All three statutes – the National Environmental Policy Act, the Clean Air Act, and the Clean Water Act – became law between 1970 and 1972, with much of the debate on NEPA and the Clean Air Act taking place in 1969. The late 1960s and early 1970s was a time of social ferment in the US, with the Civil Rights Movement and the Anti-war Movement combining with new awareness about the environment to create the fledgling Environmental Movement. Earth Day 1970 was a major national event in which hundreds of thousands of people took part in demonstrations for environmental protection around the country. At the same time, significant environmental disasters like the Santa Barbara oil spill and the Cuyahoga River catching fire in Cleveland were in the news, fueling public concern and Congressional attention. Books like Rachel Carson’s Silent Spring, as well as the environmental disasters, made it clear that previous efforts at environmental regulation, primarily at the state and local level, were not effective and something had to be done at the national level.

Toxiprox is a relatively new theory in tort law that recognizes that owners of land near toxic sites (and other unpleasant land uses) suffer a diminution of land values merely by their proximity to the toxic site and not necessarily from any actual toxic effect of the site. Plaintiffs have recovered damages under this theory in negligence, nuisance and strict liability cases.

Red herrings aside, the dolphin spearing during fishing operations would run afoul of the Marine Mammal Protection Act (MMPA), although the Dukes may have difficulty unless they can get a government agency to prosecute because there is no citizen suit provision in the MMPA. If the California Department of Fish and Game granted a permit to the contest, and it had not prepared an Environmental Impact Report on the contest, it might be found in violation of the California Environmental Quality Act.

4. Luke’s Ski Company has proposed developing a 2000-acre parcel near Lake Tahoe. Because the parcel is on land owned by the U.S. Forest Service, Luke must obtain a special use permit from the Forest Service before proceeding. Luke plans to develop the entire parcel in an "integrated" project that includes a downhill ski area, a golf course, and a year-round resort village with 1000 residential units, recreation facilities, restaurants, and a convention center. The economic feasibility study prepared for Luke concluded that the project would have a much better chance of being financially successful if all three elements were built; without all three, the financial prognosis is questionable. Thus, the resort village would be attractive largely because it would be close to the skiing and golf course, the skiing and gold courses work financially only together because they provide Luke with a year-round stream of income.

The Hastings Alliance for Tahoe’s Environment has opposed the scale of Luke’s development, and so Luke has decided to seek a permit only for the golf course, which will be sited on 200 acres of Forest Service land. Luke says he will seek approval for the other parts of the project at a later, unspecified date (probably sometime when those pesky Hastings students have graduated!).

The Forest Service has issued a permit to Luke after preparing an Environmental Assessment (EA) that analyzed the impacts of the golf course, concluding that no Environmental Impact Statement (EIS) was necessary because, it found, with mitigation measures the golf course would have no significant impact on the environment.

Is the Forest Service required to prepare an EIS analyzing the entire "integrated" project, or can it issue a permit based only on the EA that only analyzes the impacts of the golf course? Why or why not?

The Forest Service could probably only do the EA on the golf course and get away without doing an EIS. This is a classic example of "segmentation" – or dividing the project up into smaller pieces to avoid environmental review – with a twist: the twist is that the private company is segmenting it, rather than the agency. Thus, the agency has no particular investment in avoiding environmental review, and under NEPA could, and probably should, do an EIS for the whole proposed integrated complex. However, should the Forest Service choose not to do an EIS, under the standards of deference to agency determinations of the scope of an EIS set forth in the Kleppe case by the Supreme Court, that Forest Service decision would probably be upheld, although the segmentation in this case is so transparent as to potentially be problematic even under such a deferential standard. One could make the argument that the "proposal" that the agency needs to consider is the initially announced integrated proposal, even if it is no longer on the table; the argument against this would be that courts have upheld agency decisions to "de-federalize" parts of projects to avoid environmental review (e.g. Village of Los Ranchos de Albuquerque v. Barnhart), and this fact situation could be analogized, loosely, to that one.

5. Explain the public trust doctrine.

The public trust doctrine is a common law doctrine based on the idea that the government holds resources in trust for the public, now and in the future. The public has an interest in natural resources, and the state and federal governments have a duty to protect that interest because we cannot do it individually. The public trust doctrine has been invoked, and judicially recognized, in three types of cases: resource defense or derogation cases, in which a public resource has been or will be lessened, like the Exxon Valdez oil spill or chopping down the Methuslah tree; alienation, or selling of public resources, like the Illinois Central case where the court didn’t allow the selling of Lake Michigan; and diversion, where a public resource is being diverted from one use to another, like Yosemite being turned into a theme park. The public trust doctrine can be used to stop development of pristine resources and to give standing to a private party that otherwise might not have it under statute or other common law theories, issues discussed in the Marks v. Whitney California Supreme Court case.