Envr. Law Outline – Fall 2010
1. Overview/Constitutional Issues
History of Environmental Law
– Two enduring threads: Protecting the environment in its natural state
o Preservationism v. Conservationism
o Focus on Federal lands, general preference for conservationism (right use) over preservationism, though both manifest themselves in federal law
– Protecting human health (and that of animals and plants) from pollution
o Long history prior to modern environmental movement, roots in industrialization and urbanization (sanitary movement, birth of public health)
– State common law actions used to address pollution issues (Platt v. Waterbury, etc) through nuisance actions.
o Common law shortcomings in dealing with environmental issues
§ Cost and difficulty of litigation (class action)
§ Difficulty of burden of proof (causing injury)
o Legacy of common law actions in pop culture (Civil Action, Erin Brockovic)
o Conservative argument for Property rights regimes in using common law
– Modern environmental Laws: NEPA, CAA, CWA, RCRA, CERCLA all passed in the 1970’s (by mostly Republican Presidents!)
Types of Regulations (pg. 6-10)
– Command and Control
o Regulations directing people to do a certain thing and not the other
o Can be health based (NAAQS), technology based (NPDES), feasablity limited (OSHA)
o Cost-benefit analysis (FIFRA pesticides act)
o Design standards vs. performance standards
§ Design standards specify a type of equipment
§ Performance standards mandate a certain level of emissions, etc
– Market-Based Strategies
o “second generation” regulations
o Cap-and-Trade
§ Acid Rain program of CAA (42 USC 7651)
o Individually tailored permits for facilities
§ EPA’s Project XL (failure due to large transaction costs)
– Publicizing Envr. Info
o EPA’s Toxic Release Inventory
§ Puts pressure from public and politicians for companies to “clean up their act”
– Cooperative Federalism
o States administer federal laws under supervision of a federal agency(usually EPA)
o Cannot require state administration, but can provide incentives
Theoretical Issues (p. 10-36)
Environmental harm usually does not occur intentionally, a product of externalities
– Public Goods
o Resources are publically owned, leading to overuse
§ Hardin’s Tragedy of the Commons
– Cost/Benefit Analysis
o Improve envr. Regulations by considering alternative mechanisms to maximize net benefit
o Difficulty in discounting future costs and benefits, trying to monetize certain values
– Risk Analysis (health-based)
o Composed of Risk assessment and risk management
o Probability that individual will suffer disease or death and the consequences of such an exposure to an entire population (Risk assessment, objective scientific evidence-based process)
– Polluter Pays principle
o Imposing full cost of pollution on polluter sends price signals, ethical implications
o Many ways to pay (spending money on tech. controls, liability for toxic wastes)
– Sustainable Development
o “Development that meets the needs of the present without ompromising the ability of future generations to meet their own needs.” (UNCED, 1992)
o Difficulty in determining what is sustainable.
o Especially important with respect to resource use
– Precautionary principle
o Widespread in European environmental law
o Sunstein: We should avoid steps that will create a risk of harm; until safety is established through clear evidence, we should be cautious.
o Better safe than sorry
o Downside (according to Sunstein): can preclude all action, including inaction. “Paralyzing” Principle
– Environmental Ethics
o Should environment be protected for utilitarian concerns or for its own sake?
o Leopold’s “Land Ethic”: Changes our role from conqueror to member and citizen.
– Environmental Justice
o Harms visited disproportionately on the poor and minority groups
o Hazardous waste facilities, industry, etc
o Title VI of Civil Rights act prohibits discrimination based on race in program receiving federal funds, but doesn’t prohibit disproportionate impact (only intentional discrimination)
o Clinton’s executive order requires agencies to adopt envr. Justice strategies; largely ineffective
The Constitution and Environmental Law
– Authority for Envr. Laws (p. 36-49)
o Property Clause (Art. IV, Section 3, cl. 2): Federal government can do what it wants on its own property
§ Federal management of lands, traditionally broadly read by courts
o Spending Clause (Article I, Section 8, cl. 1): Congress can spend money on anything that furthers the general welfare.
§ Congress can place conditions on expenditures (highway funds and drinking age)
§ Conditions must further general welfare, cannot be ambiguous, must be related to the appropriations in some way, cannot require state to violate constitutional provision, and cannot be unduly coercive
o Treaty Clause (Article II, Section 2, Cl. 2) and Necessary Proper Clause (Article I, Section 8, Cl. 18): President can enter into treaties with other nations including the advice and consent of the Senate.
§ Ex. Migratory Bird Treaty Act: lawful due to Migratory bird treaty with Canada
o Commerce Clause
§ Basis
that MA meets Lujan test
o Summers v. Earth Island Institute: does a membership organization (Earth Island) have standing in challenging USFS small-fire rehabilitation regulations
§ Scalia’s opinion: Earth Island lacks standing since they “fail to allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of [members] to enjoy the National Forests.”
Administrative Law Issues (91-102)
– Congress delegates authority to an agency to administer the law
– Requires agency to adopt rule in order to implement the statute (ex. NAAQS)
o Rulemaking Procedure set by APA
o Notice and Comment: must issue notice in federal register, provide opportunity for public to comment on rulemaking (including hearing), must provide adequate information about rulemaking, and must consider comments in its final rule
o Agency actions are almost always subject to judicial review
– Adjudication: agency equivalent of trials, can assess monetary penalties against violators of Envr. Laws (ie CAA)
– Presidential Oversight: OIRA acts to ensure that agencies act within agenda of sitting President thru cost-benefit analysis
– Judicial Review: When a statute does not provide for judicial review, one can seek review under the APA.
o I norder to obtain review, plaintiff must clear hurdles:
§ Statute does not preclude review (either expressly or constraining discretion through indicating what factors should guide decision-making)
§ Must suffer a “legal wrong” or be “adversely affected or aggrieved within the meaning of a relevant statute.”
§ Only “final agency actions” are subject to review (ie programs are not subject to review, only discrete actions)
§ Judicial review is available only after the exhaustion of Administrative remedies
§ Ripeness (common law doctrine): ensure that courts do not become involved until appropriate
o Agency can only be overturned if:
§ An action is “arbitrary and capricious”
§ See Overton Park case in which agency action is not reasonable
§ Chevron and Skidmore cases defer to reasonable agency interpretation
