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Environmental Protection
University of South Carolina School of Law
Cumberland, James

Fed Environmental Outline

I. Federal Environmental Law
a. Always ask – did the congress have the authority to enact the law or did the agency have the authority to enact the legislation
i. Did congress exceed its constitutional authority?
ii. What is the scope of the statute?
iii. Did the ∏ comply with all the administrative law requirements before getting into ct?
iv. What do the words in the § mean? – what did congress intend for it to mean
b. Authority for all federal law found in the constitution
c. Several clauses in the constitution that support the basis for environmental law
d. Most important is commerce clause
II. Podel v. VA surface mining
a. ∏claim act is unconstitutional based on not having a substantial effect on interstate commerce
i. Ct says it does effect interstate commerce
ii. In a challenge based on commerce clause the ct must defer to congress – if there is any rational basis for finding activity in question effects interstate commerce
iii. In order to invalidate the § ct must find that congress did not establish a rational basis – this is based on idea that congress is in best position to investigate these issues
b. Rehnquist in minority opinion argues that congress must show a substantial effect on interstate commerce
c. Question – since Congress can regulate the navigable water ways and the commerce there on, but can they regulate the water quality?
III. Basis for civil action under environmental law?
a. statutory cause of action
b. ∏ in federal system must always have standing
i. Standing is a jurisdictional requirement
1. This requires that ∏ must have actually been harmed
IV. Sierra Club v. Morton – IMPORTANT CASE
a. Ski resort on edge of National Forest so Sierra Club sued
i. Forest home to huge redwoods and pristine environment
ii. Ct said that aesthetic interest environmental wellbeing – like economic wellbeing – deserve protection, therefore if you can prove an actual injury you get standing
b. Elements of standing
i. Injury in fact
ii. Causation
iii. Redressability
V. §7 of environmental protection act
a. requires federal agencies to consult with sec. of interior or commerce before taking action that would endanger protected species
VI. Lundell v. Defender’s of wildlife
a. folks bring suit under endangered species act trying to protect tigers overseas which rule allowed
b. able to bring a citizen suit under various environmental laws passed in the 70’s
i. presented three theories
1. ecosystem nexis – anybody who had any interest in any ecosystem that was harmed had standing
2. animal nexis – anybody who wanted to see the animals would have standing
3. vocational nexis – anybody who worked with the animals would have standing
ii. Scalia says – not so fast my friend
1. He says its got to be personal and its got to be imminent, it can’t be some day in the future
2. Redressability is not present because a court judgment will not fix the problem because ∆ sued a party that has no effect on agency for international development
iii. Organizations acquire standing through their members – if a member has standing then the organization can bring suit
VII. Mass v. EPA – Mass is trying to sue EPA for not regulating global warming
a. Tried to say that coastal area of Mass is disappearing by global warming
i. So mass sues doing nothing, state repeatedly asks EPA to do something
ii. Mass claims this is imminent because they’re loosing land every day
b. Dissent is significant because he argues that traditional concept of standing was not met in the environmental case
i. Written by Roberts. – dissent makes majority stronger because theoretically the major

vi. § was arbitrary and capricious
vii. Agency was complying with the §
i. Statutory Construction
i. First looks to what the thing says on its face
ii. Second what did the legislative mean or intend
1. Based on what the congressional record says
2. Chevron test – if congress has spoken precisely on an issue the cts must follow that, if congress has not spoken on an issue than follow agency’s interpretation on the issue if agency’s interpretation is permissible
IX. NEPA – National Environmental Policy Act
a. Cali notes –
i. NEPA applies if feds – financied, assisted, conducted, regulated, approved, permited
ii. if an action “significantly” affects the quality of the human environment, it will be a “major” action subject to NEPA’s EIS requirement.
b. Requires the federal gov to consider the environmental impact of government actions
i. Applies to fed. Actions only
ii. Its also an information statute so that other agencies and the public know what’s going on with the agency’s decision making process
c. Must be a “major federal action” Find a definition
d. Agency itself determines whether it is a major action so it must decide itself whether it has to follow the NEPA process
e. Pursuent to NEPA an agency must
i. produce regs to make sure they comply with NEPA
ii. prepare an EIS before taking any actions that will significantly impact environment
iii. prepare an environemtnal assessment for actions with a lesser impact