Chapter 10 Environmental Policy, Law, and Planning

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Chapter 10Environmental Policy, Law, and Planning

• Understand the cycle by which policy is
  established
• Scrutinize collaborative, community-based
  planning methods

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I. Environmental Policy

• A. General Information
• Policy is a plan or statement of intentions
• Either written or spoken
• Public policy is the principles, laws, executive
  orders, codes or goals established by some
  government body
• Environmental policies are the rules and
  regulations concerning the environment that are
  adopted, implemented , and enforced by government
  agencies

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I. Environmental Policy

• B. Political Decision Making
• 1. Politics as power
• Manages group conflict by
• Establishing rules to ensure civil competition
• Encouraging compromises and balancing interest
• Codifying compromises
• Enforcing laws and rules

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I. Environmental Policy

• B. Political Decision Making
• 2. Rational Choice
• Utilitarian approach
• No policy should have a greater total cost than
  benefit
• Greatest benefit with least cost
• Considered applicable to public policy making

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I. Environmental Policy

• B. Political Decision Making
• 2. Rational Choice (cont.)
• Problems with utilitarian approach
• Values and needs are hard to compare
• Incomplete information
• Few broad social goals
• Many goals are group specific
• Politicians look at personal goals
• Increases power, status, money, and re-election

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I. Environmental Policy

• B. Political Decision Making
• 2. Rational Choice (cont.)
• Changes in current policies would mean lost
  money in previous ineffective path
• Future consequences are uncertain which causes
  people to stay with current polices
• Lack of scientific background reduces the ability
  to understand or cost out policies (current or
  new)
• Segmented policy making causes inefficient
  coordination of decisions

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I. Environmental Policy

• C. Policy Cycle
• 1. Looked at in stages
• Identify the problems
• Described either publicly or privately
• Set agendas
• Organize stakeholders
• Choose tactics
• Aggravate related issues
• Legitimate issues
• Develop proposals
• Determine preferred policy options

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I. Environmental Policy

• C. Policy Cycle (cont.)
• 1. Looked at in stages (cont.)
• Enact law or rule
• Implementation
• Government agencies carry out policy
• Monitor effectiveness
• Evaluate results
• Measuring impacts
• Suggest changes
• Based on results

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I. Environmental Policy

• C. Policy Cycle (cont.)
• 2. Specific Policies
• National Environmental Policy Act (NEPA)
• Cornerstone policy
• For birth policy and law
• Authorizes the Counsel on Environmental Quality
• Over sees general environmental conditions
• Directs federal agencies to take environmental
  consequences into account
• Requires an Environmental Impact Statement (EIS)
  for every federal project with significant
  environmental impact

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I. Environmental Policy

• C. Policy Cycle (cont.)
• 2. Specific Policies (cont.)
• National Environmental Policy Act (NEPA) (Cont)
• EIS is a powerful tool
• Requires environmental planning
• Causes environmental issues to surface that may
  have remained hidden
• Project must be federal and must be major
• Time consuming and costly

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I. Environmental Policy

• C. Policy Cycle (cont.)
• 2. Specific Policies (cont.)
• National Environmental Policy Act (NEPA) (Cont)
• Requirements for an EIS
• Purpose and need
• Alternative actions
• Statement of positive and negative impacts
• Also should look at short-term resources and long
  term productivity

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II. Environmental Law

• A. General Information
• Special body of official rules, decisions and
  actions
• Deals with environmental quality, natural
  resources and ecological sustainability
• Statute Law consists of formal documents and
  decrees
• Enacted by the legislative branch
• Case Law derived from court decisions in both
  criminal and civil cases
• Administrative law arises from executive orders
  administrative rules and regulations
• Can also be from enforcement decisions

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II. Environmental Law

• B. Brief History
• Originally laissez-faire
• Environmental degradation was unfortunate but
  necessary
• Rivers and Harbors Act of 1899
• Illegal to dump so much refuse that navigation
  was blocked
• Solution to pollution is dilution
• Environmental movement grew strong in the 1960s
• The book Silent Spring, caused an awakening in
  the U.S. (Rachel Carson)

