Environmental Law in a Nutshell
Author:
Farber, Daniel A.
Edition:
10th
Copyright Date:
2019
15 chapters
have results for environmental law
Chapter 6. Preservation of Natural Areas 277 38 results (showing 5 best matches)
- 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. It has also resulted in bringing environmental law into a close connection with other legal fields such as energy law.
- Cleaning up pollution 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.
- 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.
- At least since the late 1960s, our society has had a firm legal commitment to the protection of environmental quality. Even the most dedicated opponents of regulation do not challenge the importance of clean air and water or preserving nature. It is the questions of “at what cost?” and “how fast?” that continue to divide us and to cause analytical difficulties. But the basic legal commitment has now passed the test of time. Despite its imperfections and frustrations, environmental law is here to stay.
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Preface v 8 results (showing 5 best matches)
- 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 Trump Administration has pressed forward with major deregulatory actions, including repeal of key regulations addressing climate change.
- 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).
- Environmental problems are complicated, and they play out against a background of governance institutions and economic dynamics. Thus, it should be no surprise that environmental law is also complex. It is often hard for the uninitiated to understand the larger structure because of the amount of complexity that surrounds it.
- 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 allocate authority between federal and state regulators.
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Chapter 1. Judicial Oversight of Agencies 1 67 results (showing 5 best matches)
- 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. With the exception of hazardous waste clean-up, nearly all of federal environmental law involves regulations issued by agencies like EPA, which then become the basis for permits or enforcement actions. 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).
- 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.
- Like the APA, NEPA imposes environmental responsibilities on all agencies of the federal government. Most of our discussion of NEPA will relate to § 102(2)(c), which concerns the environmental impact statement (EIS). Before turning to the EIS requirement, however, it is worth reviewing some of the other provisions of NEPA.
- Section 102(2) contains several provisions that are intended to force agencies to take environmental issues seriously. Subsections (a) and (b) require new agency procedures to ensure that the decisionmaking process takes into account environmental factors. When a proposal involves conflicts between alternative uses of available resources—which is likely to be true of any important government decision—subsection (e) requires the agency to develop alternatives to recommended courses of action. Another important aspect of NEPA was the establishment of the Council on Environmental Quality (CEQ), which is primarily charged with advising the President about environmental matters.
- 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.
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Chapter 2. Federalism and the Environment 57 38 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.
- As we have seen, congressional power in the environmental area is extremely broad. The commerce clause reaches virtually any economic activity that has significant environmental consequences. That power, broad as it is, is augmented by the other broad powers to protect
- . A federal statute required certain individuals to either purchase health insurance or pay a fee to the government. The Supreme Court held that, while Congress cannot regulate activities affecting interstate commerce, it cannot mandate that individuals who have not engaged in commerce do so. This ruling seems tangential to environmental law, however, because the environmental statutes are nearly always aimed at controlling environmentally harmful activities or commercial firms rather than mandating new activities by individuals.
- 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.
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Chapter 3. Pollution Control 95 38 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.
- The common law doctrine of nuisance offers injured landowners the remedies of damages and injunctions against polluters. Litigation, however, is ill-suited to resolving widespread environmental problems involving highly technical issues or difficult trade-offs
- 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 its activities. Because of this subsidy, the polluter’s conduct is not economically efficient: total social wealth (without regard for its distribution) is not maximized.
- the degree of emission reduction achievable through the application of the best system of continuous emission reduction which (taking into consideration the cost of achieving such emission reduction, and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.
- involved § 316(b) of the CWA. Section 316(b) governs cooling towers for power plants (which can harm aquatic life). The statute requires EPA to issue standards reflecting “the best technology available for minimizing adverse environmental impact.” The plaintiff said that this required choosing the technology that reduced impacts as far as possible. The Court construed the term “best technology” as potentially meaning either (1) the technology that most reduces impacts or (2) the one that most reduces environmental impacts. Deferring to EPA’s interpretation, the Court held that the statute allows what it called “cost-benefit analysis” in at least the sense that EPA could avoid “extreme disparities between costs and benefits.”
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Center Title 1 result
Environmental Law Timeline xxvii 4 results
- EnvironmentalLaw Timeline
- President signs National Environmental Policy Act (NEPA) on January 1, opening the modern era of environmental protection.
- Congress enacts the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (also called “Superfund”).
- Supreme Court cuts back on environmental standing in
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Chapter 5. Hazardous Waste 213 29 results (showing 5 best matches)
- Section D analyzes criminal liability under RCRA, the Clean Water Act, and other federal environmental laws.
- 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:
- Section B discusses the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which governs civil liability for cleanups of waste disposal sites.
- Before SARA, both potentially responsible parties (PRPs) and environmental groups often sought judicial review of EPA’s proposed remedial actions at particular sites before the cleanups were implemented. Rather than waiting to raise defenses in subsequent cost recovery actions under § 107, PRPs directed their early challenges to the selection of remedial actions, claiming, for example, that EPA had chosen unreasonably elaborate or expensive remedies. Environmental groups, on the other hand, had different reasons for seeking pre-enforcement review of proposed remedial actions. They wanted early access to the courts to halt implementation of remedies that, in their view, failed to go far enough in protecting public health and the environment. Before 1986, CERCLA provided little guidance on the propriety of pre-enforcement judicial review but courts were generally not receptive to these efforts.
- (II) the defendant took reasonable steps to stop any continuing release; prevent any threatened future release; and prevent or limit any human, environmental, or natural resource exposure to any previously released hazardous substance.
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Outline 4 results
Chapter 4. Risk Management 179 18 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 ...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 testing and monitoring...
- 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?
- 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 ...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 economic cost may be...
- Biotechnology has the potential to address some of the greatest challenges facing the United States and the world, including hunger, disease, and environmental degradation. Genetically modified crops may yield increased agricultural efficiency, improved nutrition, new medicines, and reduced environmental impacts. Genetically engineered animals may create cheaper food, provide organs or tissues for human transplants, and reduce pressures on wild animal populations.
- 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? . . .
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Table of Acronyms xix 12 results (showing 5 best matches)
Table of Cases xiii 5 results
- Carolina Environmental Study Group v. United States, 49
- Duke Power Co. v. Carolina Environmental Study Group, 5
- Environmental Defense v. Duke Energy Corp., 132
- Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 10
- State Dept. of Environmental Protection v. Ventron Corp., 270
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Index 327 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, and Liability Act (CERCLA); Resource Conservation and Recovery Act; Toxic Regulation
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West Academic Publishing’s Law School Advisory Board 10 results (showing 5 best matches)
- Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus University of California, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: May 22nd, 2019
- ISBN: 9781640201132
- Subject: Environmental Law
- Series: Nutshells
- Type: Overviews
- Description: Farber’s Environmental Law in a Nutshell provides an up-to-date foundation for understanding environmental law. Expert text includes coverage of the full range of environmental issues, from climate change and air pollution, to waste disposal and wetlands. Surveys the many statutory and common-law regulations shaping the world in which we live.