Environmental Policy

1. Class 14: Env Policy Making: Judiciary CofC Fall 2010 Environmental Policy

2. Env Policy Making:Congress Part II: Chapter 3

3. Congress’ Role in EP (pp 99-119) • Inhibited by “era of partisan welfare” • Not always so, 1960s-1990s Congress enacted and strengthened an extraordinary range of enviro policies (in response to public opinion on enviro issues) • More receptive to enviro issues with 111th Congress b/c: • Democrat controlled houses • Public reached a critical “tipping point”?? • Difficult to gain bipartisan support in latest Congress’ sessions • Bottom Line: Effective Enviro Policy-making always requires coop b/w 2 branches (& leadership within) and public support • History of Congressional policy-making on enviro “strongly suggests the power of public beliefs and action.”

4. Debating CAFE • Greenpeace vs. Competitive Enterprise Inst

5. Congressional Authority • Under US Constitution: Congress shares authority with President for federal policymaking on enviro issues. • Many actions within Congress not only create new policy but assist in “framing” issues or budgetary decisions that can promote or inhibit solutions • Has a role in Presidential nominees to agencies and courts, which decide on environmental issues. • Historically, Congress has been more influential than President in formulation and adoption of environmental policies. • Two critical variables to Congress enacting EP policies • Public op on environmental issues • Whether President’s party controls Congress • IF so, by what margin and willingness to defer from Pres’ recommendations

6. Congressional Implications for EP • 1. Building policy consensus is rarely easy b/c of diversity • 2. policy compromises invariably reflect members’ preoccupation with local and regional impacts of enviro decisions • 3. White House matters a great in how the issues are defined and are acceptable, but is ultimately limited by “political calculations made on Capitol Hill.” • Given these, “Congress frequently finds itself unable to make crucial decisions on EP.””gridlock”

7. Increasing Role of States • Centralized Federal Enviro Protection was the focus of env policy; however, this has changed recently, with an increasing focus on states. Why? • More creative • Enhanced capacity • Fewer political ideological obstructions • Public has higher degree of “trust & confidence” • Directly deal with local realities • States now represent ¾ of all “federal environmental programs that can be delegated to them.” • States issue 90% of permits, complete 90% of all enviro enforcement, and collect 95% of data on enviro protection • Areas dominated by States: Waste disposal, land use, groundwater protection, transportation and electricity production.

8. Future Role of States Shaped by: • The extent to which States have fiscal support to maintain core environmental considerations • Esp States increasing focus on econ development • Divided Control of State legislatures—has influence over EP  state Reps are subject to same pol ideological debates as feds. • Extent of Fed environmental legislation (like Climate cap and trade) with significant ramifications for states. • Most plausible and effective regime would avoid extreme decentralization or centralization, but requires functional and discerning “environmental federalism” • Ex/ Climate Change: Federal Carbon Tax reduce emissions nationally (and globally) while providing funds for mitigation/adaptation strategies within states and locales. Provides incentives for states’ inclusion in climate policy

9. Env Policy Making:Judiciary Part II: Chapter 3

10. Role of Judiciary • What is the role of the Judiciary? • "As dreadful as the Bush administration has been with respect to clean air and forests and all these environmental issues," she says, "the courts have been really our savior. And have time and time again in the last years [it has] stepped in.” NPR Article. • “By the end of his 2nd term, W. Bush was fully immersed in the concept of environmental policy-making in the courts. Enviro advocates were waging an all-out attack in the cts” to challenge his enviro policies.

11. Sources of Enviro Law • Constitutions (federal and state) • Statutes (fed, state and local) • Administrative regs • Treaties (signed by President and ratified by the Senate) • Executive Orders (proclamations issued by presidents or govs) • Appellate court decisions

12. Influences on Enviro Court Decisions • State of Law itself: precedents and interpreting statutes • Court’s Environment • Public opinion • Litigants and interest groups • Congressional rulings on scope of jurisdiction • Presidential appointments • Judge’s Values (Liberal, Conservative, Moderate)  Cannot be overemphasized b/c Federal Judges are appointed for life • Influences between Judges: They can influence each other

13. Judicial Interpretation • Main Purpose: Courts interpret laws; however, they do indirectly make law as well • Judicial Review of environmental Agencies • How an agency interprets an enviro law is within court’s purview • Agency has more leniency from cts when interpreting its own admin law • See Chevron v. NDRC  ”Chevron deference” • Even if agency correctly understood the law, and reasonably applied it to facts, courts can overturn agency actions if determined to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law”

