Preface 7 results (showing 5 best matches)
- Even without this flux, environmental law would be a challenging field. Environmental law can often seem like a mélange of statutes and cases in search of a common theme. The list of acronyms alone can be intimidating, never mind the complexities behind the initials. This Nutshell is designed to provide a roadmap through the confusion (beginning with a table explaining sixty or so acronyms).
- Given space limitations, the Nutshell focuses on the key features of statutes and cases, leaving the nuances to casebooks, treatises, and law review articles. As a further aid in sorting through the confusion, an “environmental law timeline” following the list of acronyms highlights some of the crucial developments of the past forty years of U.S. environmental law.
- Environmental law is a rapidly changing area of law. In the short time since the last edition of this Nutshell, the Supreme Court has decided a cluster of important environmental cases, and the Obama Administration has pressed forward with major regulatory actions.
- The text begins with the role of the courts in environmental law. Chapter 1 covers key administrative law doctrines and NEPA decisions that shape the judicial role. Chapter 2 considers the federalism doctrines that courts have used to
- Chapter 6 switches attention from pollution and public health to preservation of natural areas. Here, the question is the government’s ability to preserve land in its natural state, including constitutional restrictions on that endeavor. Key topics are the takings clause, the public trust doctrine, and the Endangered Species Act. This completes the survey of the basic framework of environmental law.
- Open Chapter
Chapter 6. Preservation of Natural Areas 105 results (showing 5 best matches)
- In order to understand the environmental aspects of public land law, a basic understanding of the non-environmental aspects is necessary as background. Unfortunately, there is no comprehensive statutory scheme governing federal lands. The numerous existing statutes are complicated and poorly coordinated. We will merely attempt to give a basic outline of public land law.
- As we have seen, environmental regulation involves difficult trade-offs. Partly as a result of the need to accommodate these trade-offs, environmental law has evolved into a complex and highly technical body of rules. In the midst of this complexity, it is easy to lose sight of the law’s fundamental underlying goal for the past several decades.
- As always in environmental law, the only thing that can be confidently predicted about the future is that it will remain interesting, as our society continues to struggle with pursuing the goal of environmental protection while respecting other important social values. The emergence of the climate change issue may usher in a new era of environmental regulation.
- Cleaning up the air and water is clearly an important goal of environmental law, as is protecting the public from toxic chemicals. There is, however, another strand of federal environmental law that seeks different, though related, goals. Indeed, this strand predates the federal anti-pollution effort. The reference, of course, is to the goal of preserving wilderness and other natural areas.
- At least since the late 1960s, our society has had a firm commitment to the protection of environmental quality. It is the questions of “at what cost?” and “how fast?” that continue to divide us and to cause analytical difficulties. But the basic commitment has now passed the test of time. Despite its imperfections and frustrations, environmental law is here to stay.
- Open Chapter
Copyright Page 5 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © West, a Thomson business, 2000, 2004, 2008
- © 2014 LEG, Inc. d/b/a West Academic
- Open Chapter
Chapter 2. Federalism and the Environment 71 results (showing 5 best matches)
- One of the basic assumptions of American constitutional law is that Congress has limited powers. The federal government does not necessarily have the power to take any action it deems in the public interest. Instead, it is a government of limited, delegated powers. Environmental regulation by the federal government must utilize one of a list of specific powers. In many modern constitutions, the central government is specifically empowered to deal with environmental problems. But the U.S. Constitution long predates modern environmental awareness.
- Thus, federal environmental regulation must rely on powers that deal with other subjects such as the economy or foreign affairs. In environmental law, the most important of these specific powers are the power to regulate interstate commerce, the power to tax and spend, the power to enter into treaties, and the power to regulate the use of public lands. Together, these specific powers form an imposing arsenal of authority but there is no guarantee that they cover every possible environmental problem.
- In a unified national economy, the existence of a multitude of differing state environmental laws can impede the flow of commerce. Yet the states have often been in the lead in the environmental area because of pressing local problems. The conflict between the local interest in regulation and the economic interest of other states cannot be resolved effectively by the courts of any of the states involved. Obviously, neither the state that is engaging in regulation nor the states that are affected by the regulation can provide a completely neutral forum. For this reason, the federal courts have emerged as the tribunals in which these conflicting interests can be assessed.
