CU Boulder PSCI 3206, Environment and Public Policy Fall 2015

a) Informal Rule Making via the Administrative Procedure Act (APA) initiates steps for adjudication.

b) Generally preceded by an investigation and the filing of a complaint with an Administrative Law Judge (ALJ) by agency staff. Initial hearing conducted by ALJ and initial decision issued (can be appealed).

c) EPA has a special Environmental Appeals Board (EAB) to handle adjudication appeals.
Pg 86

Notice and Comment: Required when agency or enabling legislation does not require another form.

Steps:
1. Publish proposed rule in Federal Register explaining legal authority and how to participate

2. Open written comment period

3. Agency publishes final rule in Federal Register along with basis and purpose

4. Law takes effect 30 days after publication
Pg 81

Required When: A hearing with complete transcript is required.

Steps:
1. Proposed rule published in Federal Register

2. Public hearing for witnesses to give testimony on pros and cons of rule

3. Rule is published.
pg82

Required When: Response to flaws with informal and formal procedure. Attempts to combine best features of both.

Steps:
1. Publish proposal in Federal Register

2. Submission of written comments and informal hearing with restricted cross-examination

3. Publication of final rule in Federal Register
pg83

Formal- requires a witness pros/ cons hearing and full transcript with cross-examination
Informal- requires only a public comment period
Hybrid- required public comment period with informal hearing and with restricted cross-examination
Exempted- agency may decide wether public participation is allowed
pg81

Agency may decide wether public participation is allowed.
Exemptions Include:
military or foreign affairs
agency management or personnel
agency's public property, loans, grants, benefits or contracts
Interpretive rules
When public comment is claimed contrary to public interest
trivial issues

Unhappy parties may bring the rule to federal district court to have it invalidated or ignore the law until they violate it and then prove it is invalid.
Proven invalid if it's:
Unconstitutional (to vague or unlimiting of power)
Violated Constitutional Standard (i.e. unreasonable search and seizure)
Law beyond scope of agency power
Law violated proper procedures (if mandate is formal and rule making was informal, law is invalid)

The legal right to bring an action/ lawsuit.
One has standing if personally affected by the outcome of a case. Requires a particularized injury.
pg57

Neutral fact-finder hears evidence by both sides, and makes an objective decision.
Pg48

Created by:
Statutes enacted by congress (called enabling legislation) or by the president through an executive reorganization plan. Agency only has power delegated by congress.

the act of attempting to influence decisions made by officials in a government, most often legislators or members or regulatory agencies

-review by the US Supreme Court of the constitutional validity of a legislative act

-allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution

-established in the classic case of Marbury v. Madison (1803)

Alternative to civil litigation where neutral party outside legal system hears witness testimony and evaluates evidence, deciding in 30 days.
Focus is on compromise and preserving relationships rather than enforcing laws. Decisions are legally binding.
Pg71

1. Affected parties must be in adverse relationship
2. Actual or threatened events give rise to legal dispute
3. Courts must have ability to render final and meaningful judgment
(must be an existing problem)
Pg62

Governed by Federal Rules of Civil Procedure (FRCP)
Civil Litigation Requires:
Standing
Case or Controversy
Ripeness

Requirement for civil litigation action, decision must be able to affect parties immediately
pg62

Codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government. It is divided into 50 titles that represent broad areas subject to Federal regulation
Source: study guide

Article 1, Section 8, Clause 3
Empowers the congress to regulate commerce with foreign nations, states, and tribes

Primary source of authority for congressional action and environmental regulations.

broadly interpreted and controversial because it regulates in state activities as well

source: study guide+pg27

Differs from arbitration b/c there is no final decision guaranteed. Both parties may enter into a legally binding contract.
p73

Fifth amendment says that if government takes private property for public use, the owner must be justly compensated
In practice: Eminent Domain
pg32

Established by NEPA 1970
Advises president on environmental matters. Establishes regulations pertaining to NEPA procedures.
pg135

Est. 1970 Planning statute that
1. Creates Council on Environmental Policy (CEQ)
2. Requires federal agencies to take environmental consequences into account
3. Requires Environmental Impact Statements (EIS) for each federal action having impact on quality of human environment
pg 135

Made up of federal and state statues prohibiting certain behaviors against a state or society.
Purpose is punishment or deterrence through fines or imprisonment. Prosecutor represents society.
pg13-14

Combination of 14th and 5th amendments stating that "no person shall be deprived of right to life, liberty, or property without due process of law."
pg31

Enacted under commerce clause, provides for the conservation of species that are endangered or threatened throughout all or a significant portion of their range, and the conservation of the ecosystems on which they depend.

