ENVIRONMENTAL LAW, 1999 UC Davis, Winter Term  Professor Geoffrey Wandesforde-Smith

Final Examination

INSTRUCTIONS: Read these instructions very carefully.

Consider the following statement of a hypothetical situation and offer advice to your client, who represents an environmental group, on the legal questions raised at the end of this statement. Each team of students must write an essay in response to this examination, after you consult and confer with each other.   Each team must ensure that all members are appropriately involved both in discussing the problems and preparing the answers. 

You must deal with the facts as they are presented and apply to them the law as it appears in the text and in your class notes.   These resources together constitute your "law library." There is no need to consult any sources other than these.  There is no need to create footnotes.   However, you must refer in the text of your essay to relevant statutes, regulations, and cases, citing them in appropriate abbreviated form in parentheses in the text of your essay.  

Write your essay in the form of a memorandum addressed to your client. Overall, the memorandum should be not less than nine to twelve paragraphs long.   The memorandum is to be linked to your Web site and the work you hand in must be a printed copy of your final examination Web page, unless your group has not maintained a Web site throughout the term. Failure to meet this requirement will incur a ten per cent penalty.

The examination must be completed before 10:00 a.m. on Friday, March 19th, which is the end of the final examination period published in the Schedule and Directory.  Any work received after that time, even if only by a minute, will not be graded.  Completed examinations can be brought to my office in the Department of Political Science.  In accordance with the bonus rule stated in the course syllabus, examinations completed by 4:00 p.m. on Wednesday, March 17th, will earn an automatic "early bird" bonus of ten per cent of the mark assigned for the work.

Make sure that the essay contains the standard identification information you have provided for previous exams:

Despite increasing tension in relations between the United States and China, exacerbated by recent disclosures on the front pages of the newspapers about research espionage and the loss of secret information describing American weapons systems, the Palladian Corporation sees tremendous new opportunities for doing business with the Chinese, and others. 

In fact, Palladian announced a year ago the successful conclusion of negotiations with local, state, and federal officials to build a new production facility for its Patron missile system in Marsh County, California.  The Patron was deployed to great effect during the Gulf War and has since been much in demand in Third World countries undergoing military build-ups.  The new manufacturing facility will make all the vital parts for the missile, including the propulsion system, the guidance device, and the warheads, although the exact details of the manufacturing process are classified.  The new Palladian factory will be small, with probably no more than eighty or ninety employees.  But the design of the factory takes advantage, according to Palladian, of the very latest robotic technology for handling the wide variety of toxic and incendiary substances used in various phases of the production process.  The clever exploitation of technology will make the factory "self-contained," meaning that all of the substances and the process water used to make the missiles, as well as all of the solid, liquid, and gaseous waste by-products, will be subject to maximum recycling and re-use within the factory itself.  Any unreclaimed materials will be sealed in barrels and kept on site, in a way that Palladian says is analogous to current practices for the "safe" handling of wastes generated at civilian nuclear power plants.

Marsh County is an ideal location in many ways, according to Palladian officials.  Its outlying areas have lagged behind other parts of California in the good economic times of the '90s, and its few established sources of employment, such as the nearby Tosco refinery, are experiencing difficulties.  This accounts for the willingness of local officials to put the Palladian plant on a fast track for approval.  There is also plenty of open space on land immediately adjacent to Suisun Marsh, some of which is managed by state and federal wildlife agencies as habitat for migratory waterfowl and other species.  Northern California naturalists prize the rare glimpses they can get in and near the Marsh of Epting's egret, an endangered wader with a brightly colored cockade, Danoff's dipper and Quirk's quail, which are also listed species, and of two threatened species of mammal, the Edson kitfox and Gooden's squirrel.

Preliminary site drainage and clearance for construction of the Palladian factory began six weeks ago, immediately after the company obtained a 900 acre piece of marshy property under a special purchase agreement from the Department of Defense.  DOD used the parcel during World War II as an armory for the Pacific Fleet in nearby San Francisco but recently declared the land surplus.  The agreement, co-signed by Marsh County and the United States Fish and Wildlife Service, provides that the property will revert to USFWS management after the factory closes and will then be absorbed into the surrounding Suisun National Wildlife Refuge.  "In the end," a DOD spokeswoman said, "our release of this property will be a net addition to the Refuge and, therefore, an environmental plus, and it needs no extensive environmental assessment by us."  The company's land lies a mile east of Shawnee City, once a fishing center but now silted up and home to no more than four or five hundred people.  The city, too, is an enclave in the Refuge.  The factory site spans Kara Creek, a broad, sluggish, meandering stream supplying all the process water for Palladian before flowing through Shawnee City.  A little further downstream Kara Creek merges with McPhee Slough and eventually the tidal saltflats at the edge of Suisun Marsh, before entering San Pablo Bay and the Delta, on its way to the Golden Gate and the Pacific.

Two weeks ago, Palladian announced drastically increased demand for the Patron.  "Although it is still our intention," said Harry Arcady, speaking for the company, "to operate the plant for the long-term with the sort of self-contained waste management system we have always envisioned, we are going to have to make some immediate and emergency changes to our construction plans."   For a limited but unspecified future time, production is expected to strain the capacity of the waste recycling equipment, once the plant begins production.  Excess liquid wastes are going to be a particular challenge.  To accommodate this, Palladian has asked for and USFWS has granted permission to build a sealed, lined, and buried pipeline.  The pipe will carry partially treated wastewater two miles west of the factory, where it will be spread by a "pump and spray" system of diffusers onto extensive acreage belonging to the Marsh County Water Conservation District.  Because of the gentle slope of the country, south and east across the District's land and the Refuge, that portion of the diffused water which does not replenish the local aquifer will slowly drain by gravity into the Creek, the Marsh, and the Bay.

In a short memorandum written a week ago, approving the pipe and diffuser project as an emergency measure, the manager of the Refuge wrote to the regional office of the Environmental Protection Agency in San Francisco as follows: "I find these operations will be fully consistent with all applicable federal, state, and local laws and regulations.  Palladian is such a modern and careful company that no reasonable person should expect this temporary alteration of their construction plan to have any significant environmental or human health impacts.  That is why I have signed the FONSI, enclosed, and now formally conclude this environmental assessment.   We see no substantial or lasting ecosystem damage in the Marsh, the Creek, or the Bay.  The fragility of wetland ecosystems is generally a myth and in this particular case I have concluded that neither species nor habitat will be seriously affected."

Yesterday, Monica Metcalf, a student intern at EPA, leaked this memo to Harriet Hatton, the Director of the Marsh Wetlands Trust (MLT), who is now in your law office and wants to retain you as counsel.  Her question is whether this recent set of developments can be reconciled with environmental law.  The Trust conducts frequent and regular research, education, and visitor programs throughout the Marsh and Refuge region.

Advise her.

Specifically, write a memorandum in three parts explaining whether and how and by whom, exactly, you think there may have been violations of (1) the National Environmental Policy Act, (2) section 404 of the Clean Water Act, (3) the Endangered Species Act.  There may be Resource Conservation and Recovery Act issues, here, too.  But MLT wants these addressed by other counsel.

Each of the three parts of your memorandum must state clearly (i) what law is relevant, (ii) how you think the law applies to the facts as outlined, above, and (iii) who MLT should sue to seek an appropriate remedy from a federal court. 

GW-S/March 1999