Environmental Law and Policy Midterm

Commerce Clause

- The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. - Congress has often used the Commerce Clause to justify exercising legislative power over the activities of states and their citizens, leading to significant and ongoing controversy regarding the balance of power between the federal government and the states.

Takings Clause of the Fifth Amendment

- The Takings Clause of the Fifth Amendment to the United States Constitution reads as follows: "Nor shall private property be taken for public use, without just compensation." - We agree that the Clause is intended to uphold the principle that the government should not single out isolated individuals to bear excessive burdens, even in support of an important public good. When this happens, the payment of "just compensation" provides a means of removing any special burden.

Environmental justice framework

- The environmental justice framework is a growing approach that calls for the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income. - The environmental justice framework rests on developing tools and strategies to eliminate unfair, unjust, and inequitable conditions and decisions. The framework also attempts to uncover the underlying assumptions that may contribute to and produce differential exposure and unequal protection.

Utilitarianism framework

- The utilitarian approach is all about a cost benefit analysis and it determines policy based on whether benefits exceed the cost. This framework looks at a few different things like morality/fairness or practicalities/pricing - Utilitarianism is a theory of morality that advocates actions that foster happiness or pleasure and oppose actions that cause unhappiness or harm. When directed toward making social, economic, or political decisions, a utilitarian philosophy would aim for the betterment of society as a whole. - Utilitarianism would say that an action is right if it results in the happiness of the greatest number of people in a society or a group.

Environmental rights framework

- There are many different types of environmental rights that encompass the general framework. - Environmental rights means any proclamation of a human right to environmental conditions of a specified quality. - Human rights and the environment are intertwined; human rights cannot be enjoyed without a safe, clean and healthy environment; and sustainable environmental governance cannot exist without the establishment of and respect for human rights. - composed of substantive rights (fundamental rights) and procedural rights (tools used to achieve substantial rights)

Prevention of significant deterioration area (PSD)

1977 amendments to the Clean Air Act implemented the Prevention of Significant Deterioration program to ensure that air quality does not degrade significantly in areas that are already in compliance with the NAAQS. When an area is in compliance with the NAAQS for a specific pollutant, EPA will establish an increment that limits how much that pollutant can increase in the ambient air, making it a PSD area.

Montreal Protocol

The Montreal Protocol was a 1987 UN agreement aiming to eliminate the use of CFCs due to their impacts on the ozone layer. Signatories agreed to freeze production and consumption of CFCs, monitor their consumption and phase down their consumption, and implement strict trade restrictions on CFCs.

Paris Accord

The Paris Accord is an agreement signed in 2015 by 197 countries with the goal of keeping global temperature increase below 2℃. Signatories agreed to make a Nationally Determined Contribution to the global effort every five years, preserve carbon sinks and reservoirs, cooperate on adaptation strategies, pool resources for developing countries, and contribute to reports on progress every five years.

Finding of No Significant Impact (FONSI)

The FONSI is a document that explains the reasons why an action will not have a significant effect on the human environment and, why, therefore, an EIS will not be required. This FONSI is a stand-alone document but is attached to the Environmental Assessment (EA) and incorporates the EA by reference

New Source Review (NSR)

- A Clean Air Act requirement that State Implementation Plans must include a permit review that applies to the construction and operation of new and modified stationary sources in nonattainment areas to ensure attainment of national ambient air quality standards. - EPA is directed to more stringently regulate major new sources, including major modifications of existing sources, in order to force technological advances, avoid state competition, and make continual progress on improving air quality. New Source Review is the process by which EPA establishes emission limits on new sources, and the agency uses new source performance standards (NSPS), which set floors on individual source emissions for different categories of facilities, to set the emission standards. Major new sources and modifications are subject to more stringent requirements than NSPS.

Nonattainment area

- A region where detected concentrations of one or more criteria pollutants exceed the limits specified in the EPA's primary standards. - The Clean Air Act requires compliance with NAAQS, but the EPA's ability to force compliance is limited, resulting in amendments in 1990 that broke down areas that were not in compliance (aka non-attainment areas) into give categories: marginal, moderate, serious, severe, and extreme. Non-attainment areas are designated by individual pollutant, not just overall air quality, and the annual reduction targets are proportional to the severity of the non-attainment categories.

State Implementation Plan (SIP)

- An EPA-approved procedure outlining how a state intends to implement, monitor, and enforce the NAAQS and the NESHAP. - Under the Clean Air Act, each state must submit a SIP to the EPA that outlines the implementation, maintenance, and enforcement of NAAQS for each criteria air pollutant in each air quality control region in the state. SIPs must be individualized and based on local conditions and strategies for monitoring and enforcement.

