7. Courts
Article III, Section 2, US Constitution
The judicial power shall extend
• to all cases, in law and equity, arising under this Constitution,
the laws of the United States, and treaties made, or which
shall be made, under their authority;
• to all cases affecting ambassadors, other public ministers and
consuls;
• to all cases of admiralty and maritime jurisdiction;
• to controversies to which the United States shall be a party;
• to controversies
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–
–
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between two or more states;
between a state and citizens of another state;
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.
Dual Court System
Types of Court
• Supreme Court
• Circuit Court
– Federal Circuit: jurisdiction over certain topics
(patents, international trade)
– DC Circuit: jurisdiction over federal agency
decisions.
– 11 Regional Circuits
• District Courts (Trial Courts)
Dual Court System
• Trial courts make Findings of Fact: what
happened?
• Circuit and Supreme courts make Findings of
Law: given the Facts, how does the law apply?
– Findings of Law are binding on lower courts in the
same jurisdiction
Opinions
Types of law
• Civil Law: grounded in abstractions (freedoms,
rights) encoded in codes (constitutions)
• Common Law: grounded in precedents set by
previous individual cases. Emerges
organically.
Standard of Review
• Narrow Control : The ‘Hard Look’ standard.
– Administrative Procedures Act of 1946: Regulations
must be based in serious fact-finding, not “arbitrary,
capricious, and otherwise not in accordance with the
law.”
– Example: 1969 National Environmental Policy Act
• Deference: The ‘Chevron Two-Step’ or
‘Reasonableness’ standard.
– Regulations must not violate explicit will of Congress.
– But if Congress has not spoken, courts defer to any
“reasonable” decision clearly based on facts.
Deference to Statute or Deference to
Regulation?
“For decades, and for no good reason, we have
been giving agencies the authority to say what their
rules mean, under the harmless-sounding banner of
‘defer[ring] to an agency’s interpretation of its own
regulations’… deference encourages agencies to be
vague in framing regulations, with the plan of
issuing ‘interpretations’ to create the intended new
law without observance of notice and comment
procedures.”
J. Scalia, Decker v. NEDC, 3/20/13
Ripeness
1) Is the disagreement over actions, rather than
principles or abstractions?
2) Is there actual or imminent harm being
done?
If neither, the controversy may not be “ripe” for
legal review.
Standing: “Who can sue?”
To be able to sue, you must demonstrate:
1) Injury
2) Causation
3) Redressability
“Should Trees Have Standing?”
“We are inclined to suppose the rightlessness of
rightless ‘things’ to be a decree of Nature, not a
legal convention acting in support of some status
quo. … We have been making persons of children
although they were not, in law, always so. And we
have done the same, albeit imperfectly some
would say, with prisoners, aliens, women
(especially of the married variety), the insane,
Blacks, foetuses, and Indians.”
C. Stone, 1972
Citizen Suits
Any citizen may commence a civil action on his own behalf
(1) against any person (including (i) the United States, and
(ii) any other governmental instrumentality or agency
to the extent permitted by the eleventh amendment to
the Constitution) who is alleged to be in violation of (A)
an effluent standard or limitation under this Act or (B)
an order issued by the Administrator or a State with
respect to such a standard or limitation, or
(2) against the Administrator where there is alleged a
failure of the Administrator to perform any act or duty
under this Act which is not discretionary with the
Administrator.
Clean Water Act §505(a)
Standing: Sierra Club v. Morton, 1972
“The critical question of ‘standing’ would be
simplified and also put neatly in focus if we
fashioned a federal rule that allowed
environmental issues to be litigated before
federal agencies or federal courts in the name of
the inanimate object about to be despoiled,
defaced, or invaded by roads and bulldozers and
where injury is the subject of public outrage.”
Justice Douglas, dissenting
Citation of Legal Documents
3 Kinds of Rulebooks:
• Statutes: US Code (USC)
• Regulations: Code of Federal Regulations (CFR)
• Court Reports (opinions)
Each are continuously added to and modified by
new laws, new regulations, and new court
decisions.
