Environmental Law Outline
I. ENVIRONMENTAL POLICYMAKING: An Introduction
A. Rationales for protecting the environment
i. Human Health. Want to prevent humans from harm by environmental contaminants.
ii. Economic. Some would argue that the goal of environmental policy is to achieve the maximum level of sustainable development.
a) It is difficult to say where this natural state is because even unfettered nature fluctuates wildly and fails to establish a steady state.
b) Carrying capacity is the idea that different habitats have varying capacities to sustain nature. Once this capacity is exceeded, the renewable ability to sustain that ecosystem is breached.
iii. Aesthetic. Want to protect the environment for its own sake and for aesthetic reasons. Some preservationists feel a religious duty to be the stewards of the environment.
B. Environmental Progress
i. Most Success. Environmental regulation has been the most successful in air regulation. Although cars are burning cleaner and more efficiently, air quality problems remain, largely because there are more cars.
a) Elimination of lead in gasoline has resulted in drastic reductions in the incidents of lead based injuries. There are still problems with lead based paint, illustrating that once a risk is widespread, it is difficult o eliminate.
b) RCRA regulations have resulted in a reduction in hazardous waste produces, leading to an elimination of early fears that there wouldn’t be enough storage capacity for these wastes.
ii. Least Successful. Water pollution controls and habitat protection measures have been the least successful environmental programs.
II. STRUCTURE OF ENVIRONMENTAL LAW
A. Common Law Roots
i. Common law relied on nuisance and trespass doctrines to handle environmental interests.
ii. Impact of Regulation on Common Law Actions
a) State vs state lawsuits
i) Pollution can be a cause of war.
ii) When states enter the union, they give up their power to wage war with one another; but they can sue in Federal courts.
iii) Federal courts use federal law.
iv) Clean Water
b) Milwaukee v. Illinois (1972) – When governments sue one another, federal law applies because federal regulation preempts state common law. The Supreme Court confirmed that federal nuisance actions could be brought against polluting governmental entities, but eliminated the Supreme Court’s original jurisdiction over these cases, referring them to the federal district courts.
c) International Paper Co. v. Ouellette (1987) – When there is a suit between two private parties across state lines, the common law of the state of the polluter applies. The victim state’s individual common law remedies are pre-empted by the CWA. If you allowed the use of the law of the victim’s state, then that state has power over the business of another state. Here, the Clean Water Act precludes a court from applying the law of an affected state against an out-of-state source.
B. Historical Perspective – Periods of environmentalism
i. The Common Law and Conservation Eras (Pre 1945). Environmental issues are local/state issues. There was no federal regulation efforts with a few exceptions such as the Rivers and Harbors Act of 1899 and the Pure Food and Drug Act of 1906. At the time it was not thought that Congress had the power to ban such activities.
ii. Federal Assistance for State Problems (1945 – 1962). The federal role during this period consisted of trying the convince states to implement their own environmental regulations. With expanding activity following WW2, the interstate character of pollution became more apparent. The Water Pollution Control Act of 1956 was a landmark because Eisenhower opposed it and Congress insisted that it pass anyway, signaling an emerging cognizance of the FG’s role in environmental issues.
iii. The Rise of the Modern Environmental Movement (1962 – 1970).
a) Silent Spring, by Rachel Carson outlines the impacts of DDT on migratory birds (birth of modern environmentalism). The public’s increased attention to outdoor activities and the first ever viewing of the earth from space are also said to have contributed to the movement. Push to ban DDT federally à big farming impacts.
b) Period of federal government intervention into an area where they previously had not intervened. Out of this era was born the (Environmental Defense Fund) EDF and many large national environmental programs, but focused on forcing governmental agencies to reduce their environmental impact.
iv. Erecting the Federal Regulatory Infrastructure (1970 – 1980).
a) The Clean Air Act created the first national environmental program. The EPA was created to enforce the act. A private citizen could sue the EPA they felt that the EPA was not fulfilling its mission.
b) NEPA, CWA, FIFRA, ESA, TSCA, EPCRA, and RCRA followed. CERCLA passed creating Superfund (imposed a system of strict, joint, and several liability on polluters).
v. Extending and Refining Regulatory Strategies (1980 – 1990). Amendment of many of the acts passed earlier.
vi. Regulatory Recoil and the Return to Private Law Principles (1990 – present). Environmental policies has gone largely neglected under moderate/conservative leadership. Many acts have been allowed to fail or to exist without funding.
