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Governance

Overview

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In the United States, environmental law has evolved into a combination of federal, state, and local laws, regulations, and policies. Environmental laws include international treaties as well as statutory law made by Congress, state legislators, and tribes, administrative regulations promulgated by state and federal government agencies, local ordinances created by municipal bodies and case law created by judges deciding legal disputes. These environmental laws create a complex and interconnected web of rules intended to protect the environment and public health.

For a discussion of how environmental professionals work, watch a recent ELI seminar on An Introduction to Careers in Environmetnal Law and Policy.

Evolution of Environmental Law and Policy
Common Law Origins

The roots of environmental law in the United States can be found in our common law tradition. Common law is a body of judicially-created law that has developed over time through court decisions issued to resolve lawsuits brought by parties in conflict. The common law system is based on a respect for precedent that requires courts to render new decisions in conformance with past decisions. This respect for prior case law provides consistency and predictability in the law.

Environmental law largely grew from the common law doctrines of public nuisance and the public trust doctrine. Public nuisance law protects public safety and welfare by placing restrictions on uses of and activities permitted on private land. The public trust doctrine established the cultural and legal understanding that certain natural resources should be reserved for public use and the common welfare. This doctrine has been used to ensure access to navigable waters for all citizens, conserve federal lands for uses compatible with the public interest, and to protect wildlife for the public benefit. While both the law of public nuisance and the public trust doctrine are still used as tools in modern environmental litigation, in most areas, early common law doctrines have been supplanted by enforcement efforts under our complex regulatory system of state, federal and local laws passed by legislators. Statutory law passed by legislative bodies usually displaces common law.

For a discussion of displacement of common law and the use of nuisance in climate change cases, listen to and download materials from the ELI seminar American Electric Power Co. v. Connecticut: The Next Landmark Supreme Court Climate Case. These issues are also discussed in the following ELR articles: Kevin Gaynor, Challenges Plaintiffs Face in Litigating Federal Common-Law Climate Change Claims.

A series of cases filed in all 50 states seeks to use the public trust doctrine to force action on climate change, for example. See also Creative Common Law Strategies for Protecting the Environment edited by Cliff Rechtschaffen and Denise Antolini for a discussion of innovative ways to use common law to address environmental issues.

The Beginnings of Modern Environmental Law

The origins of our current system of environmental laws can be traced back to the mid-1800s when the federal government first began to take steps to protect, catalogue, and regulate the natural environment. The Department of the Interior was founded in 1849 and tasked with the management of federally owned lands and the creation of geological surveys of the western territories. Yellowstone was established as the first National Park in 1872. The first federal environmental statute, the Rivers and Harbors Appropriation Act was passed in 1899.

Environmental law and policy began to gain momentum under President Theodore Roosevelt. The first National Wildlife Refuge was established at Pelican Island, Florida in 1903. The National Park Service was created within the Dept. of the Interior in 1916. During the Great Depression, a work relief program called the Civilian Conservation Corps provided federal funding for projects focused on conservation and development of federally owned agricultural and park lands. The focus of environmental laws passed during the first century of environmental law focused primarily on the conservation of natural resources.

For a timeline of environmental protection efforts, see http://www.factmonster.com/spot/earthdaytimeline.html.

A good list of environmental laws organized by date of passage is available here http://en.wikipedia.org/wiki/Timeline_of_major_U.S._environmental_and_occupational_health_regulation  and a history of environmental policy is available here http://en.wikipedia.org/wiki/Environmental_policy_of_the_United_States.

The Rise of Modern Environmental Law and Policy

Historically, most pollution control concerns had been left to the states to resolve -- air and water pollution were largely seen as subject to the states’ police powers. As a result of rapid economic and technology growth, the federal government began to address pollution control after World War II. In 1948, the first federal law addressing water pollution, the Federal Water Pollution Control Act, was passed. Then, in 1955, the Air Pollution Control Act was passed as the first federal air pollution law. A growing public awareness of pollution’s impact on public health and the environment in the 1960s led to the strengthening of federal pollution control laws in the 1970s, when for the first time the federal government was given the leading role in pollution control.

