Chapter: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1. Introduction to the Legal System
1.1 Structure of Government
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.
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.
1.2 Federal Government
The U.S. federal government is comprised of three branches: the executive branch ; the legislative branch ; and the judicial branch.
The executive branch includes the President, the Vice President, the Cabinet and all federal departments, and most governmental agencies. All executive power of the government is vested in the President, who serves a four-year term. U.S. Const. art. II, sec. 1, cl. 1. The President is the Commander in Chief of the military, U.S. Const. art. II, sec. 2, cl. 1, and has primary authority over foreign affairs. The President has the power to make treaties, but only with the approval of two-thirds of the U.S. Senate.. The President also has the power to nominate all Supreme Court Justices, all other federal judges, ambassadors, and all other officers of the United States. U.S. Const. art. II, sec. 2, cl. 2. The President has the power to veto legislation. The Vice President is also the President of the Senate, but votes only in the case of a tie vote in the Senate. U.S. Const. art. I, sec. 3, cl. 4. The Vice President serves the same four-year term as the President. U.S. Const. art. II, sec. 1, cl. 1.
The President selects the heads of the 14 government departments. These departments are not specified in the Constitution and have varied in name and number over time. They now are the Departments of State, Treasury, Defense, Justice, Interior, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, Energy , Education, and Veterans Affairs . The heads of the departments form the Cabinet , which is the highest advisory group to the President. The executive branch also includes dozens of government agencies . The primary difference between agencies and departments is that agencies serve a very specific need. Government agencies include, for example, the Environmental Protection Agency (EPA), the Consumer Products Safety Commission , the Federal Trade Commission, and the National Labor Relations Board. The Administrator of the Environmental Protection Agency, the head of that agency, is not a member of the Cabinet.
All federal legislative powers are vested in the Congress of the United States, which consists of two chambers: a Senate and a House of Representatives. U.S. Const. art. I, sec. 1. There are 100 Senators, two from.each of the fifty states. Senators serve six-year terms. U.S. Const. art. 1, sec. 3, cl. 1, amended by U.S. Const. amend. XVII, sec. 1. The House of Representatives has 435 members, which are apportioned by population, with each state guaranteed at least one Representative. U.S. Const. art. I, sec. 2, cl. 3, amended by U.S. Const. amend. XIV, sec. 2. Representatives serve two-year terms. U.S. Const., art. I. sec. 2, cl. 1.
The powers of the Congress are specifically enumerated in the Constitution and include, among other things, the power to lay and collect taxes, duties, and tariffs. U.S. Const. art. I, sec. 8, cl. 1. Congress also has the power to regulate commerce with foreign nations, among the several states, and with Indian tribes. U.S. Const. art. I, sec. 8, cl. 3. This "Commerce Clause" provides the authority for most federal regulation of the environment.
To become law, a bill must be passed by both the House and the Senate, and signed by the President. The President has the option of vetoing the legislation, but the Congress can override the veto with a two-thirds vote of both chambers. U.S. Const. art. I, sec. 7, cl. 2.
The Congress also has substantial powers in overseeing the activities of the executive branch. The House of Representatives has the sole power to impeach the President and other officers, and the Senate the sole power to try impeachment. U.S. Const. art. I, sec. 2, cl. 5 & sec. 3, cl. 6. U.S. Congressional committees may demand disclosure of information and require agency officials to testify before them. The Congress has also established the General Accounting Office (GAO), which evaluates executive branch activities and reports back to the Congress. Most GAO reports are public documents.
Much of Congress' work is done by Congressional committees. The number and scope of Congressional committees can change, particularly when political control of the chamber changes parties and when the jurisdiction of committees overlaps, as is often the case. In the Senate, the following committees currently have jurisdiction over issues relating to environmental protection or natural resource conservation: the Agriculture, Nutrition, and Forestry Committee; the Appropriations Committee; the Commerce, Science and Transportation Committee; the Energy and Natural Resources Committee; the Environment and Public Works Committee; and, the Governmental Affairs Committee. In the House of Representatives, the following committees have jurisdiction over environmental protection or natural resource conservation: the Agriculture Committee; the Appropriations Committee; the Commerce Committee; the Government Reform and Oversight Committee; the Resources Committee; the Transportation and Infrastructure Committee; and, the Science Committee.
The federal judiciary is hierarchical. The highest court in the United States, and the only one required by the Constitution, is the United States Supreme Court. U.S. Const. art. III, sec. 1. The Supreme Court's decision is the final decision in any case. The Supreme Court has nine members: a Chief Justice and eight Associate Justices. The Supreme Court has limited original jurisdiction, hearing most of its cases on appeal. U.S. Const. art. III, sec. 2, cl. 2. In most cases, the losing party must petition the Court through a writ of certiorari to hear the case. The Court votes first on the writ, requiring four yes votes to hear the case.