Statutes (USC)
• Bill number: HR 1134
• Public Law number: P.L. 92-500 §404
• USC number: 33 USC 1344
• 51 Titles (volumes), each with many Parts
• US Code Annotated
Regulations (CFR)
• CFR has 50 titles – not the same as USC titles
• 33 CFR 240.91
• Federal Register
Court Opinons
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Each court system has its own Court Reporter
Short title: Brown v. Board of Education
Citation: 347 US 483 (1957)
Federal Circuit: 89 F.3d 827 (1972)
– Or 988 F.Supp.5d 214 (1989)
• Federal District: 133 E.D. Wis 54
• State Courts: Vary widely.
• Legal journals: 54 Harv. Law Rev. 255
Remedy
• Miscellaneous Receipts Act
• Supplemental Environmental Projects
Toxics and Liability: “Whom do I sue?”
Comprehensive Environmental
Response, Compensation and Liability
Act of 1980 (CERCLA, or “Superfund”)
1) Established the “Superfund”, a tax levied on the
chemical industry which funded cleanup of
contaminated sites
2) “Shovels First, Lawyers Later”: CERCLA allows the EPA to
clean up quickly, and then makes it very easy to recover
the costs of cleanup from any potentially liable parties.
No regulatory permit program. Just Shovels and Money.
Liability under CERCLA
CERCLA establishes Strict, Joint, Several and Retroactive
liability for toxic waste
• Strict: actual negligence or intent does not have to be
shown.
• Joint: liability can be shared by more than one party
• Several: any party or group of parties can be held liable
for the entire problem
• Retroactive: Existing problems can be pinned on
corporations or individuals with no statute of limitations.
• “Piercing the Corporate Veil”
Superfund Budget
3500
General Revenues Share
Trust Fund Share
3000
Superfund Appropriation
2500
2000
1500
1000
500
19
81
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19
84
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20
01
20
02
20
03
20
04
0
Million $
Superfund Trust Fund only used in the 30% of cases in which no liability
can be established.
Red: Active site
Yellow: Proposed site
Green: Cleaned-up site
(EPA 2010)
Sites on the CERCLA National Priorities List (NPL)
CERCLA sites
• 41% drop in cleanup activity when GHW Bush took
office in 2001.
• 38 active Wisconsin sites on the NPL, 1 proposed, 6
resolved.
"In my entire life I have not seen a law as unfair as
Superfund, because all it did was punish people who
acted legally,"
Bill Kovacs, US Chamber of Commerce
Resource Conservation and Recovery Act
of 1976 (RCRA)
1) Cradle-to-grave manifest system for tracking waste
2) Total technological control over any facility which
Transports, Stores or Disposes of toxic waste
What substances are regulated?
• “Listed” substances (Heavy metals, radioactive waste)
• Anything Ignitable, Corrosive, Reactive, Toxic
RCRA
• 1980 Bevill Amendment exemptions:
– Household wastes
– Wastes from energy mining
• Adds to the expense for anyone who deals in toxics
• RCRA has largely ended:
– ocean dumping of toxics
– diluting of toxics with more mundane landfill
wastes
– use of substandard and dangerous disposal sites
• Forward-looking
Information on Toxics
• 1976 Toxic Substances Control Act (TSCA)
• 1986 Emergency Preparedness and
Community Right-to-Know Act (EPCRA)
– Toxic Release Inventory
– TOXMAP: linked to demographic data
Two Legal Approaches
A) The legal system exists to ensure individual
freedom
B) The legal system exists precisely because of
the failures of individuals acting alone
Public Trust Doctrine
“[T]he river Mississippi and the navigable waters
leading into the Mississippi and St. Lawrence,
and the carrying places between the same, shall
be common highways and forever free, as well
to the inhabitants of the state as to the citizens
of the United States, without any tax, impost or
duty therefor.”
Wisconsin Constitution, Article IX, Section 1