14. How Courts Shape Enviro Policy • 1. Standing to Sue (who can litigate): usually subject to interpretation, and by controlling who has authority to seek environmental redress, courts shape policy itself • 2. Ripeness (ready for review): an actual controversy must exist and more than just “anticipated”cts look at fitness of issue itself and hardship on parties without redress • 3. Standards of Review: Under what conditions will experts/agencies authority be subject to interpretation and what standards will polluters be held? • 4. Interpretation (stare decisis): judicial interpretation of law/reg becomes enviro policy today and in the future • 5. Choice of Remedies: What remedies used (e.g. fines, probation, modifications, cease and desist, etc)

15. Standing • Who can sue on behalf of the environment • Must demonstrate an “injury in fact” a “concrete and particularized, actual or imminent invasion of a legally protected interest.”

16. Ripeness: Ohio Forestry v. Sierra Club • Facts: Forestry Service developed a plan for Wayne National Forest (in Ohio) that would allow below-cost timber sales and clear-cutting. Sierra Club et al. sued. • Holding: Case was not “ripe” b/c it “concerned abstract disagreements over administrative policies”. • Here, the Sup Ct did not want to “second-guess” thousands of technical decisions of gov’t scientists and experts—that is, there was not an “arbitrary or capricious” government action. • Outcome for Policy: In most cases, this means that concrete damage is necessary before a court will act.

17. Coeur Alaska, Inc. v. Southeast Alaska Conservation Council • Decided in July 2009 (essentially a Bush Admin “Win”) • Permitted Coeur Alaska to dump mine waste or “tailings” (land fill with contaminants in it) into a Lake • Enviro groups brought suit citing CWA, Coeur argued that Army Corps of Engineers had authority to grant permission • Ct, in a 6-3 decision, agreed with Coeur. • What constituted a “fill material” was changed in 2002 by the Bush Administration to allow “contaminants” to be included legally within the CWA mandate as “fill” and then disposed of… • Ginsburg Dissent, argued that essentially turning lake into a “waste site” and worried about this is as a loophole.

18. Massachusetts v. US EPA (2007) • In 2003 (Bush), the EPA made two determinations: • 1. the EPA lacked authority under the Clean Air Act to regulate carbon dioxide and other greenhouse gases (GHGs) • 2. even if the EPA did have such authority, it would not use it. • Petitioners were States: MA, CA, NY, etc, cities: Balt, DC, & NYC, and Enviro Groups; Respondents were EPA, States: TX, OH, AS, etc. and Auto/Truck Groups • Holding: • Petitioners had standing: Only 1 plaintiff needs to meet standing, MA did b/c of future SLR • the CAA does give the US EPA authority to regulate tailpipe emissions of GHGs, and • its current rationale for not regulating was found to be inadequate, and the agency must articulate a reasonable basis in order to avoid regulation. Sup Ct determined that to NOT regulate GHGs would be “arbitrary, capricious and not in accordance with the law” • In addition, the majority report commented that "greenhouse gases fit well within the Clean Air Act’s capacious definition of air pollutant.” • Dissent (Scalia): No standing, but regardless, EPA should not be made to regulate, they have the right to “defer” and should be based on “Chevron Deference”

19. Chevron v. NDRC (1984) • Established “Chevron Deference” • Legal test for determining whether to grant deference to a government agency's interpretation of its own statutory mandate • Holding: Courts must defer to administrative agency interpretations of the authority granted to them by Congress: • (1) where the grant of authority was ambiguous, and • (2) where the interpretation was reasonable or permissible.

20. Vids • UCLA LAW: Mass v. EPA (5m) • EPA Response (Stephen Johnson) in Congress Hearing (8m)

21. Future Trends • 1. Anti-Environmentalism of Court System: Despite cases like MA v. EPA the Sup Ct has been “reliably anti-enviro”. • Many scholars attribute this to “states’ rights” judges • 2. Enviro Justice is increasingly difficult because of standing  many states have tightened standing requirements and fed laws without specific “citizen-suit provisions” are prone to rejection. • Cts have rejected many private rts of action thru Civ Rights. • 3. Increased use of Environmental Conflict Resolution • Decreased costs • More public participation • Litigation is time-consuming • Courts often fail to resolve the underlying dispute (only legal or procedural issues)