Environmental Law: A Structural Overview

Question 1

What os the structure of environmental law?

Answer 1

It is primarily a synthesis of pre-environmental common law rules, principles from other areas of law, and post-environmental law statutes which are lightly influenced by the application of concepts derived from ecology and other areas of science, economics, and ethics.

Question 2

Why does Dan Tarlock argue that Environmental Law is a major break from Western Legal tradition

Answer 2

Because much of it seeks to protect natural systems and future generations that traditionally are not recognized had having legal personalities.

Question 3

When did the environmental law explosion occur?

Answer 3

1970s

Question 4

What is the difference between nuisance law and trespass law?

Answer 4

Nuisance law is designed to protect against invasions of interests in the use and enjoyment of land, while trespass protects against invasions of interests in the exclusive possession of land. In private nuisance law, unlike trespass law, liability requires a showing of significant harm. Moreover, the interference with property rights must be intentional and unreasonable or actionable under rules imposing strict liability on those engaging in abnormally dangerous activities.

Question 5

What did common law largely rely on to solve environmental controversies?

Answer 5

Nuisance law as well as trespass law.

Question 6

What has been an age-long struggle of Nuisance law?

Answer 6

It has struggled with the problem of how to determine the level of harm or risk that requires compensation.

Question 7

What is a principal in nuisance law which addresses the use of private property to disturb another’s property?

Answer 7

Sic utere tuo ut alienum non laedas”-use your own property in such a manner as not to injure that of another

Question 8

What was so difficult about pairing early nusiance law with environmental law?

Answer 8

Early nuisance law performed a kind of zoning function by initially encouraging noxious activities to move away from populated areas.

Question 9

In Sturges v. Bridgman, L.R. 11 Ch. D. 852 (1879) in london, what did the judges decide with regars to entitlement to pollution-free air?

Answer 9

Judges observed that plaintiffs were not entitled to pollution-free air, but rather to “air not rendered to an important degree less compatible , or at least not rendered incompatible, with the physical comfort of human existence.

Question 10

In Hole v. Barlow, what did U.S courts decide with regards to the level of harm which must be tolerated in nusiance law?

Answer 10

Rejected the notion that activities causing substantial harm can be tolerated if they are conducted in a lawful and convenient place. Maryland Court of Appeals put this nicely in 1890:

“The law, in cases of this kind, will not undertake to balance the conveniences, or estimate the difference between the injury sustained by the plaintiff and the loss that may result to the defendant from having its trade and business, as now carried on, found to be a nuisance. No one has a right to erect works which are a nuisance to a neighboring owner, and then say he has expended large sums of money in the erection of his works, while the neighboring property is comparatively of little value. The neighboring owner is entitled to the reasonable and comfortable enjoyment of his property, and, if his rights in this respect are invaded, he is entitled to the protection of the law, let the consequences be what they may. [Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 20 A. 900, 902 (1890).]”

Question 11

Despite the high talk in Sasquehana Fertilizer Co. v. Malone, how has the United States generally approached compensation for nuisance claims?

Answer 11

Mostly plaintiffs are compensated but there is rarely injunctive relief.

Question 12

When was private nuisance law generally applied in flourishing industrial towns?

Answer 12

“Recovery generally was only permitted for actual, physical damage to property that caused a decline in its market value. Property values generally increased with industrialization even in contaminated areas, making recovery difficult”

Question 13

How dis courts protect industrialists/ factories in teh industrial era?

Answer 13

“Fearful of discouraging industrialization, courts held factories liable only in rare cases where the pollution was so devastating that it produced a “scene of desolation” for miles around, as in Tipping’s Case. Id. at 416. Moreover, many of the largest polluters were public or quasi-public enterprises that were protected from liability because their actions were authorized by statute”

Question 14

What is an issue with curent private nusiance law under the Restatement of Torts (Second) as regards the requirements for spmething to be classified as a private nuisance ?

Answer 14

“The Restatement of Torts (Second) defines private nuisance as “a non-trespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement of Torts (Second) §821D (1978). Only those who have property rights and privileges with respect to the use and enjoyment of the land may recover, and only if the harm they suffer is significant. Why does nuisance law require a showing of significant harm, while trespass law does not? The Restatement provides that to constitute a private nuisance the invasion of property rights must be either “intentional and unreasonable; or unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct.” §822. Why do intentional invasions of property rights that cause significant harm have to be unreasonable in order to be actionable as a private nuisance?”

Question 15

How did the aecond restatement of torts re-define private nuisance?

Answer 15

“The Restatement of Torts (Second) defines private nuisance as “a non-trespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement of Torts (Second) §821D (1978). Only those who have property rights and privileges with respect to the use and enjoyment of the land may recover, and only if the harm they suffer is significant. ”

Question 16

Is a decline in property value caused by proximity to a polluted site actionable at common law even if there is no proof hat the pollution seeped onto the plaintiff’s property?

Answer 16

“In Adkins v. Thomas Solvent Company, 487 N.W.2d 715 (Mich. 1992), the Michigan Supreme Court held that 22 property owners who lived near a contaminated site could not recover for the diminution of their property values because no contaminants actually had migrated to their property and a hydrogeological barrier precluded such migration in the future.”