Procedural:
Fair trial
Proper notice
Opportunity to confront accusers before an impartial tribunal

Substantiative:
Basic fairness of laws that may violate due process clause. (government cannot act arbitrarily)
pg 32

Agency created for the purpose of protecting human health and the environment
Source: study guide

Cabinet level department created in 1845 responsible for seeking balance between economic growth and natural resources.

Authority to govern is divided between state and federal government. Allocates power to local governments for most laws, but federal laws and constitution trump state laws (article 6).
pg 26

Laws enacted by the president. Not as strong as statutory law b/c each president rescind executive orders.
pg12

Article 2 of the constitution, enforces laws

Also:
Signs Executive Orders
Sign Statements (change laws rather than veto)

pg3

Article 1
Congress made of House of Representatives and a Senate.
Source: US Constitution

Public forum for viewing, commenting, and publishing proposed agency legislation

Capital offenses held in front of grand jury
Cant be tried for same offense twice
cannot be a compelled to be witness against himself
due process
takings- just compensation for private property for public use
Source: US Constitution amendment

Right of people to be secure in their persons against unreasonable search and seizure (warrant or probable cause describing place and persons, or things to be seized)
Source: US Constitution amendment

Also due process, gives African Americans right to citizenship, equal protection under the law
prevented confederates from holding office, but allowed some with 2/3 majority vote
Source: US Constitution amendment

sustain the health, diversity, and productivity of the nation's forests and grasslands to meet the needs or present and future generations
Source: Study guide

Negligence is when a person, company or other entity acts incompetently or below the recognized standard of care, and therefore caused harm through their lack of reasonable and expected action.

Symbiotic relationship between bureaucrats, congress, and lobbyists.
Aka "power elite"
-the interest groups aid the government with useful statistics, information, political support and funding
-the agencies gain favorable remarks and testimonials in regards to their services
-the government returns the favor by passing laws and policies beneficial to these groups; the agencies help the government by passing these laws easily
Source: study guide

Embodied new approach of legislation focused on reducing waste and stopping pollution at the source rather than end of pipe pollution cleanup mandated in earlier legislation.
Original order established separate EPA office and administrator for act, provided funds, and required biennial reporting to identify priorities, research gaps, etc. Clinton executified in 1993.

pg144-146

Referring to TORT laws, an unreasonable interference with the use and enjoyment of another's land
pg120

Law enacted by congress
pg3

People willing to invest in return for policies they favor. Can be officials, journalists, lobbyists, academics. Offer claims to hearings, political connections, negotiating skills and persistence

Recognizes a window of opportunity to bring together politics, policies, and problems (process streams)
Source: Wrapping Things Up, John Kingdom D2L

Enacted on January 1st, 1989
created to repair the ozone layer
made a banned substance list of chemicals that significantly hurt the ozone layer
hailed as a triumph of international cooperation, ozone levels should return to normal by 2050
Source: Study guide

A system of laws, regulatory measures, courses of action, and funding priorities concerning a given topic promulgated by government.
Source: Study Guide

regulate conduct between two individual parties, may be environmental
Source: Study guide

to provide for the public welfare, applied generally by administrative to regulate classes of people or organizations
environmental laws are generally public laws
also securities, labor, and antitrust laws
Source: Study Guide

Rule established in a previous case
either binding on or persuasive when deciding subsequent cases with similar issues
Source: Study guide +pg10

Laws for which there is no statutory or constitutional basis (emerges from court cases)
pg10

Evaluations to identify environmental compliance and management systems gaps
Examines nature and the extent of harm that is created by industrial waste, noise....
Trying to understand the harms that pollution produces
Source: study guide

Implemented in 1976
Three policies:
1. Data must be developed on chemicals (MSDS)
2. Government must have authority to prevent unreasonable risk to health or environment
2. Authroity must be exercised so as not to impede unduly or create unnecessary barriers to technology while fulfilling primary purpose
pg246

A consolidation and codification by subject matter of the general and permanent laws of the United States
Source: Study guide

Enacts laws based on constitution (ie. takings and commerce clause) and they also create regulatory agencies like the EPA based on these clauses from the constitution for administrative rule making.

