STATEUNIVERSITY OF NEW YORK AT BUFFALO
School of Law
Environmental Law 2May 10, 2006
Professors Boyer, Meidinger, Shannon and Vallone8:30 a.m.– 12:30 p.m.
INSTRUCTIONS
This is a four-hour take-out exam; while taking the test, you may consult any written materials you wish, but you may not consult any person regarding the test. Some of the questions may be based on actual events or controversies, but facts may well have been modified for testing purposes. As usual, you should assume the facts given in the question are true. Even after you have turned in your answers, please be careful in discussing the test--some class members may have gotten permission to take the test late due to illness, schedule conflict, etc. In responding to each question, keep in mind the question you have been asked, and be sure to explain how and why you have reasoned your way to a particular answer. You have four hours to complete the exam.
The exam consists of ten essay and short-answer questions. Point totals given for each question indicate the relative weight each answer will receive in grading. There are 190 total points on the exam, and 240 total minutes of exam time. Suggested time allocations are included with each question.
Good luck on the exam, have a safe and happy summer, and be sure to get outside and enjoy the environment before the upstate New York climate becomes very similar to Guatemala’s.
Question No. 1. 35 Points, 45 Minutes. Assume that the year is 2010, and that you are an associate in a local law firm that is representing Residents for Lewiston-Porter’s Environment (ROLE). The ModelCity hazardous waste landfill expansion, described in Simulation Problem 7, has progressed through the permitting process to final grant of a permit for the expansion, and ROLE has brought a judicial review proceeding in the New YorkState courts challenging DEC’s approval of the permit. The Appellate Division recently rejected ROLE’s arguments in the opinion set forth below. You have been assigned to prepare a memo outlining possible grounds for seeking a reversal of this decision by the Court of Appeals. Where appropriate, indicate whether you think the arguments you are presenting are likely to prevail.
Per Curiam
Residents Organized for Lewiston-Porter’s Environment (hearafter ROLE) has brought this proceeding pursuant to Article 78 CPLR to review the issuance of a permit by the Department of Environmental Conservation to CWM Chemical Services LLC (CWM) to expand its hazardous waste landfill located in the Town of Lewiston at Model City, New York. ROLE presents two general claims that the permit decision is “affected with an error of law” within the meaning of Article 78 and therefore should be reversed. For the reasons stated below, we affirm the Department’s grant of the permit.
ROLE’s primary ground for seeking to overturn the permit is its asserted violation of principles of environmental justice set forth in the Department’s policy “CP-29 Environmental Justice and Permitting.” Assuming without deciding that CP-29 could provide sufficient grounds for reversal in an appropriate case, we agree with the Department that they do not provide a persuasive ground for setting aside the permit in this case. ROLE invokes CP-29 on the basis of the facility’s alleged impacts on the Tuscarora Indian reservation in Lewiston. Although the Tuscarora Nation, a federally-recognized Indian tribal government, is not a party to this action, several individual Tuscarora Indians living on the reservation are members of ROLE. In the proceedings before the Department, ROLE asserted that according to statistics compiled by the State Health Department, the residents of the Tuscarora reservation suffer from a higher incidence of cancer and respiratory illness such as asthma and emphysema than other residents of Western New York, or of the state as a whole. They presented expert testimony purporting to show that exposure to hazardous waste could exacerbate these health risks.
The Department concluded that although the statistical data presented by ROLE was accurate, it did not indicate an environmental justice violation because when the environmental justice communities in NiagaraCounty are compared with non-environmental-justice communities in the county, there is no statistically significant difference in disease rates for the two types of illness in question. We find this sufficient to negate ROLE’s challenge under CP-29. Moreover, as CWM points out, ROLE has not presented any persuasive evidence linking higher levels of cancer or respiratory disease on the reservation to any chemicals handled, treated or disposed at the landfill. In the absence of such a causal connection, the illnesses in question cannot be attributed to CWM.
ROLE’s second environmental justice argument is that it is unfair, inequitable, and illegal to concentrate all of the state’s commercial hazardous waste disposal capacity in NiagaraCounty, regardless of the race, ethnicity or income levels of the people who live there. This is claimed to be a violation of Section 27-1102 of the Environmental Conservation Law, which requires the Department of Environmental Conservation to adopt a hazardous waste siting plan “consistent with . . . equitable geographic distribution of facilities.” A permit for a hazardous
waste facility must be consistent with the plan according to ECL section 27-1103.2.a.
The short answer to this line of argument is that we have no basis for saying that the permit at issue here is inconsistent with such a plan, because the Department has never adopted a final siting plan. The evident reason why it has not put such a plan in place is that the market for hazardous waste disposal has evolved in such a way as to achieve equitable distribution of hazardous waste facilities in practice. As a result, we find no basis for setting aside the permit on this ground. Even if that were not the case, however, we note that ROLE makes no argument that the facility in question will violate any of the safety regulations for its siting and operation established by either state or federal governments. A safe facility by definition will not adversely impact the health, safety or welfare of any populations, and so this would also be sufficient ground for affirming the Department’s decision.
