Syllabus – Environmental Law/ Professor Flatt, T,W,Th, 1:00 – 1:55

Office hours, T,W 10:30-11:45, or by appointment

 

 

 

 

Textbook: Funk, Johnston, and Flatt, Legal Protection of the Environment, 2nd Edition

West, Selected Environmental Statutes

 

This course provides an overview of the major environmental laws and accompanying regulations.  “Environmental Law” is one of the largest bodies of substantive law that now exists, and it is therefore impossible to teach the whole thing comprehensively in one semester.  However, this course will teach you the major ways in which environmental legislation works, the various justifications for environmental legislation, and some of the possible changes that will come from our legislatures.  It will also focus on how these laws are put into practice by agencies, specifically the Environmental Protection Agency.

 

Since environmental law is not generally based on the common law, understanding environmental law depends less on cases than on the statutes, regulations, and the policies behind those statutes and regulations.  In practice, environmental issues are often resolved by convincing the administrative agency (the EPA or a state equivalent) of a certain interpretation of a law or a regulation, and the ability to make these arguments depends upon understanding the policies and reasons behind our environmental laws and regulations.  We will therefore touch on some concepts of administrative law.  Where appropriate, I will try to give “practical” information on the practice of environmental law, but the most practical thing that you can learn at this point is a working overview of the entire environmental scheme.  When you are in practice (even if, perhaps especially if, your practice is a general one) it is most important that you be able to recognize environmental issues and know how to find the information to address them, rather than trying to memorize whole sections of statutes or regulations.

 

Because environmental law is based on policy concepts more than a history of judge made law, understanding it requires a full discussion and exploration of the issues.  Therefore, meaningful contributions are expected in class.  Moreover, at all times remember to keep a professional demeanor.  Classroom discussion should always be respectful.   Since our class is large, engagement will be more difficult, but I want everyone to stay abreast of the readings and discussions.  After the first week, I will assign specific groups to be in charge of intensive reading and studying of the assignments.  Though everyone should read the assignment and be prepared, these groups will be primarily responsible for being “on” in class.  If Assignments are made for more than one day, THE ENTIRE READING SHOULD BE PREPARED FOR THE FIRST DAY.         

 

Laptops are permitted in class, but may be used only for note taking and reference to relevant law.   I expect that you will not play games (including solitaire), use Instant Messenger, read e-mail, or access the Web during class. Blackberries, and other similar portable information access devices, including cell phones, are not to be used or turned on.  If you truly have an emergency that requires you to be reached in class, please let me know and we will discuss it before class.   Because failure to follow these rules disrupts the class learning experience by distracting me and others, violations of this policy will result in a lowering of your grade. 

 

 

 

Your grade will be based on a final, but meaningful class participation may help your grade, while insufficient participation, preparation or attendance (particularly when your groups is assigned) will hurt your grade.

 

 

Aug. 26, 27 – Introduction

-         What Environmental Law is and IS NOT

-         Theories and Issues concerning environmental protection

 

Assignment – Text: 1-35;

 

 

Aug. 28, Sept. 2

            Sources of Authority for legislating environmental law

 

Assignment -  Text: 35-59, 69-79

 

Sept. 3, 4

            Administration of Environmental Law

 

Assignment:  Text: 79-90; first 24 pages of the Carol Rose article, “Rethinking Environmental Controls,” 1991 Duke L. Journal 1  (try to print out in PDF or photocopy directly from the law review (we have permission) as there are graphs that don’t come through in some formats).

 

Sept. 9, 10

 

 

I.          Consideration of the Environment

                        A.    NEPA

                                    Differences with pollution control laws

                                    The NEPA process

                                    Is an EIS Required

Assignment – Text 91-113

 

Sept. 11

            NEPA continued

                        EIS Adequacy

                        State Env. Policy Acts

                        Effects on Environment

 

Assignment – Text 113-137

 

Sept. 16, 17

 

II.                 Major Substantive Laws - the Clean Air Act

                        A.        The problem and overview

                        B.         Criteria pollutants

 

Assignment: Text 222-252; statutory supplement, 42 U.S.C. Secs. 7408-09

 

Sept. 18

                         

                        C.        ambient stds.

                         

 

SIDEBAR: scientific uncertainty and environmental law - administrative difficulty of establishing and defending scientific health levels in the CAA (and other env. Laws)

 

Assignment:  Text 252-266; statutory supplement, 42 U.S.C. Secs. 7408-09

 

 

 

Sept. 23, 24

 

D.     State Implementation Plans (SIPS)

1.   establishment of stds.

