ARE 309 Exam 1
When a defendant is subject to strict liability, plaintiff must demonstrate what?
Defendant was responsible for an ultrahazardous activity in an area not appropriate for such activity
The Clean Air Act requires the EPA to set standards for air pollutant emissions, with the provision that states implement plans to implement and enforce those standards. The authority by which the state may do so is known as what?
Delegated Jurisdiction
Which below is not a function of the Environmental Protection Agency?
Establish local building permit regulations to control stormwater control
US Congress
Establish the purpose of federal environmental protection legislation
involves no published notice of draft rule or opportunity for public comment
Exempt Rulemaking
_________________________ preemption is stated in a statute passed by Congress.
Express
Federal District Court of Appeals
F.2d
Federal District Court
F.Supp.
In which of the following courts could one hear the testimony of an expert witness on whether crop damage was caused by misapplication pesticide?
Federal District Court for the Eastern District of North Carolina and Bertie County Superior Court
The notice of availability of both a draft Environmental Impact Statement (EIS) and a final EIS are published in which Federal document?
Federal Register
involves hearings with sworn testimony regarding a proposed rule
Formal Rulemaking
negligence per se
Here are the facts. A a defendant is sued for a tort based upon a negligence theory and a violation of a statute also occurred. Where statute was designed to prevent the type of harm that occurred, that violation may be used to prove the elements of the existence of a duty and the breach of duty.
involves public listening sessions and published notice for public comment in the Federal Register
Hybrid Rulemaking
State Agencies
Implement and enforce federal environmental law at the state and local level
State and Federal Courts
Implement and enforce federal environmental law at the state and local level
A state law that frustrates the objectives of a federal law raises the issue of ________________________.
Implied conflict preemption
Cross-Claimant
In a court action with multiple defendants, a defendant who seeks compensation from one of his or her co-defendants
amicus curiae
In an appeals court case, this person is not a party and is not directly bound by the outcome of the case, but has been allowed by the court to express the nature of his or her interest in the outcome
involves published notice for public comment in the Federal Register only
Informal Rulemaking
Which is not a required element to establish a common law claim of negligence?
Intent to harm
Agreements between two or more states, that are approved by Congress, are called
Interstate Compacts
Standing
Is this the proper plaintiff to challenge this rule, law or implentation thereof?
Which judge of the NC Court of Appeals wrote the opinion in State v. Adams?
Judge John
Article III
Judicial
The concept of standing derives its meaning from .
Judicial precedence regarding the U.S. Const. Art. III requirement that federal courts hear only "cases or controversies"
Upon which case did appellee rely on in his appellate brief and argument to support the trial judge's dismissal of the state's case against him?
Lynn v. West, 134 F.3d 582 (4th Cir.1998)
NC Supreme Court
N.C.
NC Court of Appeals
N.C.App.
Which of the following is not true of the National Environmental Policy Act of 1969?
NEPA authorizes courts to determine which alternative courses of action would be least damaging to the environment, and then order an agency to take that least environmentally damaging alternative
Which of the following is true of the National Environmental Policy Act?
NEPA contains no substantive area of environmental law
The opinion in State v. Adams, 132 N.C. App. 819 (N.C. App., 1999), was written by which court?
North Carolina Court of Appeals
Army Corps of Engineers
Parent Agency: Department of Defense
Federal Energy Regulatory Commission
Parent Agency: Department of Energy
Bureau of Land Management
Parent Agency: US Department of Interior
Natural Resources Conservation Service
Parent Agency: USDA
U.S. Fish and Wildlife Service
Parent agency: U.S. Department of Interior
United States Forest Service
Parent agency: USDA
Chevron Deference Doctrine
Permissible interpretation of a vague statute
A state has the legal authority to require counties to pass zoning ordinances by virtue of what power?
Police Power
States west of the Mississippi River generally follow some form of which system of water rights?
Prior appropriation
Federal Agencies
Promulgate rules and regulations for the federal standards of environmental quality
In which court did Mr. Adams face trial?
