Environmental Law Exam 1

US Constitution

Set up as social contract between a government and its people

• Establishes the legislative body of the United States

• Provides the blueprint for bicameral legislature (House & Senate, AKA Congress)

• Establishes the procedure for passing a bill

• Creates a separation of powers

• Places limits on the powers of the legislature

Article 1 of the Constitution

Lobbying

way to influence lawmaking process by convincing lawmakers to vote as you want them to

Lobbyist

person who tries to influence lawmakers

ruled that laws that prevented corporations and unions from using their general treasury funds for independent “electioneering communications” (political advertising) violated the First Amendment’s guarantee of freedom of speech

Citizens United v. Federal Election Commission

• Includes president, his staff, and cabinet

  • Lays out presidential term

  • Qualifications

  • Succession policy

• Gives president certain powers

  • Executive orders

  • Treaty making authority

  • Commander and chief of armed forces

Article 2 of the Constitution

Treaty

international law

Accord

agreement on opinion

Executive Order

Rule issued by President to executive branch having the force of law

Legislative Branch…

makes the law

Executive Branch…

enforces the law

Judicial Branch…

interprets the law and decides whether laws are constitutional

• interpret by trying to ascertain intent of writer

Common Law

When courts end up making their own law through interpreting what should happen

Only created when necessary

Stare Decisis

“stand by the decided” unless distinguishable

Chain of Command

US Supreme Court- top court, precedent is binding on all other courts

State Supreme Court- top court in its state, sometimes can put US Supreme Court in its place

Case law/common law

Made by judges

Statutory law

created by legislatures and can be a part of common law systems or civil law systems

Public laws

are those set up to provide for the public welfare; these laws usually regulate classes of people or organizations

e.g. most Environmental Laws

Private laws

regulate the conduct between individuals

e.g. personal injury cases

Criminal law

prohibits conduct and punishes offenders

Felonies = prison

Misdemeanors = jail

Civil law

regulate relations between individuals

1.      Increased training in the law

2.      Monitor delegated tasks

3.      Ask for EPA’s assistance with audits

3 steps that companies can take to help avoid potential criminal or civil penalties

Yes if they “[neglected] where the law requires care or [showed] inaction where it imposes a duty.” This means that if the corporate officer showed disregard towards situations that required more consideration and concern or if they failed to act in situations that required proper measures.

Can Corporate officers be held liable for company regulatory violations?

1.      To ensure that agencies inform the public about their organization, procedures, and rules

2.      To provide public participation in rule-making processes

3.      To set consistent standards for the conduct of formal rule making and adjudicatory procedures across the agencies

4.      To restate the law of judicial review

4 purposes of the Administrative Procedures Act

1. Company discovers violation through voluntary audit or due diligence

2. Company must voluntarily report

3. Must promptly disclose the violation (within 21 days)

4. Has to be discovered before EPA independently finds violation

5. Company must cooperate

How a company can avoid penalties:

Federalism

principle which means that the authority to govern is divided between two sovereigns

the Constitution and federal laws (of the types listed in the first part of the Clause) take priority over any conflicting rules of state law.

Article VI(The Supremacy Clause)

Express Preemption

Occurs when Congress through statutory language expressly states its intent to preempt. Think “clear manifestation”

Field preemption

an implied preemption that occurs when federal regulation is so pervasive and occupies a given field of regulation such that courts can make the reasonable inference that congress left no room for the states to supplement the regulation

Conflict preemption

an implied preemption that occurs in two instances:

1. a state and federal law are in such direct conflict that it is physically impossible to comply with both

2. the state law is an obstacle to fulfilling the purposes and objectives of Congress, effectively vetoing the federal regulation

Nuisance

refers to a condition or activity which unduly interferes with the use of land or a public place

Private Nuisance

non-trespassory invasion of or interference with an interest in

the private use and enjoyment of land

Public Nuisance

condition or activity which unreasonably interfere(s)(ed) with the use of a public place or with the activities of an entire community (aka a public right)

1. There was a nuisance

2. The nuisance caused significant harm

3. The defendant was negligent, intentional in harm caused, and/or engaged in an abnormally dangerous activity

4. (defendant's) conduct in causing the nuisance was unreasonable (negligence and intentional) or (defendant's) conduct caused the nuisance (strict liability for dangerous behavior)

What does a plaintiff have to show to prove their case was a nuisance?

