Introduction The Story of Environmental Law 22 results (showing 5 best matches)
- We all enjoy a good story. The story of environmental law is a particularly rich one, improbable and unpredictable, and has been driven forward by lawsuits large and small. It is also a story about which your editors care deeply and in which, by way of disclaimer, we have been frequently involved. Like many of our colleagues, the development of environmental law has dominated, even defined, much of our professional and personal lives. It continues to do so: while no longer new, environmental law remains very much a work in progress.
- The story of environmental law is, accordingly, a remarkable story of defiance and persistence. The enactment during the second half of the twentieth century of a series of aspirational and breathtakingly ambitious environmental protection laws defied the oddsmakers. When, moreover, environmental law’s obituary was repeatedly written, first in the 1970s with the OPEC oil embargo, next in the 1980s with the election of Ronald Reagan, and finally in the 1990s with the Contract with America, environmental law persevered and rebounded. To be sure, serious inequities and significant gaps in coverage remain, impeding the ability of these laws to achieve their full promise and statutory goals. But it cannot be gainsaid that the nation’s environmental laws have succeeded in preventing in the United States the kind of widespread ecological damage witnessed in other industrialized nations of the world during the same time period. Meanwhile, nay-sayers notwithstanding, the American economy...
- Professor William Buzbee describes in Chapter 7 the war over environmental enforcement in
- The Story of Environmental Law
- The Secret Opinions of the United States Supreme Court on Leading Cases in Environmental Law, Never Before Published,
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Chapter 8 The Story of Lucas: Environmental Land Use Regulation Between Developers and the Deep Blue Sea 91 results (showing 5 best matches)
- Why does this matter to environmentalists? It matters because transitional strategies are critical to the success of environmental land use regulation generally, not just for coastal management. In turn, land use controls are critical to some parts of environmental law, perhaps increasingly so as we face a new generation of environmental issues that go beyond gross controls on major pollution sources. Because land is so much easier to turn into property than typical environmental resources like water or air, and because land is so noticeable as property, new environmental controls of land uses are always likely to raise the decibel level. Nevertheless, environmentalism needs to explore ways to approach this problem constructively. Ultimately, that is why a chapter on , a case about property takings, belongs in a book of “Environmental Stories.”
- The Story of
- and the pattern of environmental land use management at the beach, at least one historical pattern emerges when this story is seen in retrospect. The National Land Use debates and the CZMA revealed that the chief opponents to wider environmental land use regulation would be landed interests and local governments. In some of the legislation following the CMZA, legislators avoided this Scylla of resistance by narrowing the scope of the legislation to a thin geographic area. But in so doing, they steered straight toward the Charybdis of takings charges, where the few affected owners could claim that they were “singled out.” Even more important, by confining the regulatory ambit so narrowly, they threatened to undercut their own environmental goals. Much of the same might be said about another embattled environmental land use control, the ESA, where the narrowness of the protected subject both raises charges of special burdens from private landed interests and undermines more...
- In the American legal experience, this pattern—growing environmental concern facing sharp landowner opposition—has nowhere been more noticeable than at the beach. Many coastal areas faced serious degradation before American legislatures responded, but coastal regulation has stirred a witches’ brew of takings cases, including three major Supreme Court cases on takings of property. Through holdings at least partially favorable to private landowners, these cases have much roiled the waters of takings jurisprudence in the United States. Perhaps even more important, these cases have invigorated the notion that private property must necessarily be opposed to environmental protection, a mistaken idea that can badly damage the texture of legal and lay thought about both property and environmental protection, since so much of environmental law actually does aim at protecting property interests.
