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
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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
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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– between a State and Citizens of another State (Repealed by 11th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
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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
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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
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Antarctic Treaty 1961
– Territorial claims set aside, not relinquished
– U.S., Russia recognize no claims
– Overlap between British, Argentine, Chilean
claims
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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