Randolph County Superior Court
Review of a case where a Virginia mining company has challenged the federal Surface Mining Act's requirement that once mining activities cease, all farmland directly impacted by such mining be restored to its original suitability as farmland
Rational Basis
North Carolina follows which rule concerning a landowners diversion of water from their land?
Reasonable Use - were landowners must consider reasonableness of diversion onto other property
What is the goal of certain "technology forcing" requirements of federal pollution control legislation?
Require firms to internalize environmental externalities
What was the NC Court of Appeals' disposition of the case?
Reversed
Trespass
Right of sole possession
Nuisance
Right to quiet enjoyment
Development rights
Right to subdivide
US Supreme Court
S.C.
Non-Delegation Doctrine
Statute must show an intelligible principle to guide agency
Review of a case where the North Carolina legislature has passed a law called "Toxic Free NC" requiring in-state hazardous waste disposal facilities to only accept toxic waste generated in North Carolina
Strict Scrutiny
Review of a law where the North Carolina legislature has passed a law called "Fraud Free Elections" which requires only those of Hispanic origin to produce identification at the polls
Strict Scrutiny
Article VI
Supremacy Clause
Which clause of the U.S. Constitution resolves conflicts between Federal and State law?
Supremacy Clause
Following its ratification, the U.S. Congress added 10 amendments (known as the Bill of Rights) to the U.S. Constitution to protect individual liberties from the power of the federal government. However, such protection did not specifically apply to the states until the passage of the Fourteenth Amendment following the American Civil War. What is the 14th Amendment's primary protection?
That no state may deny to any person within its jurisdiction the equal protection of the laws
Substantive Law
That part of law which creates, defines, and regulates the rights of people
Procedural Law
That part of law which prescribes method of enforcing rights of people or obtaining redress for their invasion
The arbitrary and capricious standard of review, also called the "rule of reason" by some courts, requires the court to make three (3) determinations regarding the contents of an EIS. Which is not a determination made by the court?
That the agency chose the project with the least impact on the human environment
If a plaintiff can prove that defendant violated an environmental regulation, he or she may be able to establish defendant's negligence per se and relieve himself or herself of the burden of proving that defendant owed him or her a duty not to cause injury. To achieve this, what else must plaintiff demonstrate?
That the type of injury suffered by plaintiff was a type of injury the regulation was designed to prevent
The standard legal reference book on rules of citation for legal authority (cases and statutes) and other published, written or digital sources is called what?
The Blue Book
The EPA is not required to conduct an environmental impact statement (EIS) under the National Environmental Policy Act for its actions in implementing the Clean Air Act. What is the most likely reason?
The Clean Air Act categorically exempts EPA's regulations and actions under the Clean Air Act from the EIS requirement
Though all of the U.S. Constitutional powers listed below authorize in some measure federal environmental legislation and regulation, which is by far the most prominent?
The Commerce Clause (U.S. Const. art. I, § 8, cl. 3.)
Which of the following courts would not be bound by a decision from the 4th Circuit Court of Appeals?
The Federal District Court for the District of Delaware
Article I
The Legislature
Which below would likely not be considered a federal action?
The North Carolina General Assembly passes a law that bans the use of climate science in consideration of coastal policy
Who is the appellant in the case of State v. Adams.
The State of North Carolina
Original Jurisdiction
The United States Supreme court has jurisdiction to hear - for its first time in court - a dispute between two states over a boundary
Federalism
The concept that the United States is a nation of dual sovereignty where the federal government and states may in some respects operate without interference of the other
Supremacy Clause
The concept that, in certain matters authorized by the U.S. Constitution, the federal government is superior to state law
Stare Decisis
The concept whereby a certain court opinion is considered precedent that binds subsequent and lower courts in their application of legal principle
stare decisis
The concept whereby a certain court opinion is considered precedent that binds subsequent and lower courts in their application of legal principle
Which one of these would most likely support a successful challenge to an EIS?
