Roots and Rationale of EL

INTRODUCTION

Roots and rationale of EL

The roots and rationale for environmental law
Goals of EL
(1) cost internalization
(2) natural resource sustainability
two branches of environmental law
(1) pollution control
(2) natural resource management

Economic analysis and environmental law

economics can help identify the optimal methods of preventing environmental harms
(1) determining the appropriate level of regulation
cost-benefit analysis
(2) whattools shoud the government use once it deicdes it is going to step in and how far
types of market failure that may justify environmental regulation
(1) incomplete information
(2) transaction costs
(3) externalities

Environmental law, ecology, and ethics

advocates use science to question and justify positions
the stewardship obligation

Risk assessment and risk management

R (risk) = P (probability of risk occurring) x S (severity of the harm)
Risk assessment…whether question
Risk management…how much question

COMMON LAW BASELINE OF ENVIROMENTAL LAW

Torts claims
Negligence
Public nuisance
Private nuisance
Anticipatory nuisance claims
Trespass claims
Strict liability claims
The public trust doctrine
Constitutionally rooted environmental claims
Statutory regimes do not replace CL regimes
However, state CL environmentalclaims are virtually non-existent

THE REGULATORY DESIGN OF ENVIROMENTAL LAW

Goals
Protect natural ecosystems of their components; force consideration of adverse environmental effects; protect public health; compensate adversely affected persons
Triggers
No threshold
Risk
Strategies (standards)
Health-based, risk-based, or ambient quality-based
Tech-based
Open-ended balancing
Cost-benefit balancing
Generate and disclose information

ALLOCATING THE POWER TO PROTECT THE ENVIRONMENT: CONSTITUTIONAL FEDERALISM ISSUES

Rationales for federal environmental regulation

Control interstate externalities
Economies of scale and the benefits of resource pulling
Avoid a “race to the bottom”
Achieve uniform regulation and minimize transaction and compliance costs
Avoid NIMBYism (not in my backyard)
Process-based justification

Arguments for enhancing the role of the states

Afford greater citizen access and input to government
States are more familiar with local needs
States can adapt regulation more easily to local conditions
States can and do protect the environment

What incentives do states have to protect the environment?

Respond to local constituents who value the environment
Attract new residents who value the environment
Qualify for federal resources
Restore useless property to productive use
Minimize intrusive federal regulation
Create a system more likely to project local industry
Take credit for something the federal government would have done anyway

The question of the federal commerce power

CC has provided the most consistent support for environmental regulation
Advocates…broad reading; industry…narrow reading
Broad reading prevails as of today
Three classes of activities subject to federal regulation under the CC (Lopez)
The use of the channels of interstate commerce
The instrumentalities of interstate commerce, or persons or things in interstate commerce
Activities having a substantial relation to interstate commerce i.e. activities with substantial effects on interstate commerce
Lopezalso made clear that Congress allows the adoption of a regulatory provision that is part of a larger interstate effort

Also, the Court held that if the regulated activities are economic in nature than it is appropriate to aggregate all similar activities (including intrastate activities) in combination have an impact on interstate commerce
Raich(post L): aggregation is appropriate if failure to regulate the class of given intrastate, economic activities would undercut regulation of the interstate market.

Federal power and interpretation: commerce concerns as a tiebreaker

So far, direct attacks on the Commerce Clause basis for federal environmental legislation have generally failed to elicit judicial declaration of unconstitutionality. Even if this continues to happen, it would be a mistake to assume that Commerce Clause arguments are therefore of little importance.
Clear statement rule
This is because where an administrative interpretation of a statute, such as the Corp’s (D) interpretation, invokes the outer limits of Congress’s power to encroach upon a traditional state power, there should be a clear indication that Congress intended that result. (SWANCC; Rapanos)

Securing state cooperation

Turns on two different methods of interpreting the 10th Amendment
Model #1 -- 10th Amendment merely states a general principle…the federal government is merely a government of limited powers
Is the statute supported by an enumerated power…
If the answer is yes, the statute is constitutional
Model #2 – 10th amendment imposes independent constraints on the federal government’s power
Is the statute supported by an enumerated power?
If so, does it nevertheless infringe on state sovereignty?
If either the answer to question one is no or the answer to question two is yes, the statute is unconstitutional