President Richard Nixon created the Environmental Protection Agency (EPA) in 1970 through a Reorganization Plan. This signaled a boom in environmental law reform during the1960s -1980s which resulted in passage of the majority of our current federal environmental statutes including NEPA, the Clean Water Act, the Clean Air Act, and CERCLA, to name a few.

The history of modern environmental policy is told in Richard Lazarus’ “The Making of Environmental Law,” http://www.press.uchicago.edu/ucp/books/book/chicago/M/bo3629140.html, and Richard Lazarus and Oliver Houck’s “Environmental Law Stories,” http://store.westacademic.com/s.nl/it.A/id.1789/.f

The Role of Congress

The U.S. Constitution does not directly empower Congress to govern environmental issues. Congress’s authority to enact laws regulating the environment instead derives primarily from the Commerce Clause, found in Article I § 8 of the U.S. Constitution. The Commerce Clause reserves to the federal government the right to regulate interstate commerce – or commerce between states. There is a constant tension between state and federal power when Congress uses its authority under the Commerce Clause. Cases testing the definition of interstate commerce and exploring the limits of federal power under the Commerce Clause have been extensively litigated throughout our history continuing up to the present day. For example, the extent of federal power over surface water pollution is currently in dispute and quite unclear. Similarly, several cases have addressed whether the federal Endangered Species Act (ESA) can govern species found only in one place, although all courts to date have found that it can.

The evolving understanding of the limit of federal jurisdiction over water pollution is putting wetlands and other valuable resources at risk, according to an ELI report. The interplay between the Clean Water Act and the Constitution is discussed in Robin Kundis Craig, The Clean Water Act and the Constitution, 2d ed. For a discussion of the seminal Rapanos decision, see William Want, U.S. Supreme Court Review of “Rapanos v. United States and Carabell v. United States Army Corps of Engineers”: Implications for Wetlands and Interstate Commerce  and Calvert Chipchase, The Clean Water Act: What’s Commerce Got to Do With It.

In addition to its power under the Commerce Clause, Congress also has authority over environmental law and policy through its constitutional spending and treaty powers. In the division of powers between the three branches of the federal government, Congress holds the power of the purse. Using this power, Congress can offer states incentives to enact environmentally friendly provisions and withhold funding when states act in environmentally irresponsible ways. The federal government can also regulate migratory species and other environmental issues using its exclusive right under the Constitution to enter international treaties.

For a discussion of the current state of Commerce Clause and spending powers jurisprudence in relation to environmental law, as well as a discussion of Congress’ power to withhold funding from the states, listen to a recent ELI teleconference What Does the Healthcare Ruling Mean for Environmental Law.

The Role of Federal Agencies

Federal agencies are responsible for implementing and enforcing federal environmental laws. The EPA is responsible for the preponderance of federal environmental regulatory and enforcement activities. The Department of the Interior implements and enforces most natural resource laws, while the Departments of Commerce, Agriculture and Justice and the Army Corps of Engineers also play important roles.

For a discussion of administrative law generally, see http://www.law.cornell.edu/wex/administrative_law. For a discussion of how to research administrative law generally, see http://www.loc.gov/law/help/administrative.php.

The National Environmental Policy Act (NEPA) created the Council on Environmental Quality (CEQ). The CEQ is the first and only cabinet-level council of environmental advisors to the President. The CEQ is responsible for promulgating regulations under NEPA and mediating disputes between agencies regarding the sufficiency of NEPA compliance efforts and other environmental matters.

When empowered to implement a statute, agencies promulgate regulations, which appear in the Code of Federal Regulations. In addition to promulgating regulations, federal agencies are responsible for enforcement of environmental laws using civil enforcement, criminal enforcement, and compliance assurance activities.

The Administrative Procedure Act (APA) is an important procedural statute that helps to enforce environmental laws and regulations. The APA establishes the procedural framework for agencies to make decisions, such as provisions requiring agencies to seek public comment during the decision-making process. The APA also establishes a framework for judicial review over agency actions. For example, after an agency has promulgated a regulation, persons affected by the regulation can seek judicial review to ensure the agency’s rules are consistent with the law and are not arbitrary or capricious.