The final EIS did not contain every submitted comment made after publication of the draft EIS
Common Law
The legal system found primarily in countries of the former British Empire, where law is primarily made by courts whose decisions serve as precedent for settling future disputes
Civil Law
The legal system with its origins in the Roman legal system, whereby law is made in the abstract by legislation and applied disputes without setting precedent
Appellant
The losing party in a court case who appeals the case to an appellate court.
Concurrent Jurisdiction
The principle that federal government legislation does not not pre-empt the states' ability to legislate the same subject matter
Sovereignty
The right and power of regulating one's internal affairs without foreign dictation
What right in the real property "bundle of sticks" does a private nuisance harm?
The right of quiet use and enjoyment
Governmental takings of private property for public purpose, where the owner is paid fair market value for the property, are prohibited by:
They are not prohibited
Easement
This document grants a non-owner the right to traverse across a parcel of land to the parcel beyond
Lease
This document is grants a non-owner the right to occupy or use land for a limited term
Deed of Trust
This document secures a piece of property to a money loan, granting the lender the right to sell the property if the loan is not repaid
Deed
This document transfers an owners entire interest in a parcel or a particular natural resource right
The Administrative Procedures Act specifically prescribes a standard of review for regulations promulgated under the formal rule-making process where a hearing has been held. This standard of review seeks to determine whether the agency's final regulation was ________________.
Unsupported by substantial evidence
When does a parcel of land not have enforceable riparian rights?
When an owner of a parcel is verbally granted the right to draw water from the land by an owner who's parcel abuts a watercourse
Tenant in Common
When this co-owner of a tract of land dies, his heirs inherit his interest
Joint Tenant with Right of Survivorship
When this co-owner of a tract of land dies, his interest is automatically assumed by the land's co-owner
Tenant by the Entirety
When this co-owner of a tract of land dies, his or her spouse automatically owns 100% interest in the entire parcel
Which statement below is not an issue in the case of State v. Adams before the NC Court of Appeals?
Whether a ruling by a federal appeals court is the supreme law of the land under Article VI of the US Constitution?
In deciding a dormant commerce clause challenge, if a state statute is not facially discriminatory, the federal court will apply a rational basis test from the case of Pike v. Bruce Church, Inc., 357 U.S. 137 (1970), known as the "Pike Balancing Test". What is the balance?
Whether the local environmental benefits outweigh the burden on interstate commerce
Lujan v. Defenders of Wildlife established a three (3) part test to determine whether a plaintiff has standing. When a defendant has challenged a plaintiff's standing to bring the case, the first of a court's three questions is what?
Whether the plaintiff has a particularized injury
Lujan v. Defenders of Wildlife established a three (3) part test to determine whether a plaintiff has standing. Assuming a plaintiff can get past the first question, which below is the second of the court's questions?
Whether the plaintiff's injury is causally connected to the agency's action
What is the term for the court-made level of review federal agencies must give to the environmental consequences of major federal action which has significant impact on the human environment?
a hard look
Plaintiff
a person who brings a case against another in a court of law.
Under NEPA, an agency must prepare an Environmental Impact Statement if it determines that the proposed endeavor is what?
a. A federal action b. An action that is major c. An action that is significant in scope d. An action has discernable effects e. An action affects the human environment
Which of the following are subject to the Statute of Frauds?
a. A transfer of fee title to a parcel of land b. An agreement to sell timber from a parcel of land c. A farm lease in excess of three years
An agency may issue a Finding of No Significant Impact (FONSI) statement if it finds that a proposed endeavor is not what?
a. An action that is federal b. An action that is major c. An action that has real effects d. An action that is significant in scope e. An action does affects the human environment g. ANY SINGLE ONE OF THESE
Avulsion is the process by which a landowner can lose land when a watercourse - used as a descriptive boundary - alters course causing a loss of acreage. When will a landowner not lose title to land by water avulsion?
a. Following a sudden flooding event that cut a new course b. When title boundary to the tract is established by a metes and bounds survey and not by simple reference to the watercourse
Which of the following situations would likely result in a plaintiff's claim being dismissed on motion of a defendant in a pre-trial hearing before the court?
