Summary of Environmental Law in the United States

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1 Introduction to the Legal System

 

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1.1 Structure of Government

 

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The United States is a republic that operates under a federalist system. The national government has specific, enumerated powers, and the fifty sovereign states retain substantial autonomy and authority over their respective citizens and residents. Both the national government and each state government are divided into executive, legislative, and judicial branches. Written constitutions, both federal and state, form a system of separated powers, checks, and balances among the branches.

National-Subnational Relations

Any powers not delegated to the federal government in the U.S. Constitution, nor prohibited by it to the states, are reserved to the states or to the people. U.S. Const. amend. X. Nonetheless, the powers of the federal government are extensive. The federal government's authority to regulate interstate commerce, U.S. Const. art. I, sec. 8, cl. 3, makes it the predominant force in environmental regulation. The states, under their general police powers to protect the public health, safety and welfare, also retain substantial independent authority to issue environmental protection laws applicable to their citizens and residents.

Potential conflicts between state and federal regulation in all areas, including environmental protection, are governed by the Supremacy Clause of the United States Constitution. U.S. Const. art. VI. The federal Constitution, federal laws, and international treaties are supreme to state or local law; state and local laws that contradict federal laws or treaties are thus preempted and can be declared unconstitutional by a federal court.

Although the Constitution sets forth the basic framework for national and subnational relationships in the U.S., many environmental statutes add detail to specific aspects of those relationships within the broader constitutional framework. For example, federal statutes might explicitly preempt, or explicitly waive any preemption of, state law. See, e.g., Toxic Substance Control Act (TSCA), 15 U.S.C. sec. 2617; Clean Water Act (CWA), 33 U.S.C. sec. 1370; Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. sec. 9614; and Resource Conservation and Recovery Act (RCRA), 42 U.S.C. sec. 6929. Some federal environmental statutes create national minimum standards delegating primary implementation of federal programs to states that meet certain federal standards. States are free to enact stricter regulations. See, e.g., CWA, 33 U.S.C. sec. 1370; RCRA, 42 U.S.C. sec. 6929. When a state is delegated federal authority, the U.S. Environmental Protection Agency (EPA) and the state will sign a Memorandum of Agreement establishing their respective responsibilities and necessary procedures. Many federal environmental statutes also provide for grants, technical assistance and other support to assist the states in furthering national policies or programs. See, e.g., TSCA, 15 U.S.C. sec. 2627; CWA, 33 U.S.C. sec. 1329 (h). A U.S. citizen can be subject to both federal and state law on environmental issues.

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1.3 Sub-national Governments

 

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Each of the fifty states in the U.S. share certain characteristics: each government is based on a written constitution, which cannot contradict the federal constitution; each has a republican form of government comprised of the same three branches (executive, legislative and judicial) as the federal government and containing a similar system of checks and balances, and separation of powers. Within these broad similarities, however, there can be significant differences in governmental structures among the various states.

A governor heads the executive branch of every state; the governor is in charge of running the government and implementing state laws. The governor's authority includes: developing and proposing legislation to the state legislature; overseeing the state's national guard; calling special sessions of the state legislature; and, pardoning persons convicted of state crimes. The length of a term served by a governor varies but is usually two or four years. A state governor oversees the state administrative agencies, including those agencies relating to environmental protection, wildlife conservation, or natural resource management.

State Legislatures

Every state has a legislature with two chambers, except Nebraska, which has only one. All state legislatures serve the same purpose: to represent the citizens of the state in making laws concerning state issues. State legislative terms vary, but are typically two or four years. Unlike federal laws, state laws only apply within a state's borders.

State Judiciaries

All state judiciaries are hierarchical, like the federal system. State systems are made up of a Supreme Court (sometimes with a different name), usually an intermediate appellate court, and a series of lower courts or trial courts, sometimes including specialized courts. State judiciaries interpret state laws and apply them in specific disputes relating to state law; they determine whether a state crime has been committed; they evaluate the constitutionality of state laws under the state constitution; and they review the legality of state administrative rules under state statutes.

Local Government

Local governments, unlike state governments or the federal government, are not directly defined by a constitution, though many state constitutions determine the process for creating a local government. For example, although many state constitutions determine the process for creating a local government, in many states, the state legislature must vote on the charter for any local government structure. Local government structures may vary, but they typically include counties, cities, villages, and townships. City governments most commonly include an elected mayor, which is the chief executive, and a city council, which acts much like a legislature. Villages and townships are often found in more rural areas; they may have a structure similar to that of a city or be run by a commission. Most states are divided into counties, usually with an elected board of county commissioners or supervisors. There may also be other elected county officials, including sheriffs or county executives. In addition, many special purpose delegates carry out such functions as education and, sometimes, environmental regulation.

Local governments, including cities and counties, often have important environmental responsibilities, such as managing solid waste, ensuring clean drinking water, developing and enforcing land-use plans, inspecting local restaurants and other establishments for health and safety, and providing emergency services and planning. More generally, local governments have the power to tax, to enact and enforce local ordinances, and to administer the local aspects of certain state and federal programs.

Native Governments / Aboriginal Peoples

Under the U.S. Constitution, Native Americans have significant rights of self-government that stem from their own sovereignty. Among other powers, tribal governments have the power to tax, to pass their own laws, and to have their own courts. Nonetheless, the general rule is that federal laws of general applicability apply equally to Native Americans and their property. Federal Power Commission v. Tuscarora, 362 U.S. 99, 116 (1960); U.S. Department of Labor v. Occupational Safety and Health Administration, 935 F.2d 182 (9th Cir. 1991). Exceptions to this general applicability of federal law apply where Congress intended to exempt Native Americans, where the issues relate to the core of Native American self-governance and self-organization, or where application would abrogate rights guaranteed by Native American treaties. Even in these areas, however, Congress can expressly apply a statute to Native Americans.

