Tiered Structure of Regulation• Highest Authority in Land is U.S. Constitution

– Sets Charter for Federal Government Organization and appoints its powers

– Recognizes a so called Federal System in which authority and governance of certain issues are delegated to Sub Governments in Each State

• Beneath Authority of Constitution is Authority of Laws passed by process in Constitution

Tiered Structure Continued• Laws generally set standards of behavior,

penalties for non-compliance, mechanism by which operational details can be prescribed– Important to understand most laws do

provide for operational details

• Traditional Method of adding detail is by court action– Operational details of Mining Law of 1872

have been originally adding by litigation

U.S. Litigation Concepts• Constitution only said there would be a

Supreme Court and other courts designated by law– Congress built two lower teirs

• Appellate Courts to screen issues and avoid overload of Supreme Court

• Federal District Courts to hold trails

• Ruling of any court is binding on all lower courts in its Jurisdiction and set Judicial Precedent

Judicial Precedent

• Once court has ruled its decision is considered to set a legal standard for other courts to follow until law or Constitution is changed– Even though Appellate Courts and Federal

District courts don’t set binding law on courts outside jurisdiction the precedent stands for all

Delegation of Authority

• More recent laws have tried to find alternatives to detail formulation by lawsuit– Congress Delegates Detail and Enforcement

to Presidency or Secretaries in the Presidents Cabinet or to Agencies Set up by Congress that answer to Cabinet Secretaries

• Creates two alternate Structures by which details to the law are formulated

The 3rd Tier• Agency Charged with Monitoring and

Enforcing the law issues Regulations on how provisions of law are to be applied– Know this as Code of Federal Regulations or

CFR• CFR derives its authority from laws passed by Congress

and is inferior to• Federal Register puts out intended changes and provides

for public comment - ultimately agency decides

– Regulations may be challenged in court as to whether they apply the law

The Fourth Tier• Where Regulation does not prescribe needed

detail or is too slow to get a needed detail in place– Agency Directors, Cabinet Secretaries, or

President may issue an Executive Order to do something in a certain way

– Agencies may also form internal - semi-public guidance documents - in environmental law often say whether a specific mitigation technique fills a requirement

The Federal System

• U.S. Constitution Divided certain powers to Federal Government and certain to State– Most aspects of environmental

preservation and worker safety are under powers Constitution designated for States

– Constitution did allow for Congress enact laws for the general protection and good of the people - sometimes called elastic clause

A Practical Compromise

• In many Environmental and Worker Safety Laws Congress evokes the Elastic Clause

• Enact Laws that say all States shall have laws which as a minimum do certain things for general welfare of the people

• States are then required to enact parallel laws at least as strict as Federal (sometimes they just copy if its not an important state issue - some states have little mining)

Primacy

• Many Environmental Laws allow Executive Offices of State Government Parallel Programs to assume oversight and enforcement of the Federal Program– States that have taken over Federal Program

are considered to have Primacy– Federal Government may designate funds to

go to State Agencies (many State regulatory agencies are partially Federally Funded)

Tiered Primacy

• State Primacy Programs must be consistent with Federal Law and with Federal Regulations (ie - they are 4th Tier)

• States that have Primacy are reviewed by Federal Program Agency but are not directly subject to executive orders - executive orders may influence whether a state program is considered compliant to Federal Regulations

State Programs• State Programs and Agencies issue 5th tier of

regulations for their own programs– Have State Regulations Tier 5– Have State Executive Orders and Guidance

Documents Tier 6

• EXAMPLE - Surface Mining Control and Reclamation Act requires erosion controls– may be State Guidance Documents that say

staked hay bales in drainage ditch is a form of compliance.

Basic Framework and Structure

• Laws Governing the Right to Extract Minerals– (How does one come to own the resource

to be extracted)

• Laws Protecting the Continued Value of the Land from an Environmental Standpoint

• Laws Protecting the Health and Safety of the Workforce