Deck 17: Environmental Protection

Question 1

Do you have any Superfund sites in your community

Answer 1

The answers to all for of the questions posed will depend on the communities in which the particular students live

Question 2

What five factors are to be considered in the listing of a species as endangered under the Endangered Species Act

Answer 2

The five factors are: (1) Present or threatened destruction, modification, or curtailment of the species' habitat or range; (2) overutilization; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) other natural or manmade factors affecting its continued existence.

Question 3

Americans' commitment to the car obviously raises serious environmental problems.The vast parking areas required to house those cars are themselves a significant environmental hazard. Explain some of the environmental problems created or encouraged by parking lots.

Answer 3

The requested injunction was denied. "It would be stretching the language of the statute well beyond the intent of Congress to hold that the de minimus incidental drift over navigable waters of a pesticide is a discharge from a point source into those waters."

Question 4

One indication of how much global climate change has become a grassroots issue in the United States is the entry of carbon footprint considerations into everyday conversation. A carbon footprint is a measurement of how much carbon dioxide is emitted into the atmosphere as the result of a particular product, activity, or lifestyle. It is a way to measure the carbon "cost" of a particular activity or the carbon "savings" of changing that activity.
What's your carbon footprint Find out from www.bp.coroknaglobalkorporate /sustainability/bp-energy-lab/calculator.html. Compare that with your ecological foot-print-that is, how many Earths we would have to have if everyone lived as you do. Go to www.earthday.oryg/footprint-calculator.

Question 5

"The Aral Sea is going, gone. Once the world's fourth largest inland body of water, the Aral has shriveled to half its former area and a third of its volume. As for the region's drinking water, even the local vodka has a salty tang." 80 The Aral is the victim of the former Soviet Union's central planners, who decreed that the area would be the nation's main source of cotton. To achieve that goal, intense irrigation was required, with the result that only a trickle of fresh water was left to feed the Aral. Refilling the Aral would require tremendous dislocations in the agriculture of the vast region. If you were a member of a commission charged with developing a plan for the future of the Aral Sea, what issues would you cover

Question 6

The Endangered Species Act provides that all federal agency actions are to be designed so that they do not jeopardize endangered or threatened species. The act had been interpreted to reach to federal agency work or funding in foreign countries, but the federal government changed that interpretation in 1986 to limit the act's reach to the United States and the high seas. A group labeled Defenders of Wildlife filed suit, seeking to reinstate the original interpretation. The case reached the U.S. Supreme Court, where Justice Scalia wrote that Defenders of Wildlife would have to submit evidence showing that at least one of its members would be "directly" affected by the interpretation. In response, one member of Defenders of Wildlife wrote that she had visited Egypt and observed the endangered Nile crocodile and hoped to return to do so again but feared that U.S. aid for the Aswan High Dam would harm the crocodiles.
a. Why did Scalia call for that evidence
b. Do you think Defenders of Wildlife should be permitted to sue Why or why not See Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992).

Question 7

What environmental issue do you care about most Greenhouse gases Deforestation Drinkable water for the world's population Protection of the polar bear Select an issue you care about. (If it's climate change, select a particular possible response to it, such as sharing environmental technologies with developing countries, increasing mileage requirements, requiring the use of energy-efficient lightbulbs, etc.) Do some online research for related data and then explore your issue in light of the five concepts discussed above.

Question 8

Thirty-three years after the passage of CERCLA, some of the country's most hazardous sites remain toxic. Until the earthquake and tsunami in Japan, the biggest nuclear waste hazard in the Western world was located in southeast Washington-the Hanford nuclear facility, a 586-square-mile site constructed as part of the Manhattan project to produce weapons-grade plutonium in nine nuclear reactors along the banks of the Columbia River. The highly toxic waste is currently stored in underground tanks, where it will continue to wait until at least 2019 when it is projected that a specialized waste-treatment plant will commence transforming the waste into still-radioactive glass logs that will be more suitable for long-term storage. [For maps and some aerial pictures of Hanford, explore the site beginning at its home page, http://yosemite.epa.gov/r10/cleanup.nsf/sites/hanford ]
What do you know about the pollution in your community Find out by logging onto www.scorecard.org and inserting your zip code. Then visit the EPA's site and discover any Superfund sites near you on its maps at www.epa.gov/superfund/sites/npl/where.htm.
How does your air quality stack up with other communities in the United States

Question 9

Economist Robert Crandall:
[O]ur best chances for regulatory reform in certain environmental areas, particularly in air pollution policy, come from the states. Probably, responsibility for environmental regulation belongs with the states anyway, and most of it ought to be returned there. 85
a. What reasoning supports Crandall's notion that responsibility for environmental regulation belongs with the states
b. How might one reason to the contrary
c. If the power were yours, would environmental regulation rest primarily at the state, federal, or international level Explain.

Question 10

Under what conditions did the Supreme Court say it had the power to reverse the EPA's decision not to regulate the carbon dioxide emissions of new vehicles

Question 11

The EPA said that, even if it had the authority to regulate greenhouse gas emissions from motor vehicles, it would not do so. What reasons did the EPA give for this refusal What did the Supreme Court say about those reasons

Question 12

Prior to the days of more than $3 per gallon gas, the United States seemed to be quite enamored with sport utility vehicles (SUVs), in spite of the fact that their gas mileage is considerably poorer than most sedans. To graphically bring home the environmental irresponsibility of SUV owners, two men in the San Francisco Bay area dreamed up a scheme to address what they perceived as a market failure. Uninvited, on hundreds of SUVs they have stuck homemade bumper stickers that read, "I'm changing the environment! Ask me how!" 86
a. What effect do you think these self-appointed environmental police want from their actions
b. What effect do you think they are likely to actually have

Question 13

Should a state be required to prepare an EIS if it wants to use federal funds to promote state-wide tourism Does it matter which state it is Consider Iowa and then consider Hawaii.

