Legislation dealing with and often designed to protect the natural and physical surroundings the air, earth, and water in which humans, other animals, and plants exist, or with the plants and animals themselves.
Recognizing that technical expertise is necessary to implement environmental public policies, legislators have delegated considerable policy-making power to administrative agencies. Federal environmental legislation is often written in very general terms to provide considerable discretion to administrative agencies in the administration and enforcement of environmental law. The agencies’ use of this discretion is subject to challenge in the judicial system. Industry groups and environmental organizations often challenge the processes and rationale by which agency decisions are made and the agencies’ interpretation of the words and concepts in the legislation. Judicial interpretation of constitutional provisions and legislative acts permitted the federal government and federal regulatory agencies increased authority in regulation of environmental issues. Requests to the court system for judicial administrative oversight and for interpretation of legislation have allowed industry and environmental organizations to delay implementation of administrative decisions, to obtain specific policy goals within the context of environmental legislation, and to encourage legislative amendments and administrative alterations to environmental legislation.
Until the late 1960’s, control of land use, pollution, and environmental nuisances was limited to state and local laws implemented under the police powers
Beginning with the enactment of the National Environmental Policy Act
The NEPA was intended to force nonenvironmental agencies to include environmental considerations in making agency decisions by requiring environmental impact statements (EIS) for government projects and by allowing citizens to sue in federal court when government agencies failed to fully assess environmental impact. Citizens used the judicial process to delay permitting for private and governmental projects affecting the environment. These delaying actions raised the costs of the proposed projects but also provided the time and the incentive for industry and government to review and modify their original proposals to lessen unfavorable effects on the environment.
Subsequent suits brought to the Court gradually eroded the effectiveness of environmental impact statements. For example, in Kleppe v. Sierra Club
Andrus v. Sierra Club
The Federal Water Pollution Control Act of 1972
The Court also interpreted the wording in the 1972 act to erode previous federal common-law remedies available to downstream citizens affected by upstream pollution. In Illinois v. Milwaukee
Other Court decisions effectively reduced the authority of the EPA to limit water pollution, prevented citizens from suing for damages, limited citizen standing to sue in order to require agencies to implement environmental protections, and provided public policy gains for polluting industries and municipal governments at the expense of citizens living downstream.
The Clean Air Act Amendments of 1970
The Court made other decisions concerning Clean Air Act enforcement that reduced the impact of the act and provided considerable relief to industry. In Chevron, U.S.A. v. Natural Resources Defense Council
Congress passed the Resource Conservation and Recovery Act
The Constitution’s Fifth Amendment mandate that private property may not be taken for public use without just compensation (the takings clause) was applied by the Court in Nollan v. California Coastal Commission
During most of the late twentieth century, the Court permitted Congress and federal agencies to increase the number of environmental issues addressed through law and regulation and generally upheld agency discretion in interpreting and applying rules and regulations.
James P. Lester’s text Environmental Politics and Policy: Theories and Evidence (Durham, N.C.: Duke University Press, 1995) describes the role and interrelationships among branches of government in environmental law. Two general works on land-use law that touch on environmental issues are David J. Frizell’s Land Use Law (3d ed. Eagan, Minn.: Thomson/West Group, 2005) and Polly J. Price’s Property Rights: Rights and Liberties Under the Law (Santa Barbara, Calif.: ABC-Clio, 2003). Gregory McAvoy’s Controlling Technocracy: Citizen Rationality and the NIMBY Syndrome (Washington, D.C.: Georgetown University Press, 1999) examines the so-called not-in-my-backyard attitude that often complicates environmental planning. Nancy K. Kubasek describes the administrative law and judicial adversary processes for resolving a variety of environmental disputes in a basic text aimed at an audience with little legal or scientific training in Environmental Law (Paramus, N.J.: Prentice Hall, 1996). Stephen R. Chapman’s Environmental Law and Policy (Paramus, N.J.: Prentice Hall, 1998) describes the formulation, application, and interpretation of laws, rules, and regulations to resolve specific environmental problems. Better Environmental Decisions: Strategies for Governments, Businesses, and Communities (Washington, D.C.: Island Press, 1998), edited by Ken Sexton and others, reviews a variety of decision-making styles, discusses some legal issues related to each, and recommends improvements for more effective decisions. Other books describing environmental case law include Jeffrey Graba’s Environmental Law (St. Paul, Minn.: West Publishing, 1994), Rosemary O’Leary’s Environmental Change: Federal Courts and the EPA (Philadelphia: Temple University Press, 1995), Robert V. Percival’s Environmental Regulation: Law, Science, and Policy (New York: Little, Brown, 1996), and Benjamin Davy’s Essential Injustice: When Legal Institutions Cannot Resolve Environmental and Land Use Disputes (New York: Springer Verlag, 1997).
Commerce, regulation of
Euclid v. Ambler Realty Co.
Missouri v. Holland
Nollan v. California Coastal Commission
Public use doctrine