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Session 3

The Practice of Environmental Protection: 

(Instrument Choice; The Administration of Environmental Protection; Constitutional Issues in Environmental Policy; How Citizen Groups Shape Environmental Law)


Environmental Policy & Law   Chapter 3: The Practice of Environmental Protection


Class Assignment:

Read the assigned text chapter first and then go through the class topic list and related links below. Be prepared to be examined session 10 on any or all of the environmental terms, concepts and cases below found in chapter 3 or in the section below. 


For this week's homework, briefly describe (no more than 200 words per case) the issues at stake within any two of the the following important judicial cases: (In preparing for this assignment, you should review the link provided for this course to help you analyze case law). Be aware that for the exam you will need to be familiar with all of these cases.

Class Topics:


Instrument Choice

  1.  Too Much or Too Little Environmental Protection Via EPA

  2. Common Law versus Civil Law 

  3. Enacted Law versus Common Law

  • Enacted law is more encompassing and can address problems in one fell swoop:  Legislatures have ex ante approach; can think about proper incentive creation, an eye to the public good.)

  • Common law is ad-hoc, decided on case-by-case basis and accumulation of precedent. (Courts are not in a position to best understand public good or future effects of rules).

  1. Environmental Law, Common Law and Regulation: Review the slide set linked to this item. 

  2. The Concept of Property Rights 

  3. Property Rights and Environmental Sustainability 

  4. Prescriptive Environmental Regulation or Command and Control Regulation

  5. Market Instruments (a.k.a. Economic Instruments) & Environmental Law.

  6. Information Production & Dissemination & Environmental Law 

  7. Environmental Protection & Instrument Design

  8. Major Criticisms Directed toward Environmental Laws:

  9. Unintended Consequences: Example: Endangered Species Act reform

  10. Fairness & Environmental Law 

  11. Common's Ignorance: 

The Administration of Environmental Protection

  1. Basics of Administrative Law: "separation of powers," "scientific expertise,"  "technocrats," "interest group," "public choice theory,"  "Administrative Procedures Act"  "rulemaking;"  "adjudication."

  1. Overview of Administrative Law: For a really good overview of the basics of administrative law and how it is approached in the State of Michigan, you might want to look at the article entitled "Administrative Law, The Basics: A Practical Introduction to Administrative Law in Michigan"

Constitutional Issues in Environmental Law

  1. Commerce Clause, 

  2. Delegation and Discretion,  

  3. Regulatory Takings.  

How Citizens Groups Shape Environmental Law

  1. Environmental Lobbying: The link to the left takes you the "A Better Earth" site at George Mason University where you will find a very interesting perspective on environmental lobbying "then-and-now."

  1. Environmental Citizen Suits: This article provides an overview on this topic. 

  1. Legal Standing and Environmental Suits: In environmental suits there are three constitutional standing requirements:

  • Injury: The plaintiff must have suffered or imminently will suffer injury - an invasion of a legally protected interest which is concrete and particularized. The injury must be actual, imminent, distinct, and palpable, not abstract.

  • Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court.

  • Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury." 

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