Environmental Law

Steven Dutch, Natural and Applied Sciences, University of Wisconsin - Green Bay
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Federal and State Power

Most Americans have at best a vague idea what's in the Constitution. For example, did you know that according to Article VII, Section II, if someone tries to sneak 11 items through an express lane with a ten-item limit, anyone behind him has the right to beat that person with a broomstick?

Well, no, and the point is that most Americans would have to look it up to be sure. But consider the following questions:

  1. To combat piracy, which is enjoying a resurgence in some parts of the world, the U.S. government authorizes private ship owners to attack pirate vessels, rather than using the Navy or Coast Guard. Can we do that?
  2. A notorious celebrity is so popular that he is inevitably acquitted of drug dealing and sexual assault, even in the face of overwhelming evidence. Could Congress simply pass a law sending this person to prison?
  3. Public frustration with the Supreme Court reaches such a pitch that Congress passes a law abolishing the Supreme Court. ¿Se puede?
  4. In response to violence along the lawless Canadian border, troops are sent to a border town. Due to a severe logistical problem during a bitter winter, troops have to be put up in private houses, and Congress passes a law to that effect. Is that permissible?
  5. If the Fifth Amendment prohibits being tried twice for the same offense, how come the officers in the Rodney King case were acquitted in State court and then convicted in Federal court?
  6. A state heavily reliant on illegal immigrant labor, and with a big Hispanic voter bloc, passes a law prohibiting Immigration from conducting activities in the state. Can it happen?
  7. Noting that the First Amendment says Congress shall pass no law abridging freedom of speech or the press, a state passes a law regulating broadcast content and argues that there's nothing in the Constitution to prohibit them from doing it. Will it stand?
  8. Puerto Rico votes for independence. Could it happen?
  9. If there's no double jeopardy allowed, how come some people have several trials?
  10. Apart from partisan politics, is there any reason Florida voters could not have been allowed to vote again during the contested 2000 Presidential election?


  1. Surprisingly, yes. Allowing private ship owners to wage war was a common practice into the early 1800's. Such people were called privateers and the documents that authorized them to do so were called "letters of marque and reprisal." Article I, Section 8 explicitly grants Congress this power.
        However, the practice was outlawed by treaty in the mid 19th century, and the U.S. is party to the treaty. So yes, it's Constitutional, no, we can't do it under international law, unless Congress rescinded the treaty.
  2. Nope. Condemning someone by legislative act is called a "bill of attainder," and is explicitly prohibited in Article I, Section 9. The reason the Constitution refers to things you never heard of is that they were common practice at one time. The reason you never heard of them is that the Constitution prohibited them and most other nations eventually followed.
  3. No way. Article III sets up the Supreme Court. The only way to abolish it would be to amend the Constitution.
  4. Qualified yes. This was one of the grievances that fueled the American Revolution and is prohibited by the Third Amendment. There have been almost no court cases involving this issue in all of U.S. history. But the amendment prohibits this practice "except in time of war," and "in a manner to be prescribed by law." So if the situation were bad enough to be considered "a time of war," it could happen.
        Seriously, the U.S. military excels in logistics, and it's very hard to imagine there's no school gym capable of billeting soldiers.
        [One of the very few cases, maybe the only one, ever involving this amendment was a 1982 New York case where prison staff living in State furnished quarters were temporarily evicted to make room for National Guardsmen during a prison disturbance. The court found in favor of the staff and lamented that the total lack of precedent made the decision difficult.]
  5. Civil rights violations can be prosecuted even after acquittal, because it was once common for even flagrant crimes against minorities to result in acquittal. The legal theory is that the violation of civil rights is a Federal issue separate from the State criminal issue, even though the two offenses happened concurrently. It is, frankly, a way of getting around abuses of double jeopardy without opening the floodgates to repeated prosecution for the same offense.
  6. You gotta be kidding. Federal laws explicitly override State laws (Article VI). No organization with a chain of command can allow things like that.
  7. In your dreams. The Fourteenth Amendment says the Constitution applies in all the states, and the courts have evolved the doctrine of "incorporation," that all Constitutional rights apply at the state and local level even if they formally refer only to Congress. Also, broadcasting is interstate commerce and that's Federal turf.
  8. Why not? The Civil War showed states can't secede by force, but if we all agreed to let a state secede peacefully, we could find a way to make it happen. And Puerto Rico isn't even a state. We occupied the Philippines for fifty years and then gave them independence.
  9. Appeals and retrials are considered to be part of a single overall process. If you're acquitted or the case is dismissed they can't touch you again (see 5, though).
  10. Yep. Article II, Section 1 of the Constitution says that Presidential election day "shall be the same throughout the United States." It would have required a national election.

