Environmental Protection Cont’d
• Endangered Species
• Babbitt v. Sweet Home
• HCPs
• Hazardous Waste Cleanup and Land Use
• Tanglewood East Homeowners
• Brownfields
• Protection of Agriculture and Open Space
• In re Rattee
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Babbitt v. Sweet Home Chapter of
Communities for a Greater Oregon,
515 U.S. 687 (1995), p. 753.
Section 9’s Prohibition
•
“[I]t is unlawful for any person to take
any [listed] species.
•
Take is defined by the statute as “to
harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture or collect,
or to attempt to engage in any such
conduct.”
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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1
Babbitt v. Sweet Home Cont’d
Section 9’s Regulations
Defines “harm” to include “significant
habitat modification or degradation
where it actually kills or injures
wildlife.”
Red Cockaded Woodpecker
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Babbitt v. Sweet Home Cont’d
“[U]nder [the D.C. Circuit’s holding] a
landowner could, for instance, remove
all trees and just leave the nest tree of a
bald eagle . . . . Once the eagle leaves
the nest, then the landowner could
conceivably cut the nest tree down
because they haven't directly,
physically harmed the bird. That
illustrates the reach and somewhat
ludicrous implications of Sweet Home."
Michael Bean,
Environmental Defense Fund
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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2
Babbitt v.
Sweet Home
Cont’d
Interpretations
• Respondents’
• Secretary’s
• D.C. Circuit’s
Northern Spotted Owl
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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Babbitt v. Sweet Home Cont’d
"The cutting of a nest tree in which an
endangered species dwells and breeds
can effectively kill the bird, regardless
of whether the bird is at home when the
tree falls."
U.S. Solicitor Gen. Drew S. Days III
before the Supreme Court
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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3
Babbitt v. Sweet Home Cont’d
Red-cockaded Woodpeckers
Found in the piney woods of East Texas
Juvenile Male
U N I V E R S I T Y of H O U S T O N
Adult Male
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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ESA and Energy
Is the sky falling?
Greater Sage-Grouse
U N I V E R S I T Y of H O U S T O N
Lesser Prairie Chicken
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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4
Hays County, Texas
Regional Habitat Conservation Plan
Process and Methodology
• USFWS
• Hays County Commissioners’ Court
• Citizens’ Advisory Committee
• Biological Advisory Team
• County staff
• Consultants
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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Hays County, Texas
Regional Habitat Conservation Plan
Number and Type of Species
• 2 endangered
• 56 rare or threatened (and associated
water resources)
Golden-cheeked Warbler
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Black-capped Vireo
Copyright©2014 Marcilynn A. Burke
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5
Hays County, Texas
Regional Habitat Conservation Plan
Type of Threats
• Population growth of 150-300%
• Development of—
• Roads
• Schools
• Infrastructure
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Hays County, Texas
Regional Habitat
Conservation Plan
Size of Planning Areas
• All of Hays County
• 30-year permit
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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6
Challenges
• Number of parties
• Implementation
• Scope of protection
• Different planning for different species
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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Hays County, Texas
Regional Habitat Conservation Plan
Implementation and Management
• Banking system
• 10-15K acres for protection in
perpetuity
• “No surprises” policy
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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7
Tanglewood East Homeowners v.
Charles-Thomas, Inc.,
849 F.2d 1568 (5th Cir. 1988), p. 765.
CERCLA’s
Potentially Responsible Parties (PRPs)
1. Present owners of a facility,
2. Past owners of a facility at the time of
disposal,
3. Individuals who “arranged for
disposal” of the waste, and
4. Transporters of the waste.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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Tanglewood Cont’d
CERCLA
• Strict liability
• Joint and several
• Reimbursement
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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8
Brownfields
With certain exceptions, “[t]he term
‘brownfield site’ means real property,
the expansion, redevelopment, or reuse
of which may be complicated by the
presence or potential presence of a
hazardous substance, pollutant, or
contaminant.”
Small Business Liability Relief and
Brownfields Revitalization Act, 42 U.S.C. A.
§ 9601(39) (2003).
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Institutional Controls
Purposes
1. Elimination of exposure pathways or
reduce exposure to chemicals,
2. Providing notice to future property
owners that certain activities on the
property cannot be safely
undertaken, and
3. Identifying future activities that are
not consistent with the "no
significant risk" level calculated
during the site closure process.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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9
Institutional Controls Cont’d
Land Use Restrictions
1. Deed restrictions/restrictive
covenants
2. Conservation easements
3. Permitting requirements
4. Zoning+
5. Any non-engineering means of
controlling the risk of contamination
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Facilitating Cleanup in Texas
• Voluntary Cleanup Program
• Tax Abatement
Petroleum Bulk Storage Facility TRRP
Voluntary Cleanup Program Site,
Sonora, TX
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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10
Voluntary Cleanup Program
Tex. Health & Safety Code,
§§ 361.601-613 (Vernon 2002)
§ 361.602. Purpose
The purpose of the voluntary cleanup
program is to provide incentives to
remediate property by removing
liability of lenders and future
landowners. The program does not
replace other voluntary actions and is
restricted to voluntary actions.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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Voluntary Cleanup Program
•
If cleaned up to the TCEQ’s
satisfaction, a “Certificate of
Completion” is issued.
•
Future owners will not be liable to the
state (in most cases).
•
Does not exempt currently liable
parties from future action by the state.
•
MOA with EPA Region 6 not to enforce
federal laws against owners except in
extraordinary circumstances.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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11
Tax Abatement
Relating to Property Subject to Voluntary
Cleanup Agreement
Tex. Tax Code Ann., § 312.211 (Vernon 2002)
A municipality may exempt a declining
portion of a site’s value from taxation for
up to 4 years, not more than—
1. 100% in the first year,
2. 75% in the second year,
3. 50% in the third year, and
4. 25% in the fourth year.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
All rights reserved. Provided for student use only.
In re Rattee,
761 A.2d 1076 (N.H. 2000), p. 777
Agricultural Preservation Restriction
• “no longer suitable for agricultural
use”
• “dwellings to be used for family
living by the landowner” or
McMansion
• Can state negotiate beyond the
statute for “prior approval”
clause?
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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12
Texas Agriculture Code, Title 8
Protection and Preservation of
Agricultural Operations
• Chapter 251
• Effect of Nuisance Actions and
Governmental Requirements on
Preexisting Agricultural Operations
• Chapter 252
• Family Farm and Ranch Security Program
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
All rights reserved. Provided for student use only.
Effect of Nuisance Actions and
Governmental Requirements on
Preexisting Agricultural Operations
§ 251.001. Policy
It is the policy of this state to conserve,
protect, and encourage the development
and improvement of its agricultural land
for the production of food and other
agricultural products. It is the purpose of
this chapter to reduce the loss to the state
of its agricultural resources by limiting
the circumstances under which
agricultural operations may be regulated
or considered to be a nuisance.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
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13
Family Farm and
Ranch Security Program
§ 252.002
Subject to the provisions and rules of this
chapter, the Commissioner of
Agriculture may guarantee to eligible
lenders that, in the event of default on a
family farm and ranch security loan, the
state will pay the lender an amount equal
to 90 to 100% of the amount due and
payable under the mortgage, deed of
trust, or contract of sale and purchase.
U N I V E R S I T Y of H O U S T O N
Professor Marcilynn A. Burke
Copyright©2014 Marcilynn A. Burke
All rights reserved. Provided for student use only.
14