Environmental Assessment (EA)

- An environmental assessment (EA) is done to determine whether or not an action is a "major federal action significantly affecting the quality of the human environment." - An EA operates as a quick and dirty review and, if it suggests no EIS is necessary, the agency will issue a FONSI. Agencies can often use the EA process to reach a finding of no significant impact by including mitigation measures, known as a "mitigated FONSI"

National Ambient Air Quality Standards (NAAQS)

- Set for each criteria pollutant at a level that must "protect the public health" with an "adequate margin of safety." The NAAQS levels must be based solely on health considerations - the agency may not consider economic or technical feasibility. - Two types of NAAQS: (1) Primary standards, protect h-human health (2) Secondary standards, protect the public welfare, broadly defined to include effects on animals, wildlife, water, and visibility

Environmental impact statement (EIS)

- Statement that considers the environmental impact of the proposed action and the alternatives to the proposed action - Courts have interpreted National Environmental Policy Act (NEPA) to require the agency to (1) to prepare a proper EIS (2) consider the relevant environmental issues in the agency's decision making process - agency not required to choose the best environmental alternative or to minimize the environmental impact of action it selects

Administrative Procedure Act (APA)

- The Administrative Procedure Act (APA) governs the process by which federal agencies develop and issue regulations - Passed in 1984, the APA operates for agencies in some respects the way the rules of civil procedure do for trial judges and lawyers. The APA sets out procedures agencies must follow when promulgating rules and adjudicating conflicts. It also establishes the standard of judicial review when agencies are challenged in court.

Criteria air pollutants

- The Clean Air Act requires EPA to set National Ambient Air Quality Standards (NAAQS) for six common air pollutants (also known as "criteria air pollutants"). These pollutants are found all over the U.S. They can harm your health and the environment, and cause property damage. - Carbon monoxide, lead, ground-level ozone, particulate matter, nitrogen dioxide, and sulfur dioxide

Judicial review standard

A standard of review prescribes the degree of deference given by the reviewing court to the actions or decisions under review and describes the authority of the reviewing court to determine the severity of error in the decision of the lower court or agency and whether that error reaches a reversible level

Chevron deference

An administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. A result of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

climate change

Climate change is the process by which the earth is gradually warming, resulting in a variety of changes in earth's ecosystems and weather patterns, including increased extreme weather events, reduced biodiversity, and global sea level rise. Climate change is the result of increased greenhouse gas emissions since the Industrial Revolution.

Tragedy of the Commons

Idea that what's good for the individual is not necessarily good for society, there is a conflict between society needs and individual desires

Citizen Suits

In the United States, a citizen suit is a lawsuit by a private citizen to enforce a statute. Citizen suits are particularly common in the field of environmental law.

ozone depletion

In the 1970s, scientists noticed that the ozone layer was significantly thinning over Antarctica, which was resulting in increased UV-B radiation levels on earth. CFCs were identified as a major contributor to the observed ozone depletion, and as a result, the Vienna Convention and Montreal Protocol took steps to eliminate the use of CFCs to help restore the ozone layer.

Scientific Uncertainty

Scientific uncertainty means that there is a range of possible values and that most of the science is unsure; very few issues are ever proven 100% (beyond a reasonable doubt). The best way to respond to this is to understand the precautionary principle, this means to take action to reduce the risk of serious/irreversible harm and shift the burden of proof.

Sustainable development framework

Sustainable development framework generally describes the integration of development goals with environmental protection while understanding growth is not the same as development. This framework focuses on both intra- and inter- generational equity.

National emission standards for hazardous air pollutants (NESHAPs)

The 1970 Clean Air Act required the EPA to list out hazardous air pollutants and set emission standards (NESHAPs) that would provide a margin of safety to protect human health. NESHAPs are measured at the source of the hazardous air pollutants, rather than in the ambient air like critical air pollutants. 1990 amendments made it easier for EPA to set NESHAPs by changing the criteria for emission standards to the maximum degree of reduction that is achievable for each industry category.

Article III Standing

To bring suit in federal court, a plaintiff must have "Article III standing." That is to say, the plaintiff must have a personal stake in the suit's outcome. This is true whether a plaintiff is suing individually or as a member of a class.

Mobile Source Standards

While states have primary control over air pollution regulations, EPA has sole authority to regulate emission standards for mobile sources like cars, trucks, etc., which account for a large portion of greenhouse gas emissions. The Clean Air Act sets national standards for tailpipe emissions, however California has an exemption to set more stringent than the national standards, which other states can also adopt if they want.

Agency rulemaking

​​The policy-making process for Executive and Independent agencies of the Federal government. Agencies use this process to develop and issue Rules (also referred to as "regulations"). The process is governed by laws including but not limited to the Administrative Procedure Act (APA)