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ENVIRONMENTAL LAW, 2000
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ENVIRONMENTAL LAW, 2000
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Final Examination
INSTRUCTIONS: Read these instructions very carefully. They are different from the instructions accompanying the previous final exams you have had access to on the course Web page.
Consider the following statement of a hypothetical situation and offer advice to your client, who represents an environmental group, on the legal questions raised by these facts. Each student in the course must write an individual essay in response to this examination, although you may, if you wish, consult and confer with others in the course before you write your own answer.
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 or study any sources other than these, although there is a link provided to the CERES environmental law page, below, because it is such a useful ready reference.
Write your essay addressed to your client in the form of an advice memorandum on the legal points and authorities you think are important and useful in answering the questions your client has. There is no need to create or include 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. Overall, the memorandum should be not less than ten to twelve paragraphs long. The memorandum is to be professionally prepared and presented as a high quality word-processed document.
The examination must be completed before 6:00 p.m. on Tuesday, March 21st, which is the end of the final examination period published in the Winter Term, 2000, 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, the location of which is noted in the course syllabus on the Web. In accordance with the bonus rule stated in that syllabus, examinations completed by 4:00 p.m. on Friday, March 17th, will earn an automatic "early bird" bonus of ten per cent of the mark assigned for the work.
| Quick Reference: | Course Home Page | Course E-mail Archive | CERES Environmental Law |
The University Comes to Mercata
In the Spring of the year 2000, the University of California's ambition to build and open a new campus at Mercata, in the San Joaquin Valley, seems beset by controversy on several fronts. On the editorial page of the New York Times for Monday, March 13th, 2000, for example, Arthur Levine, the President of Teachers College at Columbia University, raised basic questions about the need for new university campuses in the twenty-first century: "Many countries built systems of higher education based on propinquity, trying to build a campus in easy proximity of every citizen. How long will it be before nations ask why they have so many campuses? How long before they ask higher education to request new technologies, not new buildings?" Levine saw a danger of higher education going the way of the railroad industry, "which built bigger and better railroads decade after decade because that's the business it thought it was in. The reality was that it was in the transportation industry, and it was nearly put out of business by airplanes. Colleges and universities are not in the campus business, but the education business."
Levine's general complaint about how colleges and universities are investing scarce resources in the wrong alternatives followed closely on the heels of a much more specific complaint, published just eight days earlier in the Central Valley's major newspaper, to the effect that the University of California's plans for its new Mercata campus were proceeding without due regard to environmental law. Behind the hype about the new campus being "a boon for the economically depressed San Joaquin Valley" lay the "watery secret," the paper said on March 5th, that the two thousand acre site for UC Mercata is in the midst of "some of the last big stretches of open grasslands and vernal pools in the Central Valley." In fact, the paper alleged, citing an internal UC study of the Mercata site, there are 7,000 vernal pools on the 2,000 acre construction site, and bulldozing them to create buildings would probably create more controversy than it already has were it not for two factors. One is that opposition from some of the state's major environmental groups has been bought off by promises of major new environmental research facilities at UC Mercata. And the other is that the rush to build Mercata has high level political support from the Democratic majority in the Legislature, the Governor of California, Gray Davis, and the Vice President of the United States and 2000 Democratic presidential nominee, Al Gore.
Not everyone is excited, however, by all the talk about "fast-tracking" the campus.
The site lies to the east of the first major north-south highway in the state, east of the San Joaquin River, and on land from which there are stunning views of the crest of the Sierra Nevada. The site is reached, driving east from the highway, along Adams Ridgeline Road, now little more than a track which enters the square piece of UC property in the exact southwest corner and, running due northeast, separates the site into two almost equally sized triangular parcels. To the north and west lies the gentle, sloping valley of the McCoy River, and to the south and east the meandering course of Sutton Creek. The campus would be built between these water courses in a cross-shaped pattern of construction that would place the main administration and student services building on Adams Ridgeline Road, almost in the dead center of the property. The dormitories, classroom buildings, and faculty office blocks would approach to within a hundred feet of both rivers in the horizontal part of the cross, with support facilities, sports fields, and other necessities lining the road on both sides, down to the campus entrance.
On two sides of the land UC acquired from a private trust for the campus are two federal properties. To the west, the Bureau of Land Management supervises property that has never been used for anything except grazing. And to the south, spanning Sutton Creek, is one of those postage stamp sized wildlife refuges scattered through the Valley in the 1930s to protect migratory waterfowl, the Sutton NWR. The Refuge, now managed by the United States Fish and Wildlife Service, is also home to three species listed as either threatened or endangered under federal law: the Ellis saravan, a rare fairy shrimp that lives in vernal pools; the Avdis plover, a bird of prey that ranges far and wide in search of food, including Ellis saravan; and the Veronese footwart, a Spring wildflower with bright blue and gold petals that turn this part of the Valley into a blaze of color in March and April but in habitat presently confined to the land between the upper reaches of the McCoy and Sutton Creek.
The big farms lying closer to the highway were once supplied with fertilizer, pesticides, and a wide range of other agricultural chemicals, including DDT before it was banned, by AgChem, a now defunct company that used to have major operations and facilities along both sides of Ridgeline Road between the BLM land and the Refuge. AgChem's sizeable abandoned dump site, just on the right side of the road as it enters the campus, was closed when the private trust acquired the land UC now owns and wants to develop, and is the only notable sign of prior human use of what soon will be a campus. Or will it?
Brod Call, a retired civil servant who now runs the Mercata Wetlands Foundation (MWF), a non-profit environmental education and preservation group, is in your law office as your client and has some questions. He has noticed that just in the few days that elapsed between the story in the Valley paper and the one in the New York Times, UC has moved quickly to head off opposition. "At great expense but in the light of public concern," said Harry Horan, the Chancellor-designate at Mercata, a week ago, "we have entirely excavated the old AgChem dump and have moved thousands of tons of allegedly contaminated soil, with special emergency permission from both BLM and the EPA, to a site on BLM land, where we will stack it, cover it, and monitor it, for the forseeable future. It will be out of sight and out of mind while we move forward, and neither the President of the University nor the Governor -- and, for that matter, no-one in the Clinton Administration -- can see any reason to clutter up this sensible and perhaps overdue initiative with a lot of talk about permits and environmental reviews." Brod Call thinks there are some legal issues, here.
Furthermore, and in the apparent belief that the best defense is a good offense, Horan announced simultaneously that the very first building erected on the campus will be a Species Observation and Education Center, the Fred Taylor Center, named in honor of a long time manager at the Refuge. "I have acted quickly to dedicate forty or fifty acres along Sutton Creek for this new center, which will be our first environmental initiative and which we will operate jointly with US Fish and Wildlife and the state. We are clearing the land, now, as a token of our good faith and commitment, for what is going to be our first thoughtful footprint on this site. And I have told the people who work at the Center, people we are already hiring, that priority one after their facility goes up will be to put together a first class habitat protection and mitigation plan, not just for the pools and other wetlands in this watershed but for the entire UC acreage." But aren't there some awkward legal issues here, too?
Advise your client.
Specifically, write a memorandum in four parts explaining whether and how and by whom, exactly, you think there may have been violations of (1) the National Environmental Policy Act, (2) the wetlands protection provision of the Clean Water Act, (3) the Endangered Species Act, and (4) the Resource Conservation and Recovery Act. Any issues pertaining to CEQA or other state laws, including water rights law, will be addressed by other counsel and you should not discuss them.
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 MWF should sue if it wants to stop these UC initiatives by seeking appropriate remedies, which you should name, from a federal court.
© GW-S/March 2000