environemtal alw

consitution, legislative, executive, judiciary and agencies

• 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

• policy statues
• / pollution control statutes. statutes regulating hazardous material waste and toxic subtsances

Nepa- the national envionrmental policy act. polluction preventiion act

clean air atc and clean water act

RCRA and CERCLA

envionrmental conservation law ECL

treaties- montreal protocol, kyoto accords, 12291 ( cost ebebfnit anaysis), 13123- energy conservation

part of executie ranch of government. asic function implement laws passed y the legislature

rulemaking.enforcement. licensing. determination of other controversies

federal- EPA. state level DEC

admin. procedures act- APA federal. state admin. procedure act- SAPA

FOIA- federal. FOIL state

reslove private disputes- toxic torts. provide judcial review of admin. action

tort is a private wonrg and injury inflicted upon another- it is a wrong caused by a toxic substance.

• trespass
• . negligence
• pulic nusiance
• private nusiance
• strict liaility
• fraud

• 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

when, standards and rememdies

• reviewabilaity
• standing

• issues of interpretation
• issues of facct
• issues of procedure

• 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

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

courts deal wit this type

• injunctive relfief
• attroney fees
• cases relevant tvv. hill weineger v. romero arcelo, amoco prodcution v. gambel alaska

federal govt has limited powers delagted to ti y the consitution, in order for federal govt to regulate it must utilize a specific power

• power to regulate interstte commerce
• power to tax and spend
• power to enter into treaties
• power to regulate the use of pulic land

• exteremely broad
• hodel v. virginia surface mining and reclamation association - any rational basis

solid waste agency of northern cook county v. US army corps of engineers

• 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

• 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

• 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

• all remaing legilation is subject to the balancing test
• ex.
• proctor and gambl v. chigaco

an attempt y one state to isloate itslef from a prolem common to many y errecting a arrier against movement of interststae trade

• 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

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

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.

• 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

• found in 5th and 14th amendment
• no personal shall be deneid life liberty or property without 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

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

• 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

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.

5th amendment- nor shall private prooerty e taken for pulic use without just compensation

• lucas v. south carlonia coastal council
• whintey v. united states
• dolan v. city of tigard
• palazzolo v. rhode island

protects against unreasonale search and eziuer

• 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.

unreasonale interference with the use and enjoyment of anothers land

• relectance of the court to grant injunctions
• standing
• prolems of proof
• comparative lack of resources
• fails to provide systemic mechnaims for supervising pollutant discharges