Plaintiff/Prosecutor

person who brings the lawsuit

Defendant

person who must respond or is charged

Judge

referee that decides who gets to present what and, in some instances, how

Jury

neutral fact finder that makes an objective decision based on the evidence and arguments presented.

Petit Jury

Serve as fact finders at the end

Grand Jury

Hears evidence at beginning of case to make sure that there is enough evidence to keep it going

1. Those that allow local and state level regulation

2. those that delegate the administration of a federal statute to the states

3. those preserving common law rights

Some federal environmental legislation contains stator provisions that prevent federal preemption of inferior laws three types:

Commerce Clause

the Part of Article I Section 8 that allows Congress to pass laws that regulate commerce among the several states and with foreign nations

Dormant commerce clause

Just because congress doesn’t regulate it doesn’t mean States can.

• Protects people’s personal property and homes from ‘unreasonable’ searches and seizures

• Requires warrants that are sworn to and requires a neutral magistrate to find probable cause

• Applies to corporations as well as individuals

Fourth Amendment

• Creates protections like

  • Grantees a jury trial for criminals

  • Protects against self incrimination

  • Requires due process

  • requires compensation when the government takes private property for public use

• FEDERAL RIGHTS ONLY

Fifth Amendment

Procedural Due Process

refers to the process used to try and convict

Substantive Due Process

principle allowing courts to prevent government interference with fundamental rights

General Rule of Taking

while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking

1. the economic impact of the regulation on the landowner

2. interference with landowner’s reasonable investment-backed expectations

3. the character of the government’s actions

What counts as taking?

Actual physical taking

generally, government takes title to private land

Regulatory taking

Government restricts use of land so much as to take value

provided the legal precedent for the government’s “right” to seize land for private use as long as the land would provide some sort of public benefit

Kelo v. City of New London (US Supreme Court) 2005

where a state seeks to sustain a regulation that deprives land of all economically beneficial use, it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate showed that the proscribed use interests were not part of his title to begin with

Lucas v. South Carolina Coastal Council

way for government enforcement agencies to protect minority and poor communities that are at a higher risk for environmental contamination risk

What does the 14A mean for environmental law?

Public Trust Doctrine

idea that resources are too unique and valuable to be privately owned; they must be available for public use

• Case or controversy

• Personal jurisdiction

• Subject matter jurisdiction

• Standing

• Proper venue

• Ripeness

No matter which court system you are in all require you to have these six things:

Case or controversy

Parties must

1. Be adverse

2. Be in a legal dispute

3. Courts can fix it

Personal jurisdiction

The power that a court has, to decide regarding the party being sued in a case.

Subject matter jurisdiction

The requirement that a given court have power to hear the specific kind of claim that is brought to that court.

Standing

The requirement that a person who brings a suit be a proper party to request adjudication of the particular issue involved.

Proper venue

The place of trial or geographical location in which an action or proceeding should be brought.

Ripeness

Case must need a decision

Opinion

Decision on a case

Majority Opinion

is a judicial opinion that is joined by more than half the judges deciding a case---look to this for the law

Concurring Opinion

An opinion that agrees with the majority opinion but does not agree with the rationale behind it.

Dissenting Opinon

The separate judicial opinion of an appellate judge who disagreed with the majority's decision explaining the disagreement.

Per Curiam

Is a court opinion issued in the name of the court rather than specific judges.

Areas with exclusively federal jurisdiction

• Admiralty

• Bankruptcy

• Federal criminal prosecutions

• Claims against the United States

Trial Courts

Given the power of original jurisdiction meaning this is the court most states cases start in. Usually separated by county

Appellate

District courts that hear appeals from trial courts

State Supreme Court

Court of last resort and gets the final word on all law in the state

Concurrent Jurisdiction

When courts jurisdiction can overlap

Administrative Law

the body of law that regulates the operation and procedures of government agencies

Administrative Agencies

Any body created by a legislative branch to carry out specific duties, including:

• Making rules specific to their area (legislative)

• The power to investigate violations and enforce those law (executive)

• Power to adjudicate or interpret their rules (Judicial) (administrative law judges or ALJ’s)

Enabling Statutes

Contain broad delegation of congressional legislative power to agencies for the purpose of serving the “public interest, convenience and necessity.”