Question 14

Did the Supreme Court hold that the government could not regulate this type of site or only that Congress had not in fact sought to extend its regulation to this type of site

Question 15

Airplanes are a significant contributor to greenhouse gases. Comment on the following proposal: Each person receives an annual allowance for flights, fuel, gas and electricity. If a person's use exceeds the allowance, he will have to purchase "carbon points" from someone under their limit. 87

Question 16

Question 17

Judge Betty B. Fletcher
Litigation History
In 1993 the Mexican Spotted Owl was listed as a threatened species under the Endangered Species Act ("ESA"). The listing decision prompted a series of lawsuits alternately seeking to compel the FWS [U.S. Fish and Wildlife Service] to designate critical habitat for the owl and, following the FWS's designation of habitat, attacking that designation.
The first such lawsuit was in 1995 to compel the FWS to designate critical habitat and resulted in the FWS's issuing a final rule designating 4.6 million acres of critical owl habitat, a designation that was quickly challenged in court and then revoked in 1998. After another lawsuit was filed to compel the FWS to designate habitat, the FWS proposed a rule in 2000 to designate 13.5 million acres of critical habitat and in 2001 the agency promulgated a final rule that again designated 4.6 million acres. That rule was later struck down and … the FWS reopened the comment period on the rule it proposed in 2000. In 2004 the FWS designated approximately 8.6 million acres of critical habitat. It is this designation, the 2004 Final Rule, that Arizona Cattle challenges in the current action.
Arizona Cattle moved for summary judgment to set aside the 2004 Final Rule.... The District Court rejected Arizona Cattle's arguments….
THE 2004 FINAL RULE
The FWS relied on three types of habitat management areas... as a starting point for the 2004 Final Rule: protected areas, restricted areas, and other forest and woodland types. Protected areas are those areas containing known owl sites, termed Protected Activity Centers ("PACs"); "steep slope" areas meeting certain forest conditions; and legally and administratively reserved lands. "PACs include a minimum of 600 acres... that includes the best nesting and roosting (i.e., resting) habitat in the area... and the most proximal and highly used foraging areas." However, PACs contain only 75% of necessary foraging areas for the owl. Restricted areas include non-steep slope areas with appropriate forest conditions that are "adjacent to or outside of protected areas." "Areas outside of PACs, including restricted areas, provide additional habitat appropriate for foraging."...
THE ESA AND THE DEFINITION OF "OCCUPIED"
The ESA defines a species' critical habitat as... "the specific areas within the geographical area occupied by the species, at the time it is listed…."
The statute thus differentiates between "occupied" and "unoccupied" areas.… [We] face the preliminary issue of what it means for an area to be "occupied" under the ESA.
It is useful to unpack this inquiry into two components: uncertainty and frequency. Uncertainty is a factor when the FWS has reason to believe that owls are present in a given area, but lacks conclusive proof of their presence. Frequency is a factor when owls are shown to have only an intermittent presence in a given area. Occasionally, both factors will play a part in determining whether an area is "occupied." Because the ESA permits only one of two possible outcomes for this inquiry- occupied or unoccupied-... we must determine the scope of the FWS's authority to categorize as "occupied" those areas that may not fit neatly into either pigeonhole.
We have ample guidance on the "uncertainty" issue. The ESA provides that the agency must determine critical habitat using the "best scientific data available." This standard does not require that the FWS act only when it can justify its decision with absolute confidence….
Turning to the "frequency" component, Arizona Cattle asserts that the word "occupied" is unambiguous and must be interpreted narrowly to mean areas that the species "resides in." In the context of the owl, they argue that such areas consist only of the 600-acre PACs. The FWS argues … that where a geographic area is used with such frequency that the owl is likely to be present, the agency may permissibly designate it as occupied. FWS contends that, at a minimum, this includes the owl's "home range" and may include other areas used for intermittent activities.
We cannot agree that "occupied" has an unambiguous, plain meaning as Arizona Cattle suggests. The word "occupied," standing alone, does not provide a clear standard for how frequently a species must use an area before the agency can designate it as critical habitat. Merely replacing the word "occupied" with the word "resides" does not resolve this ambiguity.... Viewed narrowly, an owl resides only in its nest; viewed more broadly, an owl resides in a PAC; and viewed more broadly still, an owl resides in its territory or home range. Determining whether a species uses an area with sufficient regularity that it is "occupied" is a highly contextual and fact-dependent inquiry.... Such factual questions are within the purview of the agency's unique expertise and are entitled to the standard deference afforded such agency determinations.
* * * * *
The FWS has authority to designate as "occupied" areas that the owl uses with sufficient regularity that it is likely to be present during any reasonable span of time. This interpretation is sensible.... Arizona Cattle's "reside in" interpretation would make little sense as applied to nonterritorial, mobile, or migratory animals-including the owl-for which it may be impossible to fix a determinate area in which the animal "resides." Such a narrow interpretation also would mesh poorly with the FWS's authority to act in the face of uncertainty.
* * * * *
It is possible for the FWS to go too far. Most obvious is that the agency may not determine that areas unused by owls are occupied merely because those areas are suitable for future occupancy. Such a position would ignore the ESA's distinction between occupied and unoccupied areas.... The fact that a member of the species is not present in an area at a given instant does not mean the area is suitable only for future occupancy if the species regularly uses the area.
Having thus framed the inquiry, we turn to the primary issue before the court: whether the FWS included unoccupied areas in its critical habitat designation.
THE FWS DID NOT DESIGNATE UNOCCUPIED AREAS AS CRITICAL HABITAT
* * * * *
... PACs are explicitly defined with reference to frequent owl presence, and non-PAC protected areas and restricted areas are "devised around" and "adjacent to" PACs. More to the point, we note significant record support for owl occupancy of these areas in the form of studies correlating the habitat characteristics of protected and restricted areas with owl presence.
The agency did not stop there. [Its] analysis proceeds, unit by unit, through the addition of areas to the critical habitat proposal on the basis of information about known owl locations....
A point of recurring significance to our analysis is that PACs reflect only known owl sites. Although the 2004 Final Rule identified 1,176 PACs, owl populations have been estimated to be significantly greater than the maximum 2,352 owls reflected by this number of PACs…. Efforts by the FWS to identify other evidence of owl presence when it is unable to fix the location of a PAC with certainty are, therefore, highly significant.
Even more significant is the fact that the FWS excluded areas with evidence of few or no owls…. Finally, we note that... the FWS excluded the vast majority of critical habitat units that contained no PACs and refined the boundaries of the critical habitat units to exclude large areas that are distant from PACs.
The FWS's process for designating critical habitat gives us a strong foundation for our conclusion that the agency did not arbitrarily and capriciously treat areas in which owls are not found as "occupied."...
THE AMOUNT OF LAND DESIGNATED IS NOT DISPROPORTIONATE TO THE NUMBER OF OWLS
Arizona Cattle also argues that even using the owl's substantially larger home range as the appropriate measure for the territory occupied by the owl, the FWS has designated a grossly disproportionate amount of land compared to the amount the owl occupies. It ties this argument to a seemingly simple calculation: multiplying the 1,176 PACs by the maximum estimated home range size of the owl of 3,831 acres, the resultant area is only approximately 4.5 million acres, in contrast to the 8.6 million acres designated. This calculation, however, rests on a faulty assumption that the PACs represent all extant owls. We have already explained that PACs reflect only known owl sites and that there is record support for the existence of substantially greater numbers of owls and undiscovered sites.
... Arizona Cattle's argument does not overcome the strong evidence that the FWS was focused on designating areas occupied by owls.
* * * * *
We find no fault with the FWS's designation of habitat for the Mexican Spotted Owl….
Affirmed.
What was the standard of review that the court applied to the agency's decision?

