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The American Legal System
While legal scholars over the centuries have offered many definitions of law, the definition that meets with the approval of most Americans is that of the nineteenth-century jurist John Austin: the law is the command of the sovereign backed by a sanction. In other words, the law is whatever the government says it is, and if we choose not to comply, the government will punish us. For citizens whose encounters with the law are largely limited to traffic police or the IRS, such a definition is adequate. But citizens whose daily work is bounded by a governmental structure of rules and regulations see more to the law than simply commands. Who gives the sovereign the right to issue commands? Are there areas of public or private endeavor in which the sovereign has no rights to issue commands? What is the range of penalties for noncompliance? Does it matter if the noncompliance is accidental, or unavoidable? How does a citizen discover the latest governmental command?
All of these questions are pertinent to environmental managers. The scope of their administrative authority and the intent of the legislature in giving them that authority are important parameters. They must also adapt to changes in political authority. Managers in regulatory enforcement must know when they may or should compromise and when they must bring their full enforcement powers to bear on a violator. Resource managers must maintain the delicate balance between resource protection and resource use. Their arsenal is not restricted to the "sanctions" of the sovereign. They have persuasion, political pressure, and incentives on their side as well. To understand these managerial tools, managers must also understand the system in which they wield them.
This chapter explores the legal system in which American environmental managers must operate. The first section discusses the English roots of American common law and how this body of law became accepted in the new United States. It also discusses the other sources of law: statutes, rules and regulations, and the Constitution. How judges apply this law is discussed in the second section. The impact of our complex federal system on environmental administration and law is discussed in the third section.
SOURCES OF LAW
Western public law is based on one of two systems: English common law and the European civil law tradition, also called continental or codified law. The simplest way to distinguish between these two systems is to look at the judicial decision-making process. Common law is based on the idea of precedent: like cases are decided alike. Judges base their decisions not only on the applicable statute but also on how other courts have interpreted the statute. In some areas of the common law there are no controlling statutes, only rules set forth by appellate courts. By contrast, in the continental or civil system, the law is spelled out in detailed civil codes; the specific rules laid out in Leviticus are a familiar example of the civil code approach to the law. In the civil system, the judge locates the appropriate section of the code and then applies it to the situation at hand.
The Common Law
The common law system developed in the thirteenth century. When the English feudal system began to weaken and modern cities began to develop, the king sent royal judges to decide controversies in his name. This was done primarily to increase the king's power and authority as the power and authority of his feudal lords waned. Each feudal manor had its own customs, and the judges would weigh their own perceptions of fairness, the existing customs, and the political repercussions in reaching decisions. As we might expect, the decisions were often based on unclear reasoning, and cases that appeared similar might be decided in completely contradictory ways. The clerks accompanying the judges began to record decisions and reasoning; congregating back in London they compared notes, and gradually judges started to refer to the decisions of their colleagues as another basis for decisions. Eventually, recording decisions became routine, and judges were required to set out their reasoning for the formal record. Any deviation from precedent had to be justified. In this way the common law—the system of law common to the entire country—was established.
Today we take the English basis of our legal system for granted. In the early days of the republic, when the former colonies did not have their own cases to determine the precedents for judicial decisionmaking, judges drew on the same English law that had governed their decisions prior to the American Revolution. At the time of the Revolution, there was debate about whether the new country would follow the English tradition; in some quarters feelings were very strong that a complete break from England was the only correct approach. The legal system that was suggested to replace the common law tradition was the civil law approach that prevailed on the continent of Europe and was used by allies such as the French. The French colonies had retained the continental legal system, and even today Louisiana, a former French possession, is still governed by such a system.
Despite the radical proposals to change the law, the English system prevailed. Colonial lawyers and judges were trained in the common law, and contracts, property transfers, and all forms of legal transactions were already in the English style. Besides, despite the outpourings of anti-English sentiment immediately following the Revolution, most colonists still thought of themselves as English in spirit. Edmund Burke, the English statesman and philosopher, excused the American Revolution on the grounds that good Englishmen should rebel when treated unfairly. Common sense and common law prevailed, and the American legal system was based upon the English one.