Since a lot of environmental law revolves around the powers of the Federal government and the courts, it's a good idea to understand the Constitution first.

From 1781 until the Constitution was ratified in 1789, The United States was ruled by a weak government under the Articles of Confederation. The presiding officer of Congress was called "President of the United States in Congress Assembled," so technically ten people were President before George Washington. None of the ten became President under the Constitution. Most famous of the ten was John Hancock (November 23, 1785 – May 29, 1786), the guy who wrote big. The issues that the Constitutional Convention had to wrestle with included:

  • Need for strong central government versus concern over loss of autonomy.
  • Large states versus small states. Congress, with a Senate (all states equal) and House of Representatives (proportional), expresses the compromise. So does the Electoral College, which gives extra weight to small states.
  • Constitutional restrictions on Federal authority

Article II of the Articles of Confederation lays out clearly the fundamental difference between the Articles and the Constitution:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

Congress could make war, regulate coinage, resolve disputes between states, and appoint ambassadors, and that was about it. Canada, interestingly, was pre-approved for admission to the U.S. Virtually all the powers granted to Congress by the Articles were incorporated in the Constitution, often in the same language.

It's that word "expressly" that was different. The Constitution left it out, leaving wide discretion to the states but also creating a vast gray area where Congress could also act. Under the Articles, Congress was not expressly granted the right to regulate the purity of food or create a National Park System, and therefore it could not. Under the Constitution, Congress was likewise not expressly granted those powers, but neither was it expressly forbidden to exercise them.

The Biggest Misconception About the Constitution

The word "democracy" appears nowhere in the Constitution. Instead, the Constitution requires that the States be guaranteed a republican form of government. A republic is a government where decisions are made by elected representatives rather than direct vote. It's pretty difficult to have a pure democracy in anything bigger than a small village or a model railroad club. Wholly apart from the practical difficulty of holding popular votes on national legislation 200 years ago, a republican form of government seeks to have decisions made by people who have the time and intelligence to make informed choices. Meh. So how's that been working?

A republic need not be democratic. The Venetian Republic of the Renaissance wasn't. The representatives were selected by the wealthy class, and they'd better act as their backers wished, because nobody was better at back-stabbing, figuratively and literally, than the Venetian elite. The Soviet Union styled itself a union of republics, and it was, in the sense that laws were debated by representatives, but the representatives were chosen by the Communist Party and rubber stamped by the voters, and it wasn't democratic. All of the "democratic" nations of the world, including the U.S., are actually democratic republics.

Federal Powers in the Constitution

Create new States
This is a legacy of the Northwest Ordinance, the greatest accomplishment of the Articles of Confederation government. Citizens of all states have the same standing as those of the original 13. The U.S. thus avoided the fatal error of Rome, which viewed everyone outside of Rome itself as second class. We eventually make our own fatal mistake, but at least it won't be this one.
Regulate bankruptcy
The states cannot prevent a company or individual from declaring bankruptcy if the person meets Federal guidelines.
Coin Money and Prosecute Counterfeiting
Here the gray area worked in reverse for a long time. Congress had the power to coin money, but throughout much of the 19th century there was a lot of local and private money around as well, for example, notes issued by banks. That worked in an era when travel was limited and people were familiar with the local banknotes, but just imagine going to Key West and trying to pay for a meal with a note from Louie's Savings and Loan of Tacoma. For that matter, it's still perfectly legal to mint private coins and even trade them for something of value, if both parties agree. The coins just don't have any legal force. You can't force someone to accept a privately minted coin.
Post offices
Attempts by private carriers to challenge the ban on private delivery of first-class mail have run smack into a stone wall. The power to set up a postal service is explicitly granted to the Federal government. End of story.
Patents and Copyrights
Copyright and patent cases are by definition Federal. The recent extension of the duration of a copyright was unsuccessfully challenged in the Supreme Court. Some justices felt that the extended duration infringed on free speech, but most agreed there really are no limits set in the Constitution on the duration of a patent or copyright.
Income Taxes
We did this to ourselves. In the original Constitution, the only taxes that could be levied were fixed per capita. By 1900, it was obvious the United States had grown too big and complex to govern without more money and in 1913, the 16th Amendment gave Congress the right to collect income taxes.

