Law and Justice

1. Law 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 are enforced 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 leadership role 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 - 1964 - protect designated areas - ensure conversation - logging / damns / rivers (4) Endangered Species Act - 1966 - 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”