State sovereign immunity

What options remain to enforce federal environmental laws against states?
SC’s broad interpretation of the 11th Amendment disallows state citizens from bringing suits against states, even in state court
Congress lacks the authority to abrogate state sovereign immunity
(1) enforcement by the federal government
assumes that the federal government cares about environmental enforcement
(2) waiver of sovereign immunity by the states
must be explicit
(3) exercise of power granted by § 5 of the 14th Amendment
only applies to constitutional violations
(4) exercise of the federal spending power
condition disbursement of federal funds on waiver of immunity to suit
(5) suits against municipal governments
does no good if state is the violator
(6) suits against individual state officers
limited to injunctive relief
(7) citizen suits for civil penalties
not available
(8) the “good faith” of the states
!!!!!!

The power allocation choice: savings clauses, delegated programs, and preemption

Supremacy Clause
Preemption may be express (less common) or implied, the latter of which can be
Field preemption
Determined scope provides both a ceiling and a floor
Conflict preemption
Physical impossibility; purpose based (most cases deal with implied, conflict, purpose based preemption)
A federal agency has power to preempt
Savings clause
Delegated programs
Cooperative federalism

Dormant CC limitations on state regulation

Commerce clause vests affirmative authority to regulate interstate commerce; DCCD is a negative restriction on the authority of the states to regulate interstate commerce
the goal is to prevent states from engaging in a kind of protectionism that negatively affects interstate commerce
Dormant Commerce Clause Tests
Under Philadelphia, a “virtual per se rule of invalidity” applies to state or local laws that discriminate against interstate commerce; they are valid only if the adopting state or locality can show that it had no other means to advance a legitimate local purpose
Involves the strictest degree of scrutiny under the DCCD
Laws virtually never hold up laws found discriminatory under the DCCD
On the other hand, if the law is NOT facially discriminatory, then the Pike test applies
UnderPike v. Bruce Church, a non-discriminatory law:
That is directed to legitimate local concerns;
And that has only incidental effects on interstate commerce is valid,
Unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits

ADMINISTRATIVE LAW ISSUES

Introduction

Two predominant issues of federal administrative law:
(1) what is the proper role of each of the three branches of government in the administrative law process?
(2) what procedures must agencies follow when they adopt, implement, and enforce administrative law?
Relationships of federal agencies to the three branches of government
Congress…delegation of regulatory authority…Agency
Congressional oversight
Agency…housed in the executive branch…Executive
Executive oversight
Congress/Agency…responsibility to review agency decisions…Federal Courts
Judicial oversight
Most of the EL will look at falls under informal rulemaking
Three step process:
(1) Publish notice of proposed rule making
(2) Solicit comments from the public and think about them
(3) issue final ruling by publishing it in the federal register
need an precise statement of basis and purpose