- law that engages larger environmental policy is likely to be passed at the state or federal level, not the local level. Why, then, are so many takings claims directed at environmental land use controls, and why are these claims considered seriously? At least on the standard theory of local political failure, environmental controls, as the products of large legislatures, should more or less be above the takings fray. But they are not, suggesting one of two possibilities: first, that something is amiss with these environmental land use takings claims, or second, that something is amiss with the political failure theory. And so, just as
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Table of contents 12 results (showing 5 best matches)
- ENVIRONMENTAL LAW STORIES
- Introduction The Story of Environmental Law
- Chapter 6 The Story of Chevron: Environmental Law and Administrative Discretion
- Chapter 2 The Story of Reserve Mining: Managing Scientific Uncertainty in Environmental Regulation
- Chapter 3 The Story of Calvert Cliffs: A Court Construes the National Environmental Policy Act to Create a Powerful Cause of Action
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Contributors 13 results (showing 5 best matches)
- Environmental Law Stories
- is a Distinguished Professor of Law at the Chicago-Kent College of Law. He holds an A.B. and LL.B. from Stanford University. Professor Tarlock was a participant at the 1969 Conservation Foundation Arlie House Conference which helped to launch environmental law, and has taught environmental law, international environmental law, water law and related seminars since 1966. From 1969–1982, he was a member of the faculty at Indiana University, Bloomington and has visited at several law schools including the universities of Chicago, Hawaii, Kansas, and Michigan. Professor Tarlock has published over 100 articles on environmental, water and land use law. His books include
- is a Professor of Law at Georgetown University where he also serves as Faculty Director of the Supreme Court Institute. He is a graduate of the University of Illinois and Harvard Law School. He served as an attorney in the Environment and Natural Resources Division and as an Assistant to the Solicitor General of the United States Department of Justice. He was previously on the law school faculties of Indiana University, Bloomington and Washington University in St. Louis and has been a visiting professor at Northwestern University, University of Texas and Harvard law schools. His primary areas of legal scholarship are environmental and natural resources law, with particular emphasis on constitutional law and the Supreme Court. He recently published a book on the history of U.S. environmental law,
- is Sho Sato Professor of Law and the Director of the Environmental Law Program at the University of California at Berkeley. He received a B.A. in philosophy with high honors in 1971 and an M.A. in sociology in 1972, both from the University of Illinois. In 1975 he earned his J.D. from the University of Illinois, where he was a member of the Order of the Coif, editor in chief of the
- is Professor of Law at Harvard Law School, where she teaches environmental law and administrative law. She was previously on the UCLA faculty. She holds a B.A. from UCLA, LL.B. from Stanford, LL.M. from the University of Toronto and S.J.D. from Harvard. Her scholarship in administrative law focuses generally on public-private collaboration in governance, and her work in environmental law focuses on questions of institutional design. She co-authors a casebook in environmental law. Her article (with DeShazo) was selected as one of the top ten articles of the year by the Land Use and Environmental Law Review; Law and Regulatory Practice for the best article on administrative law;
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Chapter 6 The Story of Chevron: Environmental Law and Administrative Discretion 52 results (showing 5 best matches)
- The Story of
- But there is more to the story. is in the environmental law pantheon for additional good reasons. It was the first (and only) Supreme Court case to memorialize the turn toward market mechanisms in environmental regulation. The bubble concept was among the earliest emissions trading ideas to take root in EPA regulations. in these early days was to reduce the cost of compliance with environmental standards by affording firms the flexibility to achieve them in the least-cost manner. Yet at the time, and to this day, critics saw the bubble as a regulatory shell game.
- Even environmental law casebooks tend to present in a section devoted to administrative law standards of review rather than in a chapter devoted to air quality.
- More Unfinished Stories: Lucas, Atlanta Coalition and Palila/Sweet Home
- Environmental Law in the Supreme Court: Highlights from the Marshall Papers
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Chapter 7 The Story of Laidlaw: Standing and Citizen Enforcement 72 results (showing 5 best matches)
- The somewhat lost story of does not appear atypical. Citizen suit litigation remains a potentially significant option for victims of pollution, environmental groups, and others concerned with violations of environmental laws and regulations. The gauntlet through which the
- Since the Court first applied standing doctrine to environmental litigation in the 1970s, most significantly in it vacillated in its willingness to countenance significant citizen litigation under environmental laws. The Court in rejected a public interest group’s ability merely to seek to enforce the law without showing some tangible links to the underlying threatened natural resource. The Court also, however, stated with clarity that recreational and aesthetic interests in an environmental amenity were indeed interests that were to be recognized by the courts, provided the plaintiff could show a link to those threatened or injured interests. For the next decade, courts devoted little attention to environmental litigants’ standing, with most litigants able to show the requisite link to the environmental amenity at interest.
- lawyers and the significance of the case result, one must first have a basic understanding of how citizen suits and linked standing doctrine work. A logical question for someone new to environmental law is why the viability of citizen-initiated environmental litigation matters. After all, the executive branch can enforce the law, as can states when they assume enforcement roles under delegated program federalism schemes offered by most modern environmental laws. In reality, government actors frequently fail to enforce the law, sometimes (as in entering into lax settlements that arguably undercut the law. In addition, government officials are frequently themselves the problem, missing deadlines and violating statutory and regulatory edicts. Citizens play a critical role in redressing these environmental law implementation failures, much as they have under the Administrative Procedure Act (APA) for decades, but with special additional functions under citizen suit provisions.
- Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
- The composition of the lower courts and the Supreme Court was changing, however, as was the rise of increasingly active environmental groups willing to sue polluters and the government. By the late 1980s, many citizen suit actions were being brought against polluters and government agencies alleged to have violated legal obligations set forth in environmental laws, regulations and pollution permits. In an array of areas of public law litigation, many courts by the late 1980s embraced statutory, constitutional and prudential doctrines that reduced access to the courts afforded to regulatory beneficiaries such as environmental citizen suit plaintiffs.
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Chapter 3 The Story of Calvert Cliffs: A Court Construes the National Environmental Policy Act to Create a Powerful Cause of Action 111 results (showing 5 best matches)
- There are two stories of . The first is how a small group of young lawyers used a moment in time to produce new, radical legal ideas about our relationship to nature. The decision gave life to a new fundamental idea—advance environmental impact assessment—which has transcended both NEPA’s statutory context as well as the immediate litigation to become one of the foundational principles of domestic and international environmental law. The second story is more sobering because it is about the limits of courts to change the decisions we make about our relationship to the natural world.
- The Story of
- The law has its own treatise. Daniel R. Mandelker,
- played a pivotal role in creating modern environmental law by providing an effective environmental cause of action to challenge a wide range of federal activities. Both the case and statute that made it possible, the National Environmental Policy Act of 1969 (NEPA), are the products of a moment in time, 1968–1972, which has long passed. The political consensus that produced the statutory foundations of modern environmental law no longer exists, and our naive faith in the ability of science to provide simple, objective environmental quality criteria and decision standards has long given way to a much more wickedly complex view of environmental protection. However, the statutes and judicial glosses on them produced by this moment of time live on in an increasingly contested environment.
- One of the many paradoxes of environmental law is that it has survived and thrived in the face of indifference or hostility from the Supreme Court.
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Chapter 1 The Story of Boomer: Pollution and the Common Law 67 results (showing 5 best matches)
- The final issue is whether the common law continues to have any relevance in today’s environmental law, given the predominance of environmental statutes. was decided at the very beginning of what some consider to be the “golden age” of environmental law, when almost all of today’s complex regulatory schemes were enacted. The court cut back on the scope of its inquiries in deference to the state’s statutory pollution scheme. A few years later, the U.S. Supreme Court abolished the federal common law of nuisance in favor of a purely statutory approach. Environmental law courses focus almost exclusively on statutory regulation, with the common law getting much scanter attention. How much room, one might well wonder, is left for the common law today? Was the court right in thinking that the common law has no further contribution to make to environmental policy?
- The first issue relates to remedies for environmental violations. The question raises is whether “balancing the equities” is limited to common law cases, or whether that process applies to all environmental injunctions. Nuisance actions are only the tip of the iceberg in terms of environmental litigation. Can courts use their equitable discretion to postpone or exempt polluters from statutory requirements? Or do environmental concerns trump economic interests in framing remedies against polluters? Obviously, this is a question of some importance in an era when so many environmental statutes authorize injunctions as a remedy against violators.
- Perhaps more importantly than these traditional nuisance suits, the common law is not merely a supplement to modern statutes but has also been given a role within those statutes. For example, RCRA’s imminent hazard provision authorizes injunctive relief but gives little guidance about the form of that relief. The courts have relied on the common law tradition of broad equitable discretion in crafting remedies. Similarly, court have turned to the common law to resolve liability issues under CERCLA, particularly those involving joint liability and contribution. Thus, the common law has continued to play a role in environmental law, even in this pervasively statutory era. Announcements of the demise of the common law in the modern regulatory state apparently have proved exaggerated. To the extent that might be thought to signal the irrelevance of the common law to the larger social issues raised by environmental law, that signal has turned out to be misleading.
- ’s fame is also due to timing. It was decided at the beginning of the modern environmental era, but it presaged what would turn out to be continuing remedial, economic, and jurisprudential issues: the scope of judicial discretion, the tradeoffs between environmental values and economic costs, and the role of the common law in an age of statutes. was also decided at the beginning of the modern Law and Economics movement, and it became a paradigm case for discussing the economics of entitlements and remedies. Thus, was emblematic of the issues that would preoccupy a whole generation of legal thinkers, and that continue to shape environmental debate today. It is likely to remain a prominent case so long as those issues continue to perplex scholars, students, and policymakers.
- from three different perspectives. The first perspective involves the issue of damages versus injunctive relief and examines that issue through the lens of economic analysis. The second perspective relates to the extent of judicial discretion in remedying environmental harms. How freely should courts balance economic and environmental values? The final perspective asks about the continuing vitality of the common law in an age of statutes, and seeks to probe the complex relationship between these two sources of law. Is the common law of nuisance a living fossil in the modern age of environmental regulation or does it continue to have a vital role to play?