- Both the majority opinion and the Kennedy concurrence emphasized the noncommercial nature of the regulated activity, which was simply to be present in the vicinity of a school while in possession of a firearm. A later decision struck down a federal law concerning violence against women, also emphasizing the completely noncommercial character of the problem. In contrast, environmental statutes are heavily focused on regulating commercial activities such as industry, agriculture, and logging. Moreover, the interstate repercussions of pollution are more obvious than those of gun possession. For these reasons, probably does not pose a threat to the current federal regulatory regime as a whole. It may, however, have some impact on marginal applications of environmental statutes to seemingly local, noncommercial activities. In particular, ...on the application of federal wetlands and endangered species regulation in some borderline situations, particularly when the regulated party is...
- The use of this balancing test has been attacked by Justice Scalia, some lower court judges, and several scholars. These critics make several arguments against a balancing test. If a state law does not discriminate against interstate commerce, they argue, the federal courts should not second-guess the state legislature about the balance between a statute’s costs and benefits. Moreover, ill-advised but nondiscriminatory statutes are subject to a built-in political check, because the adversely affected local industry and consumers will lobby for repeal. (In addition, out-of-state firms may well lobby against the law or direct campaign contributions to opponents of the law.) Thus, the political process can handle these laws without judicial assistance. Finally, these critics argue, the judicial balancing in these cases is unhappily reminiscent of the era when courts routinely overturned statutes they considered unwise—an approach that has long since been repudiated in other contexts....in
- Open Chapter
Chapter 1. Judicial Oversight of Agencies 121 results (showing 5 best matches)
- Many of the issues we have been discussing are considered in far more depth in an administrative law class. The discussion given here, however, should be enough to enable the reader to understand how courts function in environmental law cases.
- In and earlier decisions, the Supreme Court took a liberal approach to standing in environmental cases. In 1990, however, the Court signaled a change in direction. The first indication of this new attitude was a reference, in a non-environmental opinion, to “surely went to the very outer limit of the law.” Whitmore v. Arkansas, 495 U.S. 149 (1990). A second, more serious signal followed later the same year, in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).
- Environmental litigation often involves disputes with governmental agencies rather than between private parties. Thus, administrative agencies and their relationship with the courts are crucial in environmental law. This chapter will first discuss the general rules governing judicial review of agency decisions. Those rules are mostly derived from the Administrative Procedure Act (APA). The next subject will be the special agency procedures required by the National Environmental Policy Act (NEPA).
- Although the Court obviously remains sharply divided on how strictly to apply the standing requirements, it does seem united in its understanding of the basic test. To summarize the law of standing, the Supreme Court has required plaintiffs to prove that they have suffered an injury in fact. In environmental cases, the plaintiff must allege the existence of a chain of causation between the allegedly illegal government action and an injury to some portion of the environment used by the plaintiff. The plaintiff need not allege any health injury or any economic damage; aesthetic or recreational impairment is enough. To obtain standing, the plaintiff need only demonstrate a “substantial likelihood” that judicial relief against the illegal government action would reduce the extent or likelihood of the plaintiff’s environmental injury.
- NEPA requires an EIS when an agency has made a report on a proposal for a major federal action with a substantial environmental impact. In deciding whether any EIS is required, the most difficult question to answer has been whether there will be a substantial environmental impact. Once it has been concluded that an EIS is required, the next question is the scope of the EIS. The answer to this question is to be found by determining the precise scope of the agency “proposal” under consideration. The EIS must discuss in detail the alternatives to that proposal, as well as the environmental impacts of the proposal and of the alternatives. In deciding which alternatives and which environmental impacts must be discussed, the applicable standard is the “rule of reason.” This statutory scheme, whatever uncertainties may exist about its cost-effectiveness, has now stood the test of time. Indeed, it has been emulated by many states and by many other countries.
- Open Chapter
Chapter 3. Pollution Control 160 results (showing 5 best matches)
- Preceding portions of this chapter considered economics as a constraint upon environmental protection. This section examines ways in which government can use economic incentives to promote environmental protection, primarily by increasing the cost of pollution to those causing environmental degradation.
- Another potential problem is the possibility of hotspots. It is possible that many of the permits will be purchased by sources in a small area, resulting in unacceptably high levels of pollution in that area. Although hot spots apparently did not develop in the acid rain program or some other trading systems, they remain a concern. A particular worry is that the hot spots could turn out to be older plants impacting poorer populations, leading to environmental justice concerns.