Question 18

Summarize the arguments made by the Army Corps of Engineers for finding that the government had the power to regulate this site under the CWA.

Question 19

Professor and business ethics scholar Norman Bowie:
Environmentalists frequently argue that business has special obligations to protect the environment. Although I agree with the environmentalists on this point, I do not agree with them as to where the obligations lie. Business does not have an obligation to protect the environment over and above what is required by law; however, business does have a moral obligation to avoid intervening in the political arena in order to defeat or weaken environmental legislation. 81
a. Explain Professor Bowie's reasoning.
b. Do you agree with him Explain.

Question 20

Question 21

Thirty-three years after the passage of CERCLA, some of the country's most hazardous sites remain toxic. Until the earthquake and tsunami in Japan, the biggest nuclear waste hazard in the Western world was located in southeast Washington-the Hanford nuclear facility, a 586-square-mile site constructed as part of the Manhattan project to produce weapons-grade plutonium in nine nuclear reactors along the banks of the Columbia River. The highly toxic waste is currently stored in underground tanks, where it will continue to wait until at least 2019 when it is projected that a specialized waste-treatment plant will commence transforming the waste into still-radioactive glass logs that will be more suitable for long-term storage. [For maps and some aerial pictures of Hanford, explore the site beginning at its home page, http://yosemite.epa.gov/r10/cleanup.nsf/sites/hanford ]
What do you know about the pollution in your community Find out by logging onto www.scorecard.org and inserting your zip code. Then visit the EPA's site and discover any Superfund sites near you on its maps at www.epa.gov/superfund/sites/npl/where.htm.
How clean are your rivers and lakes

Question 22

Voluntarily Reduce Greenhouse Gas Emissions
Although the United States has not been a party to the Kyoto Protocol, many U.S. multinationals will be subject to its provisions because they do business in ratifying countries. Other U.S. businesses have chosen to voluntarily adopt emission reduction strategies.
Question
Imagine that you are a vice president of a corporation that burns significant fossil fuels in the production process but operates solely in the United States. What stance would you take on global climate change Why

Question 23

Following this decision of the Supreme Court, what must the EPA now do Is the EPA required to set a standard for greenhouse gas emissions from new vehicles

