Environmental Policy and Regulation Midterm

Environmental Law
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Terms in this set (30)
Environmental Law
A field of law concerning the conservation and use of natural resources and the control of pollution
natural resources:
threats to human health, risk levels, wildlife conservation, forest management, wetlands protection,
horizontal separation of powers
Legislative=enact legislation&appropriate funds, conduct/oversightagencies, Executive=make sure laws passed by congress are carried out, signs bills , Judicial=reviews agencies enforcement actions, reviews challenges to agency interpretations of statues in the regulation that were put out by agencies, determine if the interpretation is reasonable(permissible), reviews the statutes Congress puts out and if it fits with its enumerated powers
Common Law
a system of law based on precedent and customs
Civil Law
A law that governs relationships between individuals and defines their legal rights.
Nuisance Law, common law of nuisance
a nuisance is an unprivileged interference with the use and enjoyment of property-problem with common law of nuisance being used with environmental pollution is it limits to a 2-party dispute and the need to prove that the harm was caused by the defendant's actions meant that many instances of pollution would not be addressed by nuisance actions
Vertical Separation of Powers
between federal environmental law= congress' authority to regulate interstate commercestate= protect public health and the environment on a state level
Administrative Agency
a federal, state, or local government agency established to perform a specific function: EPA-Issues regulations-to implement/carry out statutes-conduct and review research-inform their efforts to regulate-Monitor-conditions, trends, make sure statutes/regulations are being implemented-Enforcement-ensure compliance with statutes and regulation
Cooperative Federalism
system in which both federal government and state governments cooperate in solving problems,structure of federalism that determines the responsibilities between the states and the federal government in the Clean Air Act and several other major environmental laws-state can implement above federal level but not below
Regulating harm in the face of uncertainty
Ex.Lead in gasoline:- if lead poisoning does not kill someone, there is no lasting harm-lead is ubiquitous and natural part of the environment-elevated blood lead level in U.S children were primarily the result of ingesting lead paint chips
Environmental Decision-makingAsk yourself these questions: What are the normative criteria & frameworks we will use to make decisions about whether to regulate?How will we deal with uncertainty?What level of protection will seek to ensure? How safe is safe enough?Normative framework for decision making: Rights-based approachesAll species and the environment as a whole should have rights that are protected by law, everyone has the right to a healthy and clean environment, recognition that rights sometime conflict and must be resolved through some sort of balancing, doing the greatest for the litters amount of moneyNormative framework for decision making: Utilitarian cost-benefit balancing approachesWay to inform decisions about whether and how stringently to regulate certain activities because we have limited resources to devote to regulations and need a tool that wil allow us to maximize the overall benefit that come from our decisions to regulate , Challenges: monetizing certain types of benefits, such as improvements in environmental quality or lives saved, uncertainty regarding the true extent of costs and benefits , temporal distribution of costs and benefitsNormative framework for decision making: sustainable developmentDevelopment that meets the needs of the present without compromising the ability of future generations to meet their own needsNormative framework for decision making: Environmental justiceBrought about in Warren County with the dumping of tainted (PCB)soil in a waste site close by, focuses on both the substantive environmental justice= The distribution of environmenta burdens and policies, and Procedual environmental justice=environmental decisions made in U.S DONT WANT ENVIRONMENTAL RACISM TO OCCURInstrument ChoiceHow to regulate once we have decided level of environmental protection we want includes: Prescritive regulation:(command and control regulation) property Rights: ex.tradable permits(market based approach) privatize as many environmental resources as possible,in the belief that markets are better mechanisms for allocation of goods than governmental regulators, Financial Penalties, financial payment, PersuassionDirectory Reguatory instrumentsCommand and control Tech standards:pollution tech. Simple tech that requires factory to measure pollutan(factories have to figure out how) Performance standards: max. Amount of discharge pollutants emission standard influent Product standards: certain requirements of certain area Disclosure requirements: promulgate to the public about bad things in products etc.. Incentive- based instruments Market Based approach Subsidies for pollution abatement: money to do good Pollution taxes: a tax on the amount of pollution that is released from a factory. Taxable Permits(Cap/trade): trade among themselves sell their credit among companies (easiest for companies to do)Private NuisanceA nuisance that affects only a single individual or a very limited number of individuals.Public nuisanceAn owner's use of land that causes damage or inconvenience to the general public. Ex. All the river fish are dead because of a factory, only state can take action not fisherman, because the fisherman doesn't own the riverregulatory processAdminstrative law agency responsibility 3 Major type of agency action: -Rulemaking -Adjudiation -guidance documents, interpretive rulings -Final agency actionAdminstrative lawHow agencies may implement these statutes and constitutional law sets the limits of governmental authority. The law governs the behavior of agencies like the EPAAgency responsibilityChevron deference 1:as long as a regulation/statute is "reasonable"/"permissible" statutory language is clear, that is the end of the matter.The court must make sure that the agency action conforms to the unambiguous statutory language Chevron deference 2: if a statute is silent or ambiguous, there is a gap in the statutory scheme, the court will defer to the agency's interpretation of the statutes as long a it is reasonable =chevron deferenceRulemakingThe process by which an administrative agency formally adopts a new regulation or amends an old one.(look at notes for diagram)notice-and-comment:eAgencies(EPA) to develop regulations to implement statutes passed by congressCitizen SuitsThe Clean Air Act ( and many other environmental statutes) permits anyone to file suit against a polluter or against the EPA for failing to enforce the statute To file a citizen suite you must have: Standing: Injury In fact Causation Redress ability: the court through judicial action will eliminate harmChevron vs. National Resources Defense Council (NRDC)"Whether the EPA's decision to allow states to treat all pollution-emitting devices within the same industrial grouping as though they were encased within a single 'bubble' is based on a reasonable construction of the statutory term 'stationary source importance: Chevron deference: a federal court, in reviewing a federal government agency's action, should defer to the agency's construction of a statute that the agency has been delegated to administer. if a statute is silent or ambiguous on a particular matter, the court must decide if the agency's interpretation is "based on a permissible construction of the statute.Madison Vs. Ducktown Sulphur, Copper, & Iron CO.farmers lands dying because a factory nearby was emitting sulfur into the air=acid rain farmers sued-asked for injunction relief by shutting business down the factory said-no, because it creates jobs-gives farmers money=liability rule This created the rights-based approach vs. economic approach goes to show money is way easier to satisfy cases not well being of others. private nuisance claim under common lawEthyl Corporation, petitioner Vs. EPA respondent-EPA takes lead out of gas=ethyl corp. angry-Legal Standard: Section 211 c (1) a authorizes the administrator of EPA to regulate gasoline additives whose emission products (will endanger the public health or welfare)MAKE SURE THE POLLUTANT TO BE PRECAUTIONARY AND DOESN'T NEED PROOF.Laurel heights caseleading case on CEQA Ruling: the EIR is inadequate because it fails to discuss anticipated future uses and the environmental effects and the discussion of alternative was inadequate thus, adequacy and efficiency is important when challenging (EIR), substantive requirement, will be mitigatedMassachusetts vs. EPAClimate Change! state of MA sued EPA on ground that EPA violated CAA by refusing to regulate GHG emissions. Supreme Court says MA had standing because as state must protect citizens,whitman vs american trucking associationclean air act properly delegated legislative power to the environmental protection agency but the EPA cannot consider implementation costs