Environmental Law

Federal and State Power

Need for strong central government vs. concern over loss of autonomy Senate (all states equal) and House of Representatives (proportional) Electoral College (probable original intent: elections decided by House) Constitutional restrictions on Federal authority

Federal Powers in the Constitution

Regulate bankruptcy Coin money and prosecute counterfeiting Post offices Patents and Copyrights Income Taxes Lay and collect taxes (Art. I Sec. 8) Property rights of Federal Government Provide for Common Defense and General Welfare (Art. I Sec. 8)

Federal Power Within The States

Conditions Attached to Federal Funds Right to regulate Federal lands Defense Dealing with Indian Tribes Interstate Commerce
Regulation of navigable waterways

14th Amendment
Civil Rights

Federal Authority
Article VI. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Supreme Court

Article III. Section 1 The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. Section 2 The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.
to Controversies between two or more States between a State and Citizens of another State (Repealed by 11th Amendment) between Citizens of different States between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects

Limits on the Supreme Court

Article II, Section 2 He [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States President nominates, Senate approves

Limits on the Supreme Court

Article III, Section 2 In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Amendment XI
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Surface Water
Riparian Ownership (Europe, Eastern US)
All owners of water frontage have rights Must return (in theory) to water body Beneficial Use Meaning? Strip lots (France) to maintain access Generally dont own water body (unless completely enclosed or artificial) Wisconsin public trust and attempts to restrict

Surface Water
Prior Appropriation
First come, first served Primarily Western U.S. Potentially better for arid regions Failure to live up to promise

California Doctrine
Mixture of Riparian and Prior Appropriation State can appropriate water

Groundwater
Rule of Capture (England) Occult Ground water Reasonable Use Prior Appropriation (Western U.S.) Correlative Rights (Proportional to land area) Riparian

Mining Law of 1872

Love it or hate it Purpose was to encourage mining and Western settlement Minimal requirements for mining activity Could purchase Federal land for $2.50-$5 per acre Price locked into legislation No reclamation requirements

Later Mining Laws

Mineral Leasing Act (1920) Mineral Leasing Act For Acquired Lands (1947) Outer Continental Shelf Lands Act (1953)
Apply mostly to fossil fuels and fertilizers Land leased, not purchased Royalties paid Metals not covered

Mine Reclamation
Surface Mining Control and Reclamation Act (1977) Applies only to coal Requirement to restore land to original form and productivity May not be strictly possible

Love Canal
1890s: William T. Love plans a power generating canal around Niagara Falls Plans changed to create a shipping canal Only one mile dug before abandonment In 1920s canal used for dumping by city of Niagara Falls In 1942 Hooker Chemical granted right to dispose of waste in canal.

Hooker Chemical and Love Canal

Canal drained and lined with thick clay Waste buried in 55 gallon drums By 1952, 21,000 tons of waste buried
caustics, alkalines fatty acids chlorinated hydrocarbons

Hooker Chemical and Love Canal

Love Canal waste buried 20-25 feet deep Hooker Chemical bought canal and buffer on either side Disposal complied with law and good practice at the time City of Niagara Falls later attempted to buy site for a school Hooker refused to sell on safety grounds

Niagara Falls and Love Canal

Hooker took school board to site, conducted borings and demonstrated contamination City insisted on buying site anyway Hooker sold on condition that they be held blameless for any future problems

Niagara Falls and Love Canal

1954: School site moved to avoid wastes 1957: Sewers for subdivision breach wastes 1977: Wet weather brings wastes to surface 1978: Jimmy Carter declares emergency 1995: Occidental Petroleum (which bought Hooker) settles for $129 million in damages

Superfund
1980: Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Potential Responsible Parties
Current owner or operator Owner or operator of a site at the time of disposal Person who arranged for disposal Person who transported contaminant to a site; must have also selected that site

Superfund Sites 2008

Changing the Rules

No bill of attainder or ex post facto Law shall be passed (Article I, Sec. 9) Retroactive criminal law is flatly unconstitutional
Cant change penalties or rules of evidence

Retroactive civil law is Constitutional

Some civil/criminal retroactive laws are legal

Courts can refuse to enforce illegal or unconscionable contracts

Criminal and Civil Law

Criminal Law
Huge disparity of power Burden of proof on State Innocent until proven guilty Reasonable doubt

Civil Law
Parties may be nearly equal Somebody is going to be unhappy Preponderance of the evidence Control of the Facts

The Takings Controversy

Amendment V
No person shall.be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

What is due process? Is Zoning taking for public use? Is Regulation taking for public use?
Con: Never was interpreted that way before Pro: Regulations are increasingly invasive

Law of the Sea Treaty (1982)

Territorial Waters Expanded to 12 miles (20 km) 200 mile Exclusive Economic Zone U.S. voted against treaty Reagan proclaims US EEZ 1983 Overlaps of EEZs?

Antarctica
Antarctic Treaty 1961
Territorial claims set aside, not relinquished U.S., Russia recognize no claims Overlap between British, Argentine, Chilean claims

Convention for the Regulation of Antarctic Mineral Resources Activities (CRAMRA: 1988)

Antarctica
Opposition to CRAMRA in U.S.
Concern over opening Antarctica to exploitation Australia and France refused to ratify

Antarctic Protection Act (1990)

Prohibits U.S. mineral exploitation

Several nations (including U.S.) regulate tourism and research activities

Patterns of Environmentalism
1890-1910: John Muir, Sierra Club, Teddy Roosevelt 1930s: Dust Bowl, CCC, New Deal 1970s: Earth Day 1990s: Kyoto Accords, Global warming