Environmental Law, Policy, and Decision-making (EESC BC 3040x)
“The Problem We All Live With” by Norman Rockwell (1963)
Teach the origins, history, and structure of the U.S. legal system; the ecological and ethical bases of environmental law, its use in environmental policy and decision- making, and its role in cost-benefit analysis and risk management.
Develop legal literacy and teach how to read opinions of important cases that elucidate how courts create common law and especially environmental law through the interpretation and application of environmental statutes and regulations.
Teach how to use legal research tools to find “good law” by analyzing precedent; teach how citations work; teach how to locate statutes and their associated rules and regulations, and how to find cases that determine the meaning of statutes.
Teach how to brief cases.
Teach how case law determines the meaning of a statute.
Ruby Bridges escorted by three U.S. Marshals from William Frantz Elementary School in New Orleans, 1960.
Instructors Name/Phone/ E-Mail: Dana Neacsu / 854-1345/ firstname.lastname@example.org Dana's Office hours:Wed. 5-8 (3rd fl in the law school building, inside the law library), and as needed Classroom: 530 Altschul / Tu & Th 8:40-9:55am Teaching Assistant:Alissa Lampert / email@example.com (office hours as needed)
Required Textbooks: 1. Bower/Neacsu Introduction to U.S. Law, Policy, and Research – An Environmental Perspective (available in the Columbia Univ. bookstore or online from the publisher’s site) 2. A Civil Action by Jonathan Harr (there should be a few copies available at the library, available on Amazon as an e-book or paper copy)
Companion Website: This course has an associated website which has many resources you may find helpful, such as copies and links to cases we will read, additional sources that are helpful to our understanding of the US legal system, and sidebars and comments that are referenced in the textbook for further reading.
Grading: Grades will be assigned according to performance: a. on a midterm exam (20%); b. on a final research paper (20%); c. on two exercises (20%); d. on three quizzes (25%); e. on classroom participation (5%), and e. classroom attendance (10%)
“Two Lawyers” by Honore Daumier (1837).
Exams and Deadlines No make-up exams or quizzes will be given except for bonafide emergencies or illness. Except in the most unusual circumstances advance notification is required. A letter from your Academic Dean or your doctor is required for the scheduling of a make-up exam or quiz. Deadlines for assignments will be strictly observed. Grades for late work are subject to a maximum 30% reduction at the instructor’s discretion.
Definition of Grades: All grades will be based on a scale of 100 with A+ = 98.00-100, A = 94.00-97.99, A- = 90.00-93.99, B+ = 88.00-89.99, B= 84.00-87.99, B- = 80.00-83.99, C+ = 78.00-79.99, C = 74.00-77.99, C- = 70.00-73.99, D = 60.00-69.99, and F = 59.99 or less. A+ = Rare performance. Reserved for exceptional achievement. A = Excellent work. Outstanding achievement. A- = Excellent work that exceeds course expectations. B+ = Very good work. Solid achievement (expected of Barnard/Columbia undergraduates) that meets all course expectations. B = Good work. Acceptable achievement that meets almost all course expectations. B- = Satisfactory work. Acceptable achievement that meets major course expectations. C+ = Fair achievement just above that which is minimally acceptable. C = Fair achievement but only minimally acceptable. C- = Barely acceptable achievement. D = Very low performance. Unsatisfactory work. Lowest achievement to still allow for a passing grade. This grade may not be counted toward the major or minor option. F = Failure See http://barnard.edu/catalogue/policies/grades or the Barnard or Columbia College Catalogs or the Registrar’s Office for other information about grading, including: the definitions of other letter grades, pass/D/fail option, incompletes, and calculation of GPA.
“The Opposing Attorneys” by Honore Daumier (1837).
Procedure for Handling Questions and Complaints About the Grading of Tests, Quizzes, and Other Assignments: If you have a question or complaint concerning the grading of your work, you must detail the question or complaint in writing. Attach this written question or complaint to the test, quiz or other assignment and give it to Prof. Neacsu directly or leave it in her mailbox in the Environmental Science Department. Once your question or complaint has been reviewed, your work will be returned to you with an explanation of the action taken. At this time if there are still questions, the issues may be discussed. Under no circumstances will a discussion about grading take place prior to above-mentioned review, and no review will take place unless the problem or complaint is put in writing.
Remember! Put it in writing!
Exercise #1: Writing a Brief Using the Textbook Format (the case will be delivered in class) Part 1: Whalen–Briefing a Nuisance Case on whether balancing of the equities/injuries should be the way to solve that pollution case. Part 2: Boomer III–Briefing a Case – Was Whalen a precedent for this nuisance case?
