Professor Percival’s Fall 2018 Environmental Law Exam



UNIVERSITY OF MARYLAND

FRANCIS KING CAREY

SCHOOL OF LAW


ENVIRONMENTAL LAW


   Three hours


Day & Evening Divisions December 7, 2018

Professor Percival 6:30 – 9:30 pm


Exam No.             Signature: ____________________________________                                   


Print Name: __________________________________


Submitted Electronically  Yes_____     No_____


INSTRUCTIONS:


1. Honor Code. Student conduct, during exams and at all other times, is governed by the Student Honor Code and Law School policies regarding exam conduct and exam submission.


2. Your Name, Your Exam Number and Exam Questions.  Sign and print your name in the blanks above.  Write your Exam Number in the blank above and indicate with a check mark whether you submitted your answer electronically.  Hand in your examination questions at the end of the examination to your proctor (no exceptions).  Failure to immediately turn in your examination questions will be reported to the course professor for possible grade sanctions.


3. Examination Envelopes.  Examination envelopes are only for (a) students who handwrite all or part of an answer to an exam or (b) who use a Scantron answer sheet.  For those students using envelopes, write your exam number, course name and instructor name on the examination envelope.  Do not put exam questions or exam number sheets in the envelopes


4. Time. Submit your examination answers within the announced time for the examination.  Exceeding the time limit for an exam is an Honor Code violation.  Overages will be reported to the course professor for possible grade sanctions, and to the Honor Board as required by the Honor Code.


5. Computer Exams.  Computers may be used on this exam in Open Mode + Network – access to Exam4, student computer-based notes and Internet access. See Specific Instructions and Exam Materials, below, for additional rules about access to materials during the exam.


If you use a computer on this examination, you must use the Exam4 examination-taking software provided by the law school.  You must have your own laptop computer and must have downloaded the Fall 2018 version of the Exam4 software to your computer.  You should have completed this download, tested the software, and verified your computer’s compatibility well before the date of this exam. No extra time is awarded to download Exam4.


When you are instructed by the proctor to begin the exam, you must immediately click to “Begin Exam” in the software.  At the end of the examination, click on the tab “End Exam” and choose “End Exam Now” and follow any additional prompts.  The font will turn blue when you have ended the exam properly.    Once you have ended the exam, you will follow the prompt to "Submit Electronically" on the Exam4 software. When you are successful, you will see a green confirmation box.  You should confirm that your exam was successfully submitted. 


Submit your answer within the time limits for the examination; no allowance for additional time will be given for equipment failure or student delay.  Exam answers submitted beyond the allotted time will be reported to the course professor for possible grade sanctions, and to the Honor Board as required by the Honor Code.  You must turn in your exam questions at the end of the exam.  The Law Registrar will print your Exam4 answers for your instructor.


Technological Problems: If you experience a technological problem during the exam, consider the amount of time remaining and decide whether you should continue (or restart) the examination in blue books. No additional time will be provided for technological problems. Responsibility for submitting your answers on time electronically lies solely with you.  The Information Technology (IT) Department will assist in retrieving examination files from your computer, and the Law Registrar will accept an IT-certified copy of an examination file retrieved from your computer as timely, as long as there is no evidence of tampering in any way. 


Exam Related Problems (non-technical):  You should communicate any non-technical issues only with the Law Registrar.  Under no circumstances are you to contact your faculty member for the course.  This is a direct violation of the Honor Code.


6. Handwritten Exams.  If you submit handwritten answers to the examination, put your examination number on each of your blue book answers to the examination.  Both the envelope and your answers should contain your examination number, the course name, and the instructor's name.  Do not put your name anywhere on the blue book answers or the examination envelope.


Upon completion of the examination, put your answers in the envelope and hand in the envelope to the examination proctor. Be sure to place all of your answers in the envelope—you will be graded on only what is inside the envelope.   Do not put the examination questions in the envelope as that constitutes an Honor Code violation. Hand in the questions separately to the examination proctor.  You are responsible for ensuring that all of your completed answers and questions are handed in to the examination proctor.


7. Exam Question Clarity. If any facts are not clear, or if there is information you deem critical that is not stated explicitly, identify those facts or missing information and explain how they affect your legal analysis.


8. Specific Instructions and Examination Materials. You are permitted to consult the course materials and any material created by you (e.g., class notes and outlines), but not commercial treatises. There are three questions.  ANSWER ALL THREE.  Each question has five subparts worth six points each for a total of 30 points per question and 90 points for all three. 


