School of Environmental and Biological Sciences, Rutgers University

Transcription

1 School of Environmental and Biological Sciences, Rutgers University Environmental Law and Policy 1: Nature, Law and Society 11:374:460, Fall 2013 M, Th 10:55-12:15 LOR 020. Professor: Cymie Payne Cook Ofc. Bldg., # 208, 55 Dudley Road, New Brunswick payne@sebs.rutgers.edu (best way to reach me) Office Hours: by arrangement; send me an to schedule a time. Required Reading: PLATER, ABRAMS, GRAHAM, HEINZERLING, WIRTH AND HALL, ENVIRONMENTAL LAW & POLICY (4 th ed., 2010) Other assigned readings will be available on the internet or Sakai. Prerequisites: Politics of Environmental Issues 11:374:279 or permission of the instructor. If you have not taken the prerequisite course, before the first class review the basics of the US political system by reading: League of Women Voters of New Jersey New Jersey Citizen s Guide to Government. pp , 19, 25 (federal); 26-29, (state); (county & municipal); Available at: You will be expected to be familiar with the US Constitution, the three branches of the federal government, and the parallel government structures of the state governments, which are described in that reading. Purpose This course is an introduction to US law and policy governing air, water and other natural resources, biodiversity and public health. It addresses the human activities that affect the environment and natural resources and those that are influenced by them. We consider environmental law and policy at local, state, regional and transnational scales, with a primary focus on US federal law statutes: the Clean Air Act, Clean Water Act, National Environmental Policy Act, CERCLA (Superfund) and the Endangered Species Act. These statutes are representative of varied approaches to regulation and students who pursue a range of environmental careers will most likely be working with them. The class will examine sources of law, including the common law, the US Constitution, legislation, administrative rulemaking, formal and informal law and evolving market-based approaches to regulation. You will develop basic skills in legislative research, case analysis, statutory interpretation and regulatory design. The course is intended to prepare students entering environmental professions to understand the laws, regulations and court decisions

2 you will encounter and that have significantly shaped those professions; to introduce you to related history and regulatory theory; and to introduce you to legal studies. Learning objectives You will develop a basic knowledge of several key federal environmental laws, some knowledge of state and local measures, and the common law of toxic torts. You will know how law is made and enforced by legislatures, administrative agencies, courts and civil society and you will be able to apply this knowledge to determine what the governing law is in an area where the law is actively changing. You will be able to find court decisions in free internet databases, analyze a judgment and report on the facts, the law applied by the court, and the judge s ruling (i.e., brief a case). You will develop a basic understanding of regulatory design. You will improve your writing, speaking and listening skills. Basis for Evaluation 10% Class participation: You are expected to be prepared and to make thoughtful contributions to class discussion. Class attendance is mandatory and more than two unexcused absences will result in points deducted from the final grade. RU absence reporting system should be used. 10% 2 short written assignments (there will also be two ungraded exercises) 80% 4 exams of equal weight Time Commitment: This class requires participation in every class. Exceptions may be made for emergencies or illnesses reported through the Rutgers system. The preparation time for class for most students will be 2-3 hours per class, or 6-9 hours of preparation per week. That is an average; some weeks it may be less, other weeks it may be more. Disability Services Statement: If you have a disability and require some type of instructional and/or examination accommodation, please inform me early in the semester of accommodations you need. If you have not already done so, register with the Office of Disability Services, the designated office on campus to provide services and administer exams with accommodations for students with disabilities. The Office of Disability Services is located in the Kreeger Learning Center, 151 College Ave, Suite 123, New Brunswick phone number Academic Integrity: I expect Rutgers students to behave with integrity. You can find a description of Rutgers academic integrity policy here: Please read it carefully so that you do not inadvertently engage in behavior that is a violation of the policy. In my experience, the norm is for students in my classes to behave with deep respect for their own

3 honor and integrity. The rare exceptions violate the mutual trust between students, and between students and faculty, and will not be tolerated. TOPICS AND ASSIGNMENTS ARE SUBJECT TO CHANGE - CHECK ON SAKAI Class Topic 1 Class introduction Why environmental law? 2 Multi-scalar view of law: local, state (NJ), federal, international jurisdiction Common law: environmental torts Finding the law (citation formats) Exercise 1 explanation 3 Common law: Elements of Toxic Torts, Liability 4 Common law: Remedies for Toxic Torts 5 Common Law: Causation, Science Introduction to regulation 6 The concept of public and private law Constitutional basis for regulation, and administrative law Introduction and Chapters 1&2 (read before first class) You can read most of this casually, but pay attention to the introduction and pages 25-36, Chapter 3 Pages This short article on recusal will be helpful to understanding the Comer case on pp 90-95: Gibeaut, John, Sitting This One Out, ABA Journal 18 (March 2012) [Sakai] Chapter 3 Pages Exercise 1 due: Finding the law, citation formats (ungraded) Chapter 4 Page Chapter 5 Exercise 2 due: Case briefing (ungraded) Pp Chapter 6 Pp Practice essay questions: applying the law to facts 7 FIRST EXAM Common Law: Toxic Torts Standing Constitution: due process, standing 8 Administrative Procedures Act Rulemaking Judicial review: standing, Structure of the courts and the government Chapter 6 (cont) Pp

