7. Courts

Article III, Section 2, US ConstitutionThe judicial power shall extend • to all cases, in law and equity, arising under this Constitution, the

laws of the United States, and treaties made, or which shall be made, under their authority;

• to all cases affecting ambassadors, other public ministers and consuls;

• to all cases of admiralty and maritime jurisdiction;• to controversies to which the United States shall be a party;• to controversies

– between two or more states;– between a state and citizens of another state;– between citizens of different states;– between citizens of the same state claiming lands under grants of

different states, and – between a state, or the citizens thereof, and foreign states, citizens or

subjects.

Dual Court System

Types of Court

• Supreme Court• Circuit Court

– Federal Circuit: jurisdiction over certain topics (patents, international trade)

– DC Circuit: jurisdiction over federal agency decisions.

– 11 Regional Circuits• District Courts (Trial Courts)

Dual Court System

• Trial courts make Findings of Fact: what happened?

• Circuit and Supreme courts make Findings of Law: given the Facts, how does the law apply?– Findings of Law are binding on lower courts in the

same jurisdiction

Opinions

Types of law

• Civil Law: grounded in abstractions (freedoms, rights) encoded in codes (constitutions)

• Common Law: grounded in precedents set by previous individual cases. Emerges organically.

Standard of Review• Narrow Control : The ‘Hard Look’ standard.

– Administrative Procedures Act of 1946: Regulations must be based in serious fact-finding, not “arbitrary, capricious, and otherwise not in accordance with the law.”

– Example: 1969 National Environmental Policy Act• Deference: The ‘Chevron Two-Step’ or

‘Reasonableness’ standard.– Regulations must not violate explicit will of Congress.– But if Congress has not spoken, courts defer to any

“reasonable” decision clearly based on facts.

Deference to Statute or Deference to Regulation?

“For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of ‘defer[ring] to an agency’s interpretation of its own regulations’… deference encourages agencies to be vague in framing regulations, with the plan of issuing ‘interpretations’ to create the intended new law without observance of notice and comment procedures.”

J. Scalia, Decker v. NEDC, 3/20/13

Ripeness

1) Is the disagreement over actions, rather than principles or abstractions?

2) Is there actual or imminent harm being done?

If neither, the controversy may not be “ripe” for legal review.

Standing: “Who can sue?”

To be able to sue, you must demonstrate:1) Injury2) Causation3) Redressability

“Should Trees Have Standing?”“We are inclined to suppose the rightlessness of rightless ‘things’ to be a decree of Nature, not a legal convention acting in support of some status quo. … We have been making persons of children although they were not, in law, always so. And we have done the same, albeit imperfectly some would say, with prisoners, aliens, women (especially of the married variety), the insane, Blacks, foetuses, and Indians.”

C. Stone, 1972

Citizen SuitsAny citizen may commence a civil action on his own behalf(1) against any person (including (i) the United States, and

(ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this Act or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator.

Clean Water Act §505(a)

Standing: Sierra Club v. Morton, 1972

“The critical question of ‘standing’ would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage.”

Justice Douglas, dissenting

Citation of Legal Documents

3 Kinds of Rulebooks:• Statutes: US Code (USC)• Regulations: Code of Federal Regulations (CFR)• Court Reports (opinions)

Each are continuously added to and modified by new laws, new regulations, and new court decisions.

Statutes (USC)

• Bill number: HR 1134• Public Law number: P.L. 92-500 §404• USC number: 33 USC 1344

• 51 Titles (volumes), each with many Parts• US Code Annotated

Regulations (CFR)

• CFR has 50 titles – not the same as USC titles• 33 CFR 240.91• Federal Register

Court Opinons

• Each court system has its own Court Reporter• Short title: Brown v. Board of Education• Citation: 347 US 483 (1957)• Federal Circuit: 89 F.3d 827 (1972)

– Or 988 F.Supp.5d 214 (1989)• Federal District: 133 E.D. Wis 54• State Courts: Vary widely.• Legal journals: 54 Harv. Law Rev. 255

Remedy

• Miscellaneous Receipts Act• Supplemental Environmental Projects

Toxics and Liability: “Whom do I sue?”

Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA, or “Superfund”)

1) Established the “Superfund”, a tax levied on the chemical industry which funded cleanup of contaminated sites

2) “Shovels First, Lawyers Later”: CERCLA allows the EPA to clean up quickly, and then makes it very easy to recover the costs of cleanup from any potentially liable parties.

No regulatory permit program. Just Shovels and Money.

Liability under CERCLACERCLA establishes Strict, Joint, Several and Retroactive

liability for toxic waste• Strict: actual negligence or intent does not have to be

shown.• Joint: liability can be shared by more than one party• Several: any party or group of parties can be held liable

for the entire problem• Retroactive: Existing problems can be pinned on

corporations or individuals with no statute of limitations.

• “Piercing the Corporate Veil”

Superfund Budget

0

500

1000

1500

2000

2500

3000

3500

Million $

General Revenues Share

Trust Fund Share

Superfund Appropriation

Superfund Trust Fund only used in the 30% of cases in which no liability can be established.

Red: Active site Yellow: Proposed site Green: Cleaned-up site (EPA 2010)

Sites on the CERCLA National Priorities List (NPL)

CERCLA sites

• 41% drop in cleanup activity when GHW Bush took office in 2001.

• 38 active Wisconsin sites on the NPL, 1 proposed, 6 resolved.

"In my entire life I have not seen a law as unfair as Superfund, because all it did was punish people who acted legally,"

Bill Kovacs, US Chamber of Commerce

Resource Conservation and Recovery Act of 1976 (RCRA)

1) Cradle-to-grave manifest system for tracking waste2) Total technological control over any facility which

Transports, Stores or Disposes of toxic waste

What substances are regulated?• “Listed” substances (Heavy metals, radioactive waste)• Anything Ignitable, Corrosive, Reactive, Toxic

RCRA• 1980 Bevill Amendment exemptions:

– Household wastes– Wastes from energy mining

• Adds to the expense for anyone who deals in toxics• RCRA has largely ended:

– ocean dumping of toxics– diluting of toxics with more mundane landfill

wastes– use of substandard and dangerous disposal sites

• Forward-looking

Information on Toxics

• 1976 Toxic Substances Control Act (TSCA)• 1986 Emergency Preparedness and

Community Right-to-Know Act (EPCRA)– Toxic Release Inventory– TOXMAP: linked to demographic data

Two Legal Approaches

A) The legal system exists to ensure individual freedom

B) The legal system exists precisely because of the failures of individuals acting alone

Public Trust Doctrine

“[T]he river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor.”

Wisconsin Constitution, Article IX, Section 1