Question 24

Judge Betty B. Fletcher
Litigation History
In 1993 the Mexican Spotted Owl was listed as a threatened species under the Endangered Species Act ("ESA"). The listing decision prompted a series of lawsuits alternately seeking to compel the FWS [U.S. Fish and Wildlife Service] to designate critical habitat for the owl and, following the FWS's designation of habitat, attacking that designation.
The first such lawsuit was in 1995 to compel the FWS to designate critical habitat and resulted in the FWS's issuing a final rule designating 4.6 million acres of critical owl habitat, a designation that was quickly challenged in court and then revoked in 1998. After another lawsuit was filed to compel the FWS to designate habitat, the FWS proposed a rule in 2000 to designate 13.5 million acres of critical habitat and in 2001 the agency promulgated a final rule that again designated 4.6 million acres. That rule was later struck down and … the FWS reopened the comment period on the rule it proposed in 2000. In 2004 the FWS designated approximately 8.6 million acres of critical habitat. It is this designation, the 2004 Final Rule, that Arizona Cattle challenges in the current action.
Arizona Cattle moved for summary judgment to set aside the 2004 Final Rule.... The District Court rejected Arizona Cattle's arguments….
THE 2004 FINAL RULE
The FWS relied on three types of habitat management areas... as a starting point for the 2004 Final Rule: protected areas, restricted areas, and other forest and woodland types. Protected areas are those areas containing known owl sites, termed Protected Activity Centers ("PACs"); "steep slope" areas meeting certain forest conditions; and legally and administratively reserved lands. "PACs include a minimum of 600 acres... that includes the best nesting and roosting (i.e., resting) habitat in the area... and the most proximal and highly used foraging areas." However, PACs contain only 75% of necessary foraging areas for the owl. Restricted areas include non-steep slope areas with appropriate forest conditions that are "adjacent to or outside of protected areas." "Areas outside of PACs, including restricted areas, provide additional habitat appropriate for foraging."...
THE ESA AND THE DEFINITION OF "OCCUPIED"
The ESA defines a species' critical habitat as... "the specific areas within the geographical area occupied by the species, at the time it is listed…."
The statute thus differentiates between "occupied" and "unoccupied" areas.… [We] face the preliminary issue of what it means for an area to be "occupied" under the ESA.
It is useful to unpack this inquiry into two components: uncertainty and frequency. Uncertainty is a factor when the FWS has reason to believe that owls are present in a given area, but lacks conclusive proof of their presence. Frequency is a factor when owls are shown to have only an intermittent presence in a given area. Occasionally, both factors will play a part in determining whether an area is "occupied." Because the ESA permits only one of two possible outcomes for this inquiry- occupied or unoccupied-... we must determine the scope of the FWS's authority to categorize as "occupied" those areas that may not fit neatly into either pigeonhole.
We have ample guidance on the "uncertainty" issue. The ESA provides that the agency must determine critical habitat using the "best scientific data available." This standard does not require that the FWS act only when it can justify its decision with absolute confidence….
Turning to the "frequency" component, Arizona Cattle asserts that the word "occupied" is unambiguous and must be interpreted narrowly to mean areas that the species "resides in." In the context of the owl, they argue that such areas consist only of the 600-acre PACs. The FWS argues … that where a geographic area is used with such frequency that the owl is likely to be present, the agency may permissibly designate it as occupied. FWS contends that, at a minimum, this includes the owl's "home range" and may include other areas used for intermittent activities.
We cannot agree that "occupied" has an unambiguous, plain meaning as Arizona Cattle suggests. The word "occupied," standing alone, does not provide a clear standard for how frequently a species must use an area before the agency can designate it as critical habitat. Merely replacing the word "occupied" with the word "resides" does not resolve this ambiguity.... Viewed narrowly, an owl resides only in its nest; viewed more broadly, an owl resides in a PAC; and viewed more broadly still, an owl resides in its territory or home range. Determining whether a species uses an area with sufficient regularity that it is "occupied" is a highly contextual and fact-dependent inquiry.... Such factual questions are within the purview of the agency's unique expertise and are entitled to the standard deference afforded such agency determinations.
* * * * *
The FWS has authority to designate as "occupied" areas that the owl uses with sufficient regularity that it is likely to be present during any reasonable span of time. This interpretation is sensible.... Arizona Cattle's "reside in" interpretation would make little sense as applied to nonterritorial, mobile, or migratory animals-including the owl-for which it may be impossible to fix a determinate area in which the animal "resides." Such a narrow interpretation also would mesh poorly with the FWS's authority to act in the face of uncertainty.
* * * * *
It is possible for the FWS to go too far. Most obvious is that the agency may not determine that areas unused by owls are occupied merely because those areas are suitable for future occupancy. Such a position would ignore the ESA's distinction between occupied and unoccupied areas.... The fact that a member of the species is not present in an area at a given instant does not mean the area is suitable only for future occupancy if the species regularly uses the area.
Having thus framed the inquiry, we turn to the primary issue before the court: whether the FWS included unoccupied areas in its critical habitat designation.
THE FWS DID NOT DESIGNATE UNOCCUPIED AREAS AS CRITICAL HABITAT
* * * * *
... PACs are explicitly defined with reference to frequent owl presence, and non-PAC protected areas and restricted areas are "devised around" and "adjacent to" PACs. More to the point, we note significant record support for owl occupancy of these areas in the form of studies correlating the habitat characteristics of protected and restricted areas with owl presence.
The agency did not stop there. [Its] analysis proceeds, unit by unit, through the addition of areas to the critical habitat proposal on the basis of information about known owl locations....
A point of recurring significance to our analysis is that PACs reflect only known owl sites. Although the 2004 Final Rule identified 1,176 PACs, owl populations have been estimated to be significantly greater than the maximum 2,352 owls reflected by this number of PACs…. Efforts by the FWS to identify other evidence of owl presence when it is unable to fix the location of a PAC with certainty are, therefore, highly significant.
Even more significant is the fact that the FWS excluded areas with evidence of few or no owls…. Finally, we note that... the FWS excluded the vast majority of critical habitat units that contained no PACs and refined the boundaries of the critical habitat units to exclude large areas that are distant from PACs.
The FWS's process for designating critical habitat gives us a strong foundation for our conclusion that the agency did not arbitrarily and capriciously treat areas in which owls are not found as "occupied."...
THE AMOUNT OF LAND DESIGNATED IS NOT DISPROPORTIONATE TO THE NUMBER OF OWLS
Arizona Cattle also argues that even using the owl's substantially larger home range as the appropriate measure for the territory occupied by the owl, the FWS has designated a grossly disproportionate amount of land compared to the amount the owl occupies. It ties this argument to a seemingly simple calculation: multiplying the 1,176 PACs by the maximum estimated home range size of the owl of 3,831 acres, the resultant area is only approximately 4.5 million acres, in contrast to the 8.6 million acres designated. This calculation, however, rests on a faulty assumption that the PACs represent all extant owls. We have already explained that PACs reflect only known owl sites and that there is record support for the existence of substantially greater numbers of owls and undiscovered sites.
... Arizona Cattle's argument does not overcome the strong evidence that the FWS was focused on designating areas occupied by owls.
* * * * *
We find no fault with the FWS's designation of habitat for the Mexican Spotted Owl….
Affirmed.
How did the FWS select the areas included in its designation of 8.6 million acres as critical habitat for the owl?

Question 25

In your view, should the federal government be able to regulate bodies of water that are of significant use by migratory birds Explain.