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Chapter 9 The Story of SWANCC: Federalism and the Politics of Locally Unwanted Land Uses 43 results (showing 5 best matches)
- is widely studied because of what it says—and what it may portend—about constitutional federalism in the context of environmental regulation. The story of recounted here offers a different view of federalism, not as a formal doctrine of constitutional law but a bewildering complex of checking powers operating at all levels and branches of government. This story suggests that American federalism offers so many opportunities for one governmental actor to trump another that disputes about locally unwanted land uses can continue indefinitely, until one or both sides drop from exhaustion, or run out of money to pay the lawyers and consultants.
- -Finally, what does the story tell us about the role of federalism in environmental law? The textbook picture of environmental federalism posits that state institutions should attend to local problems, while federal institutions attend to multi-jurisdictional problems. In our story, this line of division was little observed. The Army Corps of Engineers, a federal agency, got involved in the balefill controversy because of a multi-jurisdictional problem, preserving a habitat for migratory birds.
- Thus it happened that on the eve of oral argument, a group of environmental leaders, fearing that the Court’s decision “could lead to a disastrous ruling for the nation’s environmental laws,” launched a novel effort to get the parties to settle the case. Howard Learner, a leading Chicago-area environmentalist, spearheaded the effort. In a letter to SWANCC officials, he warned that the agency’s constituents “have very strong environmental values” and would not want to be party to a decision that undermined those values. Learner further argued that the balefill was no longer necessary, “because the private sector seems to be meeting the Chicago area’s waste-disposal needs.”
- As the briefing unfolded, alarm bells began to go off within environmental circles. The Commerce Clause is the constitutional foundation on which most of the Nation’s environmental laws rest. If the Commerce Clause does not permit aggregation of noneconomic phenomena in order to determine whether some activity has a substantial effect on interstate commerce, then more than the Migratory Bird Rule could be in jeopardy. The Endangered Species Act seeks to preserve endangered species of plants and animals and the habitat of endangered animals, phenomena which are not themselves economic, even though they may have a substantial effect on interstate commerce. And the Clean Air Act seeks to regulate air quality, a state of being which is not itself economic, even if clean air has a substantial effect on interstate commerce. To many environmentalists, it appeared as if SWANCC was stubbornly persisting in its quest for vindication of its balefill plan, even at the price of putting a...
- Among the local politicians who had this reaction were the elected officials of the suburban municipalities of Cook County, Illinois, north of Chicago. These communities, especially the “Northshore” suburbs along Lake Michigan, are among the wealthiest in the country, with high levels of education and civic participation. Throughout the area, residents are generally supportive of environmental protection laws, and see themselves as good environmental citizens.
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Chapter 2 The Story of Reserve Mining: Managing Scientific Uncertainty in Environmental Regulation 43 results (showing 5 best matches)
- The Story of
- U.S. Environmental Protection Agency v. Reserve Mining Co.
- Introduction, in The International Library of Essays in Environmental Law: Environmental Risk
- remains the archetype for the regulation of chemical threats to human health, because the central problem for the court was the management of scientific uncertainty, the salient characteristic of this area of environmental law and policy. The facts of posed the problem of uncertainty in a particularly stark way: the inhalation hazards of asbestos were well known, but what was the danger from ingestion of asbestos fibers in drinking water? To decide the case, the court had to analyze the parties’ scientific disagreement in detail, and it had to determine whether the applicable law was remedial and based on proven harm, or precautionary and seeking to avoid harms , and the result was a landmark of environmental law whose science-based, precautionary approach continues to influence the regulation of toxic threats to human health and the environment.
- The Reserve Mining Controversy: Science, Technology, And Environmental Quality
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Chapter 10 The Story of American Trucking: The Blockbuster that Misfired 56 results (showing 5 best matches)
- business and industry petitioners made a frontal assault on a central feature of the Clean Air Act Amendments of 1970: they challenged the authority of the Environmental Protection Agency to set air quality standards for ubiquitous air pollutants. The immediate details of the litigation are themselves engaging, but the full story of stretches back in time to the original enactment of those Amendments. It stretches back, actually, not just to those Amendments, but also to a whole body of laws Congress enacted in the late 1960s and into the 1970s known as the “new social legislation.”
- That said, so long as preventative statutes remain on the books, the clash of the two paradigms will continue, because business and industry are just as firmly committed to the one as the environmental laws are to the other. Nor does is a landmark chapter but it is not the end of the story.
