Environmental Law Outline

Environmental Law, Fall 2013 (Appel)

1. Intro

a. Why Fed Gov’t Should Protect the Env’t

i. Env’tl regulation expensive for states

ii. Env’tl compliance expensive and burdensome

iii. “Race to the bottom” – states feared that companies would move to other states w/ less regs

iv. US is one big commons

1. Tragedy of the commons (Hardin) – unregulated and unchecked use of common env’t leads to envt’l degradation.

a. Each individual seeks maximum benefit from commons

2. Creates external costs that user doesn’t have to pay

3. Envt’l law can force internal costs

b. Sources of Fed Envt’l Law

i. Fed Statutes

1. Once legislation becomes fed’l law, codified into USC

2. Four Basic Aspects of All Statutes

a. Statutory trigger – to what circumstances does statute apply?

b. Basic definitions – most statutes have def section

c. Exemptions and exceptions

d. Requirements/prohibitions/liabilities – if statute is triggered, what happens? What happens if statute is violated?

ii. Fed Regs (See Admin Law Section Below)

iii. Fed Ct Decisions

1. Almost all envt’l statutes allow citizen suit

a. Allow individual citizens to bring civ lawsuits against persons who violate statutes/against agencies supposed to implement statutes

c. Other Influences on Fed Envt’l Law

i. Common Law — SEE COMMON LAW NUISANCE UNDER RCRA, CWA SECTIONS

1. Statutory principles derive from common law principles (ex. nuisance)

a. When gap in statute, cts look to common law for standards

b. Statutes enacted to change the law

2. Most statutes have savings clause reserving common law actions.

a. State common law survives federal statutory law, but some elements of state common law do not

ii. Admin Law — Fed’l envt’l law is APPLIED ADMIN LAW

1. Branches of law (usually executive, but really all 3)

a. Executive – administer and enforce law

i. Agencies are part of exec branch that report to the president

b. Legislative – write law

c. Judicial – adjudicate cases

2. Statute Implementation

a. Fed statutes assigns/delegates powers to a fed agency

i. Constitutional considerations

1. Nondelegation doctrine – constit. gives fed lawmaking power exclusively to congress.

a. congress must give agencies direction

2. legislative veto

a. congress can’t override agency’s decisions that it has already delegated

3. Midwest Oil (not in CB) and “inherent” exec powers

a. Inherent powers – power of prez as commander in chief, etc.

b. Powers of implementing statutes

i. Rulemaking – making admin regs

ii. Investigation and recordkeeping – overseeing ppl/industries regulated by statute

iii. Enforcement – adjudicate violations, penalties, refer to DOJ

3. Agencies conceptually

a. Models of agency

i. Agency capture – agencies mimic needs/wants of those that they regulate – revolving door btw agencies and interest groups

ii. Reactive signals (if everyone is upset, we must be doing our job right)

b. Courts

i. Agencies are experts in policy (deference)

ii. Agencies are devoid of politics (even if they are influenced by politics, at least they belong to a politically accountable branch.

1. Unlike the political branches, judiciary not subject to election.

4. Procedural – procedures that agencies must use in carrying out functions

a. Types of Agency Actions

Formal action

Informal action

Rulemaking

Rulemaking after “formal hearing on the record” (won’t talk about)

Most rulemaking (notice and comment)

Adjudication

Admin law judge (ALJ) required; trial-like

Just about everything else (e.g. permit application)

b. Admin. Procedure Act (APA) 1947 – goal: standardize agency practices, provide increased public input, and judicial review of many agency actions

i. Informal Rulemaking

1. 3 step process (notice-and-comment rulemaking) – 5 USC § 533

a. Notice of proposed rule published in fed’l register (published daily)

b. Opportunity for ppl to comment on the rule to agency

c. Publication of final rule and explanation in fed’l register

2. Exempt from requirement:

a. Military/foreign affairs function

b. Matter relating to agency mgmt. or personnel or public property, loans, grants, benefits, contracts

c. Interpretative rules, gen statement of policy, rules of agency organization, procedure or practice

ii. Judicial review under the APA

1. 5 USC § 701(a)(1): does not extend to actions where review precluded or “actions committed to agency discretion by law”

2. 5 USC § 702: person suffering legal wrong b/c of agency action is entitles to judicial review

3. 5 USC § 704: agency action made reviewable by statute and final agency action for which there is no adequate remedy in ct are subject to judicial review

4. standard of review

a. 5 USC § 706(2)(A): reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance w/ law

b. ct shall review the whole record or those parts of it cited by party, and due account shall be taken of the rule of prejudicial error

5. meaning of standard of review

a. Citizens to Preserve Overton Park v. Volpe, 401 US 402, 416 (1971) (not in book)

i. To make a finding concerning whether a decision is arbitrary or capricious, ct must consider whether decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. NARROW.

6. How intrusive can courts get?

a. Vermont Yankee Nuclear Power Corp v. NRDC (not in book)

i. A court cannot engraft procedures (such as a public hearing) onto an admin process unless specifically required by the APA

ii. if the APA does not require a hearing, courts can not either

7. Judicial review: policy judgments and changes in admin

a. Motor Vehicle Mfrs Assoc v. State Farm (1983)

i. Normally, an Agency rule would be arbitrary and capricious if the

· agency has relied on factors which congress has not intended it to consider,

· entirely failed to consider an important aspect of the problem,

· offered explanation for decision that runs counter to the evidence before the agency,

· or is so implausible that it could not be ascribed to a difference of view or the product of agency expertise

ii. eviewing ct should not attempt to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given.

· Instead, send back to agency for them to decide

b. The Chevron Test (See notes on Chevron under CAA) – Chevron v. NRDC

i. Issue: What constitutes a “source” under the clean air act

· EPA says factory is one source. NRDC didn’t like this (multiple smokestacks)

· EPA didn’t define source

ii. When ct reviews agency’s construction of the statute it administers — 2 part test

· Whether congress has directly spoken to precise question at issue

o if intent is clear, end of matter – ct and agency must five effect to unambiguously expressed intent of congress

o Here, if congress had defined “source”

· if ct determines congress hasn’t addressed precise question

o ct doesn’t impose own construction

o if statute is silent/ambiguous, question for ct is whether agency’s answer is based on a permissible construction of the statute

iii. What makes something ambiguous? What can ct turn to?

· Legislative history

· Rules of construction (meaning of word by what it’s around)

iv. What does chevron apply to? “chevron step zero”

· Lower cts very happy abt chevron – agencies do all types of things that aren’t notice and comment

v. Us v. Mead Corp – customs issue

· Problem: loose-leaf materials v. bound materials – subject to different customs procedures

o Issue – things bound loosely. Which tariff to apply?

· Lower Ct said policy experts decide

· “agencies charged w/ applying statute make all sorts of interpretive choices…not all choices bind judges to follow them…may influence cts facing questions agencies have