Question 26

What was the standard of review that the court applied to the agency's decision

Question 27

Judge Betty B. Fletcher
Litigation History
In 1993 the Mexican Spotted Owl was listed as a threatened species under the Endangered Species Act ("ESA"). The listing decision prompted a series of lawsuits alternately seeking to compel the FWS [U.S. Fish and Wildlife Service] to designate critical habitat for the owl and, following the FWS's designation of habitat, attacking that designation.
The first such lawsuit was in 1995 to compel the FWS to designate critical habitat and resulted in the FWS's issuing a final rule designating 4.6 million acres of critical owl habitat, a designation that was quickly challenged in court and then revoked in 1998. After another lawsuit was filed to compel the FWS to designate habitat, the FWS proposed a rule in 2000 to designate 13.5 million acres of critical habitat and in 2001 the agency promulgated a final rule that again designated 4.6 million acres. That rule was later struck down and … the FWS reopened the comment period on the rule it proposed in 2000. In 2004 the FWS designated approximately 8.6 million acres of critical habitat. It is this designation, the 2004 Final Rule, that Arizona Cattle challenges in the current action.
Arizona Cattle moved for summary judgment to set aside the 2004 Final Rule.... The District Court rejected Arizona Cattle's arguments….
THE 2004 FINAL RULE
The FWS relied on three types of habitat management areas... as a starting point for the 2004 Final Rule: protected areas, restricted areas, and other forest and woodland types. Protected areas are those areas containing known owl sites, termed Protected Activity Centers ("PACs"); "steep slope" areas meeting certain forest conditions; and legally and administratively reserved lands. "PACs include a minimum of 600 acres... that includes the best nesting and roosting (i.e., resting) habitat in the area... and the most proximal and highly used foraging areas." However, PACs contain only 75% of necessary foraging areas for the owl. Restricted areas include non-steep slope areas with appropriate forest conditions that are "adjacent to or outside of protected areas." "Areas outside of PACs, including restricted areas, provide additional habitat appropriate for foraging."...
THE ESA AND THE DEFINITION OF "OCCUPIED"
The ESA defines a species' critical habitat as... "the specific areas within the geographical area occupied by the species, at the time it is listed…."
The statute thus differentiates between "occupied" and "unoccupied" areas.… [We] face the preliminary issue of what it means for an area to be "occupied" under the ESA.
It is useful to unpack this inquiry into two components: uncertainty and frequency. Uncertainty is a factor when the FWS has reason to believe that owls are present in a given area, but lacks conclusive proof of their presence. Frequency is a factor when owls are shown to have only an intermittent presence in a given area. Occasionally, both factors will play a part in determining whether an area is "occupied." Because the ESA permits only one of two possible outcomes for this inquiry- occupied or unoccupied-... we must determine the scope of the FWS's authority to categorize as "occupied" those areas that may not fit neatly into either pigeonhole.
We have ample guidance on the "uncertainty" issue. The ESA provides that the agency must determine critical habitat using the "best scientific data available." This standard does not require that the FWS act only when it can justify its decision with absolute confidence….
Turning to the "frequency" component, Arizona Cattle asserts that the word "occupied" is unambiguous and must be interpreted narrowly to mean areas that the species "resides in." In the context of the owl, they argue that such areas consist only of the 600-acre PACs. The FWS argues … that where a geographic area is used with such frequency that the owl is likely to be present, the agency may permissibly designate it as occupied. FWS contends that, at a minimum, this includes the owl's "home range" and may include other areas used for intermittent activities.
We cannot agree that "occupied" has an unambiguous, plain meaning as Arizona Cattle suggests. The word "occupied," standing alone, does not provide a clear standard for how frequently a species must use an area before the agency can designate it as critical habitat. Merely replacing the word "occupied" with the word "resides" does not resolve this ambiguity.... Viewed narrowly, an owl resides only in its nest; viewed more broadly, an owl resides in a PAC; and viewed more broadly still, an owl resides in its territory or home range. Determining whether a species uses an area with sufficient regularity that it is "occupied" is a highly contextual and fact-dependent inquiry.... Such factual questions are within the purview of the agency's unique expertise and are entitled to the standard deference afforded such agency determinations.
* * * * *
The FWS has authority to designate as "occupied" areas that the owl uses with sufficient regularity that it is likely to be present during any reasonable span of time. This interpretation is sensible.... Arizona Cattle's "reside in" interpretation would make little sense as applied to nonterritorial, mobile, or migratory animals-including the owl-for which it may be impossible to fix a determinate area in which the animal "resides." Such a narrow interpretation also would mesh poorly with the FWS's authority to act in the face of uncertainty.
* * * * *
It is possible for the FWS to go too far. Most obvious is that the agency may not determine that areas unused by owls are occupied merely because those areas are suitable for future occupancy. Such a position would ignore the ESA's distinction between occupied and unoccupied areas.... The fact that a member of the species is not present in an area at a given instant does not mean the area is suitable only for future occupancy if the species regularly uses the area.
Having thus framed the inquiry, we turn to the primary issue before the court: whether the FWS included unoccupied areas in its critical habitat designation.
THE FWS DID NOT DESIGNATE UNOCCUPIED AREAS AS CRITICAL HABITAT
* * * * *
... PACs are explicitly defined with reference to frequent owl presence, and non-PAC protected areas and restricted areas are "devised around" and "adjacent to" PACs. More to the point, we note significant record support for owl occupancy of these areas in the form of studies correlating the habitat characteristics of protected and restricted areas with owl presence.
The agency did not stop there. [Its] analysis proceeds, unit by unit, through the addition of areas to the critical habitat proposal on the basis of information about known owl locations....
A point of recurring significance to our analysis is that PACs reflect only known owl sites. Although the 2004 Final Rule identified 1,176 PACs, owl populations have been estimated to be significantly greater than the maximum 2,352 owls reflected by this number of PACs…. Efforts by the FWS to identify other evidence of owl presence when it is unable to fix the location of a PAC with certainty are, therefore, highly significant.
Even more significant is the fact that the FWS excluded areas with evidence of few or no owls…. Finally, we note that... the FWS excluded the vast majority of critical habitat units that contained no PACs and refined the boundaries of the critical habitat units to exclude large areas that are distant from PACs.
The FWS's process for designating critical habitat gives us a strong foundation for our conclusion that the agency did not arbitrarily and capriciously treat areas in which owls are not found as "occupied."...
THE AMOUNT OF LAND DESIGNATED IS NOT DISPROPORTIONATE TO THE NUMBER OF OWLS
Arizona Cattle also argues that even using the owl's substantially larger home range as the appropriate measure for the territory occupied by the owl, the FWS has designated a grossly disproportionate amount of land compared to the amount the owl occupies. It ties this argument to a seemingly simple calculation: multiplying the 1,176 PACs by the maximum estimated home range size of the owl of 3,831 acres, the resultant area is only approximately 4.5 million acres, in contrast to the 8.6 million acres designated. This calculation, however, rests on a faulty assumption that the PACs represent all extant owls. We have already explained that PACs reflect only known owl sites and that there is record support for the existence of substantially greater numbers of owls and undiscovered sites.
... Arizona Cattle's argument does not overcome the strong evidence that the FWS was focused on designating areas occupied by owls.
* * * * *
We find no fault with the FWS's designation of habitat for the Mexican Spotted Owl….
Affirmed.
How many years elapsed between the first lawsuit over the designation of the Mexican spotted owl and the decision in this case?

