In Unit 2 you will learn: In your readings, how the

practice of environmental is conducted

In the Discussion Boards, the different enforcement mechanisms used in environmental law

In your written assignment, the history and origins of environmental law and policy

Please have texts open and ready to refer to Chapters 2 & 3 during the Seminar.

Upper Chetco Wild & Scenic River, Kalmiopsis Wilderness,

SW Oregon

One of the more controversial issues related to the dual enforcement of environmental laws by the federal and state authorities is a concept known as “overfiling”   or sometimes referred to Dual Enforcement.

That is, the EPA files a separate enforcement action for the same action after the state environmental protection agency has settled or rectified the unlawful conduct. Damage from Gulf Oil Spill, 2010

In an adversarial system, a neutral fact finder hears evidence and arguments presented by both sides and then makes an objective decision based on the facts and on the law as presented by the proponents of each side.

Open text to Chapter 2, Figure 2.1

Dual Court System

Figure 2.2, District Court Geography

Sunset, Oregon Coast

Subject Matter Jurisdiction

The determination of which system may hear the case depends on subject matter jurisdiction. Subject matter jurisdiction is the power of a court to hear and render a decision in a particular type of case.

See Figure 2.3

VenueOnce it is determined which court system has the power to hear the case, venue determines which of the many trial courts in that system is appropriate. Venue, clearly prescribed by statute in each state, is a matter of geographic location. It is usually based on the residence of the defendant, the location of the property in dispute, or the location in which the incident out of which the dispute arose occurred.

Attorney-Client Privilege

This privilege provides that attorneys may not reveal information provided in confidence to them in conjunction with a legal matter without permission from the client.

Go to Figure 2.4, Anatomy of a Civil Lawsuit

StandingStanding is the legal right to bring a lawsuit. One who has standing issaid to be a proper party to pursue the action. In most cases, one has standing when one is personally affected by the outcome of a case.

Environmental cases & Standing:1. The plaintiff had an injury-in-fact that is concrete and actual or imminent;2. The injury is fairly traceable to the challenged action of the defendant;3. It is likely that the injury will be redressed by a favorable decision.

Case or ControversyFirst, the affected parties

must be in an adverse relationship to each other. Second, actual or threatened events must give rise to a live legal dispute. Third, the courts must have the ability to render a final and meaningful judgment.

Ripeness simply means that there exists a present controversy for which a decision is needed.

Alternatives to Civil Litigation

ArbitrationThe resolution of a dispute by a neutral third party outside thejudicial setting.

MediationMediation differs from arbitration and litigation in that the mediator makes no final decision. The mediator is simply a facilitator of communication between disputing parties. Mediation is an informal process in which the two disputants select a party, usually one with expertise in the disputed area, to help them reconcile their differences.

Environmental law tends to be based (or have it’s foundations) in administrative law. This classification means that these laws are overseen by a body known as an administrative agency and that many of the specific regulations in this area are also established by this agency. Because environmental law is so involved with agencies, some basic understanding of administrative law is necessary.

FUNCTIONS OF ADMINISTRATIVE AGENCIES

Administrative agencies perform the following functions: rule making, adjudication of individual cases brought before ALJs by the staff of an agency, and administrative activities.

Headwaters of Wild & Scenic Imnaha River

Eagle Cap Wilderness, NE Oregon

Please see Figure 3.1 Informal rule making

Certain federal statutes restrict the power of administrative agencies. One of these limiting statutes, the APA, has been discussed previously. Its rule-making procedures, for example, mandate public involvement.

Two other acts are especially helpful in keeping agency action open to the public, preventing secret, arbitrary, or capricious activity: the Freedom of Information Act of 1966, as amended in 1974 and 1976, and the Government in Sunshine Act.

Executive BranchThe executive branch limits the power of administrative agencies through (1) the power of the president to appoint the heads of the agencies, (2) the power of the OMB to recommend a fiscal year budget for each agency, and (3) the power of the president to issue executive orders.

Legislative BranchCongress limits the authority of administrative agencies through its (1) oversight power, (2) investigative power, (3) power to terminate an agency or amend its enabling statute, (4) power to approve or disapprove budgets, (5) power to advise and consent on the president’s nominations for heads of administrative agencies, and (6) rarely used power under the 1996 Congressional Review Act (CRA) to overturn an administrative regulation within 60 days of its promulgation.

Judicial BranchThe courts can curb

excesses of the administrative agencies’ rule-making and adjudication functions by reversing or modifying such actions. The U.S. Supreme Court case of Citizens of Overton Park v. Volpe clearly stated that all agency action is subject to judicial review unless there is a statutory prohibition or “agency action is committed to agency discretion by law.”

Upper Klamath Wild & Scenic River, Southern Oregon

Currently, more than 100 federal agencies are in operation, as well as countless state agencies.

The most important federal agency affecting environmental matters is the EPA. Every state has a state environmental agency to which the federal EPA delegates primary authority for enforcing environmental protection laws. However, if at any time the state agency fails to enforce these laws, the federal EPA will step in to enforce them.

TABLE 3-6 Federal Agencies and Offices that Play a Role in Environmental Regulation

Upper Salmon Wild & Scenic River, Mt. Hood National Forest, Oregon

Dual Enforcement:

Is it good public policy to have dual enforcement of environmental protection statutes in this country?   Why or why not?  

What constitutional issues are raised with this dual enforcement approach?   Do you agree with those legal scholars who say this approach is problematic?   Why or why not?   If so, what alternatives might you recommend?

Permitting & enforcement:

•        What are the key components of the New Source Review permit program? •        What are the key components of the Resource Conservation and Recovery Act treatment, storage, and disposal facility permit program? •        What are the key components of the National Pollutant Discharge Elimination System permit program? •        What are some of the ways to encourage public participation in the permitting process

Speech and PowerPoint Presentation

Because you are a well-known environmental lawyer, you are a sought-after speaker on the topic of environmental law. In addition, as part of your law practice, you have made a commitment to do as much volunteer work with the City of Riverside as possible. As part of this volunteer work you accepted an invitation to speak at the local Chamber of Commerce luncheon on the origins of environmental law.

The Chamber of Commerce would like you to focus your presentation on the history and origins of environmental protection law in the US and also give an overview of the legal protections that are in place in response to this history. That is for the content of the presentation you must locate, identify, analyze, and evaluate elements related to the origins of environmental law. Ensure that your research is current with sufficient source materials to provide a broad range perspective of the origins of environmental law. Make sure that you assignment is in the correct format, use APA for source citations, ensure proper grammar and spelling, and that the presentation is of the required length. The Chamber would also like a PowerPoint presentation to accompany your discussion.

 As a result, you need to prepare two separate items for your presentation:  1.           The first item is a paper copy of the speech you are going to give. 2.           The second item is the PowerPoint presentation itself.

Requirements: Speech Length should be

3–5 pages, excluding cover page and references page

PowerPoint Length should be 8–10 slides

Viewpoint and purpose should be clearly established and sustained

Assignment should follow the conventions of Standard American English (correct grammar, punctuation, etc.).

Writing should be well ordered, logical, and unified, as well as original and insightful

Your work should display superior content, organization, style, and mechanics

Appropriate citation style should be followed  Submit your speech and presentation to the Dropbox by the end of Unit 2.

REVIEW

• Dual Court System

• Adversarial Process

• Administrative Agencies & Law