The process for an agency to promulgate a rule or regulation can be quite complex and can involve many layers of review within the Executive, Legislative and Judicial Branches. A Congressional Research Service report provides a good overview of this process here. http://www.thecre.com/pdf/20120422_RL32240.pdf. Another CRS report addresses the rulemaking process and judicial review here http://www.wise-intern.org/orientation/documents/CRSrulemakingCB.pdf.

A key component in administrative law is the requirement that agencies propose actions for public notice and comment and respond to the comments before taking final action. This helps to ensure that agencies take well-informed actions and that the public’s views are taken into account. An excellent guide to commenting on agency actions is available in Elizabeth Mullins, The Art of Commenting: How to Influence Agency Actions with Effective Comments. For a discussion of the important role the National Environmental Policy Act has played in ensuring citizen involvement in government decisionmaking, see NEPA Success Stories: Celebrating 40 Years of Transparency and Open Government.

The Role of Courts

Where congressional legislation and agency regulation end, litigation in the courts begins. When a case is filed alleging a violation of a federal environmental law, it usually is filed in the district court located where the alleged violation occurred. In some environmental lawsuits, called “judicial review,” disagreement is over whether federal regulations are consistent with statutory requirements and whether federal agencies are acting within the limits of the law. To resolve these conflicts, interested parties such as NGOs, corporate interests, and private individuals file lawsuits in federal court. In such cases, initial review of the agency action often begins directly at the appellate level in the United States Court of Appeals for the D.C. Circuit. As a result, the D.C. Circuit is one of the busiest, and arguably most influential, federal appellate courts in the country on environmental regulatory matters.

A good overview of the federal court system is provided here http://www.law.cornell.edu/wex/federal_courts.

Judge Douglas Ginsburg, a long-time judge on the D.C. Circuit, describes the court’s role in administrative law in a 2011 speech here https://www.law.georgetown.edu/academics/law-journals/gjlpp/upload/zs800112000001.PDF.

Standing to Sue

Before a case will be heard in court, a plaintiff must demonstrate standing to sue. This is because Article III of the U.S. Constitution limits federal court jurisdiction to actual “cases or controversies” that arise between adverse parties. The U.S. Supreme Court has outlined three requirements that must be met by a petitioner to establish Article III standing: (1) injury directly suffered by the petitioner (2) that is caused by the conduct petitioner complained of and (3) that is redressable by a favorable court decision. This seemingly straightforward standing test has become a contentious issue in environmental lawsuits where courts have been faced with the question – who has standing to complain about air pollution or harm to endangered species?

Two ELI seminars on standing issues, one after and before the Massachusetts v. EPA decision, offer a discussion of and insights into the standing issues.

To better understand the jurisdiction of federal courts, read this http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Jurisdiction.aspx.

Citizen Suits

Many federal environmental laws allow concerned citizens to sue and enforce environmental protections by empowering citizens to act as “private attorneys general” to protect natural resources. These “citizen suits” are somewhat unique to environmental laws. For example, under the Clean Water Act, a citizen who enjoys recreational activities in a local river would be able to sue a polluter who is illegally dumping into the river if the local, state or federal agency had not sought to end the dumping. They have been somewhat controversial, with accusations of people suing just to recuperate attorneys fees, but others believe they serve a useful check on agency inaction (See ELR articles here, here, and here for three different perspectives).

For an understanding on how to bring citizen suits, see A Citizen’s Guide to Using Federal Environmental Laws to Secure Environmental Justice.

The Role of the States and Tribes

States remain primarily responsible for implementing pollution control requirements. In establishing the EPA and passing the new federal environmental protection statutes, Congress relied on the model of cooperative federalism. Under cooperative federalism, states are asked to implement and enforce federal laws while retaining the power to create laws more stringent than federal laws. The vast majority of federal environmental laws are thus implemented by the states. The same is largely true with Indian tribes, who remain sovereign over their lands.

For a discussion of the role of Native American tribes in environmental enforcement, see David Coursen, Tribes as States: Indian Tribal Authority to Regulate and Enforce Environmental Law and Regulations, Joe Stuckey, Tribal Nations: Environmentally More Sovereign than States, and  Jane Kloeckner, Hold On to Tribal Sovereignty: Establishing Tribal Pesticide Programs That Recognize Inherent Tribal Authority and Promote Federal-Tribal Partnerships.