a. In his complaint, the plaintiff failed to allege the existence or the extent of any damage inflicted upon him by actions of defendant b. The plaintiff, frustrated with the slow pace of the agency process of review on a denied USDA program payment, files a complaint against the Agency in court before the agency's proceedings are complete c. A plaintiff files suit because his property was damaged five years ago by a water incursion from his neighbor's property, whereas the statute of limitations for such actions is three years
By inserting a Savings Clause into a federal statute, Congress has allowed states and local governments to:
a. Pass laws and regulations concerning the same subject matter, so long as such are at least as strict as the federal statute b. Expressly enable in the language of the statue a state administrative regime to execute and enforce the federal statute c. Allow the citizens of the states to pursue common law remedies in addition to those outlined in the federal statute
The Fifth Amendment to the United States Constitution, as applied to the states, serves as a restraint on state, county and municipal zoning authority. What is the nature of this restraint?
a. Prohibition on taking of private property for public use without just compensation b. Requirement of due process
Pursuant to the Commerce Clause, the federal government may regulate what?
a. The instrumentalities, persons and things of interstate commerce b. The channels of interstate commerce c. Any activity that substantially affects interstate commerce
When a federal district court is granted subject matter jurisdiction by an environmental protection statute, it may only hear the case if what?
a. The plaintiff has standing b. The controversy is not moot c. The controversy is ripe for judicial review d. The court determines the agency's action is final
Which of the following rights in real property are severable?
a. The right to harvest timber b. The right to extract subsurface minerals c. The right to draw groundwater
Which of the following powers did the states relinquish to the federal government when they ratified the U.S. Constitution in 1789?
a. The right to make agreements with one another b. The rights to pass laws that impair private contracts c. The right to coin money d. The right to discriminate against residents of other states
According to U.S. Supreme Court jurisprudence, which of the following is not an item of commerce subject to federal regulation under the Commerce Clause?
a. Wheat grown as feed for livestock b. Municipal Solid Waste c. Cannabis grown for home use
Which of the following is function of an administrative agency?
a. rulemaking b. adjudication of disputes with the agency c. enforcement of regulations d. research
What is an example of a voluntary government program to promote protection of ecosystem services?
a. A cost-share program to promote use of no-till cropping to enhance soil health b. A stream restoration program designed to prevent downstream flooding and erosion c. A conservation tax credit as incentive to forest landowners to develop wildlife habitat
To which category of water does N.C. law apply the doctrine of reasonable use:
a. surface water in defined channels b. percolating groundwater that sources a watercourse c. groundwater in defined channels
Defendant
an individual or group being sued or charged with a crime
A geographically discriminatory state statute when challenged under the dormant commerce clause will normally be subjected to strict scrutiny review by the federal court. To overcome the challenge, the state must what?
demonstrate a compelling interest in the subject matter of the statute, and demonstrate that the statute is narrowly tailored to achieve goals of that interest
If a project is categorically ______________________________________ an EIS may not be prepared.
excluded
Article II
executive
Mootness
has agency remedied the problem without injury to plaintiff?
Exhaustion
has plaintiff gone through full agency adjudication when required to do so by statute or rule?
Ripeness
has plaintiff suffered the result of final agency action?
If a project is categorically ______________________________________ an EIS must be prepared.
included
Article I, § 1 of the US Constitution states that "All legislative Powers herein granted shall be vested" in Congress. Known as the "Non-Delegation Doctrine," this mandate theoretically restricts Congress' ability to delegate to the Executive branch its power to make law. However, courts have allowed agencies rule-making authority to create law so long as Congress has passed an authorizing statute that provides a(n) _____________ to guide the agency.
intelligible principle
A government entity exercises what power in bringing a public nuisance suit?
police power
personal injury
right not to be harmed by others
Riparian
right to use water
To establish a claim in a private nuisance claim, a Plaintiff must prove what?
