EM 205 – Unit #6 The Politics of Managing the Environment The Role of the Courts

Deadlines: Please Note on your calendars Upcoming projects Late work End of Unit 7: Sept. 18 th –No late assignments accepted past this date without prior approval !!! End of term: Oct 9 th Incompletes: Deadline for request Oct. 3 rd !

OVERVIEW  Unit 7 Assignment & Unit 9 Final Project  Unit 6 Learning Outcomes  What is the role of the Courts in Environmental Policy?  Limited Role of Judiciary  Citizen Suits  From States v. Students Challenging Regulatory Agency Procedures (SCRAP I) to Massachusetts v. EPA (2007)

Unit 7 & 9 Assignments  Unit 7 Assignment - Outline of Final Course Project – 100 pts  Unit 9 Final Course Project – Detailed report of your selected EI covering stakeholder involvement, policy responses, current status, and recommendation on resolution of EI. – 225 pts

Unit 7 Assignment Write a two-page detailed outline of your course project. The outline should identify: the specific domestic environmental issue that you have chosen the primary stakeholders involved –what their interests are –the actions taken by various stakeholders the development of policy on your issue at federal, state, and local levels the current status of the issue a proposed resolution to the issue ~ SUBMIT END OF UNIT 7 !!

Unit 6 Learning Outcomes  Environmental statutes provide for judicial review of certain actions by the U.S. Environmental Protection Agency.  The Administrative Procedure Act also allows people to bring lawsuits contesting government action.  Citizen suits are a means by which people can pursue legal action to compel the government to take action or to compel violators of environmental laws to comply with them.

Limited role of the judiciary Article III of the Constitution  Section 2. 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 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.  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.

Administrative Procedure Act Provides for judicial review of agency action

Administrative Procedure Act The Administrative Procedure Act (APA) is the law under which some 55 U.S. government federal regulatory agencies such as the FDA and EPA create the internal agency rules and regulations necessary to implement and enforce major legislative acts such as the Endangered Species Act, the Clean Air Act and the Clean Water Act. Agency Administrative rule making requires a public review and input stage.

Citizen suits  a means by which people can pursue legal action to compel the government to take action or to compel violators of environmental laws to comply with them  Examples: 16 U.S.C. 1540(g) (2006) (Endangered Species Act); 33 U.S.C (2006) (Clean Water Act); 42 U.S.C (2006) (Clean Air Act).

Citizen suits: Language from Endangered Species Act….. Any person may commence a civil suit on his own behalf:  to sue any person, US government or agency (to the extent permitted by the 11 th amendment to the Constitution) alleged to be in violation of any provision of the Act; or  to compel the Secretary to apply the prohibitions set forth with respect to the taking of any resident endangered species or threatened species within any State; or  against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under the relevant section The district courts shall have jurisdiction and can compel the Secretary to apply the prohibition sought if the court finds that the allegation that an emergency exists is supported by substantial evidence.

Citizen suits Caveats include: Required time lapse after written notification of violation is given to the Secretary Cannot sue if the Secretary has commenced action to impose a penalty Cannot sue if the US has commenced and is diligently prosecuting a criminal action in a court of the United States or a State to redress a violation of any such provision or regulation. The court, in issuing any final order in any suit brought may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. The injunctive relief provided by this subsection shall not restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief (including relief against the Secretary or a State agency).

Standing Standing, n. A party’s right to make a legal claim or seek judicial enforcement of a duty or right. To have standing in federal court, a plaintiff must show (1) that the challenged conduct has caused the plaintiff actual injury, and (2) that the interest sought to be protected is within the zone of interests meant to be regulated by the statutory or constitutional guarantee in question. Black’s Law Dictionary 1442 (8th ed. 2004).

Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007)  Who brought suit?  Under what statute?  What was the issue before the Supreme Court?  What did the petitioners argue?  What did the respondent argue?  What was the outcome?

Standing in Environmental Cases What was involved in the States v. Students Challenging Regulatory Agency Procedures (SCRAP I) (1973) case? What happened since? Massachusetts v. EPA (2007) – Constitutional Separation of Powers applied Justice Robert’s opinion in the 2007 case: " Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer's game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches. Today’s decision is SCRAP for a new generation."

That’s it for tonight! Any questions? Office hours Monday & Thursday 7:00 - 8:00 PM Eastern Daylight Savings Time Unit 7 Seminar Next Monday, Sept 17 th at 8:00 PM ET!! This presentation was adapted from the prior work of Lori Tripoli of Kaplan University. Thank you!