Question 17

When pollutants physically invade the property of another what may it constitute if not a private nuisance?

Answer 17

Liability may be premised on a theory of trespass. “In Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (Or. 1959), the Oregon Supreme Court affirmed an award of $91,500 in damages to farmland due to fluoride emissions from a nearby aluminum plant that settled on the land and poisoned cattle. The court held that the intrusion of fluoride particles constituted a trespass because the particles invaded the property owner’s interest in exclusive possession.”

Question 18

What constitutes an invasion of property rights under restatement of Torts (Second)!

Answer 18

“In defining what constitutes an intentional invasion of property rights, the Restatement focuses on the foreseeability of harm. For certain kinds of activities that result in environmental harm, this may have important consequences. For example, the Restatement deems pollution of groundwater to be far less foreseeable than surface water pollution. It notes that invasions of property rights that result from discharges to lakes, streams, and surface waters ordinarily should be considered intentional, because such discharges are substantially certain to cause such an invasion, particularly if the pollution is continued for any length of time. However, invasions resulting from the pollution of groundwater “are ordinarily not intentional since the course of such waters is usually unknown and the actor can thus foresee no more than a risk of harm in most cases.” Restatement of Torts (Second), §832 comment f”

Question 19

Are foreseeability requirements a formidable obstacle yo using common law to recover for contamination caused by dumping practices?

Answer 19

Yes

Question 20

What is the doctrine of anticipatory nuisance?

Answer 20

“The doctrine of anticipatory nuisance allows plaintiffs who can persuade a court that an activity about to be undertaken would constitute a nuisance to obtain an injunction blocking the activity. While it can be very difficult to prove a nuisance ex ante, filing such an action can generate the kind of assurances the Staso Milling court relied upon to enjoin water pollution in that case.”

Question 21

How does the second restatement of torts define “unreasonable”?

Answer 21

“Second Restatement added an alternative criterion of unreasonableness in section 826(b). It states that an intentional invasion is unreasonable if either the gravity of the harm outweighs the utility of the actor’s conduct or “the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.” This has supplemented what appeared to be a kind of risk-benefit calculus of reasonableness with an alternative test focusing on the financial feasibility of damages. A further embellishment was added by section 829 of the Second Restatement. It states that even in cases where compensation is beyond the financial capacity of an enterprise, an invasion should be deemed unreasonable if the harm it causes “is severe and greater than the other should be required to bear without compensation.”

Question 22

How would an economical analysis of solutions to nuisance problems look like? What does it ignore?

Answer 22

It would look to involve remedies that minimize the joint costs or maximize the joint value of interacting activities. “If only the polluters determine the extent of harm, then a rule holding polluters strictly liable for the damages they cause is efficient because it will induce them to take the efficient amount of care while ensuring that the prices of their goods reflect their full social costs. However, if the victim’s behavior can affect the extent of damage (e.g., by moving away or by investing in measures that shield her from the effects of pollution), economists argue that strict liability is only efficient if a defense of contributory negligence is recognized, because victims otherwise will have no incentive to take actions that can avoid damage more cheaply. ”

Question 23

What is a conditional injunction?

Answer 23

“flexible remedies that take advantage of market forces to determine which party can control costs most effeciently

Question 24

What is a famous NY Court of Appeals Case which used conditional injunction as a solution to remedy for pollution and a market approach to resolving incomplete cost-benefit analysis information?

Answer 24

“New York Court of Appeals in the famous decision of Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870 (1970). The court in Boomer issued a conditional injunction barring the operation of a cement plant whose air emissions had caused substantial damage to nearby property until the plant paid surrounding residents the full value of their permanent damages if the plant continued operation. The theory behind this approach was that the plant would opt to continue operations only if the operations had more economic value than the cost of the damage they produced. ”

Question 25

How has the Second Restatement of Torts defined a public nuisance?

Answer 25

“An unreasonable interference with a right common to the general public”

Question 26

How has the Second Restatement directed courts to consider the viability of an actionable private nuisance?

Answer 26

“In determining whether interference with a public right is unreasonable, the Restatement directs courts to consider whether the conduct: (1) involves a significant interference with the public health, safety, comfort, or convenience; (2) is illegal; or (3) is of a continuing nature or has produced a long-lasting effect on the public right that the actor has reason to know will be significant.”

Question 27

What does Thomas Merril opine with regards to the decision in Missouri v. Illinois (200 U.S 496), 1906?

Answer 27

“Thomas Merrill ( in Golden Rules for Transnoundary Pollution) describes the decision in Missouri v. Illinois as an endorsement of “the reverse golden rule: in a transboundary pollution case, the affected state cannot demand that the source state adhere to a higher standard than the affected state applies to its own citizens”

Question 28

In “New York v. New Jersey, 256 U.S. 296, 309 (1921)”, on what basis did the court deny New York relief for an injunction to prevent New Jersey from discharging raw sewage into New York Bay?