C. Federalism and the Environment
i. Federal Assistance to the States. The state sets their own environmental standards and then the federal government provides funds to help the states to reach these goals. Not common in today’s regulatory structure.
ii. Cooperative Federalism. This dominates under the environmental laws today. Congress sets minimum national standards but gives the states the option to determine how to implement these standards. If a state does not comply with national standards, the federal government may step in and take control. Reluctance to Preempt State Legislation. This approach has been successfully challenged in New York v. US, where the Supreme Court stated it was a violation of the Tenth Amendment to require a state to adopt federal regulation.
iii. Federal Preemption. The laws promulgated by the federal government preempt state law. Congress determines to take control of an area of regulation (ex. nuclear testing). This approach has occurred in the area of car emissions standards where every state, but CA, must have the same standard.
iv. Federalism Concerns. There is a constant battle between state and federal governments when new legislation is imposed. Congress has attempted to respect federalism by imposing only minimum standards and not prohibiting states from enacting more stringent standards.
a) NJ, for example, went further than the federal CERCLA liability in an effort to preserve the value of land when it is resold.
b) MI created a vehicle whereby citizens could halt projects if they could prove that the environmental damage that would ensue as a result is severe.
v. Race to the Bottom. Without federal standards, there is a fear that a race to the bottom would ensue among many states. This proposition has been challenged lately, by those who feel that even with stringent environmental standards, states would engage in a race to the bottom in other ways (taxes, permit enforcement, etc.).
a) National standards address economies of scale; you do not want federal, state, and local officials all reinventing the wheel at every turn.
b) Federal standards are also supported on the basis that US citizens have a basic right to be confronted with basic environmental quality everywhere that they may go and that the need for federal consistency addresses this issue.
vi. Unfunded Mandates. It is difficult for Congress to pass legislation that would require a state to spend money, without also giving the states money.
D. Congress’ Authority
however, because it is subject to the Administrative Procedure Act. Agencies are required to report what they are considering as regulation into the Federal Register, wait for public comments on it, and then report to the Federal Register what action was taken on the proposal. There are many models of agency decision-making:
a) Agency Expertise. Most environmental statutes delegate the task of determining effective levels of risk to the agencies under the premise that they have more expertise than Congress does. Regulatory agencies often become captives of the industry they regulate however. To combat this agency capture, many statutes provide for citizen suits and judicial review.
b) Interest Representation Model. Some argue that modern administrative processes have become the product of input from competing private interest groups. Citizen suits and judicial review allow private groups to be heard but do not insure that their interests will be taken into account.
ii. All three branches are involved in the regulatory process
a) Legislative branch – gives authority to agencies to create and implement regulations; sometimes review regulations
b) Executive branch – create and implement regulations according to their discretion; different executives enforce at different levels
c) Judicial branch – place to file suit for judicial review; court can send the regulation back to the agency or can rule whether a regulated entity has complied with regulation
iii. Agency Forcing Mechanisms. Congress generally uses three kinds of provisions to ensure that agency’s promulgate regulations:
a) Coercive Model. Congress may remove the agency’s discretion as to whether to regulate. These provisions include statutory deadlines but do not always insure that the agency’s decision is high quality.
b) Prescriptive Model. The agency retains its regulatory discretion, but if it does regulate, it must do so according to detailed prescriptive criteria. Congress rarely uses this method because it deters regulation.
c) Ministerial Model. Congress couples deadlines with detailed substantive criteria defining the appropriate manner of regulation. This is the favored mode for Congress because it limits agency discretion. To enact such a mechanism, statutes incorporate hammer provisions that specify an outcome should the agency fail to act.
iv. Access to Courts. Successfully gaining access to the courts requires the following:
a) Standing. This essentially involves the ability of a favorable decision to provide a remedy to the party bringing the suit. If a party has not suffered an injury, a court is powerless to provide redress and will not hear the claim.
b) Private Right of Action. Most environmental statutes contain a provision creating a private right of action if certain portions of the statute are violated. This is satisfied sing citizen suit provisions.
c) Jurisdiction. Formerly a hassle in environmental cases because of the amount in controversy requirement (environmental cases usually didn’t deal with money). Today, the amount in controversy requirement has been abolished and these cases are easier to bring.
