Envr Law Notes 1

U.S. Government Basics

The U.S. Constitution is the overriding law of the land, and divides the government into three sections:

  1. Legislative
  2. Executive
  3. Judicial

Legislative Government

Governing body: Congress

Congress is made of:

  • The Senate
    • 2 senators from each of the 50 states
  • The House of Representatives
    • at least 1 Representative per state, depending on population

Passing Vote: majority vote in both houses

  • a bill signed by Congress becomes law when the President also signs it
  • if President vetoes the bill, Congress can override it with a 2/3 vote in both houses

Powers are delegated by the Constitution

  • regulate commerce amongst states, aka the "commerce clause"
  • can effect environmental regulations

Executive Government

Governing body: The President

Powers are delegated by the Constitution and other sources

  • President make treaties and appoint federal judges and ambassadors, but these actions require the concurrence or consent of the Senate
  • Congress can delegate powers to the President

Judiciary Government

Governing body: Court System

Court System is made of:

  • U.S. Supreme Court
    • 9 justices
    • can solve disputes between states and unconstitutional laws or regulations
  • Courts of Appeals
  • District Courts

Procedural & Substantive Law

Procedural laws involve administrative errors (filing disputes on time, filling out proper forms, etc.)
Substantive laws involve staying in compliance with federal regulations

  • Courts understand procedural law better than substantive law
  • Courts rely on technical experts to explain and interpret complicated situations

Constitutional Amendments

Proposal requires 2/3 vote in Congress and ratification of 3/4 state Legislatures; hence, changes rarely occur
First amendment: Bill of Rights
The 26th Amendment, effective in 1971, reduced the federal voting age from 21 to 18
The 27th Amendment provides that no law changing the compensation for Senators and Representatives will take effect until after the next election

Administrative Law

Administrative agencies impact many facets of business and professional activities. For example, engineers, teachers, attorneys, and many others cannot fully practice their professions unless they are licensed. Such licenses generally are granted by an administrative agency. Many businesses need licenses or permits from administrative agencies before they are allowed to operate or offer services to the public. Construction and operation of a new facility that will emit pollutants into the air is not allowed unless the owner addresses permitting requirements with the appropriate agencies. Even routine activities such as fishing or driving a car require a license issued by an agency.

Administrative agencies are not mentioned in the Constitution. However, government could hardly function if Congress and the President had to address every detail. The courts have found that, within limitations, Congress may “delegate” powers to administrative agencies (like the Environmental Protection Agency or U.S. Fish and Wildlife Service) or to governmental officials (like the President or the Secretary of the Army). This delegation authority will be discussed in more detail below.

Most environmental law is practiced before administrative agencies such as the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers, the Texas Commission on Environmental Quality (TCEQ) (formerly the Texas Natural Resource Conservation Commission (TNRCC)), and other governmental bodies. These agencies often have functions that reflect the types of authority exercised in all three “branches” of government.

Rulemaking

aka Legislative Administration

Statutes, acts passed by Congress or a state legislature, typically create a program or requirement in general terms, and authorize specific agencies or officials to administer the program. The agencies then develop the more detailed regulations that determine how the statute will be implemented and applied across various industries.

Clean Air Act 1970

An example would be the Clean Air Act passed in 1970. Congress established this requirement and provided some guidelines and objectives that apply when setting the standards. The agency, the EPA, hired employees with the scientific and technical knowledge to review the available information, and recommended specific concentrations of these pollutants that would be consistent with the direction given by Congress. The EPA then proposed regulations creating these specific, numerical concentration standards, known as the National Ambient Air Quality Standards (NAAQS). These are reviewed every 5 years.

The Rulemaking Process

Proposed regulations typically go through a “rulemaking” process. Proposed federal regulations are published in the Federal Register, and the public, regulated community, and other agencies have at least 30 days to send comments on the proposed regulations to the agency. The agency then considers the comments, possibly makes some revisions to the proposed regulations, and final regulations are then published in the Federal Register before they become effective.

The Federal Register is published every business day, and includes regulations (proposed and final) and various notices from many federal agencies and offices. The Texas Register plays a similar role for Texas state regulations and notices.

Once regulations, or rules, are final, they are laws that citizens and businesses must follow. The “current” federal regulations are found in a set of books known as the “Code of Federal Regulations” or CFR. These are updated annually. Recently revised or promulgated regulations are found in the Federal Register.

Administering

aka Executive Administration

Regulations require administration. Government agencies such as the IRS and EPA are delegated this responsibility by the U.S. Congress. The EPA, U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers, and state agencies issue permits, conduct inspections, initiate enforcement, and handle a variety of “executive” matters. Most agencies are part of the executive branch of government.

These agency activities – granting licenses and permits, inspections, etc. - traditionally are considered “executive” functions.

Deciding Disputes and Determining Punishment

aka Judicial Administration

When an alleged violation of an environmental statute or regulation occurs, administrative penalties frequently are determined within the agency without going before a court.

Often an Agreed Order is negotiated between the alleged violator and the agency. If agreement is not reached, an administrative hearing may be held before an administrative law judge. Agency personnel bring the enforcement action, and the administrative law judges are the decision-makers. If needed, there is a process for administrative appeal, and eventual appeal to a court. In some environmental permitting processes, an administrative law judge (ALJ) can hear evidence and make recommendations or decisions. The process can be similar to a trial.

Enforcement cases can be prosecuted directly in the court system if agreement cannot be reached with an agency or the violation is severe. This decision typically is made by the agency, in consultation with the U.S. Department of Justice, state attorney general, district attorney, or other prosecuting body. In addition, agencies can both fine violators and order compliance.

Hierarchy of Laws

Statues from Congress overrule regulations by government agencies.

Where the Laws Live

Statutes are found in the U.S. Code (federal) or in various state codes, like the Texas Water Code, Texas Health and Safety Code, Texas Natural Resources Code, etc.

Federal regulations are found in the Code of Federal Regulations (C.F.R.). Notices of proposed regulations, new final regulations, and other administrative matters are published in the Federal Register.

Texas regulations are found in the Texas Administrative Code, and regulatory and agency notices are published in the Texas Register.

How Laws Evolve

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