4 agency record Go over First Exam 9 Federalism: Preemption, dormant commerce clause, cooperative federalism, international agreements in US law 10 Public Participation Legislative oversight National Environmental Policy Act (NEPA) 11 Water pollution: Clean Water Act Point Sources, TBELs & Cooperative Federalism 12 Water pollution: Clean Water Act Water Quality-Based Approach & Nonpoint Sources Safe Drinking Water Act Chapter 7 pp Exercise 3 due: finding a bill in THOMAS (ungraded) Exercise 4 due: citizen comment letter (graded) Chapter 8 pp Chapter 12 p Read the Average River: we will refer to it throughout this section Pp (skip comment 4, pp , which we cover in class 13) - Understand the basic mechanics of the CWA, including state and federal roles and point/nonpoint source distinction - Read comments 1-3, pp and identify the pros and cons of technology-based standards for water pollutants; if you were a state official responsible for providing swimmable, fishable, drinkable water to your citizens, and answerable to the governor s concern about the state s economy, what type of controls would you choose? - Useful tool, if you are having trouble understanding how the CWA works: Chapter 12 (cont), 9 pp How does CWA regulation of nonpoint source pollutants differ from the point source regime? pp Note how the SDWA differs from the CWA in its approach 13 Wetlands protection - pp comment 4, for the meaning of navigable waters, a widely used term with legal meaning in other contexts; then read the discussion of the Rapanos and SWANCC cases for the justices different approaches to defining it. - pp SECOND EXAM APA Federalism NEPA 15 Health and Pollution: Introduction to the Clean Air Act NAAQS, SIPs, CWA pollution and wetlands Chapter 11 CAA statute and regs Pp

5 NSPS Go over Second Exam 16 Health and Pollution: A. CAA - Setting health based standards (NAAQS); Criteria pollutants; Transboundary Air Flows; NJ SIP; attainment and nonattainment areas B. Environmental Justice 17 Clean Air Act technology-based standards, Hazardous Air Pollutants, NESHAPs Chevron test Climate change and CAA 18 Cost Benefit Analysis in Agency Rulemaking and Review of Regulations As you read, pay attention to the regulatory techniques used in the CAA; note the difference in treatment of stationary and mobile sources; and federal-state relations. Chapter 11 CAA statute and regs pp Review CAA; p. 497, note 3: think this through for discussion in class, focusing on the LAER and BAT standards Focus on the different types of pollutants and understand how they are regulated What are the different standards? LAER, BAT, RACT, BACT Look at the Summary of the Final Mercury Rule Pp Think about the following: What is the value of a human life? Who should decide what that value is? What is the worth of the future compared to the present? 19 CERCLA Chapter 16 pp Handout: Updating the law 20 CERCLA Chapter 16 pp , Chapter 18 pp (Brownfields) 21 RCRA Chapter 17 pp Environmental Chapter 18, pp , Enforcement 23 THIRD EXAM CAA health, pollution toxics, climate change CERCLA RCRA EJ Enforcement 24 Food TBD

6 25 Climate change TBD 26 Biodiversity, Endangered Species Act 27 Public Trust Doctrine NRDA 28 Deepwater Horizon: Offshore Oil regulation Fourth Exam 1) Pillsbury Client Alert: New Ruling Highlights Split on Strict Liability for Incidental Taking of Migratory Species (30 Jan 2012) [SAKAI] 2) Chapter 10: pp ; ESA 4, 7, 9 and 10 pp , how ESA and MBTA balance competing interests such as enforceability, flexibility, and effectiveness? pp ( 10, distinction between the ESA statute and its implementing regulations) pp , , adjustments to the ESA in recent years pp Exercise 5: Real estate developer s checklist (graded) Oil Pollution Act read definitions section [Sakai] JL Ramseur, Oil Spills in U.S. Coastal Waters: Background and Governance (CRS, Jan 11, 2012) [Sakai] Be prepared to answer these questions: Who will pay for damage to marine fauna in the Gulf of Mexico from the Deepwater Horizon oil spill? How will the cost of damage to natural resources be calculated? What statue(s) address oil spills in the Gulf of Mexico? What regulatory strategies do you recommend to address oil spills and why? Food Law ESA Public Trust OPA NRDA IEL