NE water law ignores the hydrological fact that ground water and surface water are inextricably
linked
BUT restatement (second) of torts §858 essentially adopts a correlative rights rule that allows for
a balancing of many factors to determine reasonableness, i.e., balances the equities and hardships
between competing users
Rule: a groundwater user is not subject to liability for interference with the use of water of
another, unless the withdrawal of the ground water has a direct and substantial effect upon a
watercourse or land and unreasonably causes harm to a person entitled to the use of its water
Cronin 14
Cronin 15
Correlative Rights doctrine—legal principle that adjoining landowners must limit their use of a common
waster source to a reasonable amount
Interstate Disputes
Interstate allocation—when streams cross state borders; three methods on how to divide:
Equitable apportionment—SC makes call using equitable principals to guide it
SC appoints special master to conduct discovery and propose a plan to the Court
Special master’s findings, while persuasive, are not binding as fact until the SC adopts them
Interstate compact—state agreements on the allocation of waters in an interstate stream
Must be ratified by Congress to be binding against water users within the states
Essential a statute (b/c ratification) and a contract between the states
Federal legislation—Congress has the power to allocate water among states
Navigational servitude exists in situations where the federal government exercises commerce
clause authority to regulate the navigation on a stream or other waterway
A state seeking to prevent or enjoin a diversion by another state bears the burden of proving that the
diversion will cause it real or substantial injury or damage
After such proof is made, the burden shifts to the other state to show that the existing diversion should be
allowed to continue under the principles of equitable apportionment
Cronin 16