environemtal alw

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  1. sources of law
    consitution, legislative, executive, judiciary and agencies
  2. what the sources of law do
    • consitution- establishes govert, grantts and limits powers to its branches
    • . legislative makes a;w and stautory law
    • . executive enforces law adn issues executive orders makes treaties. judiciary interprets law and resolves case and controversies common law. agencies created by the legilstaure to adminster its acts
  3. legilsation enects law with the following
    • policy statues
    • / pollution control statutes. statutes regulating hazardous material waste and toxic subtsances
  4. policy statutes
    Nepa- the national envionrmental policy act. polluction preventiion act
  5. policy control stautes
    clean air atc and clean water act
  6. HW and HM statutes
  7. legsiation on the state level
    envionrmental conservation law ECL
  8. executive
    treaties- montreal protocol, kyoto accords, 12291 ( cost ebebfnit anaysis), 13123- energy conservation
  9. adminsitrative agencies
    part of executie ranch of government. asic function implement laws passed y the legislature
  10. methods used by agencies
    rulemaking.enforcement. licensing. determination of other controversies
  11. environmental agencies
    federal- EPA. state level DEC
  12. governinf statutes for adminsitrative agencies
    admin. procedures act- APA federal. state admin. procedure act- SAPA
  13. other stautes impacting agencies
    FOIA- federal. FOIL state
  14. judiciary
    reslove private disputes- toxic torts. provide judcial review of admin. action
  15. toxic torts
    tort is a private wonrg and injury inflicted upon another- it is a wrong caused by a toxic substance.
  16. categories of torts
    • trespass
    • . negligence
    • pulic nusiance
    • private nusiance
    • strict liaility
    • fraud
  17. jduduical revoew
    • courts can rescined an agencies decsision if the agency..
    • has
    • acted in a manner inconsititent with statute or the consitution
    • acted in an arbitrary or capricious manner or abused its discreation
    • reached conclusions not supported by substantial evidnce
  18. three issues to be considerd when a court intervenes
    when, standards and rememdies
  19. when is intervention okay
    • reviewabilaity
    • standing
  20. standards- 3 kinds of issues
    • issues of interpretation
    • issues of facct
    • issues of procedure
  21. interpretation
    • court usually defers to an agencues interpretations ecause
    • more expereince in technical areas
    • recohnition that congress gives the agency primary respnosinilty for carrying out the law
    • expedites comlpiance with the law
    • supreme court said they should- Chevron USA vs. NRDC
  22. facts
    depends on the type of proceeding. in an adjudicative action statdard to e supplied is the substantial evidence test. the action under review must e upheld unles there is no sustantial evidence in the record. in other forsm of action the review is arbitrary and capricious
  23. procedure
    courts deal wit this type
  24. issues 3 rememdies
    • injunctive relfief
    • attroney fees
    • cases relevant tvv. hill weineger v. romero arcelo, amoco prodcution v. gambel alaska
  25. scope of federla powers
    federal govt has limited powers delagted to ti y the consitution, in order for federal govt to regulate it must utilize a specific power
  26. specific powers applicable to envionrmentl
    • power to regulate interstte commerce
    • power to tax and spend
    • power to enter into treaties
    • power to regulate the use of pulic land
  27. scope of power under commerce clause
    • exteremely broad
    • hodel v. virginia surface mining and reclamation association - any rational basis
  28. a restiction under commerce clausee
    solid waste agency of northern cook county v. US army corps of engineers
  29. dormant commerce clasue theory
    • test 1- applied to legislation that discriminates aginst interstate commerce
    • test 2- applies to state propertary activities

    test 3- applies to remaing forms of legislation
  30. test 1
    • legislation that discimrinate sgainst commerce pers ee is unconsitutional
    • ex.
    • phidelphi v. new jersey
    • cmw v. hunt
    • fort gratiot sanitary landfill v. michigan dept. of naturla resources
  31. test 2
    • a states proprety activituies are virutally immune to attack under the dormant commerce clause
    • ex.
    • hughes v. alexandira
    • reeves inc v. stake
    • united hualers v. oneida
  32. test 3
    • all remaing legilation is subject to the balancing test
    • ex.
    • proctor and gambl v. chigaco
  33. protectionsim
    an attempt y one state to isloate itslef from a prolem common to many y errecting a arrier against movement of interststae trade
  34. other powers- regulate use of public land
    • power to regulate the use of public land- article4 section 3 congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States
    • supreme court has interpreted this broadly as well. ex. kleppe. new mexco
  35. power to tax and spend
    SC has generally held congress has free rein in dtermining where the pulic interest lies. important in envionrmental cintext like the clean water act- ecause money needs to e spend in order to get laws to work
  36. federal preemption
    supremecy clause- federal law is aove state law in article 6 of constution. in cases of direct conflict etwen state and federal law state law must give way. conflict is not always president however and in these cases the question of the intent of congress must e looked at.
  37. issues of intent
    • when intent is not specifically expressed the court must look at the
    • pervasiveness and detail of the federal regulatory scheme
    • the dominant federal interest precludes stte enforcment
    • is compliance with oth virually impossile
    • and does state law intefers with the accomplihsment of the ufll ojectives of the federal law
  38. due process
    • found in 5th and 14th amendment
    • no personal shall be deneid life liberty or property without due process
  39. procdural due process
    • minimum requirement- notice and an oportunity to be heard
    • courts first intepreted due process to apply to criminal matters- fair trial then extened it to all civil matters requiring procdueral safeguards
  40. sustantive due process
    relates to the asic fainress of laws that may dpreive a person of lierty or property. for laws restricting liberty or use of property to e valid the govt must have a proper purpose
  41. what consistues a proer purpose
    • is left up to the courts to decide
    • anaylsis involves the scop eof police power and the police power is recognized as the power of the state to regulate the pulic health safety and welfare
  42. determinaing whether govt actions complies with sustantive due process
    must first decide whether the deprivation is a deprivation of a fundamental righ. if so does the govt hasve a compeeling reason to cat and there must e no less restitive way to accomplish its goals.
  43. the takinfs clause
    5th amendment- nor shall private prooerty e taken for pulic use without just compensation
  44. examples o fcase involvin gtaking
    • lucas v. south carlonia coastal council
    • whintey v. united states
    • dolan v. city of tigard
    • palazzolo v. rhode island
  45. 4th amendment
    protects against unreasonale search and eziuer
  46. special governmental needs
    • court applied 4 factors to dtermine whether specical governmental needs outweigh particular privacy interest and thus justify an warrantless admin. inspecition.
    • 1. nature of the rpiavy interest
    • charcter of the intrusion
    • nature and immedicay of the govt interest.
  47. nuisance
    unreasonale interference with the use and enjoyment of anothers land
  48. nusiance ineffective way to stop pollution
    • relectance of the court to grant injunctions
    • standing
    • prolems of proof
    • comparative lack of resources
    • fails to provide systemic mechnaims for supervising pollutant discharges
Card Set
environemtal alw
environmental law
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