QUESTION ONE

(30 points)


As discussed in Chapter 1, for several decades environmentalists battled to prevent opening of the Arctic National Wildlife Refuge to oil drilling.  However, as discussed in class, on December 22, 2017, President Trump signed into law the Tax Cut and Jobs Act of 2017, which contains a provision opening the Arctic National Wildlife Refuge (ANWR) to oil drilling. By including the provision in tax legislation, proponents of drilling in ANWR were able to avoid a Senate filibuster and approve the drilling by a 51-49 Senate vote, despite polls showing that 70% of U.S. citizens opposed it. 


On Monday December 3, 2018, the New York Times reported that the Trump administration is rushing to jump start oil drilling in ANWR by accelerating environmental reviews that are necessary before drilling permits can be issued. Henry Fountain and Steve Eder, “In the Blink of an Eye, a Hunt for Oil Threatens Pristine Alaska,” N.Y. Times, Dec. 3, 2018, https://www.nytimes.com/2018/12/03/us/oil-drilling-arctic-national-wildlife-refuge.html. The article reports that during the Obama administration “the environmental review of drilling prospects in another part of Alaska ran well over 1,000 pages and took two and a half years to complete.” However, the Trump administration is planning to complete an environmental impact statement (EIS) for drilling in ANWR by next spring, one year after it started the process, and to limit the EIS to a few hundred pages. Interior Department officials argue that it is possible to accelerate the review process because ANWR has been extensively studied in the past.  However, scientists with the U.S. Fish and Wildlife Service report that the process has been so rushed that they often had less than 48 hours to comment on drafts and that their comments have been ignored. To further accelerate approval of seismic testing for oil, the Interior Department is performing an environmental assessment (EA) of the impact of such testing, a process that it expects to complete in only a few months.


1.(6 points) (A) Why is preparation of an environmental impact statement (EIS) legally required before the Interior Department can approve drilling in ANWR?  What is an environmental assessment (EA) and why would the Interior Department perform one? (B) On what grounds, if any, could environmentalists challenge the legality of a decision quickly to approve drilling?  How likely is such a challenge to succeed?


2.(6 points) As discussed in the casebook, members of the Gwich’in native tribe, who live closest to ANWR, fiercely oppose drilling there, while members of the Inupiat native tribe, who live further away but will benefit financially from it, generally support drilling. (A) Does opening ANWR to drilling raise any environmental justice concerns? (B) If it does, what legal remedies, if any, are available to vindicate environmental justice concerns? 


3.(6 points) Suppose that drilling in ANWR commences and a pipeline transporting oil from the area accidentally breaks. Oil leaks from the pipeline through soil into groundwater closely connected hydrologically to “navigable waters” where the oil quickly emerges. (A) Is this a violation of Section 402 of the Clean Water Act because it constitutes discharging a pollutant into navigable waters without a permit?  Why or why not?  (B) Putting aside the controversial question of the proper scope of the “waters of the United States,” what relevance, if any, to this question does Justice Scalia’s plurality opinion in Rapanos v. United States have to this question?


4.(6 points) Assume for purposes of this question that the oil company owning the pipeline has violated Section 402 of the Clean Water Act, as described in subpart 3 of this question. (A) Can it be held criminally liable for a “knowing” violation of the Clean Water Act? (B) What must be shown to prove a “knowing” violation of the Clean Water Act that would support a criminal prosecution?


5.(6 points) If a company drilling in ANWR stores oil in an open pit that attracts numerous birds who land on it and die, (A) under what circumstances, if any, has the company violated the Endangered Species Act? or the Migratory Bird Treaty Act? (B) How likely is it that the company would be prosecuted for violations of each of these Acts?


QUESTION TWO

(30 points)


Unlike the constitutions of most other countries, the U.S. constitution has no provision that specifically addresses protection of the environment.  Yet, as we have seen in this class, constitutional issues frequently arise in environmental litigation.  Standing is a constitutional issue and challenges often have been made to the constitutional authority of Congress to regulate to protect the environment.  In Juliana v. United States a group of 21 young people allege that the federal government violated their substantive due process rights to life, liberty, and property because federal officials knew about the dangers of climate change for more than 50 years, but promoted the use of fossil fuels, increasing greenhouse gas emissions. The plaintiffs maintain that they have standing to sue the federal government because they already are being harmed by the effects of global warming and climate change.  The federal government maintains that the plaintiffs lack standing because they raise a generalized grievance since everyone could be affected by climate change and because they will be unable to prove significant causal injury at trial that can be redressed by a single federal judge.