Answer 28

“The Court declared that before it would act “to control the conduct of one state at the suit of another, the threatened invasion must be of serious magnitude and it must be established by clear and convincing evidence. “The Court emphasized that New York had failed to prove that there were visible suspended particles, odors, or a reduction in the dissolved oxygen content of the Bay sufficient to interfere with aquatic life. It also observed that New York itself discharged sewage from 450 sewers directly into adjacent waters.”

Question 29

Can a state be held responsible to provide the necessary funds to complete construction of sewage treatment?

Answer 29

Yes, there is precedent in “Wisconsin v. Illinois, 289 U.S. 395, 406 (1933) (holding the state of Illinois responsible for providing the necessary funds to complete construction of sewage treatment works for Chicago)”

Question 30

What was Georgia v. Tennesse Copper Co.?

Answer 30

“1904, the year that the Tennessee Supreme Court had decided not to enjoin operation of the smelters, Georgia filed suit in the Supreme Court, complaining that the smelters’ emissions crossed the border and caused considerable property damage in Georgia. Georgia asked the Supreme Court to enjoin operation of the smelters. In response to Georgia’s lawsuit, the companies pledged to change their method of operation to reduce their emissions. Georgia then agreed to dismiss its lawsuit without prejudice. But after the smelters installed tall smokestacks that simply transported the pollution across a wider swath of territory, Georgia again filed suit.”

Question 31

In Georgia v. Tennsesse Copper Co 206 U.S 230, what was an interesting thing that the Supreme Court set aside with regards to the plaintiffs complaint?

Answer 31

“The case has been argued largely as if it were one between two private parties; but it is not. The very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief are wanting here. The State owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power. The alleged damage to the State as a private owner is merely a makeweight, and we may lay on one side the dispute as to whether the destruction of forests has led to the gullying of its roads.”

Question 32

On Georgia v. Tennesse Copper Co., what case was refferred to when Justice Holmes delivered the opinion of the court with regards to state sovereignty?

Answer 32

“When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests; and the alternative to force is a suit in this court. Missouri v. Illinois, 180 U.S. 208, 241.”

Question 33

Missouri v. Illinois, 200 U.S 496, created what requirements?

Answer 33

Requirements to make a case for environmental damages.

Question 34

Who won in Georgia v. Tennesse Copper Co.?

Answer 34

Georgia, because it showed due diligence and was not guilty of laches, and the pollution was a violation of Georgia’s sovereignty to control the air, land, and other natural resources within its borders under its quasi sovereignty as apportioned to it by the constitution. To quote Justice Holmes “It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control”

Question 35

“Why did Georgia succeed in getting an injunction from the United States Supreme Court when plaintiffs in Madison v. Ducktown Sulphur, Copper & Iron Co. had been refused such relief by the Tennessee Supreme Court?”

Answer 35

“Justice Holmes suggests that in fashioning a remedy for a public nuisance, the Court has less latitude to balance the equities because the plaintiff is a sovereign state.”

Question 36

How may a private party bring a public nuisance action to court? What is the problem with this requirement?

Answer 36

“public nuisance actions can be brought by private parties if they can demonstrate that the nuisance has harmed them in a manner not shared with the general public. William Prosser notes that the traditional “special injury” requirement for private actions derived from the ancient notion that private parties should not be able to vindicate the rights of the sovereign and from a desire to prevent a multitude of actions to redress the same nuisance. Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997 (1966). As courts and legislatures broadened citizen rights of action to redress environmental damage, the special injury requirement has come under fire. As Professor Denise Antolini notes, the “traditional doctrine presents a paradox: the broader the injury to the community and the more the plaintiff’s injury resembles an injury also suffered by other members of the public, the less likely the plaintiff can bring a public nuisance lawsuit.” “2001). While the Restatement (Second) of Torts suggested that the special injury requirement should not bar actions seeking equitable relief or class actions brought against public nuisances by private individuals, Restatement (Second) of Torts §821C and comment j (1978), this approach has not been embraced by courts. “Although courts still struggle with application of the different-in-kind test (often bending the rule to avoid unfair results), the traditional doctrine is nonetheless repeated like a mantra in virtually every public nuisance case.”

Question 37

What is amending a complaint on remand?

Answer 37

Amending a complaint on remand is when one can rephrase or completely change one’s complaint if it is reasonably found that the original complaint overlooked or failed to mention an essential standing to sue or other essential information, whereby the new complaint is not subject to double jeopardy and can be resubmitted to a lower court.

Question 38

What was significant in Supreme Court Decision in Sierra Club v Morton regarding standing to sue?

Answer 38

“The Supreme Court’s recognition that injury to aesthetic and environmental values may be sufficient to confer standing even if the injury is shared by many remains the case’s most significant legacy. ” Excerpt From Environmental Regulation This material may be protected by copyright.

Question 39

What did the APA provide with regards to standing to sue against an agency?

Answer 39

“When the Administrative Procedure Act was passed in 1946, it provided that “a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. §702.”

Question 40

What difficulties do agencies face when making rules?

Answer 40

“Agencies face several constraints on their ability to complete complex rulemakings efficiently and expeditiously. These include budgets that rarely provide sufficient resources to conduct more than a handful of major rulemakings in any given year, frequent turnover of technical staff, and the difficulty of obtaining critical information that typically is more readily available to the regulated community than to the regulators. As a result of these and other constraints, “[n]o health and safety agency has been able to promulgate regulations for more than three controversial chemicals in any given year.”