One of the earliest environmental cases resting on common law traditions appeared before the United States Supreme Court in 1842. Martin v. Waddell originated with the contention by a New Jersey riparian landowner, Waddell, that he had exclusive rights to take oysters from the Raritan River. He based his assertion on a grant made by King Charles in 1664 to the Duke of York, which gave the Duke "all the powers of government." Waddell claimed that his rights to the mudflats were directly descended from property rights transferred by the Duke of York and his managers. Waddell's opponent, Martin, argued that the King held certain resources (among them, mudflats) in trust for the people, and that the King's grant to the Duke of York required the Duke to hold these resources in trust as well. Thus, he argued, despite language that might be interpreted otherwise, the Duke did not have the power to transfer the mudflats to private ownership any more than the King did. The Supreme Court agreed with Martin that the original grant did not include the exclusive right to fish the adjacent waters. Of course, in the interim since the grant had been given to the Duke of York, the State of New Jersey had formed a new government, so the second question before the Court was whether New Jersey was similarly prohibited from granting private, exclusive rights to lands that under common law were public trust lands. Justice Taney (the same justice whose decision in Dred Scott helped precipitate the Civil War) found that the public trust doctrine had survived the Revolution:
[W]hen the people of New Jersey took possession of the reins of government, and took into their own hands the powers of sovereignty, the prerogatives and regalities which before belonged either to the crown or the Parliament, became immediately and rightfully vested in the State.
Although Martin v. Waddell is not the only case in which courts articulated the continuance of English traditions, it is one of the clearest. Of course, the changing social and economic situations in the United States led to many and frequent diversions from the English law, but the basis was firmly established.
In addition to the common law, which continues to develop, statutes, rules and regulations, and the Constitution are rich sources of American law.
Statutes and Ordinances
Statutes are the formal acts of legislation passed by Congress or the state legislatures. Similar enactments passed by county and city governments are often called ordinances or local laws. Sometimes statutes are very specific, for example, setting time limits on Superfund damage claims or the maximum permissible automobile emission levels. At other times, however, legislatures establish broad guidelines and leave the details to the executive branch. This is done for several reasons. First, the legislators have neither the time nor the expertise to hammer out the details of implementation. Second, the legislative process is slow and cumbersome; it is designed that way so that the decisions are as free from circumstantial pressure as possible. Administrative actions are comparatively speedy, as will be seen in chapter 5. Finally, by passing the responsibility for detailed implementation to the executive branch, the legislature avoids much of the political repercussions of unpopular decisions. For example, when the Bureau of Land Management (BLM) proposed raising the cost of federal-land grazing permits to market levels, the resulting firestorm engulfed the BLM bureaucrats and not the Congress that had given them the authority to raise fees.
Rules and Regulations
Another source of American law is the rules and regulations promulgated by administrative agencies. Technically, under the Constitution only the legislature has the authority to make laws. However, in the American system, the legislature has delegated some of its law-making authority to the executive agencies. From the late nineteenth century through the middle of the New Deal, the constitutionality of legislative delegation of authority was questioned, and even today some commentators argue that the Congress in particular cannot give rule-making powers to the executive branch without very clear and restrictive guidelines. In practice, however, federal and many state agencies have the power to make rules and regulations that have the force of law. These rules must meet two constitutional standards: procedural due process (Did the agency follow the legal requirements of notice and hearing?), and substantive due process (Is the agency operating within its designated policy boundaries?). This will be discussed more fully in chapter 4. It is, however, important to note that any rule or regulation that is formulated with the proper procedures and is within the statutory authority of an agency has the same legal status as legislation passed by the legislature and signed by the executive.