Federal Power Within The States

Conditions Attached to Federal Funds
Probably the most pervasive use of Federal authority within the States is through conditions attached to Federal funding. To obtain Federal funding, universities have to follow equal-opportunity laws, highway projects have to survey for archeological remains and endangered species, and so on.
Right to regulate Federal lands
Although the power is not explicitly defined in the Constitution, the Federal Government is the largest landowner in the United States, and has the same rights as any other landowner to decide how to use its lands, including selling it, leasing it, trading it, or giving it away. In the east, most land was private, and in the central U.S. most land was given away or sold for homesteading, but large areas of the far west are still Federally owned. There are political pressures to transfer Federal lands to the States, so far without success. Frankly, retaining ownership of Western lands was the smartest thing the United States ever did.
The Federal government has jurisdiction over national defense and thus has the right to create defense installations.
Dealing with Indian Tribes
The Constitution and Federal Law give Indian tribes some measure of sovereignty and thus remove them to some extent from State jurisdiction. The most conspicuous application of this sovereignty in recent years has been the right of tribes to operate casinos and sell tobacco without State taxes.
Interstate Commerce
The most important environmental effect of this right is the power to regulate navigable waterways. One of the first environmental protection laws prohibited the dumping of refuse in navigable waterways. In fact, one of the very first uses of Federal regulatory power was the use of power over navigable waterways to enact safety regulations for river steamboats, which were blowing up with distressing regularity.
    Beginning in the 1930's, the Interstate Commerce clause has been the basis for far-reaching Federal regulation. It began with child labor. Attempts to regulate child labor had been struck down repeatedly because there was no Constitutional authority for Congress to regulate it. A formal Constitutional amendment was actually in the process of ratification. Then the Supreme Court upheld the right of Congress to regulate interstate commerce in goods produced by child labor. The amendment became a dead issue. By the 1930's, essentially all commerce was interstate, so this power gives the Federal government extremely broad authority to regulate workplace safety, minimum wages, price-gouging, and so on.
14th Amendment
The Fourteenth Amendment, passed after the Civil War, closed some loopholes by stating explicitly that the Constitution applied within the states, and that citizens of the United States are citizens of the states where they live. It also mandated due process for all, and forbade discrimination in legal proceedings.
    For a very long time the 14th Amendment was applied in a reactionary way. For example, it was used to justify injunctions against strikes, on the grounds that a strike deprived a factory owner of the use of his property without due process. And it failed to stop discrimination because the Supreme Court ruled that "separate but equal" facilities for blacks and whites were acceptable (although they were rarely equal).
    In 1954, Brown vs. Board of Education overturned legalized segregation and the 14th Amendment has been broadly applied since then. "Due process" has been held to apply to any adversarial proceeding, not just court cases. For example workers being fired or students being disciplined have due process rights.
    In the name of protecting civil rights, the 14th Amendment is the basis for Federal equal-opportunity laws and equal-housing laws that apply even at local levels.

Ironically, one issue not addressed in the Constitution at all was secession. Up till the Civil War it was widely held that states could not only join the union, but also leave. Not long before the Civil War there was a secession movement among northeastern states because they were frustrated with the continued toleration of slavery. There's nothing explicit to prohibit secession in the Constitution.

The Civil War showed states can't secede by force if the rest of the country is willing to fight hard enough to stop them. It's intriguing to wonder what might have happened if the southern states had tried to secede through legal channels, say by introducing a Constitutional amendment or petitioning Congress. When applying for statehood, Alaska analyzed the pros and cons of all options, including secession (presumably by peaceful means and with consent).

In 1869 the Supreme Court ruled, in Texas vs. White, that unilateral secession was unlawful. The issue was over whether certain acts by the Texas government during the war had any legal standing. The vote was 5-3 and the logic, to put it mildly, strains the wording of the Constitution severely.

Federal Authority

The Constitution is the supreme law of the United States because it says it is. Article VI reads:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The judge in Alabama who refused to obey a Federal court ruling to remove a courtroom display of the Ten Commandments was flatly in violation of this article (blue), and was removed from office.

