Teaching Substantive Environmental Law and Practice Skills Through Interest Group Role-Playing

Most law students take their first introductory course in environmental law during their second year of law school. The traditional first-year curriculum does little to prepare students for the complex statutory and regulatory models for most environmental regulation. Law students at the end of their first year often have had little exposure to statutory interpretation. Further, they often have no exposure to administrative law and regulatory implementation. These students may expect statutes to provide clear statements of rules rather than guidelines for administrative rulemaking. They also tend to view the lawmaking and interpretive process through the traditional lens of congressional legislation and common-law-style judicial interpretation in a bipolar scheme of implementation--where the regulatory agencies and the regulated industries are the only players. In fact, environmental regulatory programs constantly evolve through a complex interaction of legislative amendment, administrative rulemaking, and judicial interpretation. Influencing these programs are the multipolar interaction of regulated industries, environmental groups, state agencies, and federal regulators. Law students accustomed to the bipolar model of common-law legal development and who expect statutory law to consist of a simple reading of clear statutory texts can find this interest group pluralist model of law development bewildering. One way to help give context to this complex interaction is to place students in the roles of the various advocates and decision-makers in the environmental law processes. Assigning students to adopt the perspective of various distinct players in the regulatory process, such as agency lawyer, industry lawyer, and environmental NGO lawyer, helps make this complex interaction more accessible to students. This also provides an introduction into the skills of statutory interpretation and regulatory implementation. At Pace Law School, we have had considerable success integrating this approach into an Environmental Law Skills course. This course combines a comprehensive study of the Clean Water Act (CWA) regulatory program with skills-based exercises in administrative rulemaking, judicial review, regulatory permitting, negotiation, and enforcement. The course was added to the curriculum in the 1990s in response to the growing recognition by the legal academy that the traditional case-oriented method of instruction failed to result in law graduates with basic competencies expected of lawyers. The course has been refined over the years to incorporate the Carnegie Report\u27s more recent critiques: the legal education\u27s failure to foster students\u27 development of their professional identities and their understanding of lawyers\u27 role in representing clients. By integrating role-playing, problem solving, and doctrinal instruction, the course seeks to engage students in active learning and professional identity development. The course also seeks to implement recommendations for the improvement of legal instruction contained in Professor Stuckey\u27s influential 2007 report, Best Practices for Legal Education. In particular, the course seeks to “teach doctrine, theory, and practice as part of a unified, coordinated program of instruction” as recommended in that report

The Missing Element of Environmental Cost-Benefit Analysis: Compensation for the Loss of Regulatory Benefits

Despite its critics, cost-benefit analysis remains a fixture of the environmental regulation calculus. Most criticisms of cost-benefit analysis focus on the impossibility of monetizing environmental and health amenities protected by regulations. Less attention has been paid to the regressive wealth-transfer effects of regulations foregone based on cost-benefit analysis. This regressive effect occurs as long as downwind communities that suffer health and harms from environmental contamination are generally less wealthy than the owners of pollution sources that avoid regulatory-compliance costs. The availability of compensation to pollution-victims has the potential to ameliorate this regressive effect. This Article recommends that the availability of compensation to those suffering environmental harms should be an essential part of cost-benefit analysis, and the lack of compensation mechanisms should justify imposing regulatory burdens that might otherwise be rejected under cost-benefit analysis

Direct Environmental Standing for Chartered Conservation Corporations

This article suggests that, as an antidote to the ever-tightening restrictions on individual environmental standing, a state may charter a not-for-profit corporation organized to protect a particular environmental resource, giving the corporation a non-exclusive portion of the State\u27s interest in enforcing applicable environmental protections. The dichotomy between not-for-profit organizations that may litigate only as the representative of individual members\u27 interests, and business corporations that assert their own direct economic interests, may seem natural to our late-twentieth-century sensibility, but is not founded in original intent. The framers of Article III, which grants jurisdiction over “cases and controversies” to the federal courts, would have seen the latter day business corporation as something of an oddity. Most incorporated entities during the eighteenth century were religious institutions, municipalities, and government franchisees. In fact, the now ubiquitous business corporation did not become commonplace until the early nineteenth century, as government franchise corporations expanded to include incorporation of private businesses. To the framers, then, the concept of a corporate entity asserting community interests in natural resources on its own behalf would have been no more alien than the concept of a corporate entity asserting private business interests