substantial harm
To which category of water does the English common law apply the rule of absolute ownership:
surface water not in defined channels (sheet flow)
The US Constitution's 10th Amendment reserves police powers to the states to protect the health and welfare of their residents. A federal law will not withstand constitutional scrutiny if it fails which three (3) part test below?
the federal law regulates the 1) state as a state (rather than private individual), 2) the federal law regulates a matter normally within the state's police power, and 3) the federal law impairs the states exercise of its normal police powers
Who or what entity generally brings a public nuisance action?
the government
Appellee
the party against whom the appeal is taken
Article IV
the roles of the states
A zoning decision is more likely to be upheld if what?
zoning decisions follow a comprehensive plan
Under strict scrutiny review, a law must advance a(n) ________ _state interest and ___________ that interest.
"compelling" and "be narrowly tailored to achieve"
Under intermediate scrutiny, a law must advance a(n) _____ state interest and _______ that interest.
"important" and "be substantially related to"
Under rational basis review, a law must advance a(n) _______ state interest and ______ that interest.
"legitimate" and "have reasonable link to"
When a final major rule is published in the Federal Register, at what point does it become law?
60 days after publication
In Personam Jurisdiction
A court has jurisdiction over a defendant who has minimum contacts with its geographic jurisdictional boundaries and has been properly served with a summons
Counter-Claimant
A defendant who, also claiming injury by the plaintiff, responds in his or her answer with his or her own claim for relief against plaintiff
Diversity Jurisdiction
A federal court has jurisdiction over a state law matter (a non-federal matter) where the amount in controversy is over $75,000 and the parties reside in different states
Subject-Matter Jurisdiction
A federal district court has jurisdiction over a claim concerning federal law
Which of the following is not considered primary legal authority?
A law review article published by a law school
Which of the following would likely not be considered a major federal action?
A proposal to develop 7000 acres of Chatham County into a mixed use residential development for which no federal permits are required.
In Rem Jurisdiction
A state court has jurisdiction over a case involving property located within its geographic jurisdictional boundaries
Clean Air Act
Administered by EPA
Federal Mine Safety and Health Act
Administered by US dep of labor
National Forest Management Act
Administered by USDA
Endangered Species Act (mammals, reptiles, birds, freshwater fish)
Administered by department of interior
A federal district court may exercise jurisdiction over a challenge under NEPA at which one of these steps?
After the agency has published a finding of no significant impact (FONSI) in the Federal Register
Arbitrary and Capricious
Agency failure to follow a specific statutory directive
Ultra Vires
Agency must act within its statutory authority
Article V
Amending the Constitution
Superior Court
Amounts in controversy above $25,000
Small Claims Court
Amounts in controversy up to $10,000
District court
Amounts in controversy up to $25,000
When considering the appropriate remedies in a private nuisance action, the court must do what?
Balance the harm to the plaintiff with other factors including the economic importance of defendant's activity to the community
How was the Environmental Protection Agency created?
By a "Plan of Reorganization" (for part of federal bureaucracy) presented by President Richard M. Nixon to the U.S. Congress on July 9, 1970
In the case of __________, the U.S. Supreme Court established that federal courts must defer to the agency's interpretation of its means of executing that statute that is otherwise vague on how the agency should implement the purpose of the statute.
Chevron v. NRDC
The U.S. Congress enacted the Coastal Zone Management Act (CZMA) to encourage states to pass legislation to protect their coastal environments. North Carolina's legislation is called ___________________.
Coastal Area Management Act
Assuming that the possession of "approximately 1,300 grams of cocaine and 9,000 grams of marijuana" is also a felony under the federal Controlled Substances Act (21 U.S.C. §801 et seq.), which constitutional concept below best describes why the State of North Carolina was able to prosecute Mr. Adams under the North Carolina Controlled Substances Act, N.C.G.S. §§ 90-86 through 90-113.8 (Supp.1995)?
Concurrent Jurisdiction
What is the named of the agency created by NEPA?
Council on Environmental Quality