Access to the courts

We need access to the courts, in whole, so as to provide a vehicle assuring that agencies are acting consistent with their statutory delegations
Requirements for standing to sue in federal court
Constitutional requirements (derived from the “case or controversy” clause of Article III)
injury in fact (concrete and particularized, and actual or imminent…not hypothetical or conjectural);
geographical nexus (Lujan I)
temporal nexus (Lujan II)
injury to the plaintiff, not to the environment (Laidlow)
Can Congress define new injuries?
Procedural injury…Another ground put forth by the plaintiffs pertaining to injury in fact
Deprivation of the opportunity of being able to put in our two cents with regards to the consequences of the project to be implements
Any time there is a procedural injury (rather than a substantive injury), the requirements of redressability and causation are much less onerous
causation (i.e., a causal link between the defendant’s conduct and the plaintiff’s alleged injury in fact); and
contributing factor enough (Mass)
redressability (i.e., a likelihood that the relief requested by the plaintiff will redress the alleged injury)
incremental improvement enough (Mass)
Statutory requirements
For causes of action brought under the APA, the zone of interest test (i.e., that the plaintiff is “adversely affected or aggrieved within the meaning of a relevant statute” for purposes of § 702 of the APA); or
Requirements set forth (or waived) in other applicable legislation
Imposed and waivable by Congress
Prudential requirements (created by the courts themselves)
plaintiff must assert his or her own rights, not the rights of a third party; and
plaintiff must not assert a “generalized grievance”
imposes by courts, but waivable by Congress
Threshold Justiciability Doctrines (Other than Standing)
(1) The finality doctrine is derived from § 704 of the APA, which makes reviewable in federal court only “final agency action.”
(2) The doctrine of exhaustion of administrative remedies allows courts to dismiss suits on jurisdictional grounds if the P has not pursued all remedies available in the admin process of the agency whose decision is being challenged
(3) The primary jurisdiction doctrine allows courts to defer ruling on an issue before it until the agency whose actions is being challenged has had the opportunity to provide its input through some kind of admin decision
Issue is concurrently before the agency and the Court
(4) Under the ripeness doctrine, courts defer ruling on issues that they regard as having been brought before them prematurely
two issues to consider when considering ripeness
whether the issue is fit for judicial resolution
whether the P has suffered hardship
all of these consider issues of timing

APA provisions relevant to judicial challenges to an agency’s failure to act
§ 702 allows a person adversely affected or aggrieved by “agency action” to seek judicial review
§ 704 makes final “agency action” reviewable
§ 551(13) defines “agency action” to include “failure to act”
§ 706(1) authorizes the fed courts to “compel agency action unlawfully withheld or unreasonably delayed”
The SUWAtest for when a § 706(1) remedy is available under the APA
“[A] claim under § 706(1) can proceed only where a P asserts that an agency failed to take a discrete agency action that it is required to take.”
the vagueness and generalized nature of the program and the language used in it enables the SUWA test to be defeated
problem: agencies will just write vague and generalized programs so as to avoid the SUWA test
the Court has held that there is a strong presumption that an agency’s decision not to enforce a statute is not reviewable

Standards of judicial review

Once environmental Ps clear the standing and other threshold jurisdictional hurdles, the issue becomes how thoroughly the courts will review the outcome of the agency’s decision making process.
The answer tends to be context-specific, varying in accordance with the nature of the decision being challenged and the procedural context in which the agency made it

Judicial review of statutory interpretation
ChevronStep 0 question…Does Chevron even apply?
Chevron Step Zero: Mead
Under Mead, an admin interpretation of a statute qualifies for Chevron deference only when:
Congress delegated authority to the agency generally to make rules carrying the force of law; and
The agency interpretation being reviewed was promulgated in the exercise of that authority
Delegation of that kind of authority may be shown in a variety of ways.
The clearest are explicit delegations of authority to resolve legal questions in adjudication or enact regulations using the notice-and-comment process
Under this test, internal agency guidance documents do not qualify as rules that carry the force of law and are therefore not entitled to Chevron deference
Skidmore deference
If Chevron deference does not apply, deference may be given to the persuasiveness of the agency’s position
Chevron test
(1) If the statute is clear, the SC deems the agency’s interpretation irrelevant
Congress has spoken clearly and it doesn’t matter what the agency says
(2) If the statute is ambiguous, the SC is obliged to defer to a reasonable interpretation of the statute by the agency
it doesn’t matter if the Court would have reached a different conclusion if it was the initial entity that interpreted the statute
courts should be really reluctant to overturn agency in situations where Congress’s intent is unclear
Why should courts defer to agencies when the intent of Congress is unclear?
(1) Because Congress delegated to the agency to address gaps of uncertainty in statute…separation of powers concerns…delegation of authority by Congress to the agencies
(2) Court will not be able to understand the intricacies of the statute as well as the agency does
(3) Democratic accountability
Judicial review of statutory implementation
The reviewability question in Overland Park
Section 704 of the APA provides that “final agency action for which there is no other adequate remedy [is] subject to judicial review.”
But § 701(a) of the APA judicial review is not available if:
a statute precludes judicial review; or
agency action is committed to agency discretion by law.
Court’s selection of a standard of review in OP
De novo is rarely appropriate
Substantial evidence test does not apply
Substantial evidence test does not seem appropriate except in the context of formal adjudications, for which a trial-type hearing record was available to the reviewing court.
The Arbitrary and Capricious Test of APA § 706(2)(A)
OP
Whether the agency’s decision was based on consideration of the factors made relevant by the applicable statute; and
Whether the agency made a clear error of judgment
State Farm: Did the agency
Rely on factors which Congress intended that it not consider
Entirely fail to consider an important aspect of the problem
Offer an explanation that runs counter to the evidence before it
Reach a decision that it so implausible that it could not be ascribed to a difference in view or the product of the agency’s expertise
Boiled down question…Did the agency make a decision based on a rational basis?