Many of the federal environmental laws have specific provisions explaining how the law applies to Native American tribal lands. The provisions vary, but typically grant to Native American tribal governments similar rights and responsibilities as those granted to states. See, e.g., CWA, 33 U.S.C. sec. 1377; Safe Drinking Water Act (SDWA), 42 U.S.C. sec. 300j-11; Clean Air Act (CAA), 42 U.S.C. sec. 7601(d); CERCLA, 42 U.S.C. sec. 9626; and Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. sec. 1300.

The Bureau of Indian Affairs (BIA) is the primary federal agency charged with carrying out the trust responsibility of the United States to Native American tribes. The trust relationship stems from.treaties and agreements between the government and Native American tribes. This trust includes the protection and enhancement of Native American lands and the conservation and development of natural resources, including fish and wildlife, outdoor recreation, water, range land, and forestry resources. BIA was created in the War Department in 1824, and transferred to the Department of the Interior in 1949. In addition, the trust responsibility generally applies to all other federal agencies as well.

State Laws

Native American tribes are not usually subject to state law except under very limited circumstances. See Cabazon Band of Mission Indians v. California, 480 U.S.202 (1987).

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1.6 Role of the Executive in the Law-Making Process

 

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The U.S. Executive Branch is responsible for implementing most laws passed by the Congress. Agencies in the executive branch issue rules, make adjudications, and provide other opinions and guidelines in an effort to implement the laws. The Administrative Procedure Act (APA) governs these activities.

The President also has the power to issue executive orders. Executive orders are Presidential directives governing actions by other federal officials and agencies. Only the Constitution and federal statutes limit the President's authority over the executive branch.

Notice and Comment Rulemaking

Under the APA, any agency decision that sets binding obligations or standards for a class of people is a "rule." Rulemaking is particularly important in technical areas, such as environmental law, where the Congress has historically delegated broad discretion to the agencies to implement the statutes. Most administrative rules go through a process known as notice and comment rulemaking. Before issuing most rules, the agency must issue a notice of proposed rulemaking in the Federal Register. This notice must describe the proposed rule and give the public at least thirty days to provide comments. After receiving the comments, the agency can issue a final rule, along with a general statement describing the rule's authority and purpose. Because the agency is required to consider all non-frivolous comments, the agencies will often respond to comments in issuing a final rule. Rules made by regulatory agencies have the force and effect of legislation. Any interested party that participates in the rulemaking can challenge the legality of the rule in a court. See Section 1.4: Sources and Hierarchy of Law; Section 1.7: Role of the Courts; Section 6.1: Participation in Law-Making.

Adjudications

The second major type of agency action is adjudication. Adjudications occur where the agency is making a binding, case-specific decision, such as siting, permitting, or licensing a particular activity or facility. In such instances, the agencies are acting like courts in making decisions that settle specific disputes between parties or between the government and a party. Under the APA, these adjudications must be made "on the record after opportunity for a hearing." Any party to the adjudication can typically appeal the decision for judicial review. See Section 1.7: Role of the Courts.

State Administrative Procedures

State agencies operate similarly. Every state has an administrative procedures statute, which provides procedural rights for affected parties and for the public. Many of these are based on a Model State Procedures Act.

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1.7 Role of the Courts

 

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The role of the judiciary is to decide cases and controversies between adversarial parties, including the government. Through the concept of stare decisis, judicial decisions in U.S. jurisdictions can act as binding precedent for subsequent decisions. In most cases, when an appellate court makes a decision it not only decides who wins the specific case, but also provides a detailed written opinion that explains the basis for the court's decision to guide lower courts in handling future cases.

Every level of the federal courts has the power to interpret the Federal Constitution and federal laws and regulations. The courts also exercise judicial review over federal statutes and agency actions, and determine the constitutionality of federal and state laws. To the extent any statute or agency action is found to be unconstitutional, it is invalid. Federal courts also interpret federal legislation and federal agency rules and decisions.

Judicial Review of Agency Action

Many federal environmental statutes provide specific standards for judicial review of agency actions under the statute. See, e.g., 42 U.S.C. sec. 7607; 42 U.S.C. sec. 6976; 15 U.S.C. sec. 2618. In the absence of any specific statutory review procedures, the constitution grants a general right of judicial review of any adverse, final agency action. The reviewing court can decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the agency action. The reviewing court has the authority to compel any agency action that is unlawfully withheld or unreasonably delayed, or it may set aside any agency actions, findings, or conclusions the court finds to be: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) adopted without procedures required by law; (E) unsupported by substantial evidence in administrative cases; or (F) unwarranted by the facts to the extent that the facts can be reviewed by the court. Many judicial challenges to administrative agency rules go directly to a court of appeals and are not further tried by the district courts. 5 U.S.C. secs. 701-706.

Judicial Procedures

All courts follow a strict set of procedural requirements. In 1938, the Supreme Court promulgated the Federal Rules of Civil Procedure, which are periodically updated and renewed by the U.S. Judicial Conference. They are uniform in all federal jurisdictions, although each federal court may also adopt additional rules. Every state court has its own set of rules, which are typically not as detailed or strict as the federal rules. In courts of original jurisdiction, judges are usually provided with juries to decide all questions of fact. The right to a jury is generally guaranteed by the federal Constitution in federal cases, and state constitutions typically contain similar provisions that apply in state cases.

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2003