- The Making of Environmental Law
- For the story of how the environmental community and the EPA helped generate public opposition to the regulatory reform initiatives, see Thomas O. McGarity,
- For discussion of the attitudes of federal appellate judges regarding environmental litigation in the 1970s and 1980s, see Robert Glicksman & Christopher H. Schroeder,
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Chapter 4 The Story of TVA v. Hill: A Narrow Escape for a Broad New Law 45 results (showing 5 best matches)
- was rooted in the late 1960s and early 1970s, a period in which enactment of the first wave of ambitious federal environmental laws overlapped with the final stages of the post-war infrastructure development boom. TVA was struggling to extend its history of successful water project development; the Department of Interior was learning how to implement the Endangered Species Act, the most remarkable of the new environmental statutes; and citizens were experimenting with the new roles environmental statutes provided for them, both in agency proceedings and in litigation. By the time the case reached the Supreme Court in the late 1970s the energy crisis had added yet another wrinkle, causing politicians and the public to pull back from their earlier headlong rush toward strong environmental regulation.
- But the story was still not over. Although TVA was no longer actively pushing the Tellico Project, Senator Baker refused to give up. He tried but failed to dissolve the God Squad, and to openly exempt the Tellico Project from the ESA. Eventually, in what may have been the original anti-environmental appropriations rider, Baker orchestrated attachment of a clause directing TVA to complete the Tellico Dam “notwithstanding the provisions of [the ESA] or any other law” to the
- The Story of
- The Supreme Court came close to gutting the ESA, and potentially other environmental laws as well, in
- Environmental Law in the Political Ecosystem—Coping with the Reality of Politics
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Chapter 5 The Story of the Benzene Case: Judicially Imposed Regulatory Reform through Risk Assessment 28 results (showing 5 best matches)
- case, involved only occupational exposures to benzene, it came at a critical inflection point in the historical flow of U.S. environmental law, and it had a profound impact on that body of law. The “environmental decade” of the 1970s was coming to an end, and the “energy crisis” of the late 1970s had taken a large toll on the American economy. EPA had become a well-established regulatory agency, and it was struggling to implement an increasing number of ambitious pollution control programs. It had promulgated National Ambient Air Quality Standards for the conventional air pollutants, and the states were (not entirely successfully) struggling to write and enforce state implementation plans to attain the standards by recently extended deadlines. It had also promulgated the first round of technology-based effluent standards for conventional pollutants under the Clean Water Act, and the states were busily incorporating those standards into federally required permits. Genuine...
- The Law of Environmental Protection
- case, industrial groups, environmental groups, and regulatory agencies were engaged in two fierce battles over the future of health, safety and environmental regulation. The first was a battle over the roles that scientific information and policy considerations should play in regulating chemicals that were relatively benign at high exposures, but could cause adverse chronic diseases, like cancer, at low exposure levels. It was largely this battle that continued to bog down EPA’s efforts to cancel pesticides and to promulgate health-based standards for toxic air and water pollutants. The second battle was over the paradigm that should drive regulatory programs for toxic substances. Observing the potential for battles over the science to delay environmental improvement, environmental groups increasingly preferred technology-based standards as a first line of defense. The regulated industries and their allies in think tanks and academia argued that any regulatory controls had to be...
- This chapter will explore how a relatively young agency created by Congress to protect workers from the health risks that chemicals like benzene struggled to implement its protective mandate over the determined resistance of the economically and politically powerful petrochemical industry. It will examine how the Occupational Safety and Health Administration attempted to use a standard-setting proceeding devoted to benzene to advance a broader and, to the affected regulated industries, much more threatening “generic carcinogen policy” over the objection that the law required that agency to balance the costs to employers of health standards for the workplace against the benefits that they would provide to their employees. Finally, it will probe the role of the Supreme Court in a highly contentious policy dispute that had serious implications not just for occupational health, but for all of environmental law.
- The Story of the
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- Foundation Press, of Thomson/West, has created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Foundation Press 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.
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- Publication Date: July 21st, 2005
- ISBN: 9781587787287
- Subject: Environmental Law
- Series: Law Stories
- Type: Overviews
- Description: The stories in this book feature characters as diverse as community activists, small farmers, big businesses, dedicated scientists, skilled lawyers, strong-willed judges, and Presidents of the United States. Four of the ten selected cases established the field of environmental law, three others refined it, and the final three have sought to limit its effectiveness and reach. This selection mirrors the development of the field of environmental law, from the first, heady days of its creation to its current conflicts with other laws and values, including some embedded in the Constitution.