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II. Environmental Law

• B. Brief History (cont.)
• In 1969, an oil well blew up in Santa Barbara,
  CA,
• This event led to the Clean Water Act of 1972
• Determined point-source and non point- source
  pollution
• 27 major law enacted during 1970s

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II. Environmental Law

• C. Statutory Law
• 1. General Information
• Created by the legislative branch
• Federal laws are enacted by Congress
• 2. Convoluted Path
• Bills are referred to committees
• Hearings and debate
• Approval in hearings will send the bills or bills
  to the full house or senate

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II. Environmental Law

• C. Statutory Law (cont.)
• 2. Convoluted Path (cont.)
• Goes through a floor debate
• Can still be amended
• House and Senate versions must be put together
• The bill is then re-debated
• If passed, the bill goes to the president
• If he vetoes, 2/3 vote of the House and Senate
  can override a veto
• If the president leaves it for 10 days, the bills
  becomes a law
• Unless Congress adjourns before the 10 days, does
  not become law

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II. Environmental Law

• C. Statutory Law (cont.)
• 3. Legislative Riders
• Authorizing bills can become law
• Appropriate bills can allocate money
• Supposedly for existing plans and laws
• Riders are appropriate packages attached to other
  bills that fund failed bills
• Riders are rarely debated

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II. Environmental Law

• C. Statutory Law (cont.)
• 4. Lobbying
• Groups of individuals attempting to persuade
  legislatures
• Many groups maintain offices in Washington, D.C.,
  and maintain professional lobbyists
• Local elections can help influence
• Media attention can help influence
• Advertisements
• Fundraiser events

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II. Environmental Law

• D. Case Law
• 1. General Information
• Created by the Judicial Branch
• Sometimes considered the most effective way to
  reexamine environmental issues and affect change
• Lawsuits are created to shape environmental
  policies
• Circumvent legislative slowness and politics

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II. Environmental Law

• D. Case Law (cont.)
• 1. General Information (cont.)
• The system rules on the constitutionality of
  statutes and interprets their meaning
• 2. Court System
• 96 Federal court districts
• Circuit court of appeals sits over district
  courts, in 12 geographic regions

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II. Environmental Law

• D. Case Law (cont.)
• 2. Court System (cont.)
• Trial court judges rule over trials, rules on
  motions, and decides questions of laws
• The first judge to hear a case, has the greatest
  latitude for interpretation
• Sets a precedent for further trials or cases
• Decisions are not binding from state to state
• Distinguished cases remove all precedents,
  because the case is deemed different
• correcting the law is when a judge overrides a
  previous decision that is directly applicable to
  the case

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II. Environmental Law

• D. Case Law (cont.)
• 3. Legal Threshold
• Standing do the litigants have a right to stand
  before the bar and be heard
• Must show they are materially affected by the
  action
• 4. Criminal law
• Derives from federal or state statutes that
  prohibit wrongs against the state or society

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II. Environmental Law

• D. Case Law (cont.)
• 4. Criminal Law (cont.)
• Violation of many environmental statutes
  constitute criminal offenses
• U.S. Supreme Court ruled that corporate officers
  could be held criminally liable under gross
  negligence
• In 1982, EPA created an Office of Criminal
  Investigation
• A Colorado company president was sentenced to 14
  years for knowingly dumping chlorinated solvents

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II. Environmental Law

• D. Case Law (cont.)
• 5. Civil Law
• Defined as a body of laws regulating relations
  between individuals and corporations
• Deals with property rights, personal dignity, and
  freedom
• Common Law is based on a body of previous court
  decisions
• Precedents establish a working definition

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II. Environmental Law

• D. Case Law (cont.)
• 5. Civil Law
• Tort law deals with cases of personal injury
• Seeking compensation for damages
• Civil cases are decided on the preponderance of
  evidence
• Environmental groups use this type of court
  hearings to receive payments for environmental
  clean up (Exxon Valdez oil spill)
• Also used to seek injunctions against individuals
  or corporations when environmentally sensitive
  areas are involved

