Environmental Law Study Outline * Case* Fall 12
1. Standing to Sue to Enforce Environmental Laws
A. 3 Prerequisites for a plaintiff to have access to federal courts:
1. Subject matter jurisdiction
2. Private right of action (2 options)
a) A statute expressly grants the plaintiff a private right of action through language along the lines of “any person may commence a civil action on his own behalf” OR
b) Administrative Procedure Act- establishes a “cause of action” for any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.
3. Standing to sue (four requirements)
a) The challenged action must cause plaintiff some actual or threatened injury in fact
a. Defined as an invasion of a legally protected interest which is:
i. Concrete and particularized (affects plaintiff in personal way) AND
ii. Actual or imminent (not conjectural or hypothetical)
b. Sierra Club v. Morton—injury to “environmental, aesthetic, or recreational interests” actually suffered by persons can qualify as injury in fact. Must be more than an injury to a cognizable interest. Party seeking relief must be injured.
c. Lujan v. Defenders of Wildlife- past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, if unaccompanied by any continuing, present adverse affects.
b) Injury must be fairly traceable to challenged action
a. There must be a causal connection between injury and conduct complained of. Not the result of independent action of a 3rd party not before the court.
c) Injury must be redressable by judicial action
a. It must be likely as opposed to merely speculative that the injury will be redressed by a favorable decision.
d) Injury must be to an interest arguably within the zone of interests to be protected by the statute alleged to have been violated
B. Associational or Representational Standing
1. An association can sue in its own name on behalf of its members if:
a) One of its members would have standing to bring the action
b) The lawsuit relates to the purposes of the organization, and
c) Neither the claim asserted nor the relief requested requires the participation of individual members (no individualized damages).
2. The Regulatory Process (APA Rulemaking)
A. 3 types of rulemaking:
a. General notice of proposed rule-making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law.
a. After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation
a. The required publication or service of a substantive rule shall be made not less than 30 days before its effective date.
b. After consideration of the relevant matter presented , the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.
2. Hybrid- A rule making procedure within specific statutory schemes. May be more detailed than informal rulemaking, but less detailed than formal rulemaking.
3. Formal- When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 & 557 of this title apply instead of this subsection.
a) 556 & 557- replace the comment and publication portions of the informal rulemaking process.
B. Small Business Regulatory Enforcement Act
1. Agencies must give consideration to impact of proposed rules on small business when such rules may adversely affect them.
2. EPA must give small business representatives the opportunity to review and comment on such rules before such rules are the subject of public notice and comment.
3. All rules issued by federal agencies must be sent first to Congress for review before taking effect.
4. Agencies must provide for waivers of reductions in civil penalties imposed on small business to ease the burden of environmental regulatory enforcement.
5. Congressional Review Act- contains special fast-track procedures for Congress to enact resolutions that disapprove the rules.
6. Executive Order 12,866—subjects all significant EPA regulatory actions to budget review.
7. Executive Order 12,898—requires review of agency actions and rules for purposes of incorporating environmental justice strategies.
8. Judicial Review
a) A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. (standing if another statute does not provide such a right to review of agency action.)
b) The reviewing court shall:
a. Compel agency action unlawfully withheld or unreasonably delayed; and
b. Hold unlawful and set aside agency action, findings, and conclusions found to be—
y significant impacts.
b. Any adverse environmental effects which cannot be avoided should the proposal be implemented
c. Alternatives to the proposed action
d. The relationship between local short-term uses of man’s environment and the maintenance and enhancement of long term productivity, and
e. Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
b) Major Federal Action
a. Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the APA; treaties and international conventions or agreements; formal documents establishing an agency’s policies which will result in or substantially alter agency programs
b. Adoption of formal plans, such as official documents prepared or approved by fed agencies which guide or prescribe alternative uses of fed resources, upon which future agency actions will be based.
c. Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive
d. Approval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as fed’l and fed’l assisted activities.
c) Significantly affecting the quality of the human environment
a. Hanly v. Kleindienst
i. The extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it (how much worse will it be?); and
ii. The absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that result from its contribution to existing adverse conditions or uses in the affected area. (how bad is that?)