Question 41

How has the APA created superfluous and inane research requirements for agencies to

Answer 41

“Although the procedural requirements for informal rulemaking remain simple, fear of judicial reversal has caused agencies to bend over backwards to supply detailed justifications for their actions. For example, Thomas McGarity notes that when EPA issued the initial national ambient air quality standards in 1971, the APA-required “concise general statement of basis and purpose” for the rules occupied a single page in the Federal Register. By 1987, “revision of a single primary standard consumed 36 pages in the Federal Register and was supported by a 100-plus-page staff paper, a lengthy Regulatory Impact Analysis that cost the agency millions of dollars, and a multi-volume criteria document.”

Question 42

How does the APA’s requirement for a “concise general statement of basis and purpose” allow abuse by regulatees?

Answer 42

“invite abuse by regulatees who hire consultants and lawyers to pick apart the agencies’ preambles and background documents and launch blunderbuss attacks on every detail of the legal and technical bases for the agencies’ rules.” As a result, agencies seeking to avoid judicial reversals must go to great lengths to provide exceedingly thorough responses to comments.”

Question 43

What is proper adversarial presentation, where was it created with regards to environmental law?

Answer 43

In Lujan v Defenders of Wildlife. Even if the Court were to assume that the agency-funded projects at issue threatened listed species, there was no proof that these actions would produce "actual or imminent" injuries to particular respondents who might some day wish to visit the foreign countries in question. The Court disregarded the proposed theory of "ecosystem nexus" which claimed that any person who used any part of of a "contiguous ecosystem" adversed affected by a funded activity had standing to sue.

Question 44

How does the requirement of adversarial presentation as created in Lujan v Wildlife apply to agencies?

Answer 44

“a litigant to whom Congress has “accorded a procedural right to protect his concrete interests,” id., at 572, n.7—here, the right to challenge agency action unlawfully withheld, §7607(b)(1)—“can assert that right without meeting all the normal standards for redressability and immediacy,” ibid. When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant. ”

Question 45

What was Juliana v United States, 217 F. Supp. 3d 1224?

Answer 45

“plaintiffs, who include 21 people between the ages of 8 and 19, allege that the federal government knew about the dangers of climate change for more than 50 years, but failed to take action to protect them. The children argue that this violated their substantive due process rights to life, liberty, and property as well as the government’s public trust obligations to hold natural resources in trust for future generations. The plaintiffs seek a declaration that their rights have been violated and an order requiring federal officials to develop a plan to control emissions of greenhouse gases. The court rejected the government’s argument that the case raises a nonjusticiable political question and has allowed discovery to proceed. But in 2020 it was decided that there was no standing to sue under Article 3

Question 46

What have been the federal government’s three general approaches for accomplishing environmental protection objectives?

Answer 46

1. “to provide federal financial assistance to encourage states to adopt environmental standards on their own. ” “While this approach proved largely ineffective for controlling air and water pollution, it remains the principal federal approach to issues such as land use management where political opposition to federal regulation is particularly acute” 2. “The second model, which currently is the predominant approach to federal-state relations under the environmental statutes, can be called a “cooperative federalism” approach. Under this model, federal agencies establish national environmental standards and states may opt to assume responsibility for administering them or to leave implementation to federal authorities.” 3. “Preemption of state law has been employed sparingly in the federal environmental laws. It usually is reserved for regulation of products that are distributed nationally, as businesses favor nationally uniform regulation to avoid having to comply with balkanized regulatory standards. ”

Question 47

What delegated programs may Native American tribes manage under EPA.

Answer 47

“Federally recognized Native American tribes also may qualify for EPA approval to be treated “in the same manner as a state” to manage delegated programs under the Clean Air Act, Clean Water Act, and Safe Drinking Water Act, but not under the Resource Conservation and Recovery Act. ”

Question 48

What is a good reason that we should fabor federalistpreemption of state environmental regulation law?

Answer 48

“Professor Peter Swire notes that it may be easier to focus public attention on environmental problems and enact legislation at the national level so that citizen preferences can overcome the concentrated interests of regulated industry.”

Question 49

What is the Unfunded Mandate Reform Act of 1995?

Answer 49

“In March 1995, Congress overwhelmingly approved legislation making it more difficult to impose federal mandates on state and local governments. The legislation, known as the Unfunded Mandate Reform Act of 1995, Pub. L. No. 104-4, 109 Stat. 48 (1995), requires that more detailed cost estimates be provided for federal mandates and makes it easier for opponents of such provisions to defeat them in Congress. The law requires the Congressional Budget Office (CBO) to provide estimates of the future cost of legislative mandates if they may exceed $50 million annually for state or local governments or the private sector. Any member of Congress can raise a point of order demanding that mandates estimated to cost state or local governments more than $50 million annually be stricken from legislation unless federal funding is provided or the mandate is specifically approved by a majority vote.” “The legislation also imposes new requirements on agencies issuing regulations that impose federal mandates. The law requires federal agencies, prior to publishing a notice of proposed rulemaking, to prepare assessments of the anticipated costs and benefits of any mandate that may cost state or local governments or the private sector more than $100 million annually. It also prohibits federal agencies from issuing regulations containing federal mandates that do not employ the least costly method or that do not have the least burdensome effect on governments or the private sector unless the agency publishes an explanation of why the more costly or burdensome method was adopted. ”

Question 50

How have the courts interpreted congress’ poer with regards to “comandeering” legislative processes?