An example of cooperative federalism can be seen in the Resource Conservation and Recovery Act (RCRA). RCRA governs solid and hazardous wastes. The EPA issues federal regulations under RCRA. States can establish their own waste statutes and regulatory schemes based upon RCRA’s requirements. If EPA finds these state regulatory efforts to be consistent with the federal requirements, then state agencies are given approval to implement and enforce RCRA and state agency action “has the same force and effect” as EPA action.

Cooperative federalism can also be more deferential to state authority. The Surface Mining Control and Reclamation Act of 1977 (SMCRA) establishes a federal framework that regulates mining activities in the absence of state regulations. A state may avoid the federal requirements entirely by establishing its own laws to substitute for SMCRA’s requirements.

For a discussion of federalism and how it operates in environmental law, see Douglas Kendall, Redefining Federalism. For an interesting article on cooperative federalism in both the pollution control and natural resource realms, see Robert Fischman, Cooperative Federalism and Natural Resources Law.

In general, federal environmental laws create minimum standards. They do not prevent the states from enacting more stringent environmental protections. For example, California has adopted air quality standards for ozone and particulate matter that are more protective than the federal standards under the Clean Air Act and has a chemical regulatory system that is broader in scope than the federal program.

See the ELI Research Report Federal Regulations and State Flexibility in Environmental Standard Setting for a discussion of how states can be more nimble than the federal government in implementing environmental law.

Additionally, many state legislatures have adopted state laws modeled after federal laws such as NEPA. In California, the California Environmental Quality Act (CEQA) was based on NEPA, but its focus is on ensuring that state, rather than federal, government agencies take environmental impacts into account prior to taking action. In New York, the State Environmental Quality Review (SEQR) law serves the same purpose.

The differences between federal and state court systems are discussed here http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Jurisdiction/DifferencebetweenFederalAndStateCourts.aspx.

Local Environmental Law

Local environmental laws are probably the least visible form of environmental law, but at the same time they are some of the laws felt most directly by average citizens, such as land use and planning. Most localities have a zoning code that outlines permissible uses for private land depending on its location. Zoning laws are used to guide development, protect areas important to the public interest and to limit unfavorable results of certain land uses.

For a fascinating exploration of local environmental law, see John Nolon, New Ground: the Advent of Local Environmental Law and Open Ground: Effective Local Strategies for Protecting Natural Resources.

In addition to zoning, local governments make infrastructure planning decisions that affect the environment. The new smart growth movement has led to local governments emphasizing development and infrastructure plans that minimize environmental impacts by supporting development of pedestrian and cyclist-friendly communities, privileging public transportation options over highway development and upgrading older less environmentally friendly storm water management infrastructure. Cities have helped spur new environmentally friendly trends and initiatives by passing local ordinances in support of urban agriculture, recycling programs, and creating local funding sources to support green roofs, solar panel installation or preservation of historic buildings. Similarly, many cities are on the front lines of taking action to reduce climate change. Other environmental functions carried out by local governments include managing waste removal and recycling, managing city parks and managing the local water and utility systems.

For an example of how localities can use local ordinances to protect the environment and preserve biodiversity, see James McElfish, Nature Friendly Ordinances.

International Environmental Law

Many environmental issues are international in nature as they transcend boundaries: some forms of air pollution, like greenhouse gas emissions, international trade in chemicals, international transportation of hazardous wastes, etc. While domestic environmental law in the United States has taken root since the 1960s, so has international environmental law. Several major treaties address stratospheric ozone destruction, endangered species, biological diversity, hazardous waste, chemical regulation, and many other important topics.

For a good overview of the operation of international environmental law, see this article http://www.ucar.edu/communications/gcip/m3elaw/m3pdfc1.pdf.

Most of these negotiations are conducted among nations through the United Nations. The United Nations Environment Programme and other international bodies have responsibility for environmental issues. Periodically, nations gather to forge a path forward on environmental and sustainable development issues as well.

Ecolex, www.ecolex.org, is a terrific gateway to international treaties and laws. The American Society of International Law also has a helpful overview and research guide here http://www.asil.org/erg/?page=ienvl.