2.   Feasibility and use of land use control/ growth mgmt.

3.   Issue and implication of varying state stds.

4.   -effects of SIPS on other states

5.   Non-attainment

 

Assignment: Text  262-287; also go on the internet and find reporting and information on air quality in North Carolina and the North Carolina SIP (we will be accessing the internet in class on this assignment)

 

 

Sept. 25 - New Source Performance Stds. for stationary sources

 

Assignment:  Text 287-303; CAA Secs. 111, 160-169b.

 

Sept. 30, Oct. 1 – New Source Review and Prevention of Significant Deterioration

 

Assignment:  Text  303-339,

 

Oct. 2, Oct. 7   Overturning the Clean Air Interstate Rule (CAIR) – how does the DC Circuit view EPA’s administrative plans – the future of SIPs, state spillover, NSR:

 

OCT 7, reserve noon-1:00 that day as class may also meet to have longer discussion and allow SELC to participate.  This will make up for a missed class later.  More information to follow.

 

(guest speaker, SELC – where now? – Oct. 7)

 

Assignment:  Read: North Carolina v. EPA, decided, July 11, 2008 (to be handed out)

 

 

Oct. 8  Visibility Impairment, Mobile Sources (early class  - at lunchtime noon – you can bring lunch – make up for Oct. 9);

 

Assignment: pp. 351-358, skim 379-88

 

Oct. 8  Hazardous Air Pollutants (second class normal class time)

 

Assignment: Text 339-351

 

Note: we will not be having class on Thursday, Oct. 9, Tuesday, Oct. 14, or Weds, Oct. 15 (before Fall break, which begins on Oct. 15 after classes) – Professor delivers UCL public lecture

 

 

Oct. 21   Clean Air Act, Enforcement and Permitting; Acid deposition control and market based controls; CAA review (to make up for missed classes, class will begin early, at 12:45)

 

Assignment: Text 358-379, 388-392

 

Oct. 22-  Clean Water Act

- Enforcement of Direct Controls/ NPDES program

- What is an “addition of pollution to navigable waters?”

 

Assignment:  138-159

 

Oct. 23 – CWA continued

- federal/state relationship – enforcement programs

- requirements for permits; enforcement on permitted sources

 

 

Assignment: Text: 159-187

 

Oct. 28 - CWA continued

- water quality concerns and non-point sources

- TMDLs

 

Assignment:  Text 187-221

 

Oct. 29             Wetlands (class will begin earlier, at 12:45 for class make-up)

- What is a “wetland fill”? Jurisdiction

 

Assignment: 666-698

 

 

Oct. 30 – wetlands continued

  What qualifies for permitting., cont.

-What is the wetland permitting process?

- Nationwide and general permits

 

Assignment:  Text  698-722

 

Nov. 4-  Hazardous Waste Overview/RCRA (class will start early, 12:45, to make up for missed classes)

- ID of Haz waste

 

 

Assignment:  Text 393-412

 

Nov. 5 – RCRA – Regulatory Program

 

Assignment:   Text 412-425

 

Nov. 6  - CERCLA

- Overview

- Who is liable

- scope of liability

 

Assignment:  Text 522-551

 

Nov. 11 – CERCLA cont. (CLASS WILL START EARLY 12:45 to make up for missed class times on Nov. 13)           

- defenses

- brownfields

- the process

- settlements

-recovery and contribution

 

Assignment:  Text 556-587

 

Nov. 12 - Endangered Species Act (class begins early 12:45 because of missed class on Nov. 13)

                        The reality of disappearing species

                        Listing

                        Critical habitat/ other listing issues

 

Assignment 601-625

 

Nov. 13 – no class – Professor hosts Carbon Trading Workshop in DC

 

Nov. 18 -  ESA – Section 7 and Section 9

 

Assignment:  625-666

 

Nov. 19 - Enforcement of Environmental laws

 

Assignment 426-469

 

Nov. 20 – Citizens Suits

 

Assignment:  475 – 487, 497-521

 

Nov. 25 – last day of classes - review