NEPA by Nixon 1970.
Env. Policy at Federal Level
Previous litigation via torts or public health
New knowledge/tech + values + public awareness changed focus to intrinsic value

Value in and of itself, independent of use or benefit

Valued due to its function or benefit to the valuer (environmental economics)

Natural Resource Management (early 1900s)
Protection of Human Health from Env. Threats (1970s)
Ecological Protections (60s and 70s)
Economic and Environmental balancing (80s to present)
5 is mentioned in second slide, Environmental Justice (1970s to present)

Early 1900s. To sustain productive resources for present and future generations
ex. Antiquities act, national parks service created, migratory bird treaty established, reclamation service established

1970s. Anti-pollution regulation focused on cleanup and control.
ex. EPA established, clean air and clean water acts, TSCA

Focus on protecting nature for intrinsic value
ex. NEPA, wilderness act, endangered species act

A backlash against earlier tough regulations and adoption of marketplace mechanisms; interest in protecting individual rights versus government 'interference'

Growing recognition that there are inequities in
terms of both environmental threats and remedies

Source: Lecture Slides

a) Must be federal
b) Federal activity must be major (substantial $ or human resources)
c) Must have significant impact on the environment, specified in 1979 -consider context and intensity of action (10 factors identified)
d) short term and long term effects,
and activity on the local, regional and society as a whole.
P138

Required by NEPA to evaluate all significant federal projects affecting the quality of the human environment
pg138

Proposed Laws

To make laws

a lawmaker

body or group of lawmakers

EPA has a hard time with evaluating:
a) ecological goals versus public health goals versus individual rights
b) dispelling media hysteria/ public opinion v actual issues
c) how to interpret and communicate scientific findings

President can appoint agency heads
OMB can recommend budget
Executive orders
p91

Oversight power
investigative power
power to terminate/ amend agency
approve/ disapprove budgets
advise and consent presidents nominations
may overturn new agency within 60 days
veto power on all agency regulations
p92

Judicial Review can overturn agency regulation on case if it is unconstitutional, arbitrary, or in procedural violation. (see judicial review)
pg93

Equal water use and removal without impeding on another's water use (east coast)

First in time, first in right. based on mining tradition, senior and junior rights. senior gets rights before junior, junior cannot impede on senior right. (west)

George W. Bush
Not enough support to conservation
Continued to subsidize oil and gas
Exempted fracking fluid disclosure from Protections under the Clean Air Act, Clean Water Act
The bill did not include provisions for drilling in the Arctic National Wildlife Refuge

Govt. seizing property if owners disagree with public goal
govt. restricting use of property (wetlands)
govt. harming property

The process of translating policy plans (statutes
enacted by the legislature) into actual programs;
rule-making (designing programs to match
statutory requirements)

a) to require agencies to keep the public informed
of their organization
b) provide for public participation in the
rulemaking process
c) establish uniform standards for the conduct
of formal rulemaking and adjudication
d) to define the scope of judicial review

government overreach on private land

fines on landowners of up to $100,000 and/or
sentencing them to up to one year in jail for harming any endangered species or habitat

Regulating or prohibiting uses of private land -
such as farming, lumbering, construction, human
habitation
Compensation as a taking is not required for the
loss of land value, loss of income or lost use of land

Pre problem stage, with lag
Alarmed discovery and enthusiasm for solving
looking at the price tag-cost/benefit
waning public interest
post problem stage- limbo
Env. issues rose in the 70s but attention cycle does not apply here b/c still at forefront (w/dip in 80s)

the messy process of introduction and attention to legislation in a congress. Pre-decision process relies largely on who is setting it. agendas set by politics, participants, and problems. alternative specification is set by hidden participants

Rule Making,
Adjudication of Individual Cases, and Administrative Activities

Agencies rely on administrative actions to enforce their regulations, especially environmental.
p86

Authority from the Enabling Act of 1933, and Administrative Procedure Act (APA) sec. 553
pg81

Pros: Best way to get evidence because both sides want evidence to support their case
pg48

Pros: non-adversarial, preserves relationships, can be quicker and cheaper, may be multiple-interest solution
p73

-failure to show care
-implies willful disregard for safety/life.

Non-precedent setting
Possible inconsistent outcomes
Less public awareness
Cannot be forced to mediate.
pg73

Contrary evidence may be ignored by either side.
Time and money intensive with duplicated evidence gathering
favors the wealthy
sometimes compromises better than a "winner"
pg48

Treaty making, such as Montreal Protocol supersedes the law of the land. Executive orders (ie. Clinton 1993 pollution prevention EO), and signing statements to dilute or change statutes rather than veto.
Chapter 1

Interprets and clarifies laws on case by case basis and sets precedents to establish line of authoritative cases. Common Law. Judicial Review. Most environmental laws are federal statutory laws interpreted by the supreme court.
Chapter 1