Question 28

Judge Betty B. Fletcher
Litigation History
In 1993 the Mexican Spotted Owl was listed as a threatened species under the Endangered Species Act ("ESA"). The listing decision prompted a series of lawsuits alternately seeking to compel the FWS [U.S. Fish and Wildlife Service] to designate critical habitat for the owl and, following the FWS's designation of habitat, attacking that designation.
The first such lawsuit was in 1995 to compel the FWS to designate critical habitat and resulted in the FWS's issuing a final rule designating 4.6 million acres of critical owl habitat, a designation that was quickly challenged in court and then revoked in 1998. After another lawsuit was filed to compel the FWS to designate habitat, the FWS proposed a rule in 2000 to designate 13.5 million acres of critical habitat and in 2001 the agency promulgated a final rule that again designated 4.6 million acres. That rule was later struck down and … the FWS reopened the comment period on the rule it proposed in 2000. In 2004 the FWS designated approximately 8.6 million acres of critical habitat. It is this designation, the 2004 Final Rule, that Arizona Cattle challenges in the current action.
Arizona Cattle moved for summary judgment to set aside the 2004 Final Rule.... The District Court rejected Arizona Cattle's arguments….
THE 2004 FINAL RULE
The FWS relied on three types of habitat management areas... as a starting point for the 2004 Final Rule: protected areas, restricted areas, and other forest and woodland types. Protected areas are those areas containing known owl sites, termed Protected Activity Centers ("PACs"); "steep slope" areas meeting certain forest conditions; and legally and administratively reserved lands. "PACs include a minimum of 600 acres... that includes the best nesting and roosting (i.e., resting) habitat in the area... and the most proximal and highly used foraging areas." However, PACs contain only 75% of necessary foraging areas for the owl. Restricted areas include non-steep slope areas with appropriate forest conditions that are "adjacent to or outside of protected areas." "Areas outside of PACs, including restricted areas, provide additional habitat appropriate for foraging."...
THE ESA AND THE DEFINITION OF "OCCUPIED"
The ESA defines a species' critical habitat as... "the specific areas within the geographical area occupied by the species, at the time it is listed…."
The statute thus differentiates between "occupied" and "unoccupied" areas.… [We] face the preliminary issue of what it means for an area to be "occupied" under the ESA.
It is useful to unpack this inquiry into two components: uncertainty and frequency. Uncertainty is a factor when the FWS has reason to believe that owls are present in a given area, but lacks conclusive proof of their presence. Frequency is a factor when owls are shown to have only an intermittent presence in a given area. Occasionally, both factors will play a part in determining whether an area is "occupied." Because the ESA permits only one of two possible outcomes for this inquiry- occupied or unoccupied-... we must determine the scope of the FWS's authority to categorize as "occupied" those areas that may not fit neatly into either pigeonhole.
We have ample guidance on the "uncertainty" issue. The ESA provides that the agency must determine critical habitat using the "best scientific data available." This standard does not require that the FWS act only when it can justify its decision with absolute confidence….
Turning to the "frequency" component, Arizona Cattle asserts that the word "occupied" is unambiguous and must be interpreted narrowly to mean areas that the species "resides in." In the context of the owl, they argue that such areas consist only of the 600-acre PACs. The FWS argues … that where a geographic area is used with such frequency that the owl is likely to be present, the agency may permissibly designate it as occupied. FWS contends that, at a minimum, this includes the owl's "home range" and may include other areas used for intermittent activities.
We cannot agree that "occupied" has an unambiguous, plain meaning as Arizona Cattle suggests. The word "occupied," standing alone, does not provide a clear standard for how frequently a species must use an area before the agency can designate it as critical habitat. Merely replacing the word "occupied" with the word "resides" does not resolve this ambiguity.... Viewed narrowly, an owl resides only in its nest; viewed more broadly, an owl resides in a PAC; and viewed more broadly still, an owl resides in its territory or home range. Determining whether a species uses an area with sufficient regularity that it is "occupied" is a highly contextual and fact-dependent inquiry.... Such factual questions are within the purview of the agency's unique expertise and are entitled to the standard deference afforded such agency determinations.
* * * * *
The FWS has authority to designate as "occupied" areas that the owl uses with sufficient regularity that it is likely to be present during any reasonable span of time. This interpretation is sensible.... Arizona Cattle's "reside in" interpretation would make little sense as applied to nonterritorial, mobile, or migratory animals-including the owl-for which it may be impossible to fix a determinate area in which the animal "resides." Such a narrow interpretation also would mesh poorly with the FWS's authority to act in the face of uncertainty.
* * * * *
It is possible for the FWS to go too far. Most obvious is that the agency may not determine that areas unused by owls are occupied merely because those areas are suitable for future occupancy. Such a position would ignore the ESA's distinction between occupied and unoccupied areas.... The fact that a member of the species is not present in an area at a given instant does not mean the area is suitable only for future occupancy if the species regularly uses the area.
Having thus framed the inquiry, we turn to the primary issue before the court: whether the FWS included unoccupied areas in its critical habitat designation.
THE FWS DID NOT DESIGNATE UNOCCUPIED AREAS AS CRITICAL HABITAT
* * * * *
... PACs are explicitly defined with reference to frequent owl presence, and non-PAC protected areas and restricted areas are "devised around" and "adjacent to" PACs. More to the point, we note significant record support for owl occupancy of these areas in the form of studies correlating the habitat characteristics of protected and restricted areas with owl presence.
The agency did not stop there. [Its] analysis proceeds, unit by unit, through the addition of areas to the critical habitat proposal on the basis of information about known owl locations....
A point of recurring significance to our analysis is that PACs reflect only known owl sites. Although the 2004 Final Rule identified 1,176 PACs, owl populations have been estimated to be significantly greater than the maximum 2,352 owls reflected by this number of PACs…. Efforts by the FWS to identify other evidence of owl presence when it is unable to fix the location of a PAC with certainty are, therefore, highly significant.
Even more significant is the fact that the FWS excluded areas with evidence of few or no owls…. Finally, we note that... the FWS excluded the vast majority of critical habitat units that contained no PACs and refined the boundaries of the critical habitat units to exclude large areas that are distant from PACs.
The FWS's process for designating critical habitat gives us a strong foundation for our conclusion that the agency did not arbitrarily and capriciously treat areas in which owls are not found as "occupied."...
THE AMOUNT OF LAND DESIGNATED IS NOT DISPROPORTIONATE TO THE NUMBER OF OWLS
Arizona Cattle also argues that even using the owl's substantially larger home range as the appropriate measure for the territory occupied by the owl, the FWS has designated a grossly disproportionate amount of land compared to the amount the owl occupies. It ties this argument to a seemingly simple calculation: multiplying the 1,176 PACs by the maximum estimated home range size of the owl of 3,831 acres, the resultant area is only approximately 4.5 million acres, in contrast to the 8.6 million acres designated. This calculation, however, rests on a faulty assumption that the PACs represent all extant owls. We have already explained that PACs reflect only known owl sites and that there is record support for the existence of substantially greater numbers of owls and undiscovered sites.
... Arizona Cattle's argument does not overcome the strong evidence that the FWS was focused on designating areas occupied by owls.
* * * * *
We find no fault with the FWS's designation of habitat for the Mexican Spotted Owl….
Affirmed.
Identify the statutory language the court had to interpret to resolve this case.