The last sentence in red states explicitly that no State has the power to nullify the Constitution or Federal Law. Thus no state can nullify, say, the Civil Rights Act of 1964, or the Endangered Species Act, or Federal income taxes. However, no state can nullify the Patriot Act, or forbid the FBI from operating within the state, or prohibit lawsuits against downloading copyrighted works, either.

The Supreme Court

The Supreme Court is the only court explicitly required in the Constitution. Article III. Section 1 says:

 The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Congress can and has created lower courts. "Inferior" here simply means "lower," although sometimes one wonders...  Article III. Section 2 defines the jurisdiction of the Court (slightly modified for Web pages, since they didn't have bullet points in 1787).

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States….

  • to Controversies between two or more States (state lines, reciprocity agreements, jurisdiction over cases involving offenses in both states, extradition, etc.)
  • between a State and Citizens of another State (Repealed by 11th Amendment, one of the least known amendments. The actual effect is to make states immune from many suits in Federal court).
  • between Citizens of different States
  • between Citizens of the same State claiming Lands under Grants of different States
  • between a State, or the Citizens thereof, and foreign States, Citizens or Subjects

Limits on the Supreme Court

Although checks and balances on the Supreme Court are less extensive than the President's right to veto a bill, or Congress' to override the veto, they do exist. Article III, Section 2 states:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

First, you can't go directly to the Supreme Court except under limited circumstances. Second, Congress can limit the jurisdiction of the court. Two cases where this happened are "no knock" drug laws, where police can enter premises without knocking if they have reason to believe evidence will be destroyed, and most important environmentally, the legislation enabling the trans-Alaska pipeline. These have not been challenged in court because they were designated off-limits. This power is sparingly used, but it does exist.

In Article II, Section 2, the President....

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court.....

So the President appoints but the Senate consents. So when people say there's something wrong with the President trying to shift the ideological balance of the Supreme Court, or the Senate trying to prevent it, that's the way it's supposed to work. Changing the ideological balance of the Supreme Court is one of the few checks and balances on the Supreme Court.

The Most Mysterious Feature of the Constitution

The Electoral College: What Were Those Guys Thinking?

  • Term "Electoral College" not used in Constitution
  • Electors meet in their own states, hence no national meeting
  • Electors appointed by State Legislatures (but delegated to voters in all states now)
  • If election goes to House of Representatives, each State gets one vote
  • Conclusion: Intent was that States, not the people, elect the President
  • It has been speculated that the hope was Congress would decide most elections.

The Mysterious Eleventh Amendment

The eleventh amendment to the Constitution, passed in 1798, reads:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

At first glance this seems like a minor tweak. Why did we go to the trouble of removing this one area from Supreme Court jurisdiction by amending the Constitution, only a decade after the Constitution itself was ratified?

There's a lot more here than meets the eye. The original text of the Constitution omits any mention of suits between a citizen and his own state. This one closes off the only remaining avenue for citizens to sue states in Federal court. Basically, the Constitution says that the primary venue for suits between citizens and states is state courts.

But it doesn't say "The Judicial power of the United States shall not extend ..." It says "The Judicial power of the United States shall not be construed to extend." In other words, the courts can't invent a reading of the Constitution that gives them jurisdiction, but there's nothing to prevent Congress from giving them jurisdiction, which it has in many cases.

Suits by individuals against states in Federal court are based on alleged violations of the Constitution by states, for example violation of due process in criminal appeals. But attempts by individuals to challenge state laws on novel grounds are often turned back. In recent years the Federal courts have refused to intervene in state cases involving alleged unfairness in hiring or firing.

The environmental impact of this amendment is potentially significant. If your state simply refuses to enforce some state law on environmental protection, you won't be able to get a Federal court to force them to enforce a state law. If you hope to force some novel broad interpretation of state law in Federal court, you will probably not succeed. If the state violates a Federal law, then the courts have jurisdiction, but if it's a purely state matter, they don't.

The Bureaucracy

Article III, Section 2 of the Constitution goes on to say:

.... but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Constitution implicitly assumes that below the level of legislation there will be a broad area of administrative regulation. The existence of departments is assumed and Congress has the power to let them appoint subordinates. The Constitution doesn't say Congress can grant agencies the power to adopt regulations, but neither does it forbid them to.

