ENVIRONMENTAL LAW & POLICY
PROFESSORS RAMO AND KANG
FINAL EXAMINATION
FALL 2002
INSTRUCTIONS
1. This is a partially open-book examination. You may only use the casebook, the
statutory supplement, the course supplement, any materials distributed in class, and
your own notes. You may not use commercial outlines or any notes or materials
prepared by anyone other than yourself.
2. This is a three (3) hour exam, consisting of three (3) questions.
3. Grading for the three questions is weighted according to the time allocated for
each question. Please be certain to allocate your time accordingly. Also, be sure to
manage your time so you can answer all questions. We suggest that you read the
questions first and briefly outline the issues before you begin to write. We have left a
significant margin for you to outline on the exam itself.
4. In addition to issue spotting, we expect you to analyze and apply the various rules and
principles. We expect you to discuss general statutory and regulatory provisions (not
necessarily precise sections or subparts). If there are insufficient facts for you to
answer the question fully, please state what additional facts you would need to answer
the question.
5. Please write your answers on only one side of the page, using every other line. Please
write legibly. If you are typing your exam, the exam administrators will double-space
your exam when they are printed out.
6. Please use separate bluebooks for each question.
7. Write your exam number on your exam envelope, all used blue books, and at the top
of this exam packet. Do not use your name, student ID number, or Social Security
Number on any exam materials.
GOOD LUCK!
QUESTION I (Recommended time: 2 hours or
120 minutes)
Armada International Airport (AIA), owned and operated by the City of Armada, California, is located
immediately east of Armada Bay, south of Armada Wilderness Park, an international park, and bordered
on other sides by privately owned industrial complexes. Armada Bay is scenic and is fished by sports and
subsistence fishers alike. The Wilderness Park is famous for its grand vistas accessible only from roadways
going through the park. (The roadways do not allow pedestrian traffic.) The City of Armada is itself scenic
and has been attracting Bay Area and Los Angeles area residents fleeing exorbitant real estate prices. The
city refugees also find the area attractive because it is in an air quality region that has attained the federal
standards for all criteria pollutants.
AIA is a major hub for a national airline and is served by two active runways. Due to the extremely narrow
separation between the runways, AIA currently uses one exclusively for arrivals and the other exclusively for
departures, reducing capacity and increasing airfield complexity. Studies conducted by the City and the
Federal Aviation Administration (FAA) indicate that modernization is required to alleviate safety risks and to
meet future regional and national air travel needs. (Assume that, by federal law, the FAA must approve and
permit any reconfiguration or expansion of airports.)
After evaluating various airfield and air traffic alternatives, the City issued its Airport Master Plan, a
document the City is required to generate under its own laws. The Master Plan proposes the following:
· Relocation of one of the two narrowly spaced runways and addition of three other<
runways, as well as roads to serve increased traffic to the airport
· Filling of 35 acres of Armada Bay to accommodate the relocation and addition of the
runways
· Acquisition of 20 acres of extremely productive wetlands across the Bay (12 miles away)
belonging now to developers and transfer of the wetlands to the federal government for
preservation
· Construction of a generator (to generate electricity) to support expanded airport
activities. Uncontrolled emissions from the generator are estimated to be 1,000 tons of
PM10 per year. Miraculously, the generator would not emit any other pollutants.
Recently, the FAA informed the City that it is intending to issue an Environmental Assessment (EA) for
the City's implementation of the Master Plan. Such an EA would conclude that the acquisition of the
wetlands proposed in the Master Plan would adequately compensate for filling 35 acres of the Bay. The
FAA would then issue a Finding of No Significant Impact (FONSI), properly giving notice to the public.
(There are no issues in this question about joint preparation by the City and FAA of environmental
documents.)
Save Our Parks (SOPs) is a membership-based environmental organization that has been voicing its
concerns over what it calls the largest fill project in the Bay ever. SOPs' members do not drive because they
believe mobile pollution is evil, and therefore they do not ever get to enjoy the vistas from the Park, but
they volunteer at the Park, clearing non-native vegetation, reintroducing native plants and contributing
money and equipment for the betterment of the Park.