Question 29

How might the government's ever-increasing environmental regulations, along with the public's call for a new environmental consciousness, favor big business interests over those of small business owners

Question 30

Mexico is quickly running short of water.
85 percent of Mexico's economic growth and 75 percent of its 100 million people are in the north, and the water is far to the south… [P]oliticians facing elections are reluctant to ask voters to spend more on any utility, let alone water. Agriculture uses 80 percent of the water and pays nothing, although it only ranks seventh in contribution to the gross national product… Less than half of the capital's wastewater is treated. The rest sinks into underground lakes or flows toward the Gulf of Mexico, turning rivers into sewers… Well over half of irrigation water is lost to evaporation or seepage." 83
Brainstorm as many possible contributions to the solution of Mexico's water problem as you can.

Question 31

Why did the plaintiffs want this beluga whale listed as endangered under the Endangered Species Act

Question 32

Thirty-three years after the passage of CERCLA, some of the country's most hazardous sites remain toxic. Until the earthquake and tsunami in Japan, the biggest nuclear waste hazard in the Western world was located in southeast Washington-the Hanford nuclear facility, a 586-square-mile site constructed as part of the Manhattan project to produce weapons-grade plutonium in nine nuclear reactors along the banks of the Columbia River. The highly toxic waste is currently stored in underground tanks, where it will continue to wait until at least 2019 when it is projected that a specialized waste-treatment plant will commence transforming the waste into still-radioactive glass logs that will be more suitable for long-term storage. [For maps and some aerial pictures of Hanford, explore the site beginning at its home page, http://yosemite.epa.gov/r10/cleanup.nsf/sites/hanford ]
What do you know about the pollution in your community Find out by logging onto www.scorecard.org and inserting your zip code. Then visit the EPA's site and discover any Superfund sites near you on its maps at www.epa.gov/superfund/sites/npl/where.htm.
How does your home town rate with regard to the industrial release of toxic chemicals

Question 33

Look back at the discussion about proving causation at the start of Part Two of this chapter. Did the Supreme Court say that greenhouse gas emissions from vehicles caused global warming What did the Court observe about causation

Question 34

Economist B. Peter Pashigian:
It is widely thought that environmental controls are guided by the public-spirited ideal of correcting for "negative externalities"-the pollution costs that spill over from private operations. This view is not wrong by any means. But it is suspiciously incomplete.
After all, there are numerous studies of regulatory programs in other fields that show how private interests have used public powers for their own enrichment. 79
In addition to correcting negative externalities, what forces might be influencing federal pollution control

Question 35

What did the petitioners, including the State of Massachusetts, want the EPA to do

Question 36

Due to the spread of the West Nile virus in the state of New York, an insecticide spraying program was implemented to control the mosquitoes responsible for its spread. Several groups sued, arguing that the spray was a pollutant that damaged waters in violation of the Clean Water Act. What criteria should the court use to decide the outcome See No Spray Coalition, Inc. v. The City of New York, 2000 U.S. Dist. LEXIS 13919, 51 ERC (BNA) 1508 (S.D.N.Y. 2000).

Question 37

"The single most important and pervasive moral obligation facing mankind is to ensure survival of a healthy planet for our grandchildren and theirs." Do you agree Why or why not

Question 38

Explain the Supreme Court's response to each of the Army Corps of Engineers' arguments previously identified.

Question 39

Ott Chemical Co. polluted the ground at its Michigan plant. CPC International created a wholly owned subsidiary to buy Ott, which was accomplished in 1965. CPC retained the original Ott managers. Pollution continued through 1972 when CPC sold Ott. In 1981 the U.S. EPA began a cleanup of the site. To recover some of the tens of millions in cleanup costs, the EPA sued CPC (now called Bestfoods) among other potentially responsible parties. The Superfund law places responsibility on anyone who "owned or operated" a property when pollution was deposited. The district court held that CPC was liable because of its active participation in Ott's business and its control of Ott's decisions in that it selected the Ott board of directors and placed some CPC managers as executives at Ott.
a. Do you think CPC should be held liable Why or why not
b. What test would you employ to determine whether a parent corporation should be liable for a subsidiary's pollution See United States v. Bestfoods, 524 U.S. 51 (1998).

Question 40

Global Environmental Justice
The concept of environmental justice includes the expectation that environmental risks and 'hazards should be equally distributed when measured against wealth or race. Studies in the United States have shown that at least some risks, such as proximity to hazardous waste disposal sites, are not equally distributed. Is the concept of equally distributed environmental risks a useful tool in assessing global environmental hazards Consider the following:
• The Niger delta provides 10 percent of U.S. oil imports and routinely suffers substantial oil spills, as noted above.
• Eighty percent of Nigeria's government revenue comes from the Niger delta, but life expectancy in the delta is the lowest in Nigeria."
Question
Are oil companies guilty of unethical behavior if their drilling procedures off the coast of Africa do not take environmental precautions equivalent to those they take when drilling in U.S. or European waters Explain.

