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ENVIRONMENTAL ENFORCEMENT
COURSE SYLLABUS

University of Houston Law Center
Spring 2012

Professor Tracy Hester
Office: 215 TUII
Office hours: Tues 9:00 - 10:30 am; Wed 4:00 - 5:00 pm
(713) 743-1152 (work)
(713) 222-3620 (fax)
(832) 868-1680 (cell)
tdheste2@central.uh.edu
tracy.hester@bgllp.com

Course Subject Matter: This course will focus on how agencies and courts enforce environmental laws and the critical role that enforcement plays in assuring compliance and protecting the environment. We will review the principles of civil and criminal liability under environmental laws, assess ways to design effective environmental regulations, examine how federal and state agencies use these tools, and craft techniques to help clients minimize their potential liability. Our examination will center on practical strategies to manage these liabilities particularly in regard to the Clean Air Act, CERCLA, RCRA and the Clean Water Act.

This course will use a combination of lectures, class discussions, in-class exercises and sample problems, and case studies. We will use role-playing exercises to give students experience in real-life enforcement negotiations and prosecutions.  Of course, I expect all students to come to class prepared and to participate in class discussions.

Course objectives: To prepare students to counsel clients on environmental enforcement matters and ways to reduce enforcement risks.  This course will also encourage your awareness of policy issues that shape governmental enforcement decisions and defense strategies.

Reference Materials:  I will rely on this website to provide class readings and assignments.  If requested, I will provide hard copies of readings to students with restricted computer access.  If you are interested in practicing in this area in the future, I will also provide a set of supplemental reference materials through the website. 

Office Hours: My office hours will be on Tuesdays from 9:00 to 10:30 am, and on Wednesdays from 4:00 to 5:00 pm.  I can also rely extensively on e-mail queries to help students.

Grading and Explanation: Final grades will be based on a final exam, class participation, and in-class assignments and exercises. The final will consist of essay questions.  While classroom participation is very important, as per University policy I can only adjust a student's grade up or down one notch (e.g., from a B to a B+) on the basis of class participation.

Attendance:  I will follow the Law Center attendance policy. You will not be allowed to take the final exam unless you attend 80% of the classes. While I will liberally grant excused absences, I cannot grant an excused absence that will drop your total attendance below 80 percent.  Please contact me immediately if personal circumstances will create attendance problems for you.

SCHEDULE

No. Date Topics Guest Speaker(s) Readings Comments
1. Jan. 16, 2012 NO CLASS - MLK Holiday      
1. Jan. 23, 2012

1.  Class Overview; Brief Overview of Environmental Regulatory System

2. Theories of Environmental Enforcement

 

None, although I will provide some handouts.

2.  Readings.

 
2. Jan. 30, 2012 3. & 4.  Overview of Civil Enforcement Process  

3 & 4.  Readings.

Civil Enforcement Powerpoint
3. Feb. 6, 2012

5.  Information Collection Authority

 

5.  Readings.

Environmental Enforcement Databases Handout

10 Tips to Prepare for Search Warrants

Sample CERCLA 104(e) Information Request

U.S. v. Jones, --- U.S. --- (Jan. 23, 2012)

4. Feb. 13, 2012

6.   Administrative Orders, Injunctions and Pre-Enforcement Review (Clean Water Act, CERCLA)

 

6. Readings (for administrative orders discussion)

Sample NOV

Sample CAFO

5. Feb. 20, 2012 7.  Judicial Civil Enforcement - General Concepts   7.  Readings

Sample Complaint (Petition)

Sample Answer

Sample Consent Decree

Federal Consent Decree Fairness Act

6. Feb. 27, 2012

8. Judicial Civil Enforcement as policy tool (greenhouse gas emissions; fracking)

9.  Clean Air Act enforcement -- Guest lecture

Rich Alonso, former Chief, Stationary Enforcement Brach, U.S. EPA Office of Enforcement

8.  Readings.

9. In-Class Handout

Prof. Alonso's lecture
7. March 5, 2012

10 & 11.  Criminal Enforcement Overview; Mens Rea and the Public Welfare Doctrine

 

10. Readings.

11. Readings

 
8. March 19, 2012

12.  Responsible Corporate Officer Doctrine

Roger Haseman, environmental prosecutor, Harris County District Attorney's office

NOTE: CLASS WILL BE HELD IN 144 BLB

12.  Readings

Roger Haseman's Powerpoint Presentation

U.S. v. John Emerson Tuma (indictment)

Environmental Crimes Blog (with daily postings on criminal trial of John Tuma)

9. March 26, 2012

13.  Criminal Negligence

14.  Environmental criminal law culpability, mens rea and affirmative defenses

 

13. Readings

14. Readings

Criminal Enforcement Powerpoint

U.S. Attorney Guidelines for Corporate Prosecution

10. April 2, 2012

15. Review of Sackett Decision

 

16. Citizen Suits and Standing

 

15. Sackett v. United States

 

16.  Readings

Review exercise -- oral argument on hypothetical Ahmad remand:

-  Brief for Petitioner

-  Brief for Respondent

11. April 9, 2012

17.  Punishment:  Sentencing Guidelines, Economic Benefit, Penalty Policies and Supplemental Environmental Projects (SEPs)

18.  Federalism, Delegation and Overfiling

 

17.  Readings.

 

18.  Readings

 
12. April 16, 2012

19.  Enforcement Innovations (Auditing and Self-Disclosure), Audit Privilege Issues

20. Debarment and SEC Reporting

Tim Wilkins, Bracewell & Giuliani, LLP (on audit and self-disclosure issues)

19 and 20.  Readings

 
13. April 23, 2012

21. Bankruptcy in Environmental Enforcement

22. Double Jeopardy, Self-Incrimination and Parallel Proceedings

Steven Cook, Lyondell (on bankruptcy issues)

21. Readings

22.  Readings

Bankruptcy Powerpoint
14. April 30, 2012

23.  Enforcement of International Environmental Law

24.  Environmental Equity Issues in Enforcement (including Role and Status of Victims in Environmental Crimes)

25.  Final Review Session

 

23.  Readings

 

24.  Readings

 

25. In-class

Environmental Justice Powerpoint

15. May 11, 2012

Final Exam - 24-hour take-home examination. You can check out the exam at the reference desk of the UHLC library, and you must submit your exam answers by 5:00 p.m. on May 11.