Citizen Litigants Citizen Regulators: Four Cases Where Citizen Suits Drove Development of Clean Water Law

One of the key innovations of the 1970s regulatory environmental revolution was the provision for citizen enforcement of regulatory standards. This innovation upset the previous bipolar regulatory model, which was a two-way negotiation between the regulated industries and the (often captive) regulatory agencies. By removing agency enforcement discretion as a means of underenforcing statutory norms, the citizens suit brought a new constituency to the regulatory bargaining table. The citizen suit had the intended effect of implementing a regime of full enforcement of the new environmental norms. But the revolutionary effect of the newly minted citizen suit was not limited to full enforcement of environmental norms. By allowing environmental interests to bypass the agency regulatory process and proceed directly to court to enforce statutory standards, the citizen suit allowed citizens to play a primary role in the development of environmental jurisprudence, bypassing the administrative rulemaking process and resulting judicial deference to agency interpretations. In a radical shift from the classic administrative law model, where the responsible agency answered questions of first impression and review of its answers was highly deferential, the citizen suit provided nongovernmental organizations to opportunity to develop their own interpretations of the environmental norms and test these interpretations in enforcement actions in the courts as a matter of first impression. Citizen enforcers thus necessarily took on the role of citizen regulators as well, developing interpretations of statutory standards and enforcing these citizen-generated interpretations directly against violators before judges untainted by regulatory accommodations negotiated in a prior rulemaking process. This article examines the role of citizen enforcement litigation in the development of the Clean Water Act law and implementation of the Clean Water Act regulatory scheme. The essay will focus on four examples where citizen enforcement litigation under the Clean Water Act had the effect of initiating the regulatory process, drawing responses from both EPA and the Congress. These case studies will include enforcement litigation brought against underenforced Clean Water Act regulation of pesticide application, water transfers, land application of CAFO wastes, and sport shooting ranges

The Intercivilizational Inequities of Nuclear Power Weighed Against the Intergenerational Inequities of Carbon Based Energy

This essay explains that such encouragement of nuclear energy production as a “solution” to fossil fuel-induced climate change will create environmental problems equally as grave as those posed by a carbon-based energy economy. Both nuclear energy and fossil energy impose enormous environmental externalities that are not captured by the economics of energy production and distribution. While emissions trading schemes seek to harness market-based efficiencies to accomplish pre-determined reductions, they neither seek to nor succeed in capturing the environmental externalities of energy generation. By creating a set of incentives without capturing all of the externalities, these trading schemes will simply distort the market, possibly leading to a worse overall damage to the environment than global warming by itself. Ultimately, nuclear power production as an alternative to carbon-based energy production simply presents a choice of evils. Efforts to reduce carbon emissions must not come at the expense of distorting energy markets in a way that exacerbates the equally insurmountable problems posed by the multi-millennial storage of hazardous nuclear waste

Ideological Plaintiffs, Administrative Lawmaking, Standing and the Petition Clause

In the 1992 Lujan v. Defenders of Wildlife decision, Justice Scalia declared that business interests subject to regulation had automatic standing to challenge regulations in court, but that where “the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” This article explores the impact this differential standard for court access has on ideologically-motivated public interest plaintiffs, and suggest heightened scrutiny of standing rules under the Petition Clause of the First Amendment based on the viewpoint differential effect of current standing doctrine. This effect is most pronounced, and the argument for a new Petition Clause approach to standing is strongest, where public interest plaintiffs seek to challenge agency rulemaking action as being insufficiently protective

Legal Realism, Innate Morality, and the Structural Role of the Supreme Court in the U.S. Constitutional Democracy