Answer 50

“Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981). In Hodel, the Court upheld the Surface Mining Control and Reclamation Act of 1977 precisely because it did not “commandeer” the States into regulating mining. The Court found that “the States are not compelled to enforce the steep-slope standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever. If a State does not wish to submit a proposed permanent program that complies with the Act and implementing regulations, the full regulatory burden will be borne by the federal Government.” While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.…”

Question 51

What is a program of cooperative federalism?

Answer 51

“Second, where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress’ power to offer States the choice of regulating that activity according to federal standards or having state law preempted by federal regulation. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., supra, 452 U.S., at 288. This arrangement, which has been termed “a program of cooperative federalism,” Hodel, supra, 452 U.S., at 289, is replicated in numerous federal statutory schemes. These include the Clean Water Act, the Occupational Safety and Health Act of 1970, the Resource Conservation and Recovery Act of 1976, and the Alaska National Interest Lands Conservation Act.”

Question 52

How did New York v. United States 505 U.S 144 interpret Congress’ providing of a choice to New York to either regulate or take title and liability for radioactive waste?

Answer 52

“Because an instruction to state governments to take title to waste, standing alone, would be beyond the authority of Congress, and because a direct order to regulate, standing alone, would also be beyond the authority of Congress, it follows that Congress lacks the power to offer the States a choice between the two.”

Question 53

How do the commerce clause and the 10th amendment work with each other to prevent Congressional commandeering with regards to safety, health, environmental, and substance regulation?

Answer 53

“While noting that Congress is free to regulate directly drinking water coolers that move in interstate commerce, the “court held that it could not force the states to establish a regulatory program under penalty of civil sanctions without violating the Tenth Amendment. Congress can also preempt state legislation as long as it provides the resources to undergo such legislative and regulatory processes.

Question 54

What was the first case in which the Supreme Court challenged and invalidated conditioning of federal receipts?

Answer 54

“In National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), the Supreme Court for the first time struck down an attempt to condition receipt of federal funds as unduly coercive of states. While upholding the constitutionality of the Affordable Care Act, the Court held that a requirement that states substantially expand their Medicaid programs or lose all federal Medicaid funds was unconstitutionally coercive in violation of the Tenth Amendment. Noting that this condition threatens states with the loss of 10 percent of a state’s overall budget, Chief Justice Roberts, writing for the majority, described it as “a gun to the head”

Question 55

In United States v Lopez, what made the court decide to rule that Congress had overstepped its Commerce Clause Authority?

Answer 55

A new interpretation of the scope of the Commerce Clause limiting its applicability to: (1) “the use of the channels of interstate commerce”; (2) intrastate activities that threaten “the instrumentalities of interstate commerce, or persons or things in interstate commerce”; and (3) “activities having a substantial relation to interstate commerce.” The Court added that the “proper test” for the third category is “whether the regulated activity ‘substantially affects’ interstate commerce.” Excerpt From Environmental Regulation This material may be protected by copyright.

Question 56

After Lopez cited Fickard v Wilburn, what disillusioned people who thought they could take advantage of the cumulative affects analysis?

Answer 56

“the Court struck down a portion of the Violence Against Women Act in United States v. Morrison, 529 U.S. 598 (2000). By the same 5-to-4 lineup as in the previous cases, the Court held that Congress exceeded the limits of its commerce power when it created a private cause of action in federal courts for victims of gender-motivated violence. Unlike the situation in Lopez, Congress had made extensive findings concerning the impact of gender-motivated violence on interstate commerce, including lost days of work and women refraining from taking certain kinds of jobs or from working particular hours. However, in his majority opinion for the Court, Chief Justice Rehnquist rejected these findings as based on a line of “but for” causation that would allow Congress to regulate virtually anything, including “family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.”

Question 57

In April 2003, what did the D.C Circuit determine regarding the Endagered Species Act’s constitutionality with regards to the Commerce Clause?

Answer 57

“that the ESA was designed in large part to preserve the commercial benefits of biodiversity “that the ESA was designed in large part to preserve the commercial benefits of biodiversity. Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003).”

Question 58

“Gonzales v. Raich, 545 U.S. 1 (2005) what was Justice Scalia’s concurring opinion authorizing the federal government to regulate the cultivation and use of marijuana? How did he justify congress’ auhtority to regulate?

Answer 58

“Scalia argued that Congress’s authority to regulate intrastate activities that substantially affect interstate commerce derives from the Necessary and Proper Clause. “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce,” Scalia stated. ”

Question 59

What case assured that all nine circuits of the U.S Court of Appeals upheld the endangered species act? What was the reasoning the court gave for the federal government being able to regulate even intrastate species?

