1 CJUS / POLS 110 Chapter 9: Environmental LawLaw and Justice CJUS / POLS 110 Chapter 9: Environmental Law

2 Environmental law - 21st century - heavily populated - urbanized / industrialized a. Earth’s capacity = pollution - atmosphere / water - major concern (1) Waste produced = industrial society - continues to threaten - existence of human life

3 (2) Constant tension - business goals = profits / productivity - need: maintain / restore water / air (3) Past 30 years - statutory / administrative laws - enacted as a balance - business and environment (a) Referred to as: - environmental law - air / water / land / vegetation

4 (b) Type of government regulation- important / expanding b. Environmental Protection Agency (EPA) - created in 1970 - established to coordinate - federal regulation = environmental issues - most federal policies / statutes (1) Federal law - basis for issuing regulations - control pollution

5 - factories / motor vehicles- electrical utilities / industrial plants (a) Lawsuits - 30 states - numerous cities / counties - demanding changes (b) Washington state - Department of Ecology - monitors state levels - sets standards / procedures

6 (2) EPA - sets air quality standards - major pollutants (a) To protect - vegetation / visibility - certain economic conditions (b) Insures breath-ability of air - vehicle exhaust gases c. EPA Statement of Purpose

7 (1) Purpose is to ensure that:(a) All Americans are protected from significant risks to human health and the environment where they live, learn, and work. (b) National efforts to reduce environ- ment risk are based on the best available scientific information. (c) Federal laws protecting human

8 health and the environment areenforced fairly and effectively. (d) Environment protection is an in- tegral consideration in US policies concerning natural resources, human health, economic growth, energy, transportation, agriculture industry, and international trade, and these factors are similarly considered in establishing environmental policy.

9 (e) All parts of society – communities,individuals, business, state and local governments, tribal govern- ments – have access to accurate information sufficient to effective- ly participate in managing human health and environmental risks. (f) Environmental protection contributes to making our communities and ecosystem diverse, sustainable, and economically productive.

10 (g) The United States plays a leadershiprole in working with other nations to protect the global environment. History of environmental protection a. Pre-modern = 1840 to 1891 - conservationist = 1891 to 1969 - modern = 1969 to present (1) Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) – 1947 - pesticides / herbicides

11 - registered before being sold- certified / approved application - limited quantities = food crops (a) Identified as harmful - cancel registration - after a hearing (b) May inspect factories - where products made - make recommendations - little authority

12 (2) Clean Air Act – 1963 - encourage states to control (a) Set standards = 5 pollutants - carbon monoxide - sulphur / nitrogen dioxide - ozone / particulate matter (b) States implement plan (SIP) - meet minimum requirements (c) EPA enforcement = 1990

13 - 30-day notice - $25,000 per day fine businesses - $1,000 day individuals (3) Wilderness Act - protect designated areas - ensure conversation - logging / damns / rivers (4) Endangered Species Act - authorized land acquisition - 3 provisions

14 (a) Secretary of Interior- threatened / endangered (b) All federal agencies - seek to conserve - endangered species (c) Penalties assessed - forbids “taking” - harass / harm / pursue / hunt / shoot / wound / kill / trap / capture / collect

15 (5) National Environmental Policy Act – 1969- conservationist period - agencies consider environment - important decisions (a) Every major federal action - significantly affects environment - environmental impact statement (b) Analyze impact - what action it will have

16 (c) Indicate alternatives- fish ladders (d) Any new facility / construction - requires federal license (e) Identify adverse effects - air / water pollution - increase in vehicle traffic - anything to impact environment (d) Alternative actions

17 - not build - recommend other site - change plant character (e) EIS = instrument - private groups can challenge - federal agency actions - harm environment - private citizen / consumer interest groups / businesses / other

18 (6) Clean Water Act – 1972 - three primary goals (a) Waters safe for swimming (b) Protect fish / wildlife (c) Eliminate discharge of pollutants (i) Require permit - dumping refuse - navigable waters

19 (ii) Parties who need to dump- best available technology - minimize harmful effects (7) Resource Conservation and Recovery Act – 1976 - monitor / control - hazardous waste disposal (a) Types - radioactive / medical wastes - other contaminants

20 (8) Comprehensive Environmental Response,Compensation, and Liability Act – 1980 (a) ‘Superfund’ - cleanup - leaking hazardous waste sites - created special fund (b) EPA can recover costs - who generated / transported - owned / operated site - current owner / operator

21 Legal jurisprudence - positive law / legal relations - impacts environmental law a. Positive law - lawmakers have a legal right - restrict the use - one’s own property b. Legal relations - relationships among members of society - who are affected by property regulation

22 c. Historically, under common law- protection of environment - nuisance laws (1) Nuisance - form of tort - legal injury - one inflicts on another (a) Intentional - cut down trees between farms - used as a windbreak

23 (b) Negligent - fail to clear debris from stream - overflows (c) Reckless - use of personal property - endangers neighbor (i) Private nuisance - affect immediate neighbors (ii) Public nuisance = greater area

24 (2) Standing - person must be impacted - EPA decision - take into court (a) Injury “in fact” - impacted personally (3) Taking clause - government cannot take property - without “just compensation” - must be “justly compensated”

25 (a) 5th Amendment - just compensation (b) Taking clause - exercise of state police powers - power to regulate - health / safety / morals (c) Zoning - limit what person can do - agricultural / residential / commercial

26 (d) Two forms of taking:- physical = government use - regulatory = restrict / deny use d. Eminent domain - 5th Amendment = private property - not taken without due compensation (1) Power of government - take private property - public use - following payment

27 (a) Meaning - can condemn private property (b) Law asks: - “Can the government take this property for this purpose, and if so, what the government must pay.” (c) Condemnation - process by which disputes over government rights are settled

28 (d) Courts can be asked - if government has right to take - what government must pay (2) Eminent domain applies to: - federal / state / local governments (a) Courts have ruled - even a private person - even a corporation - can pursue eminent domain - as long as of a public nature

29 (b) Example: - privately owned public utility - granted eminent domain - maintain pipeline / transformers (c) Condemnation - required for common welfare - no matter how compelling - government must pay for use e. Definition of private property - quite broad

30 (1) Not just land - leases / stocks / water rights - anything else government wants - for a public purpose (a) Government encroaches on land -does not want it (b) SeaTac Airport - residents sued - encroach upon property rights - reduce property values

31 (c) Noise / accessibility- traffic (d) Port of Seattle to purchase - at least compensate (e) Right to reasonable / ordinary use - airspace above property - right that law recognizes f. Must be for “public use” - courts have ruled

32 - municipal civic centers- trade centers - airport expansions - all apply (1) Governments allowed to condemn - “slum properties” - build parks / other beautifications (2) Allowed condemnation - build a factory - benefited public interest = jobs

33 g. Last element of 5th Amendment- just compensation (1) Fair to public - as well as property owner (2) No formula to determine - litigated in court (3) Most courts - side with property owner - offer “fair market value”