The Constitution plays a vital part in environmental regulation. For example, the common urban practice of zoning raises the constitutional question of whether zoning is a "taking" of an individual's property. We are accustomed to thinking of zoning as a way to regulate and to protect the welfare and orderly development of a community. However, the Constitution clearly states:
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. (Amendment V)
Is zoning the equivalent of taking a person's property "for public use"? Suppose the zoning significantly reduces the value of the property or makes it unusable? Must the owner be compensated? Or is the act of zoning the use of "due process of law" and therefore exempt from paying just compensation? Until recent years, zoning has been consistently interpreted by the courts as a legitimate exercise of a state's police power: the obligation to protect public health, safety, and welfare. But court decisions in the 1980s and 1990s have found some forms of zoning to be a taking; this is partially a result of the increasing number of conservative justices now in the legal system following the Reagan and George H. W. Bush years (1981–1993).
Another constitutional issue in environmental law is the legitimacy of agency rulemaking. Prior to the New Deal, agency rulemaking was viewed with deep suspicion by the legal profession. Some questioned the authority of Congress to delegate its legislative powers; others questioned the wisdom of allowing bureaucrats, who are not directly responsible to the people, to make binding rules and regulations. The issue seemed to be settled with the New Deal, the passage of the Administrative Procedure Act in 1946, and subsequent challenges to delegation that generally resulted in agency victories. In recent years, the Supreme Court has become more conservative, and a majority of justices may choose to return to the position that Congress is neglecting its duties when delegating its legislative authority. Dissenting in American Textile Manufacturers v. Donovan in 1981, Justice Rehnquist wrote that, in delegating rule-making responsibility for cotton-dust standards to the Occupational Safety and Health Administration (OSHA),
Congress simply abdicated its responsibility for the making of a fundamental and most difficult policy choice.... That is a "quintessential legislative" choice and must be made by the elected representative of the people, not by nonelected officials in the Executive Branch ... in so doing Congress unconstitutionally delegated its legislative responsibility to the Executive Branch.
Justice Scalia is also inclined to encourage Congress to give clearer policy directions to the agencies. Throughout the history of administration, this tension between delegation (when Congress shares decisionmaking with administrative agencies) and administrative discretion (the need for agencies to exercise administrative expertise) has been a key issue that is based on the constitutional concepts of separation of powers as well as checks and balances.
Other constitutional issues arise within agency procedures for appeals, investigations, and hearing procedures. These will be looked at again in the discussion of the Administrative Procedure Act in chapter 5.
In deciding the cases brought before them, judges are required to interpret the relevant statutes and regulations, to follow common law precedents, and to apply constitutional principles. One of the more difficult areas for judicial review is statutory interpretation.
Unlike the common law, which rests on facts and the idea of precedent, statutory law is the result of negotiations and debate. When, for example, a citizen challenges official behavior based on the accusation that the official has violated a statute, the first chore for the reviewing court is to determine just what the statute means. The court can do this by several techniques. First, the court may examine the intent of the lawmakers in the language of the statute itself and as it is shown in the legislative history. The legislative history is the formal record of the evolution of the statute: testimony offered in support or opposition to the statute, or to parts of the statute; the debates on the legislation; and the amendment sequence. The best source of legislative history is the House, Senate, or Conference report that accompanies the bill to the final floor vote.
Interpreting legislative history may sound simple, but it can be a judicial morass. First, the testimony is often conflicting. Second, the debates are real debates, during which legislators may become convinced that the position of the opposition has merit, so that on one day the legislator holds one opinion and on the next day a different opinion. Because the legislative history is the chronological history of the act, it may record ideas or motivations that were ultimately utterly abandoned by the members. Third, the Congressional Record, which is the official organ of the Congress and records these testimonies and debates, is given to the members for correction prior to publication. This was originally intended to allow members to correct grammatical slips of the tongue, but now the Record may be substantially edited for the home constituents, and what is printed in the Record may bear only a superficial resemblance to what was said on the floor of the Congress. In the 1990s, the conservative members of the Supreme Court were less anxious to delve into the legislative history and sought to decide the cases wherever possible based on the plain language of the act.
Excerpted from Understanding Environmental Administration and Law by Susan J. Buck. Copyright © 2006 Island Press. Excerpted by permission of ISLAND PRESS.
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