On November 10, 2016, federal district judge Ann Aiken rejected the federal government’s motion to dismiss the lawsuit, holding that if the plaintiffs can prove the allegations of their complaint at trial they have standing to sue. (Because this decision in Juliana was optional reading only it is not necessary for you to have read it in order to correctly answer any of the questions below). After several unsuccessful attempts by the federal government to obtain a writ of mandamus blocking the trial and temporary stays by both the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit, Judge Aiken now reluctantly has agreed to certify her decision for an interlocutory appeal prior to any trial.  The Ninth Circuit will review her decision upholding the standing of the plaintiffs.


1. (6 points) (A) Would a decision by the Ninth Circuit holding that the plaintiffs in Juliana lack standing to sue be consistent with the Supreme Court’s decision in Massachusetts v. EPA (casebook, p. 122)? Why or why not? (B) Would it be consistent with the Court’s decision in Lujan v. Defenders of Wildlife (casebook, p. 1159)? Why or why not?


2.(6 points) Does the U.S. need a constitutional amendment granting Congress specific constitutional authority to protect endangered species?  Why or why not?


3.(6 points) (A) What was the nature of the constitutional issue Justice Rehnquist sought to raise in Industrial Union Department, AFL-CIO v. American Petroleum Institute (casebook, p. 218) and how successful was he?  (B) In which subsequent environmental case that we read did this same constitutional issue resurface and how was it then resolved?


4.(6 points) What was the nature of the constitutional challenge brought by the General Electric Corporation to EPA’s unilateral administrative order requiring it to dredge the Hudson River to remove PCB contamination in GE v. Jackson (casebook, p. 415)?  How did the U.S. Court of Appeals for the D.C. Circuit ultimately rule in this case and why?


5.(6 points) What was the nature of the constitutional challenge brought by property owners to Florida’s Beachfront Restoration Act in Stop the Beach Renourishment v. Florida Department of Environmental Protection (casebook, p. 899)?  How did the U.S. Supreme Court ultimately rule in this case and why?



QUESTION THREE

(30 points)


As you recall from Chapter 2, in 1984 the U.S. Supreme Court decided Chevron, USA v. Natural Resources Defense Council (casebook, p. 193), a case involving EPA’s then-new “bubble policy” interpreting a provision of the Clean Air Act.  In the Chevron decision, which has become the most-cited case in the history of administrative law, the Court announced a doctrine of judicial deference for courts reviewing the legality of agency actions.  What has come to be known as the “Chevron doctrine” states that reviewing courts should defer to reasonable agency interpretations of ambiguous statutory provisions. 


During the last two years two new Justices who have been fierce critics of Chevron deference – Justices Gorsuch and Kavanaugh – have joined the Court.  Justice Clarence Thomas has stated that “Chevron deference raises serious separation-of-powers concerns.”  In October 2017 Chief Justice Roberts and Justice Alito joined Justice Gorsuch in criticizing Chevron in a dissent from denial of cert in another case. Many observers believe that the Supreme Court eventually will overrule Chevron and hold that reviewing courts need not defer to reasonable agency interpretations of statutory terms. University of Chicago law professor Dan Hemel has even suggested that the Court may not need to overturn Chevron because litigants already are eschewing Chevron arguments when appearing before it. Hemel, “Argument Analysis: Hating on Chevron,” http://www.scotusblog.com/2018/11/argument-analysis-hating-on-chevron/ ).


1.(6 points) (A) In American Mining Congress v. EPA (casebook, p. 369) what was the issue of statutory interpretation and why (or why not) was Chevron deference applied? (B) Why did the majority and the dissent in this D.C. Circuit decision disagree over whether or not Chevron deference should be applied?


2.(6 points) (A) In Massachusetts v. EPA (casebook, p. 532) what the issue of statutory interpretation decided by the Supreme Court and how was it decided? (B) Why did the Court reject EPA’s interpretation of the Clean Air Act, which had been founded on a previous Supreme Court decision in FDA v. Brown & Williamson Tobacco Corp., a case in which the Court had refused an agency’s request for Chevron deference?


3.(6 points) (A) How did Chevron deference factor into the Supreme Court’s decision in EPA v. EME Homer City Generation, LP (casebook, p. 647)? (B) How do you think the case would have been decided if the Chevron doctrine had been overturned by the U.S. Supreme Court?


4.(6 points) (A) In United States v. Riverside Bayview Homes (casebook, p. 674) what was the issue of statutory interpretation and why (or why not) was Chevron deference applied? (B) How do you think the case would have been decided if the Chevron doctrine had been overturned by the U.S. Supreme Court?


5.(6 points) (A) In Solid Waste Agency of Northern County v. U.S. Army Corps of Engineers (SWANCC) (casebook, p. 679) what was the issue of statutory interpretation and why (or why not) was Chevron deference applied? (B) Is the SWANCC Court majority’s decision in consistent with Riverside Bayview Homes in its treatment of Chevron deference?