- Similarly, the market may not strike a proper balance between economic output and environmental quality because the costs of pollution are borne by someone besides the polluter. As a result, these “externalized” costs will not be taken into account by polluters. Without the incentive to reduce the amount of pollution, insufficient resources are devoted to this objective. Insofar as pollution costs are not borne by each polluter or its customers, some of the total welfare resulting from economic activity is redistributed away from the victims of pollution to other groups in the society. In a sense, the polluter is subsidized by others who bear the environmental costs of his activities. Because of this subsidy, the polluter’s conduct is not
- As with many other deadlines set in environmental statutes, the goals set in 1970 were not attained in many areas. Special provisions were added to the statute in 1977 and further strengthened in 1990 to deal with these “nonattainment areas.” In nonattainment areas where concentrations of a pollutant exceed the NAAQS, § 172 requires at a minimum that SIPs impose “reasonably available control technology” (RACT) on existing sources. If EPA determines that the state’s standards are not sufficient to attain primary NAAQSs on schedule or to attain secondary NAAQSs within a “reasonable time,” under § 110 it must issue a federal implementation plan within two years that will assure timely attainment. The fact that compliance may be difficult or even impossible for some sources does not excuse promulgation of the required implementation plans.
- If a change at a plant is sufficient to constitute a “modification” and trigger new source review, the owner is faced with much more rigorous pollution control requirements under PSD or nonattainment requirements. The Bush Administration used several methods in an effort to restrict the application of these requirements. For example, it classified plants as having major modifications for PSD purposes only if the result was an increase in hourly emissions. Under this approach, changes that allow the plant to operate for additional time periods, and thus increase total emissions but not the rate of emissions, would not be classified as major modifications. The Supreme Court remanded this rule for further consideration in Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007).
- Open Chapter
Chapter 4. Risk Management 68 results (showing 5 best matches)
- Under current regulations, APHIS approves field testing of transgenic plants through a “notification” process, in which applicants notify the agency that a plant meets general guidelines for not causing unwanted environmental effects. If the agency agrees, the plant can be grown while the company conducts further field testing to rule out adverse environmental effects. There is no public or independent scientific input in this process. Most biotech companies ready to begin commercial production of transgenic plants petition for “non-regulated” status, asking APHIS to determine that there is no environmental risk. As part of this process, APHIS conducts a formal environmental assessment that it publishes in the Federal Register, providing the public with a 60-day comment period. A committee of the National Academies’ National Research Council has recommended that the public, including scientific peer reviewers, should be more involved in both these processes, and that ecological...
- The policy issues presented in OSHA cases are somewhat different from those in normal environmental cases. First, exposure to the risk is less involuntary than is exposure to, say, ambient air pollution. Second, negotiations between the source of the hazard and the possible victims are feasible to a much greater extent than in the normal pollution case. This is especially true when the victims of the hazard, the employees, are represented by a union. Thus, the transaction costs of private settlements are sometimes much smaller here. Third, the possible victims of the hazard have a much greater stake in the economic health of the enterprise creating the hazard than is the case generally in environmental disputes. The option of closing the plant down in order to end the hazard is generally not acceptable to the workers, nor are actions that would seriously jeopardize the prospects for continued employment. For all of these reasons, the balance between protection from risks and... ...in...
- The earliest toxic chemical problem to receive widespread public attention was that of pesticides, thanks in large part to Rachel Carson’s a book that is often credited with sparking the modern environmental movement. The principal federal statute regulating pesticides is the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Congress amended FIFRA in 1972 by enacting the Federal Environmental Pesticide Control Act, 7 U.S.C.A. § 136, which has been amended on a regular basis since then. In its present form, FIFRA provides a comprehensive framework for regulating the sale and distribution of pesticides within the United States.
- Undoubtedly, certainty is a scientific ideal—to the extent that even science can be certain of its truth. But certainty in the complexities of environmental medicine may be achievable only after the fact, when scientists have the opportunity for leisurely and isolated scrutiny of an entire mechanism. Awaiting certainty will often allow for only reactive, not preventive regulation. Petitioners suggest that anything less than certainty, that any speculation, is irresponsible. But when statutes seek to avoid environmental catastrophe, can preventive, albeit uncertain, decisions legitimately be so labeled?