Federal Register

Is the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices

• Informal Rule making

• Formal Rule Making

• Hybrid Rule Making

3 Types of Rule Making

Regulated negotiations

form of rule making that interested parties from all sides of an issue and the agency itself hold a series of bargaining sessions led by a mediator until a consensus is reached

• Agencies are not subject to political pressure thus can be thought of as “not accountable to the people.”

• Agents in the agency can be subject to biases.

• Environmentally hard to evaluate impact of certain pollutants

• Costs of compliance costing US Jobs

• It’s the economy stupid....consumers are weary of rising prices

Problems with Rule Making

• Regulation is unconstitutional because it is too vague

• Regulation violates the Constitution’s enumerated rights (think 4th or 5th or 14th amendments)

• Regulation exceeds the Scope of the agency’s power.

• Agency did not follow the proper procedure for enacting the rule

Challenging a rule requires at least one of four things

Limitations on Agency Power

• Statutory Limitation

• Institutional Limitations

  • Legislative branch

  • Executive branch

  • Judicial branch

Statutory Limitations

Agencies have to be mindful of the text and legislative law that limits the scope of the agency’s power and authority

• Power of the president to appoint the heads of agencies (at least some)

• Power of Budget office to slash funding

• Power of president to issue executive order

Executive Branch limits power through:

Limits agency power by:

• Oversight

• Investigative power

• Power to terminate agency or amend its enabling statue

• Power to approve budgets

• Power to advise and consent on the presidents nominee to run agency (at least some of the agencies)

Institutional Limitations: Legislative Branch

Executive Agencies

The heads of these agencies are appointed by the president and approved by the senate and may be removed at any time. These agencies are also part of the executive branch of the government.

Independent Agencies

run by a board of commissioners serving fixed terms that may only be removed for cause

Hybrid Agencies

Some agencies do not fall into one category or the other

• Research

• Standard Setting

• Monitoring

• Enforcement

• Policy setting

EPA’s regulatory authority over all forms of pollution

Department of Interior

Responsible for seeking optimal balance between economic growth and the preservation of natural resources

Market Forces

the economic factors affecting the price of, demand for, and availability of a commodity.

ISO 14000

set of standards created to help companies around the world reduce their adverse impact on the environment.

Goals include:

• Reduce cost of waste management

• Save energy and materials

• Lower distribution costs

• Improved corporate imaging

• Provide frame work for continuous improvement

National Environmental Policy Act (1970)

Does three things directly:

• Establishes the Council on Environmental Quality (CEQ) the federal watchdog of environmental polices

• Requires federal agencies to take environmental consequences into account when they make certain decision which prior to NEPA they could not do because consideration of such effects was rarely listed in agencies’ enabling acts as a factor to be taken into account.

• Requires that an environmental impact statement be prepared for every major legislative proposal or other federal agency action having a significant impact on the quality of the human environment.

Council on Environmental Quality (CEQ)

Role

• Advising the president about environmental matters

What it does:

• Gathers and analyzes data and informs the president about the progress the nation is making toward cleaning up the environment and recommends legislation that needs to be passed

• Publishes an annual report President’s Annual Report on Environmental Quality.

• Helps agencies meet EIS requirements

Environmental Impact Statements (EIS)

When is one required:

• Activity must be federal

• The activity must be major

  • Requires “a substantial commitment of resources”

    • Resources can be both financial and human

• Must have a significant impact on the human environment

Environmental Assessment (EA)

Concise public document that analyzes the environmental impact of a proposed federal action to determine the level of significance of the impacts

Finding of No Significant Impact (FONSI)

Sometimes an agency will find a potentially significant impact in the course of an EA. However, they can propose measure to mitigate the adverse effects of the proposed actions.

Pollution Prevention Act of 1990

Set up by congress to address reduced progress in reducing pollution.

Followed up by an executive order that had three main requirements:

• Each federal agency must develop a pollution prevention strategy that is committed to source reduction.

• Each agency must reduce total releases of toxic chemicals by 50% by 1999

• Each agency must establish a plan to eliminate the procurement of hazardous substances for agency use.

Tort Law

A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.

Where a nuisance has been found, and there has been any substantial damage shown by the party complaining, an injunction will be granted.

Boomer v. Atlantic

Adam Smith

• Believed people were Rational Actors

• Because he believed that people were rational actors he championed Laissez faire policies