The Circuit Courts of Appeals are the level of courts immediately below the Supreme Court. The Circuit Courts hear appeals from the District Courts, the lowest level of federal courts. There is one Federal Circuit Court, one D.C. Circuit Court, 11 other Circuit Courts, and more than 90 District Courts. The Congress has also established several courts that address special types of cases. Cases from these courts are appealed to the U.S. Court of Appeals for the Federal Circuit. These include the U.S. Court of Federal Claims , the U.S. Court of International Trade , the U.S. Court of Veterans Appeals , the International Trade Commission, the Board of Contract Appeals, the Patent and Trademark Office, and the Merit Systems Protection Board. Cases from. the Court of Military Appeals are appealed directly to the Supreme Court. The statute creating the lower federal courts and defining their authority is the Judiciary Act, 28 U.S.C. secs. 1- 2680.
All federal judges are appointed by the President and approved by the Senate. Federal judges hold their office for life, subject to impeachment by Congress. They have authority to interpret the Constitution, all federal statutes, treaties, and federal administrative rules, but their authority is limited to actual cases and controversies. U.S. Const. art. III, sec. 2, cl. 1. The federal courts do not provide advisory opinions. The federal courts also have authority to naturalize persons as U.S. citizens and to settle certain legal disputes, such as: between citizens of different states; between two or more states; between individuals and the federal government; between states and the federal government; and, between states and foreign governments.
1.3 Subnational Governments
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.
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.
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 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.
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).
1.4 Sources and Hierarchy of Law
The Constitution of the United States is the "supreme law of the land;" it provides the basis for the U.S. government, and guarantees the freedom and rights of all U.S. citizens. No laws may contradict any of the Constitution's principles and no governmental authority in the U.S. is exempt from complying with it. The federal courts have the sole authority to interpret the Constitution and to evaluate the federal constitutionality of federal or state laws.
Treaties entered into by the United States are also considered the supreme law of the land pursuant to the U.S. Constitution, as are federal laws. In the case of a conflict between a treaty and a federal statute, the one that is later in time or more specific will typically control. Treaties are often implemented by federal statutes. See Section 25: Transboundary and International Issues.
Federal Statutes are published first in Slip Law, then in the Statutes at Large, and subsequently in the United States Code. An example of a cite to a federal statute is: 42 U.S.C. sec. 9607, which would refer to title 42, section 9607 of the U.S. Code. Federal statutes may be challenged in federal court.
Agency Rules and Executive Orders
Federal administrative bodies issue rules and regulations of a quasi-legislative character; valid federal regulations have the force of law and preempt state laws and rules. Rules and regulations may be issued only under statutory authority granted by Congress. The President also has broad powers to issue executive orders. An executive order is a directive from the President to other officials in the executive branch. Proposed and final rules, executive orders, and other executive branch notices are published daily in the Federal Register. No person may be subject to any rule that is required to be published in the Federal Register and is not so published. 5 U.S.C. sec. 552(a)(1). Rules may be challenged in federal court. The federal courts have sole authority to review agency rules and actions to ensure that they are legal under the substantive federal statute. See Section 1.6: Role of the Executive in the Law-Making Process; and, Section 1.7: Role of the Courts. An official citation to the Federal Register includes the volume, page number and year, for example, as follows: 43 Fed. Reg. 11,110 (1978). Final administrative rules are published first in the Federal Register and then in the Code of Federal Regulation. An example of an official citation to the Code is: 40 C.F.R. pt. 260, which refers to title 40, part 260 of the Code of Federal Regulations.
The United States is a common law country. Every U.S. state has a legal system based on the common law, except Louisiana (which relies on the French civil code). Common law has no statutory basis; judges establish common law by applying previous decisions (precedents) to present cases. Although typically affected by statutory authority, broad areas of the law, most notably relating to property, contracts, and torts, are traditionally part of the common law. These areas of the law are mostly within the jurisdiction of the states, and thus state courts are the primary source of common law. Federal common law is relatively narrow in scope, being limited primarily to clearly federal issues that have not been addressed by a statute.
Reported decisions of the U.S. Supreme Court and of most of the state appellate courts can be found in the official reporter of the respective courts. Those decided from.at least 1887 to date can also be found in the National Reporter System, a system of unofficial reporters. Decisions of lower state courts are not published officially, but can usually be found in unofficial reports. When referring to a case, a citation typically includes the name of the case and the volume and pages of the reporter, as well as the date. For example, as follows: Kleppe v. New Mexico, 426 U.S. 529 (1976). Citations to federal courts of appeals are found in volumes abbreviated F., F.2d, or F.3d, and district courts are in volumes abbreviated F. Supp. The decisions of other specialized federal courts such as claims of bankruptcy decisions are also reported.
