Professor Percival’s Fall 2018 Environmental Law Exam
UNIVERSITY OF MARYLAND
FRANCIS KING CAREY
SCHOOL OF LAW
Day & Evening Divisions December 7, 2018
Professor Percival 6:30 – 9:30 pm
Exam No. Signature: ____________________________________
Print Name: __________________________________
Submitted Electronically Yes_____ No_____
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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.
- (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?
- (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?
- (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?
- (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?
- (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?