Environmental Law Aagaard Fall 2016
Part I – Introduction and Background Principle
I. Highlights from Jeffrey Gaba’s Hints on Surviving Environmental Law
A. There is absolutely no alternative to reading the appropriate statutory provisions as you review issues for class.
B. You need to be familiar with both methods of referring to statutory provisions. Clean Air Act § 307 (session law), 42 U.S.C. § 7607 (Codified statute)
C. In order to learn environmental law, you have to learn the language.
II. Pharmaceuticals in the Environment
A. Is something happening to the environment?
1. Occurring – detection limits, multiple pollutants, change over time
2. Affecting – Actual cause
B. Should we respond?
1. Risk and Precaution
a. Precautionary principle/Inverse/Middle ground
i. Burden of uncertainty
2. Ethical Theories of Environmental Protection
a. Anthropocentric (humans) vs. nature
b. Aldo Leopold’s “land ethic”
C. Should the response be legal?
1. Alternatives to a legal response
a. Public Information – Cause different action
b. Voluntary action – By public or businesses
c. Use of markets to obtain an advantage from environmental beneficial behavior
D. Who should respond?
2. Agency (EPA)
3. Judicial Action
4. Levels of Government – State, Federal, Local, International
E. What legal tools should we use?
1. Torts – common law (Nuisance)
2. Property – common law (property rights in natural resources)
3. Information – disclosure
4. Prescriptive Regulation – telling you what to do moving forward (most of the class)
a. Laws that require specific actions – Must comply exactly
b. Performance standards – Performance must be met but not told exactly how to follow
5. Economic incentives and trading
a. Tradable permit systems – Given a default that must be met but trading between parties to meet the default better financially is okay
b. Fees and taxes – Almost never happens in practice
6. Planning schemes – Only require the plan
7. Procedural (Process) and substantive regulations (Outcome)
8. Technology-based (Feasibility) and environmental quality-based regulations
F. What should the intensity of the response be?
1. Cost-benefit Analysis
a. Harder to put a price on benefits to the environment or others than to come up with the costs – Worry that it may be biased
G. Upon whom should the burdens of responding (or not responding) fall?
III. History of Environmental Law
A. First Generation Environmental Laws (early 1970s)
1. 1971-1973: NEPA, Clean Air Act, Clean Water Act, Endangered Species Act
2. Ambitious (unrealistic?) legislation with stringent standards
3. Rise of national environmental organizations
4. Pro-environmental judiciary
5. Industry felt unsettled
B. Second Generation Environmental Laws (late 1970s)
1. Energy Crisis
2. Courts insist on strict implementation
3. TSCA, RCRA, CERCLA – Particular substances
4. Substantial improvements in environmental quality
5. U.S. economy continues to grow – do not have to choose between economy and environmental protection
6. Unrealistic legislation creates cycle of distrust – Believed they were supposed to solve problems, not just make them slightly better
C. Environmental Law’s Second Decade (1980s)
1. Election of Ronald Reagan on platform of deregulation
2. Legislative backlash to Reagan’s efforts
A. Congress stokes public concern about environmental risks
4. Legislative amendments create detailed requirements, reducing EPA discretion
5. Environmental law becomes settled – Attack by Reagan failed
D. Environmental Law’s Third Decade (1990s)
1. Conservative judiciary – Less environmental wins
2. President George H.W. Bush and deregulation
3. Contract with America
4. Executive stokes public concern about environmental risks
5. Legislative stalemate – No changes since the early 1990s
E. Legislative Stalemate (2000s)
1. Political pathology leads to legislative stalemate
2. Administrative innovation
3. Emergence of climate change
4. Risking importance of energy to environmental law
F. Capstone Problem
1. Legal Analysis
A. Equal Protection
i. Discriminatory Purpose and Disproportionate Impact – Disproportionate impact is not sufficient on its own but can be used as evidence of Discriminatory purpose
1. Care more about one group of people – Health concerns looked into more for one group on a different project
2. Easier or more efficient alternative not used because it would or would not harm one group
B. Executive Order
i. In all parts of law – vague = fuzziness (find out who that benefits) – here it is the agency
ii. Cannot sue under the Executive Order (6-609) but it is still binding on the Agency
2. Overall Objective
A. Recognition of the Problem – Focus on the underlying problem
i. If the underlying problem is the focus, this could help with future projects (empowering the community)
B. Stop the highway project
A. What is the relevance of tort law to environmental law?
1. Source of environmental law
litigate than recovery, uncertain and multiple causation, under-deterrence (won’t stop other development)
V. Administrative Law
A. Why Administration?
1. Technical expertise
3. Political Expediency
B. Structure of Administrative Lawmaking
1. Congress enacts a statute.
A. Statute must fall within federal powers conferred by the Constitution.
B. Statute includes a delegation of rulemaking authority to an administrative agency.
a. Example: Congress enacts the Clean Air Act pursuant to its Commerce Clause power. Clean Air Act § 111, 42 U.S.C. § 7411, authorizes EPA to issue regulations regulating emissions from new stationary sources of air pollution.
2. Agency promulgates a regulation.
A. Regulation implements and interprets the statute.
B. Regulation sets out a broadly applicable rule.
a. Example: EPA issues regulations, pursuant to Clean Air Act § 111, specifying new source performance standards for various specific categories of sources. See, e.g., 40 C.F.R. Subpt. WWW.
3. Agency takes specific action to apply regulation to a particular situation.
A. Specific action must be consistent with the regulation.
a. Examples: EPA issues a permit authorizing a new stationary source to emit air pollution within the limits specified in the applicable new source performance standards regulations.
EPA issues compliance order against new stationary source for violating limits specified in the applicable new source performance standards regulations.