Environmental Law

One All-Important Word• Each state retains its sovereignty, freedom, and

independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. (Art. Of Conf. II)

• The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States (Constitution, Article I Section 8)

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 (States elect President)

• 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of the United States….– to Controversies between two or more States– between a State and Citizens of another State (Repealed by 11th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.

Federal Lands

• The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state. (Constitution Article IV, Section 3)

Bureaucrats

• To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. (Art. 1 Sec. 8)

• the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. (Art. 2, Sec. 2)

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 don’t 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

• 1890’s: 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 1920’s 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– Can’t 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 EEZ’s?

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

• 1930’s: “Dust Bowl,” CCC, New Deal

• 1970’s: Earth Day

• 1990’s: Kyoto Accords, Global warming