Surface Water Law

Riparian Ownership

  • Riparian ownership (Latin, ripa, riverbank) is the prevailing doctrine in Europe, and the Eastern U.S.
  • All owners of water frontage have rights to the water. Generally this doctrine works best in areas of abundant water where scarcity is not a serious issue.
  • Owners must return the water to the water body, at least in theory. Running a water mill is clearly permissible. Watering crops is permissible even though much of the water soaks into the ground or evaporates. Filling a pond is debatable, especially if the filling interrupts the flow significantly. Extracting large amounts of water to transport elsewhere is not permissible.
  • Usage is supposed to be “beneficial use,” a term with fuzzy meaning. Mostly the use is not supposed to overtax or damage the water supply. Dumping waste or allowing cattle to muddy the water is not beneficial.
  • In many countries, long-subdivided properties developed into strip lots (common in France) to maintain access to the water for all land owners.
  • Generally don’t own water body (unless completely enclosed or artificial)
  • Wisconsin “public trust” and attempts to restrict. Present Wisconsin law holds that water bodies are held in public trust. Current law allows anyone to walk in a stream regardless how small. There have been proposals to restrict the public trust to streams capable of floating a personal water craft, a move that would allow landowners to bar access to many small streams.
  • Generally, coastal lands are public below the high tide line, but not everywhere. In Washington, for example, some tide lands are privately owned (for shellfish harvesting) though conflicts over access are uncommon.

Prior Appropriation

  • First come, first served
  • Primarily Western U.S.
  • Potentially better for arid regions
  • Failure to live up to promise

California Doctrine

  • Mixture of Riparian and Prior Appropriation
  • State can appropriate water

Groundwater Law

  • Rule of Capture (England)
  • “Occult” Ground water
  • Reasonable Use
  • Prior Appropriation (Western U.S.)
  • Correlative Rights (Proportional to land area)
  • Riparian

Mining Law of 1872

  • Love it or hate it
  • Purpose was to encourage mining and Western settlement
  • Minimal requirements for mining activity
  • Could purchase Federal land for $2.50-$5 per acre
  • Price locked into legislation
  • No reclamation requirements
  • Miners love the law because low costs and minimal requirements are locked into the law; environmentalists hate it for the same reasons.

Later Mining Laws

  • Mineral Leasing Act (1920)
  • Mineral Leasing Act For Acquired Lands (1947)
  • Outer Continental Shelf Lands Act (1953)
    • Apply mostly to fossil fuels and fertilizers
    • Land leased, not purchased
    • Royalties paid
    • Metals not covered

Mine Reclamation

  • Surface Mining Control and Reclamation Act (1977)
  • Applies only to coal
  • Requirement to restore land to original form and productivity
  • May not be strictly possible (after all, a large volume of rock has been permanently removed)

The “Takings” Controversy

  • Amendment V –No person shall….be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  • What is “due process?”
  • Is Zoning “taking for public use?”
  • Is Regulation “taking for public use?”
    •  Con: Never was interpreted that way before
    •  Pro: Regulations are increasingly invasive

Law of the Sea Treaty (1982)

  • Territorial Waters Expanded to 12 miles (20 km)
  • 200 mile Exclusive Economic Zone
  • U.S. voted against treaty
  • Reagan proclaims US EEZ 1983
  • What to do about overlaps of EEZ’s

  • Antarctic Treaty 1961
    • Territorial claims set aside, not relinquished
    • U.S., Russia recognize no claims
    • Overlap between British, Argentine, Chilean claims
  • Convention for the Regulation of Antarctic Mineral Resources Activities (1988)
    • Opposition to CRAMRA in U.S.
    • Concern over opening Antarctica to exploitation
  • Antarctic Protection Act (1990)
    • Prohibits U.S. mineral exploitation
    • Several nations (including U.S.) regulate tourism and research activities

Patterns of Environmentalism

  • 1890-1910: John Muir, Sierra Club, Teddy Roosevelt
  • 1930’s: “Dust Bowl,” CCC, New Deal
  • 1970’s: Earth Day
  • 1990’s: Kyoto Accords, Global warming

Environmental Science 342: Environmental Geology
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Created 26 April, 2006, Last Update 14 December 2009

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