Areas Of Environmental Law Research Articles

Federalism in Environmental Protection

In the last seven years, the Supreme Court has decided several cases that potentially alter the balance between the states and the federal government. Although these decisions have generated much controversy, in some ways they only address some important federalism questions at the periphery. Professor Appel examines four areas of environmental law that the recent decisions either only inform or do not address at all: cleanup of hazardous waste sites; the effect of state enforcement actions on citizen enforcement brought under federal environmental laws; the effect of state enforcement actions on federal enforcement actions; and the management of federal lands within the states. Each of these areas raises difficult federalism problems, but the Court's recent federalism jurisprudence does not begin to address those problems. The solution to these federalism problems, then, likely lies within the political branches.

Risk assessment and environmental litigation

It is said that today we live in a risk society; that we are more conscious of the value of life and of the various hazards which we may encounter. Risk has become legitimised. It as a matter of public concern and legislation is now formulated (both at the European level and within the U.K.) making risk assessment a formal requirement in many areas of environmental law. The recent food safety concerns (BSE, for example, not to mention the issue of genetically modified food) have highlighted the importance of risk assessment as a technique in the enforcement of the law. The regulation of risk assessment is now appearing in other areas of environmental law, such as the regulation of contaminated land, where the risks to be assessed are not only risks to human beings but also risks to the environment in the broadest sense. Risk assessment moves from a management technique to an enforceable legal obligation. The enforcement of this obligation requires a knowledge of the range of risks and the techniques for their assessment. It therefore involves other expert disciplines, all within a legal context. In many environmental offences, a defence may be available that the "best practicable means" were used or that "all due diligence" was exercised. This paper looks at the way in which risk assessment is becoming regulated and is used in litigation both by enforcement agencies and by the defence.

Practice, Policy, and Pedagogy in a Mandatory Environmental Law Course

All students at the University of Richmond School of Law are required to complete a first-year course in Environmental Law, as an introduction to the strategies and technicalities of statutory and regulatory regimes. This requirement poses special pedagogical challenges for the instructors. How, for example, is the class to address pollution questions regarding diverse media? Which of the many federal and nonfederal statutory provisions deserve the most (and least attention)? How does the instructor hold the attention of, and gain the most effective work product from, students whose major interests lie outside the area of Environmental Law? What is the proper mix of statutory, regulatory, and judge-made (pre- and post-regulatory) law? Our solution has been to craft a unique combination of traditional lectures and readings regarding specific statutes, regulations, and case law; weekly discussion questions that immerse the students in the intricacies of statutory and regulatory provisions; a series of small-group simulations designed to highlight substantive legal points and to place the students in a wide range of legal and extralegal settings (client interviews, appellate argument, advocacy before administrative bodies, negotiation, lobbying public officials, legislative drafting); and periodic written assignments that focus the students' attention on technical legal and public policy issues.

Hazardous Materials Transportation in an Age of Devolution

The United States has entered an age of devolution. As political responsibility has begun to shift from the federal government back to the states, many questions concerning an appropriate intergovernmental relationship remain unclear. In the area of environmental law, for example, the D.C. Circuit Court of Appeals decided a case, Massachusetts v. U.S. Department of Transportation (DOT) (1996), that restricted DOT’s authority to preempt state bonding requirements for hazardous materials transporters. The court’s ruling ignored many precedents indicating that Congress intended to provide broad preemption authority to DOT under the Hazardous Materials Transportation Uniform Safety Act and arguably undermined standards articulated by the U.S. Supreme Court in Chevron U.S.A. v. Natural Resources Defense Council (1984). This article explores the court’s opinion and asks whether the Massachusetts case represents a deliberate change in federalism principles or whether the holding is an example of a de facto devolution of power.