The system for citing state cases is similar. A correct citation would be: Wagen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W. 2d 437 (1980), meaning the case was decided in 1980, and is found on page 260 of volume 97 of the second series of Wisconsin State Reporters (the official reporter), as well as on page 437 of volume 294 of the second Northwestern set of the National Reporter System.
State Constitutions and Statutes
State constitutions are the supreme law within the state. State statutes must conform to the respective state's constitution. All state constitutions and legislation can be preempted by federal legislation or the federal Constitution. See Section 1.1: Structure of Government. Municipal charters, ordinances, rules, and regulations apply only to local issues; either state or federal law typically can preempt them.
To ensure uniformity in citation styles for all law-related publications or writings, most citations to legal sources in the United States follows the Uniform System of Citation, also known as the Bluebook. The Bluebook is updated every few years by a consortium of law schools. Among other things, the Bluebook provides the abbreviations for all state and federal courts, statutory compilations, and administrative rules.
1.5 Role of the Legislature in the Law-Making Process
The U.S. Congress has exclusive authority to enact federal legislation. The process by which a proposed bill becomes a law can be very complex and take years. (For more detailed information)
Introduction of Bills
Bills may originate in either the House of Representatives or the Senate, unless a bill involves raising revenue, in which case it must originate in the House of Representatives. U.S. Const. art. I, sec. 7. Only Senators and Representatives (also known as Members of Congress) can introduce a bill in their respective chamber. When bills are introduced, they are given a bill number. The numbering system starts over with each session of Congress, and bill numbers run in chronological order according to when the bill is introduced. Bills in the House of Representatives are given the initial H.R., and Senate Bills are given the initial S. Thus, H.R. 1, would be the first bill introduced in a new session of Congress or the House of Representatives (a session of Congress lasts for two years).
After a bill is introduced, it is assigned to one or more committees in the chamber where it was introduced. A committee can amend, rewrite, recommend, or ignore the bill, or report to the full chamber with no recommendation. Committees typically also submit a report explaining their views of the bill when sending a bill to the full House or Senate. (For more information)
Floor Debate and Vote
Once the bill has emerged from committee consideration, it moves to the "floor" of either the House of Representatives or the Senate (again depending on where the bill was introduced). The entire chamber then debates and may amend the bill. The chamber then takes an open vote on the bill. For non-controversial votes, the chamber will take a voice vote, but if any legislator asks for a roll call, then each member's vote is made separately and publicly.
Passage in Both Chambers
If the bill passes the first chamber, it is sent to the other chamber where the process described above is repeated. If the bill is amended in the second chamber, it must be sent back to the first chamber because both chambers must agree on the amendments. If the two chambers cannot immediately agree on how to pass identical legislation, the bill will be sent to a joint committee (comprised of both House of Representatives and Senate members), which will attempt to work out a compromise among the different versions of the bill. If the joint committee is successful, the bill will be returned to both chambers for a vote.
Overriding a Presidential Veto
Once an identical bill passes both the House and the Senate, it is sent to the President, who can do the following: (1) sign it, thus creating a law; (2) do nothing and after 10 days, if Congress stays in session, it becomes law; (3) do nothing and if Congress adjourns within 10 days, it does not become law; or (4) reject the bill by vetoing it and the bill will not become law unless the veto is overridden by Congress. Congress may override the President's veto by approving the bill again with at least a two-thirds majority vote in both the House and the Senate. The bill then becomes a law despite the President's veto.
Public Access to Information
All floor debates and votes are published the following day in the Congressional Record. Legislators can review the Congressional Record before it is published to change or add a statement. The Government Printing Office publishes committee reports for major legislation separately. In recent years, many committee hearings, floor debates and votes have been broadcast live through C-SPAN (Cable Satellite Public Affairs Network), a cable television network that provides twenty-four hour coverage of public affairs.
The state legislatures act in much the same way, although the process for enacting a bill within the legislatures is often more streamlined. Every state legislature, except Nebraska's, has two chambers. Most governors have veto power over state legislation, analogous to the veto power of the President.
Unlike the federal government, several states also allow for citizen initiatives. In some of these states, citizens can hold a direct vote on a specific proposed law. In other states, citizen initiatives may force the legislatures to vote on an issue. To get a specific initiative on the election ballot or on the legislature's docket typically requires that organizers collect a certain number of signatures of eligible voters.
1.6 Role of the Executive in the Law-Making Process
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.
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.
1.7 Role of the Courts
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.
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.
1.A Legal Instruments
United States Constitution
Administrative Procedure Act (APA), 5 U.S.C. secs. 551-559,
|Last update: September 2003|