You are an Assistant City Attorney in the environmental division. The City Attorney, a graduate of
GGU Law, has asked you to write a memorandum on the following issues:
A. To implement the Master Plan, does the City need to obtain any permits and/or certifications
under the environmental statutes that the GGU Environmental Law & Policy course covers?
B. Assess whether the FONSI can be challenged on any ground by an environmental group
and analyze the likelihood of success of such an action.
C. Assume for the moment that the City (or FAA) fails to comply with one of the statutes you
discuss in your memorandum. Would SOPs have standing to bring a case challenging such
action by the City (or FAA)? (Pick one situation and discuss.)
QUESTION II
(Recommended time: 30 minutes)
ENROX Power Company operates a natural gas power plant on the banks of the Arsenia River. It takes
in river water to cool the power plant and then discharges the heated water into the river. An NPDES
permit that prohibits toxic chemicals from being released into the river governs the discharge.
Mr. Pristine is the plant environmental specialist. He has no operational responsibilities. While performing
an internal environmental audit, he discovers that due to a pipe break, an ammonia tank is leaking into the
cooling water and being discharged. Ammonia is a toxic chemical that is prohibited from being discharged
by the NPDES permit. Pristine calls the Plant manager, Ms. Dutiful, and Pristine tells Dutiful, "We need to
shut down for a day until we can fix the pipe break."
Ms. Dutiful then gets a call from Ms. Bucks, ENROX's Corporate Environmental Manager, at corporate
headquarters. Bucks says, "We just got a new contract to sell electricity to a nearby refinery, and they can
take as much electricity as we can produce at high prices. So run the power plant at full blast, and I don't
want to hear any excuses." Dutiful never tells Bucks about the ammonia.
Dutiful does not order a shutdown, because she wrongly thinks the law allows her to violate
environmental laws if there is a need for electricity. As a result, ammonia is discharged into the river at
harmful levels to anyone swimming in the area. Mr. Pristine notices that the facility still is operating but
takes no further action. The discharges and all circumstances are reported by Pristine with the next
quarterly discharge monitoring report to EPA.
When EPA gets the report, it goes to the US attorney and asks for a criminal prosecution of Pristine,
Dutiful and Bucks under two provisions of the Clean Water Act:
1. No person shall knowingly violate an NPDES permit (penalty: max $50,000 per day of
violation, no more than 3 years imprisonment);
2. No person shall knowingly violate an NPDES permit who knows at that time that he or she
thereby places another person in imminent danger of death or serious bodily injury (penalty: max
$250,000, no more than 15 years imprisonment).
You are the US Attorney. Should you prosecute each one under each provision? Explain your
answer. If you do prosecute and succeed in getting guilty verdicts, who should get the most
stringent penalty? Pristine, Dutiful and Bucks have never been charged with a crime before.
QUESTION III
(Recommended time: 30 minutes)
The San Francisco 49ers, a pro football team, has won the right to lease a portion of the US Navy's
Hunters Point shipyard and build a new stadium. The 49ers discover that 100 endangered Clapper Rail
birds normally found only in South San Francisco Bay, like the old dry dock at the shipyard and have taken
residence in it. There are 1,000 such birds in the entire San Francisco Bay.
The 49ers plan to build parking where the dry dock is located, so they propose to capture the birds, and
take them to the South Bay locations where the other birds are. The US Fish and Wildlife Service (FWS),
called in to consult with the Navy, informally tells the Navy that the relocation will result in the immediate
death of 10 of the birds and the rest may not survive over the long run, given the limited habitat now
available in the South Bay. The FWS agrees to permit an incidental take so long as no more than 10 birds
are killed during the act of relocation. The 49ers don't want to kill any birds; they just want to build their
parking lot.
The Navy goes ahead and leases the property to the 49ers. The relocation plan is about to begin, when an
organization, Friends of the Clapper, sues in Federal District Court and seeks a temporary restraining order
to stop the plan under the provisions of the Endangered Species Act covered in the GGU Environmental
Law and Policy course.
You are the judge. The issues are whether the plaintiff is likely to prevail and whether there is imminent
harm. What is your ruling?