Answer 59

“Citing Gonzales v. Raich, a pnel for the 10th circut courtof appeals in People for the Ethical Treatment of Property Owners (PETPO) v. U.S. Fish and Wildlife Service, 852 F.3d 990 (10th Cir. 2017), held that even a purely intrastate species could be protected by Congress against non-commercial takes because it was necessary to preserve the integrity of a larger federal regulatory scheme. As a result of this decision, all nine circuits of the U.S. Courts of Appeals that have considered the issue have upheld the constitutionality of the Endangered Species Act.”

Question 60

What resources is privatization most likely to succeed in protecting?

Answer 60

“Privatization is more likely to succeed in protecting resources such as land (in which property rights can be easily defined) than in protecting the quality of air or water.”

Question 61

What has economist Kip Viscusi identified as the four institutional mechanisms that may be used to control environmental risk?

Answer 61

“Kip Viscusi has identified four institutional mechanisms that may be used to control environmental risk: market forces, government regulation, liability, and social insurance. Viscusi, Toward a Diminished Role for Tort Liability: Social Insurance, Government Regulation, and Contemporary Risks to Health and Safety, 6 Yale J. on Reg. 65 (1989). ”

Question 62

What have some countries adopted to combat deceptive environmental advertising by sellers?

Answer 62

“Germany’s Blue Angel program awards environmental seals of approval to products based on life-cycle analysis of their environmental impacts. The European Union has established an ambitious eco-labeling program modeled on the German approach. Products deemed environmentally superior are identified with a flower logo containing an “E” in the flower’s pistil. In the United States, private organizations, including Green Seal, Inc. and Scientific Certification Systems, have established environmental certification programs. ”

Question 63

Why is it that now products must be labeled as GMOs when they are?

Answer 63

“Germany’s Blue Angel program awards environmental seals of approval to products based on life-cycle analysis of their environmental impacts. The European Union has established an ambitious eco-labeling program modeled on the German approach. Products deemed environmentally superior are identified with a flower logo containing an “E” in the flower’s pistil. In the United States, private organizations, including Green Seal, Inc. and Scientific Certification Systems, have established environmental certification programs. ”

Question 64

What is the essential conflict over how to protect the environment between liberals and those who favor government?

Answer 64

“Of course, in the environmental arena the choice is not really between free markets and government regulation. Instead, as Judge Richard Posner notes, “the choice is between two methods of public control, the common law system of privately enforced rights and the administrative system of direct public control.”

Question 65

What are four major considerations which one should have in mind when deciding whether government or the free market is mlre efficient in regulating environmentally consequential activity?

Answer 65

“The first is the relative knowledge of private parties and the public concerning the benefits of risky activities and the costs of reducing risks. Shavell argues that liability tends to be more efficient than regulation in controlling risk when a private actor is in a better position than the government to assess the risks of an activity and to determine the level of care to exercise. Regulation is favored when the government is in a better position than a private actor to assess risks and to determine what precautions to employ.” “The second factor Shavell identifies is the capacity of private parties to provide compensation for the full amount of harm their actions produce. If an activity can cause more damage than the actor is capable of repaying, fear of liability will not provide sufficient incentive for private investment in an efficient level of precautions.” “ Shavell’s third consideration is the chance that some private parties will escape suit for the harm that they cause. Parties unlikely to be held liable for harm they produce, such as those who cause harm that is widely dispersed or difficult to trace, will not have adequate incentive to reduce risks to an efficient level in the absence of regulation.” “The fourth consideration Shavell identifies is the relative administrative costs of the tort system and of direct regulation. Despite complaints about the administrative costs of the tort system, he notes that the liability system’s administrative costs usually are incurred only if harm occurs, while the administrative costs of regulation are incurred regardless of the occurrence of harm. ”

Question 66

What legislation was created to prevent oil spills but completely ignored offshore drilling operations in deep waters?

Answer 66

“the Oil Pollution Act of 1990 (OPA 90), 33 U.S.C. §§2701-2761—focused largely on prevention of spills from oil tankers even as multinational oil companies increasingly were undertaking riskier offshore drilling operations in deeper waters.”

Question 67

What are teh historical origins of limited liability legislation

Answer 67

“Liability limits, such as that embodied in the Limitation of Liability Act of 1851, were designed originally to facilitate the rapid development of shipping trade by reducing the risks facing shipping companies.”

Question 68

What are two arguments for and against requiring ships shipping oil to have double hulls?

Answer 68

“Proponents of a double hull requirement argued that had the Exxon Valdez been equipped with a double hull, far less oil would have been spilled. Shipowners argued that the cost of outfitting ships with double hulls would be prohibitive, particularly if existing ships had to be retrofitted. Understandably more enthusiastic, the Shipbuilders Council of America claimed that double bottoms could be added to the entire American fleet for less than $2 billion, less than the amount Exxon spent cleaning up the Alaskan spill.”

Question 69

How do ambient or harm-based standards differ from other objects of environmental legislation?