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II. Environmental Law

• D. Case Law (cont.)
• 6. Other approaches
• Strategic Lawsuits Against Political
  Participation (SLAPP)
• People who criticize companies are sued in
  retaliation
• Mostly dismissed
• Very expensive to fight against
• Usually defamation lawsuits
• Used for intimidation

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II. Environmental Law

• E. Administrative Law
• 1.General Information
• Most municipalities have environmental oversight
  committees
• Set rules, adjudicate disputes, and investigate
  misconduct
• Executive agencies work under the jurisdiction of
  cabinet-level departments
• Ex. Agriculture, Interior, or Justice

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II. Environmental Law

• E. Administrative Law (cont)
• 1. General Information (cont)
• Orders can be formal or informal
• Formal cases are published in the Federal
  Register, gives all parties an opportunity to
  submit comments
• Formal cases have public hearings
• Rule making is complex
• Executive orders can be powerful agents for change

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II. Environmental Law

• E. Administrative Law
• 2. Regulatory Agencies
• Environmental Protection Agency (EPA) is the
  primary agency
• Cabinet level department
• 10 regional offices
• Must balance many competing interests
• Grew under President Jimmy Carter

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II. Environmental Law

• E. Administrative Law
• 2. Regulatory Agencies
• Department of Interior and Agriculture deal with
  natural resources
• Interior deals with the National Parks Service
• Responsible for 376 parks, monuments, historic
  sites, and recreational areas
• Houses the Bureau of Land Management, which deals
  with rangeland
• Houses the Fish and Wildlife Service, which deals
  with 500 wildlife refuges

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II. Environmental Law

• E. Administrative Law
• 2. Regulatory Agencies
• Agriculture is home for the U.S Forest Service
• Responsible for 175 National Forests and
  grasslands
• Department of Labor houses the Occupational
  Safety and Health Agency (OSHA)
• National Institute for Occupational Safety and
  Health (NIOSH) researches harmful chemicals and
  helps set environmental pollution policies

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II. Environmental Law

• E. Administrative Law
• 3. Administrative Courts
• 80 of the rules and regulations by EPA have been
  challenged in court
• Administrative courts hear challenges to agency
  rules and regulations
• Administrative judges consider the validity of
  the rule and its application to the case being
  heard
• Administrative court rulings can be appealed to
  the district court

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II. Environmental Law

• E. Administrative Law
• 3. Administrative Courts
• Can be overruled if
• The act is too vague or unconstitutional
• The agency has gone beyond the scope of power
• The agency didnt follow proper procedure
• Hear enforcement cases
• Violations of rule or standards
• Evidence rules are less strict

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III. International Treaties and Conventions

• A. General Information
• Nations are more willing to abide by global
  treaties of intervention
• Participation in all treaties is lacking
• Participation has increased over the last decade
• Most environmental treaties are non-binding
• Trade sanctions can be used to get signing
  nations to comply with the signed treaty

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IV. Dispute Resolution and Planning

• A. General Information
• Right v. Wrong, Good v. Evil approach to judicial
  system does not work for environmental issues
• Ecological, economical, and social parameters are
  also included in environmental issues
• Good and bad are truly relative and difficult to
  asses
• Must account for human interactions with nature

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IV. Dispute Resolution and Planning

• B. Problems and Adaptive Management
• Assumed the greater the information, the better
  the development of environmental laws and
  policies
• Not all environmental issues are straight
  forward
• What IS ecosystem health ?
• Wicked problems are environmental issues that
  dont have a clear answer

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IV. Dispute Resolution and Planning

• B. Problems and Adaptive Management
• Solutions are not value free solutions, nor
  objective answers
• Solutions contain choices
• Who is affected, who bears the cost, who bears
  the benefit
• Must obtain a consensus
• Impossible to know ALL of the variables

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IV. Dispute Resolution and Planning

• B. Problems and Adaptive Management
• Adaptive management may be the solution
• Known as learning by doing
• Dont always rely on the initial policy, must
  monitor and make adjustments