For the foregoing reasons, the determination of the Department to grant a permit to CWM Chemical Services is affirmed.
Question No. 2 30 Points, 35 Minutes. You are an attorney working for EPA’s Great Lakes National Program Office. A staff member of the International Joint Commission, participating in the current review of the Great Lakes Water Quality Agreement, is in the process of drafting a synthesis of comments from the recent public participation sessions, and incorporating some draft recommendations for the Commissioners to consider in framing their proposals for revisions to the two countries. One of the comments she is writing about was submitted by a prominent Canadian scientist who has been active for many years in Great Lakes matters, including membership on the IJC’s Science Advisory Board. The IJC staffer, who is also a Canadian, has asked GLNPO (and GLNPO’s leadership has asked you) whether the opinions of the Canadian scientist set forth below accurately reflect the current status of US environmental law. Please cite examples in support of your conclusions wherever appropriate.
“I am strongly opposed to basing any aspect of the Water Quality Agreement on US-style risk assessment. In the 1990s the environment agencies of the Canadian and Ontario governments imported from the USA a technocratic process of risk assessment ostensibly to satisfy a commitment to the Precautionary Principle. As a technical activity, Quantitative Risk Assessment, QRA, had emerged within US governance in the 1980s as a specific type of a generic Complicated Algorithmic Construct, or CAC; specific CACs abound in US governance institutions. In effect QRA as a CAC process abstracts, truncates and devolves difficult issues from the political arena to a US-style technocracy, usually with limited insight on the part of the operative technocrats on what is involved with a particular QRA. A costly, junk-science version of a shell game may result. Whether or not it was the subversive intent of political operatives
'unfriendly to the environment' to do so, the process of risk assessment actually implemented in Ontario seems designed to cripple a commitment to effective
precaution or clean-up. QRA is more likely to provide greenwashing services to polluters than to help implement a precautionary principle.”
“Apologists may assert that an engineering technocratic approach like QRA to contaminant issues is a lesser evil than having contaminant issues fought over interminably in courts by legalistic jurocrats who may have even less awareness of the underlying hazardous realities. Since it would be imprudent to expect that 'good' decisions would come from either of these two meta-approaches, why not settle for the cheaper one, since engineers are paid less than lawyers? But a third option, involving poorly-paid or even unpaid participatory democrats, may be less bad than one dominated either by such technocrats or by jurocrats. Perhaps all three of these meta-approaches participate in current practice in the USA, but not in coherent and fair ways.”
“In any particular application of QRA, few of the necessary coefficients--for a particular algorithmic component even in a simplistic conceptualization--can be estimated from empiric studies focused on the particular issue in question, so that tables of acceptable coefficients have been cobbled together from ostensibly relevant research elsewhere. The numerical quantities included in such tables rest ultimately on the shared judgment of credentialed experts in this kind of rhetoric. Weight of evidence is the operational criterion for selection of a particular model component and/or numerical coefficients; the evidence may include inferences from marginally relevant empiric investigations and may also include extrapolations from inferences on related chemicals and organisms, and may even include informed conjecture if not pure guesses. Compensation for the simplifications, uncertainties, inaccuracies and errors built into any particular risk assessment algorithm is achieved, it is claimed, by adding a safety factor of a magnitude that is thought to be generous to the concerns of finicky detractors. The process by which particular numbers, offered for use in risk assessment, are legitimated is itself complex. This process may be an abridged form of ostensibly democratic decision-making which in fact privileges the more traditional, wealthy, blinkered participants, as with the peer review process in dated science as published in backward journals. But different stakeholders with material interests in the magnitude of particular numbers are also given opportunity to participate. In the USA, this process has become Byzantine in its legalism, complexity and intrigue. With the adoption of the so-called Data Quality Act—a name rich in irony—the American system has achieved nearly perfect paralysis.”
“The numbers that emerge at the end of a QRA process are not 'scientific' since there is no way to test them empirically. Qualitative scientific, aesthetic, ethical and spiritual aspects for which any numeralization would be dismissed as laughable are ignored in QRA-related practice, or relegated to footnotes that are then ignored in practice. Onus on whether a particular concern is reflected within the algorithmic mix of a CAC is on a victim or a stakeholder to prove causality
between putative cause and effect. It his high time that the governments recognize that so long as we depend upon risk assessments to implement the
water quality agreements, we will only move farther away from the agreed-upon objective of virtually eliminating persistent toxic chemicals in the Great Lakes Ecosystem.”