The classical rationale for judicial review of the constitutionality of legislative and executive acts is based on a deterministic assumption about the nature of constitutional legal rules. By the early twentieth century however; American legal realists persuasively questioned the determinancy of law in general and posited that indeterminate cases were decided by judicial intuitions of fairness. Social science research has discovered that self-identified liberals and conservatives predictably place different relative values on different shared moral intuitions. At the same time, neurological research suggests that humans and primates implement decisions before the cognitive parts of the brain are even aware that the subject has made a decision potentially negating the role of cognitive reason in intuitive human decision making. Combining these three behavioral insights - that of the realist the psychologist, and the neurobiologist - seems to undercut the classical justification for judicial review by unelected judges. If intuitive ideology rather than reasoned application of rules controls much judicial decision making, then the Supreme Court has no more authority to issue biding interpretations of the Constitution than those branches of government whose ideological leanings are more directly subject to political controls. Nevertheless, the Supreme Courts structural role as a potential restraint on unconstitutional government action and as the ultimate arbiter of constitutional disputes, together with institutional and political restraints on judicial activism, leaves an essential practical role for judicial review in the U.S. constitutional system

Public Trust Limits on Greenhouse Gas Trading Schemes: A Sustainable Middle Ground?

There is a some consensus among economists, environmentalists, and politicians that some form of “cap and trade’ program is the appropriate regulatory mechanism to achieve the greenhouse gas emissions reductions necessary to avoid disastrous global climate disruptions. “Cap and trade” programs necessarily incorporate tradable emissions rights – essentially tradable rights to pollute. As such, they run into principled objection by some environmentalists who oppose the notion of creating economic rights in the global commons – essentially the “right to pollute.” This principled objection derives doctrinal support from the public trust doctrine – the ancient notion rooted in common law and Roman law that certain public resources such as flowing water, shorelands, and the air are not susceptible of private ownership, but are instead held by the sovereign “in trust” for the benefit of the public. This article will consider practical and principled arguments for and against emissions trading as a global warming solution as well as the application of public trust principles to greenhouse gas cap and trade. I conclude that, at least under the mature version of the public trust doctrine that prevails in U.S. law, a cap and trade system is not irreconcilable with a cap-and-trade greenhouse gas emissions control program, but that the legacy interests underlying public trust doctrine preclude cap-and-trade programs that exceed sustainable levels of greenhouse gas emissions. Under this approach, all cap-and-trade systems for regulating greenhouse gas emissions proposed to date would exceed public trust limits based on sustainability (including the First Implementation Period of the Kyoto Protocol)

Protecting the Public Fisc: Fighting Accrual Abuse with Section 446 Discretion

This Note suggests an approach under the current Code and current legal doctrine that would enable the Commissioner to disallow accrual accounting when manipulated to avoid taxation. At the outset, the Note defines and illustrates tax avoidance through accounting manipulation. The Note then considers within the framework of judicial review of agency action the source and nature of the Commissioner\u27s discretion to reject accounting methods. This analysis demonstrates the validity of the Commissioner\u27s action whenever it is based on legally relevant factors. The Note then develops the emerging content of the “clearly reflect income” language as the source of the legally relevant factors, and concludes that the relationship between the notion of “income” and taxation according to ability to pay supports the Commissioner\u27s rejection of an accounting method manipulated to avoid normal payment of tax

Is Citizen Suit Notice Jurisdictional and Why Does It Matter?

The question of whether notice is jurisdictional or not has important ramifications for citizen suit litigation. The characterization of the notice requirement as “jurisdictional” implicates the proper procedure for raising notice objections, the means of curing notice defects, the question of waiver of notice objections, and the timing of raising notice objections. This article will conduct a brief review of the case law concerning the jurisdictional nature (or not) of the notice requirement, a consideration of the as-yet unnoticed impact of Steel Co. on the issue, and a discussion of the procedural and litigation ramifications of characterizing the notice element as “jurisdictional.