Question 41

Judge Betty B. Fletcher
Litigation History
In 1993 the Mexican Spotted Owl was listed as a threatened species under the Endangered Species Act ("ESA"). The listing decision prompted a series of lawsuits alternately seeking to compel the FWS [U.S. Fish and Wildlife Service] to designate critical habitat for the owl and, following the FWS's designation of habitat, attacking that designation.
The first such lawsuit was in 1995 to compel the FWS to designate critical habitat and resulted in the FWS's issuing a final rule designating 4.6 million acres of critical owl habitat, a designation that was quickly challenged in court and then revoked in 1998. After another lawsuit was filed to compel the FWS to designate habitat, the FWS proposed a rule in 2000 to designate 13.5 million acres of critical habitat and in 2001 the agency promulgated a final rule that again designated 4.6 million acres. That rule was later struck down and … the FWS reopened the comment period on the rule it proposed in 2000. In 2004 the FWS designated approximately 8.6 million acres of critical habitat. It is this designation, the 2004 Final Rule, that Arizona Cattle challenges in the current action.
Arizona Cattle moved for summary judgment to set aside the 2004 Final Rule.... The District Court rejected Arizona Cattle's arguments….
THE 2004 FINAL RULE
The FWS relied on three types of habitat management areas... as a starting point for the 2004 Final Rule: protected areas, restricted areas, and other forest and woodland types. Protected areas are those areas containing known owl sites, termed Protected Activity Centers ("PACs"); "steep slope" areas meeting certain forest conditions; and legally and administratively reserved lands. "PACs include a minimum of 600 acres... that includes the best nesting and roosting (i.e., resting) habitat in the area... and the most proximal and highly used foraging areas." However, PACs contain only 75% of necessary foraging areas for the owl. Restricted areas include non-steep slope areas with appropriate forest conditions that are "adjacent to or outside of protected areas." "Areas outside of PACs, including restricted areas, provide additional habitat appropriate for foraging."...
THE ESA AND THE DEFINITION OF "OCCUPIED"
The ESA defines a species' critical habitat as... "the specific areas within the geographical area occupied by the species, at the time it is listed…."
The statute thus differentiates between "occupied" and "unoccupied" areas.… [We] face the preliminary issue of what it means for an area to be "occupied" under the ESA.
It is useful to unpack this inquiry into two components: uncertainty and frequency. Uncertainty is a factor when the FWS has reason to believe that owls are present in a given area, but lacks conclusive proof of their presence. Frequency is a factor when owls are shown to have only an intermittent presence in a given area. Occasionally, both factors will play a part in determining whether an area is "occupied." Because the ESA permits only one of two possible outcomes for this inquiry- occupied or unoccupied-... we must determine the scope of the FWS's authority to categorize as "occupied" those areas that may not fit neatly into either pigeonhole.
We have ample guidance on the "uncertainty" issue. The ESA provides that the agency must determine critical habitat using the "best scientific data available." This standard does not require that the FWS act only when it can justify its decision with absolute confidence….
Turning to the "frequency" component, Arizona Cattle asserts that the word "occupied" is unambiguous and must be interpreted narrowly to mean areas that the species "resides in." In the context of the owl, they argue that such areas consist only of the 600-acre PACs. The FWS argues … that where a geographic area is used with such frequency that the owl is likely to be present, the agency may permissibly designate it as occupied. FWS contends that, at a minimum, this includes the owl's "home range" and may include other areas used for intermittent activities.
We cannot agree that "occupied" has an unambiguous, plain meaning as Arizona Cattle suggests. The word "occupied," standing alone, does not provide a clear standard for how frequently a species must use an area before the agency can designate it as critical habitat. Merely replacing the word "occupied" with the word "resides" does not resolve this ambiguity.... Viewed narrowly, an owl resides only in its nest; viewed more broadly, an owl resides in a PAC; and viewed more broadly still, an owl resides in its territory or home range. Determining whether a species uses an area with sufficient regularity that it is "occupied" is a highly contextual and fact-dependent inquiry.... Such factual questions are within the purview of the agency's unique expertise and are entitled to the standard deference afforded such agency determinations.
* * * * *
The FWS has authority to designate as "occupied" areas that the owl uses with sufficient regularity that it is likely to be present during any reasonable span of time. This interpretation is sensible.... Arizona Cattle's "reside in" interpretation would make little sense as applied to nonterritorial, mobile, or migratory animals-including the owl-for which it may be impossible to fix a determinate area in which the animal "resides." Such a narrow interpretation also would mesh poorly with the FWS's authority to act in the face of uncertainty.
* * * * *
It is possible for the FWS to go too far. Most obvious is that the agency may not determine that areas unused by owls are occupied merely because those areas are suitable for future occupancy. Such a position would ignore the ESA's distinction between occupied and unoccupied areas.... The fact that a member of the species is not present in an area at a given instant does not mean the area is suitable only for future occupancy if the species regularly uses the area.
Having thus framed the inquiry, we turn to the primary issue before the court: whether the FWS included unoccupied areas in its critical habitat designation.
THE FWS DID NOT DESIGNATE UNOCCUPIED AREAS AS CRITICAL HABITAT
* * * * *
... PACs are explicitly defined with reference to frequent owl presence, and non-PAC protected areas and restricted areas are "devised around" and "adjacent to" PACs. More to the point, we note significant record support for owl occupancy of these areas in the form of studies correlating the habitat characteristics of protected and restricted areas with owl presence.
The agency did not stop there. [Its] analysis proceeds, unit by unit, through the addition of areas to the critical habitat proposal on the basis of information about known owl locations....
A point of recurring significance to our analysis is that PACs reflect only known owl sites. Although the 2004 Final Rule identified 1,176 PACs, owl populations have been estimated to be significantly greater than the maximum 2,352 owls reflected by this number of PACs…. Efforts by the FWS to identify other evidence of owl presence when it is unable to fix the location of a PAC with certainty are, therefore, highly significant.
Even more significant is the fact that the FWS excluded areas with evidence of few or no owls…. Finally, we note that... the FWS excluded the vast majority of critical habitat units that contained no PACs and refined the boundaries of the critical habitat units to exclude large areas that are distant from PACs.
The FWS's process for designating critical habitat gives us a strong foundation for our conclusion that the agency did not arbitrarily and capriciously treat areas in which owls are not found as "occupied."...
THE AMOUNT OF LAND DESIGNATED IS NOT DISPROPORTIONATE TO THE NUMBER OF OWLS
Arizona Cattle also argues that even using the owl's substantially larger home range as the appropriate measure for the territory occupied by the owl, the FWS has designated a grossly disproportionate amount of land compared to the amount the owl occupies. It ties this argument to a seemingly simple calculation: multiplying the 1,176 PACs by the maximum estimated home range size of the owl of 3,831 acres, the resultant area is only approximately 4.5 million acres, in contrast to the 8.6 million acres designated. This calculation, however, rests on a faulty assumption that the PACs represent all extant owls. We have already explained that PACs reflect only known owl sites and that there is record support for the existence of substantially greater numbers of owls and undiscovered sites.
... Arizona Cattle's argument does not overcome the strong evidence that the FWS was focused on designating areas occupied by owls.
* * * * *
We find no fault with the FWS's designation of habitat for the Mexican Spotted Owl….
Affirmed.
What contrary arguments were made by Arizona Cattle?

Question 42

William Tucker:
[Environmentalism is] essentially aristocratic in its roots and derives from the land and nature-based ethic that has been championed by upper classes throughout history. Large landowners and titled aristocracies … have usually held a set of ideals that stresses "stewardship" and the husbanding of existing resources over exploration and discovery. This view favors handicrafts over mass production and the inheritance ethic over the business ethic. 84
Tucker went on to argue that environmentalism favors the economic and social interests of the well-off. He said people of the upper middle class see their future in universities and the government bureaucracy, with little economic stake in industrial expansion. Indeed, such expansion might threaten their suburban property values. Comment.