Question No. 3. 20 Points, 25 Minutes. You work for a law firm providing pro bono services to the Seneca-Babcock Community Alliance (SBCA), a civic association comprised of residents and business owners from the Seneca-Babcock neighborhood. The neighborhood is located in South Buffalo, along the BuffaloRiver. Your firm previously worked with SBCA on an inactive hazardous waste site known as the Ferris Site, where prior industrial landowners had dumped toxic materials on the grounds of a manufacturing company, and then abandoned the property. In that controversy, thanks in no small measure to your firm’s assistance, SBCA was successful in overcoming bureaucratic inertia of city and state governments and expediting a cleanup action by threatening citizen suits and picketing agencies and elected officials. Out of that conflict and others in the region, the group developed a great wariness about governments’ ability to put off hard decisions, and to accept less-than-thorough cleanups. Their leaders also emerged from that fight with a strong and uncompromising commitment to getting complete, thorough remediation of toxic waste problems in their community.
Recently, SBCA learned about the efforts of Buffalo-Niagara Riverkeeper (formerly Friends of the Buffalo Niagara Rivers) to coordinate a cleanup of contaminated sediments in the BuffaloRiver. The group favors this action in principle, because people in the neighborhood fish in the river, and some of their children go swimming or play around the river in warm weather. But they are worried that Riverkeeper may be under pressure to settle on a weak cleanup because of the need to raise local matching funds, and because there are no clear legal standards applicable to sediment remediation. They have asked you to write a letter on behalf of the group to Riverkeeper discussing the environmental and health standards that should be met in any sediment remediation scenario. Prepare a draft letter for SBCA to review and approve.
Question No. 4. 20 Points, 25 Minutes. Three organizations—The Nature Conservancy Central-Western New York chapter (TNC), the UB Environmental Law Clinic, and the river advocacy group New York Rivers United—recently received a small grant to help develop a watershed strategy for Cattaraugus Creek. The Creek, located along the ErieCounty line just south of Buffalo, was identified by TNC as one of the highest integrity waterways in the region, with excellent biodiversity. One of the threats to this ecosystem is environmentally inappropriate development in the watershed, which may be increased by New YorkState’s plans to widen Route 219, a major north-south arterial highway, south of Springville. That will make it easier for people living in the Buffalo area and nearby southern Ontario to reach recreational areas in the Southern Tier of New York, and also make it easier to people living in the Cattaraugus watershed commute to work
and other activities in metro Buffalo. If you were enrolled in the clinic and assigned to this project, what legal tools would you be prepared to recommend to municipal and
community leaders in the watershed to manage development in an environmentally-friendly way? Please explain strengths and weaknesses of each device you recommend.
Question No. 5. 25 Points, 30 Minutes. Nature Spring Bottling Company is a client of the law firm where you work. Nature Spring specializes in bottled water taken from wells in Buffalo suburb of West Seneca, and marketed primarily within Western New York. Recently the company learned of a business opportunity to enter a joint venture with several other bottling companies involving sale of large amounts of bottled water and other beverages to a corporation in Kuwait. Nature Spring currently pumps about 100,000 gallons per day of groundwater for its bottling plant operations, but if the Kuwait deal goes through, they estimate that they would be able to use about a million gallons a day. Since they are not sure that their well water supplies would be sufficient to support that level of use, they have secured options on rights-of-way to nearby Buffalo Creek, a tributary of the BuffaloRiver, with a view toward pumping water from the creek to their plant. One of the senior partners your firm is scheduled to have a preliminary meeting with the officers of the company to discuss this venture, and she has asked you to prepare a background memo for her on the law relating to this kind of water usage.
PART TWO. YOU MUST BEGIN A NEW BLUEBOOK HERE, OR IF YOU ARE TAKING THE EXAM ON A COMPUTER, YOU MUST INSERT A PAGE BREAK AT THIS POINT. CLEARLY LABEL THE NEW BLUEBOOK OR PAGE AS “PART TWO.”
Question No. 6. 30 Minutes. (Points given in each question.)
- How does the CERCLA cause of action differ from the traditional cause of action under tort? (5 pts.)
- As you recall from the Hickory Woods article, Donner Hanna Furnace Corporation began operations at and near the Hickory Woods site in 1917. Donner Hanna operations included coke manufacturing and coal gasification. Donner Hanna was acquired by LTV Steel Corporation, which subsequently went bankrupt. LTV sold the property to the City of Buffalo “as is” for $30,000 and used the proceeds to pay off creditors. The City of Buffalo has brought an action against LTV Steel for the amount of money expended by the City in cleaning up environmental contamination at the site. If you represented the City of Buffalo, what relevant issues would you raise? If you represented LTV, what issues of fact and defenses would you raise? (20 pts.)
PART THREE. YOU MUST BEGIN A NEW BLUEBOOK HERE, OR IF YOU ARE TAKING THE EXAM ON A COMPUTER, YOU MUST INSERT A PAGE BREAK AT THIS POINT. CLEARLY LABEL THE NEW BLUEBOOK OR PAGE AS “PART THREE.”