1. This is an open
‐book, take‐home exam. You may use:
a. the course book (Percival, Schroeder et al., Environmental Regulation: Law,
Science and Policy),
b. your course notes (including any course hand
‐outs and postings and
documents on our Camino course website).
2. No additional research beyond the listed items is permitted. You must work on the
exam on your own.
3. The exam will be available beginning December 5, 2016. Your exam answer is due
within 7 days of pick-up of the exam, but no later than December 15, 2016, 4 pm.
4. The total exam answer may not exceed 3000 words. You must provide a word count
at the end of the exam.
5. There will be a 1/3 grade penalty for every three hours that the exam is late. I will
only grade the exam answer up to the 3000 word limit.
6. Place your Exam ID#, the name of the course, and exam date on EACH page of your
exam answer (if typed) or EACH examination book (if handwritten).
7. Retain a copy of your exam answer (as a precautionary measure).
8. If you compose your exam in the library or any other public space, do not put drafts of
your answer in the recycle boxes.
STOP! DO NOT FLIP THIS COVER PAGE UNTIL TOLD TO DO SO BY THE PROCTOR
Environmental Protection Law Final Exam
Costco is planning to build a new gigantic 200,000 square foot warehouse store in Foster
City, California. Accordingly, Costco has purchased a 10 acre parcel of land. The parcel is
surrounded on all sides by land owned by the Department of Interior.
In planning for the construction of the new warehouse store, Costco discovers
the presence of a seasonal stream, Foster Creek, that passes through the property.
Foster Creek contains water only during the rainy season and empties directly into the
San Francisco Bay. The location of the stream will not impact construction of the
warehouse because the stream is situated on the edge of the property. However, a less
convenient discovery is the presence of a wetland on the parcel, covering about half of
the land. Even though it is dry most of the year, that portion of the land turns into a
wetland during the rainy season. Construction of a parking lot would not be possible
without draining the wetland or ensuring adequate drainage during the rainy season.
Since the new warehouse store will be located more than a mile from the nearest city
sewer lines, Costco plans to install state of the art bathroom facilities that will use minimal
amounts of water. Doing so will allow Costco to forego connection of the building to the
municipal sewer system and save a lot of money. The small amounts of waste water that will
be generated even with these systems in place, however, will be discharged directly into the
Foster Creek and go into the Bay. Environmental engineers have assured Costco that the total
amount of wastewater generated will be no more than what is generated by 5 single family
homes. Hence, the Costco managers figure they do not need to apply for any waste water
As Costco is investigating the feasibility of draining the wetland, two other unpleasant
surprises are discovered. First, an environmental engineer finds that the wetland serves as the
habitat of the Leopard-spotted freshwater frog (Leopard Frog), a species listed as endangered
under the Endangered Species Act.
The other unpleasant surprise is the discovery of more than a hundred 55-gallon
drums leaking unidentifiable toxic waste. Much of the liquid waste appears to have
seeped into the ground. The environmental consultants have also been unable to
answer some basic questions about the waste: what is the origin of the toxic waste?,
who put it there?, when it was dumped?, and who might be the responsible party?
After some internal discussions among the managers, Costco decides not to dig up or
remove the hazardous waste, but instead leave it in place. After all, the waste is in a
spot on the property that will not be disturbed by the construction activities. One
Costco manager remarks: “No harm, no foul.”
Once the initial survey of the property and construction planning is done, Costco applies
to the Interior Department for a license to build an access road across the DOI land (leading to
the future warehouse store) and to obtain a corresponding easement. Issuance of the
easement and road permit would be authorized by an obscure statutory provision that states as
follows: “In order to advance the welfare of local communities, the
Secretary of the Interior
shall have the authority to convey easements and road construction permits when doing so
would cause no serious adverse environmental effects.”
Costco cooperates with the Interior Department staff to prepare an Environmental
Assessment for the easement and access road permit. The Environmental Assessment (EA)
finds that there will be no significant impact. The EA study concludes that since the access road
would only expand the width of an existing unpaved dirt-road by 30 feet and cover it with
asphalt, the environmental impacts would be negligible. Previously, the dirt-road was used by
hikers, bikers, and Interior Department trucks to access the Bay shore.
Shortly after the EA and Finding of No Significant Impact are finalized, the Interior
Department issues the permit to Costco.
Now, a local environmental group, Foster City Environmentalists (FCE), has learned that
Costco is about to start construction on the access road and draining of the wetland. It is
contemplating legal action.
Describe the legal issues that are raised in the above scenario from the perspectives of
both groups, FCE and Costco, and provide a brief analysis of each issue based on the (limited)
set of cases, regulations, and statutory provisions we have studied in this course.
Make sure that your total exam answer does not exceed 3000 words. You must
provide a word count at the end of the exam.
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