Congressional control of admin environmental decisionmaking

Although Congress has been willing to vest in many agencies decisionmaking authority over environmental matters, it has a variety of techniques for limiting the scope of authority.
One technique is to limit the authority of the President to appoint and remove agency decisionmakers
Of greater practical, day-to-day relevance are the use of the appropriations process and the imposition of substantive statutory decisionmaking criteria as means for Congress to confine agency discretion.

Executive control of admin environmental decisionmaking

P influences agency mainly through executive orders
Require agencies to consider certain factors
Require agencies to clear certain decisions with presidential appointees
Important legal questions raised by executive orders
Do they violate separation of powers principles?
Most executive orders avoid conflict with organic agency statutes by ordering “to the extent permitted by law the agency must…”
What is the role of executive authority in shaping agency policy?

ENVIROMENTAL ASSESSMENT: THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)

Congressional Purpose and judicial enforcement

The two principle objectives of NEPA
(1) Consideration of potential environmental impacts
“stop and think” aspect of the statute
(2) Disseminate information to the public
“disclosure” aspect of the statute
NEPA applies to all federal agencies, but not private agencies
NEPA has played its greatest role in regulating development-oriented agencies

Relief available in a NEPA suit…at a minimum, courts have the authority to force agencies to comply with admin procedures

Threshold issues: must an impact statement be prepared?

Categorical exclusions
First, did the agency properly create the categorical exclusion in question?
Second, even if it did, does the action in question fit within the scope of the categorical exclusion?
Third, even if it does, were there extraordinary circumstances that preclude reliance on the categorical exclusion?
Environment assessment
Impact statement
Environmental assessment
The environmental review process most often terminates without an impact statement being filed
Exemptions
Direct conflict
Functional equivalence
Emergencies
Pretty narrowly construed
Nondiscretionary agency decisions
Specific congressional exemptions
Enforcement decisions
Statutory exemptions
National security exemption
The environmental assessment process
Used to decipher if an impact is so significant as to warrant the production of an environmental impact statement (EIS)
EAs are much more easily and speedily produced in comparison to EISs
EIS requirements (4332 (2)(C):
(1) major
non-dispositive…look to “significance” analysis
(2) federal
categories of federal action
projects funded by federal assistance
federal approvals, permits, and controls
the “small handle” problem
in close call situations, apply a “but for” test
(3) action
timing
does not apply to nondiscretionary actions
unclear if it applies to inaction
(4) significantly affecting
two factors determining “significance”:
(1) context
(2) intensity
Intensity factors (CEQ § 1508.27)
(5) human environment
the harm must be proximately caused by the action
scope… Social and economic impacts are relevant, but only when there is a perquisite physical impact that would trigger NEPA
In reviewing an agency’s decision not to prepare an EIS under NEPA, we employ an arbitrary and capricious standard that requires us to determine whether the agency has taken a “hard look” at the consequences of its action, “based its decision on a consideration of the relevant factors,” and provided a “convincing statement of reasons to explain why a project’s impacts are insignificant.”
Environmental impacts that must be considered
Uncertainty
Endangered species
Indirect impacts
Risk and psychological stress
Causation
Mitigation

Scope of EIS