- Questions involving the environment are particularly prone to uncertainty. Technological man has altered his world in ways never before experienced or anticipated. The health effects of such alterations are often unknown, sometimes unknowable. While a concerned Congress has passed legislation providing for protection of the public health against gross environmental modifications, the regulators entrusted with the enforcement of such laws have not thereby been endowed with a prescience that removes all doubt from their decision making. Rather, speculation, conflicts, and theoretical extrapolation typify their every action. How else can they act, given a mandate to protect the public health but only a slight or non-existent data base upon which to draw? …
- Open Chapter
Chapter 5. Hazardous Waste 151 results (showing 5 best matches)
- The legal issue that arises most frequently in environmental criminal cases is the extent of the “knowledge” that defendants must be shown to have had in order to justify convictions. For example, § 3008(d) of RCRA—one of the environmental criminal provisions most often used by federal prosecutors—prescribes fines and imprisonment for any person who:
- Among the citizen-suit provisions found in various federal environmental laws, § 7002 of RCRA is unique in authorizing suits by private and other non-EPA plaintiffs to abate potential imminent hazards. In Maine People’s Alliance v. Mallinckrodt, Inc., 471 F.3d 277 (1st Cir.2006), , 128 S.Ct. 93 (2007), the court said that “the combination of the word ‘may’ with the word ‘endanger,’ both of which are probabilistic, leads us to conclude that a reasonable prospect of future harm is adequate to engage the gears of RCRA § 7002(a)(1)(B) so long as the threat is near-term and involves potentially serious harm.” The court ordered the defendant polluter to conduct a multi-million dollar study to learn whether mercury contamination in the lower Penobscot River adversely affected human health or the environment, and if so, to devise a feasible remedial approach.
- • Section D analyzes criminal liability under RCRA, the Clean Water Act, and other federal environmental laws.
- , 507 U.S. 1057 (1993), concerned the extent to which “characteristic” wastes must be treated prior to land disposal. The “NRDC petitioners” (environmental organizations and companies in the business of treating hazardous wastes) challenged EPA’s decision not to require the use of “best demonstrated available technologies” (BDAT) in situations. “Industry petitioners” (waste generators) objected to regulations mandating levels of treatment that in some situations went removal of the characteristic (ICR or toxicity) that had led to the waste’s classification as hazardous. The court rejected the NRDC claim that some form of technology must be used to treat waste in instances, and that dilution is never sufficient. The court found that RCRA does not bar dilution of ICR wastes, but merely defines the purposes that a method of treatment must achieve. The court also rejected the generators’ argument that the moment a waste ceases to meet the regulatory definition of a hazardous waste,...
- In toxic waste damage actions, the plaintiff’s first problem is to establish that defendant’s conduct meets the requisite liability standard. Although many toxic tort plaintiffs have brought actions under products liability theories holding manufacturers strictly liable for defective products, the liability standard is less clear in cases not involving manufacturers. The generally accepted liability test for hazardous waste releases is stated in the Second Restatement of Torts. Under this test, liability exists despite the exercise of due care if an activity was “abnormally dangerous.” To determine whether an activity is abnormally dangerous, a court must weigh the probability and severity of foreseeable harm, whether the activity is unusual or is in an inappropriate location, and other factors. Restatement (Second) of Torts § 520 (1977). Thus, fault plays a role in the Restatement assessment. A few courts have rejected this fault element, however, and have begun to move beyond the...
- Open Chapter
Title Page 4 results
Outline 12 results (showing 5 best matches)
Environmental Law Timeline 16 results (showing 5 best matches)
- ENVIRONMENTAL LAW TIMELINE
- President signs National Environmental Policy Act (NEPA) on January 1, opening the modern era of environmental protection.
- Supreme Court cuts back on environmental standing in
- Congress enacts the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (also called “Superfund”).
- Chevron, U.S.A. v. NRDC
- Open Chapter
Table of Cases 12 results (showing 5 best matches)
- Carolina Environmental Study Group v. United States ------------ 49
- Duke Power Co. v. Carolina Environmental Study Group ------------ 5
- Environmental Defense v. Duke Energy Corp. ------------ 128
- Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. ------------ 11
- State Dept. of Environmental Protection v. Ventron Corp. ------------ 260
- Open Chapter
Index 7 results (showing 5 best matches)
- COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (CERCLA)
- COUNCIL ON ENVIRONMENTAL QUALITY
- Environmental Impact Statements
- ENVIRONMENTAL IMPACT STATEMENTS
- Comprehensive Environmental Response, Compensation, & Liability Act (CERCLA); Resource Conservation and Recovery Act; Toxic Regulation
- Open Chapter
Advisory Board 11 results (showing 5 best matches)
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Open Chapter
- Publication Date: February 13th, 2014
- ISBN: 9780314290304
- Subject: Environmental Law
- Series: Nutshells
- Type: Overviews
- Description: Farber’s Environmental Law in a Nutshell provides a foundation for understanding environmental law. Expert text includes coverage of various areas, from acid rain and atomic energy, to waste disposal and wetlands. Touches upon the many statutory and common-law regulations shaping the world in which we live.