Answer 69

“These establish a level of environmental quality to be achieved or maintained in some environment, be it a lake or stream, an airshed or an underground aquifer. As such, ambient standards are incomplete, because they are not directed at a particular regulatory target. Typically, federal ambient standards are contained in legislation that instructs the states to achieve those levels within a certain time period, but without specifying how the states are to do this—this is why ambient standards can be viewed as performance standards (whose target is the states). Of course, under New York v. United States, such legislation cannot compel states to comply, but states frequently do cooperate with such legislation. The option in case of non-compliance is for the federal government to make choices of pollution levels for individual sources, choices that states themselves prefer to make.”

Question 70

Shat are marketable allowances in environmental regulation?

Answer 70

“Marketable Allowances. Economists have long advocated marketable allowances, which permit companies to buy and sell emission rights, using market forces to ensure that pollution is reduced in the least costly manner. The 1990 Amendments to the Clean Air Act embrace this approach by providing electric utilities with tradeable allowances to emit sulfur dioxide. These allowances are based on the theory that companies that can reduce emissions most cheaply will do so and sell their allowances to companies for whom such reductions would be more expensive.”

Question 71

How do Challenge Regulation and Environmental Contracting balance between federal directive and private efficiency?

Answer 71

“While not widely employed in the United States yet, there is considerable interest in these tools. With challenge regulation, the government establishes a clear environmental performance target, while the regulated community designs and implements a program for achieving it. Unlike purely voluntary programs, such as EPA’s 33/50 program, specific regulatory responses take effect if the target is not met. Environmental contracting, used in EPA’s Project XL, involves an agreement between a government agency and a source to waive certain regulatory requirements in return for an enforceable commitment to achieve superior performance. ”

Question 72

How can Congress create and have regulatory agencies enforce private self-regulation? Edamples?

Answer 72

“Another possibility is enforced self-regulation, which directs individual firms to draft their own rules, subject to some form of certification. See I. Ayres & J. Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992). These privately written rules can then be publicly enforced, e.g., under the Clean Water Act EPA can penalize firms for violating their privately drafted oil spill prevention rules. In an effort to increase regulatory flexibility, EPA has begun experimenting with environmental contracting through its Project XL. The project gives selected companies more flexibility to meet environmental standards if they enter into contracts with EPA that promise greater reductions in pollutant discharges than would be achieved through existing standards.”

Question 73

What criteria can be used to compare and choose between regulatory strategies?

Answer 73

“Many criteria can be used to evaluate alternative regulatory strategies. Professor Thomas McGarity suggests six such criteria: (1) administrative feasibility, (2) survivability (under existing conditions of judicial and political review), (3) enforceability, (4) efficiency, (5) fairness and equity, and (6) ability to encourage technological advance. ”

Question 74

Why should we not create ambiguities or complexity to environmental law?

Answer 74

Sometimes, as in the national policy of 1970 which demanded “there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States”, requiring the reporting of all discharges of “harmful quantities of oil”, have research and demonstration costs higher than likely recovery.

Question 75

Why is it that pollution control regulations’ costs are often over-estimated?

Answer 75

“Several studies have confirmed that pollution control regulations tend to be substantially less costly than expected before regulations are adopted. One reason for this phenomenon is that new technologies that lower control costs are developed in response to regulation. Goodstein & Hodges, Polluted Data, 35 The American Prospect 64 (1997). Another factor may be that regulations do not achieve as much pollution control as expected. See Harrington, Morgenstern & Nelson, Predicting the Costs of Environmental Regulations, 41 Environment 10 (Sept. 1999).”

Question 76

How does Congress force agencies to comply with federal environmental regulation and implement policy effectively?

Answer 76

“Virtually all of the major federal environmental statutes authorize citizens to bring action-forcing litigation against EPA when the EPA administrator has failed to perform a nondiscretionary duty. Most citizen suit provisions are patterned on section 304(a)(2) of the Clean Air Act, which authorizes “any person” to sue the administrator of EPA “where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.” 42 U.S.C. §7604(a)(2). Virtually identical provisions are contained in the Clean Water Act (§504(a)(2)), 33 U.S.C. §1365, the Resource Conservation and Recovery Act (§7002(a)(2)), 42 U.S.C. §6972(a)(2), the Safe Drinking Water Act (§1449), 42 U.S.C. §300j-8, the Toxic Substances Control Act (§20(a)(2)), 15 U.S.C. §2619, the Comprehensive Environmental Response, Compensation, and Liability Act (§310), 42 U.S.C. §9654, and other statutes. Because these statutes also authorize court awards of attorneys’ fees to prevailing parties, plaintiffs can recover their legal costs when they successfully sue officials who fail to act.”

Question 77

What provision in the Toxic Substances Control Act allows for citizens to petition for initiation of rule-making process and sue if not responded to?

Answer 77

“section 21 of the Toxic Substances Control Act, 15 U.S.C. §2620. Section 21 of TSCA requires EPA within 90 days to grant or deny citizen petitions to initiate rulemaking actions under TSCA to control chemicals that may present “unreasonable risks” to public health or the environment. If EPA fails to act on such a petition within 90 days, or denies the petition, the petitioners may file suit in federal district court seeking de novo review of such failure or denial. If a court determines that the action sought by the petition meets the requisite statutory standard, “the court shall order the [EPA] Administrator to initiate the action requested by the petitioner.” 15 U.S.C. §2620(b)(4)(B). ”

Question 78

What legislation helps citizens become aware of information to facilitate engagement in agemcy rule,aking processes?

Answer 78

“The Freedom of Information Act, 5 U.S.C. §552, provides an important tool for obtaining information from agencies that may assist citizens in participating in rulemaking proceedings.”

Question 79

How are rule aking actions by agencies reviewed by congress and the executive Branch? What act allows small businesses to contribute their opinions on highly impactful rule makings?

Answer 79

“These include the provisions of Executive Order 12,866, which specifies that significant regulatory actions must be reviewed by the Office of Management and Budget before they can be published in the Federal Register, and the Small Business Regulatory Enforcement Fairness Act (SBREFA), Pub. L. No. 104-121. SBREFA requires EPA and OSHA to give representatives of small businesses an opportunity to review and comment on certain rules that may affect them before the rules are even proposed publicly. SBREFA also authorizes judicial review of agency compliance with the Regulatory Flexibility Act (RFA), 5 U.S.C. §§601 et seq.” “SBREFA also requires that all rules issued by federal agencies be sent first to Congress for review before taking effect. ”

Question 80

What is the regulatory flexibility act?

Answer 80

“the Regulatory Flexibility Act (RFA), 5 U.S.C. §§601 et seq. The RFA requires agencies to prepare “regulatory flexibility analyses” when proposed or final rules are issued that “have a significant economic impact on a substantial number of small entities.” Modeled on NEPA’s environmental impact statement requirement, regulatory flexibility analyses require EPA to analyze alternatives to any regulatory action likely to have a substantial effect on small entities.”

Question 81

What is the information quality act?

Answer 81

“The IQA requires the Office of Management and Budget (OMB) to issue “guidelines ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies.”

Question 82

How does the Congressional Review Act hinder agencies from creating rules and adjusting those rules after disapproval from Congress?

Answer 82

“Congressional Review Act, 5 U.S.C. §§801 to 808, provides that if Congress enacts a joint resolution disapproving a regulation, the regulation shall not take effect or continue in effect. If a regulation is disapproved by Congress, the Act prohibits the agency that issued it from issuing any new rule that is “substantially the same as” the disapproved rule unless specifically authorized by subsequent legislation. 5 U.S.C. §801(b)(2).”

Question 83

What was the first time the Congressional Review Act was used to prevent a rule from going through? How did this undermine worker’s protections?

Answer 83

“ In March 2001, Congress used the CRA for the first time to repeal a regulation. The regulation repealed by Congress was the Occupational Health and Safety Administration’s ergonomics standard to protect workers from repetitive stress injuries. The regulation, which had been under development by OSHA for a decade, finally had been issued in the closing days of the Clinton administration. OSHA expected that the rule would prevent 500,000 worker injuries per year from carpal tunnel syndrome, back strains, and other ailments. OSHA acknowledged that the rule would be expensive for businesses, estimating that it ultimately could cost $4.5 billion to implement, but it projected that it would save $9 billion per year by reducing worker injuries. On March 1, Congressional Republicans introduced a resolution of disapproval, which was approved by the Senate on March 6, 2001, by a vote of 56-44. ”

Question 84

Does the Congressional Review Act allow dommittees to have a say in the dissapproval process or allow ammendments? How much debate time is allowed?

Answer 84

“Using the fast-track procedures of the Congressional Review Act, the joint resolution was adopted without any hearings or committee action, with no opportunities for amendments, and with floor debate limited to ten hours. President Bush endorsed the disapproval effort and signed the joint resolution repealing the rule.”

Question 85

How did the Trump administration take advantage of the CRA?

Answer 85

“In 2017, with Republicans in control of both Congress and the White House, 14 resolutions of disapproval passed both houses of Congress pursuant to the CRA and were signed into law. Three environmental regulations were vetoed by these resolutions. Public Law 115-5 vetoed the Interior Department’s “stream protection rule” governing disposal of debris from mountaintop coal removal (Feb. 16, 2017). Public Law 115-12 vetoed a BLM rule governing land use plans under the Federal Land Policy and Management Act (Mar. 27, 2017). Public Law 115-20 vetoed Interior Department regulations governing the “Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures on National Wildlife Refuges in Alaska” (Apr. 3, 2017)”

Question 86

How may agencies involve the targets of their regulations to the rule-making process? What legislation allows for this?

Answer 86

“Congress explicitly endorsed negotiated rulemaking in 1990 when it adopted the Negotiated Rulemaking Act, Pub. L. No. 101-648, 104 Stat. 4969, 5 U.S.C. §581. The Act confirms federal agencies’ authority to conduct negotiated rulemaking, but does not require that it be employed. In a negotiated rulemaking, the major groups interested in a prospective rulemaking action attempt to resolve their differences through negotiations prior to issuance of a proposed rule. Pursuant to the Federal Advisory Committee Act, the participants in a negotiated rulemaking are appointed to a negotiating committee by the agency responsible for the rule. Negotiations among the interest groups then take place with the assistance of an agency-appointed mediator. Agency staff responsible for developing the proposed rule also may participate. If the negotiations are successful, the parties agree on the substance of a proposed rule, which is then issued by the agency for public comment.”