Exercise #2: Legal Research: Briefing a precedential case and its subsequent application The exercise requires you to create a word document which should include a cover page with the title, Exercise #2: Legal Research: Briefing a precedential case and its subsequent application, your name, date, course, and professor’s name. The document will also contain the following section sections: 1. Section 1: Choose a case – either Wilsonville or Del Webb; copy and paste its heading in Section 1. 2. Section 2: Brief your case (either Wilsonville or Del Webb) using the format provided to you and discussed in class, focusing on the issue which becomes the rule or the precedent for the subsequent case you will brief. 3. Section 3: Chose a subsequent case from the Shepards list; copy and paste its heading in Section 3. 4. Section 4: Brief the case chosen in Section 3, pointing out how it references the case chosen in Section 1 (Wilsonville or Del Webb).
Quiz #1: APPLYING THE SECOND PRINCIPLE OF LEGAL RESEARCH. PRACTICE EXERCISE. The following exercise will introduce you to some secondary sources: library catalogs, monographs, and law review articles. Questions highlighted in ItalicizedBoldcan be completed by anyone with internet access. Questions highlighted in underlined Boldmay only be completed by students with access to Nexis Uni or Westlaw Campus. Question 1- Using a library catalog, such as Pegasus, http://pegasus.law.columbia.edu, locate the catalog record for any treatise or other secondary source on endangered species. For instance, locate the record for The Endangered Species Act: history, implementation, successes, and controversies.
What is the name of the author? What is its call number and location?
Is it currently checked out? (In Pegasus, if the space under Status is empty, the source is on the shelf)
********************************************************* Question 2–Use http://clio.columbia.edu/ and find an article considering a species-loss domino-effect before the implementation of endangered species legislation. (While only Columbia University students have access to the entire Columbia library catalogue, even non-Columbia University students should be able to answer the following questions).
What is the title of the article?
What is its citation? Can you use the Bluebook citation format as explained below?
The Bluebook citation of a law review article contains:
the name of the author;
the title of the article;
the volume number of the journal;
the abbreviation of the journal;
the page where the article starts; and
the year of its publication.
Here is an example, E.D. Neacşu, Concert of Action by Substantial Assistance, 16 Touro L. Rev. 25 (1999). *********************************************************
Quiz #2: INTRODUCTION TO THE U.S. LAW AND LEGAL SYSTEM: AN ENVIRONMENTAL PERSPECTIVE – LEGAL RESEARCH PRACTICE EXERCISE: FEDERAL AND STATE LAW REPOSITORIES. The following exercise will introduce you to some of the free repositories of primary law, as well as some fee-based repositories. Questions highlighted in ItalicizedBoldcan be completed by anyone with internet access. Questions highlighted in underlined Boldmay only be completed by students with access to Nexis Unior Westlaw Campus. Primary Sources: Case Law Question 1- Supreme Court Reporters (part of the Federal Reporter system) Cases are published in many print and digital places. For instance, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) is available in the three “reporters” identified by their abbreviations above: U.S., S.Ct, and L.Ed.
In the official citation, 401 U.S. 402, the official reporter is abbreviated “U.S.” What is its full title?
Did you find it by searching for it online? If so, did you use a dictionary of legal abbreviation?
Google “Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402” and write down the URL identifying this U.S. Supreme Court decision in any digital repository Google lists on the first screen.
********************************************************* Question 2- New York Reporters State law cases are published in multiple ways, too. Let’s locate the following case: Boomer v. Atlantic Cement Co., 287 N.Y.S.2d 112 (N.Y. Sup. Ct. 1967). To locate the opinion, go to the New York courts website (nycourts.gov) and type “Boomer v. Atlantic Cement Co.” into the search bar to complete the following questions.
What is the name of the court which decided that case (read the information provided in the question)?
If this is the case citation: “287 N.Y.S.2d 112,” what number designates the first page of that decision?
********************************************************* An essential part of case law research is to determine how courts have interpreted or treated an earlier case. By recording every mention of a case by every later court, Shepardsallows the researcher to determine if a specific case is still good law, has been criticized, or has been overruled. An online version of Shepardsis available from LexisNexis Academic. Court Listener, the “Free Law Project” is creating a free case citator to allow legal researchers to see a case’s citing references. Question 3– Fee-Based and Free-of-Charge Case Citators Shepard’s Reports Go to any version of Lexis (Columbia University students have access through http://www. columbia.edu/cu/lweb, go to Nexis Uni link and log in with your Columbia University UNI). When you have logged into Nexis Uni, type the following citation into the main search bar: 515 U.S. 687.
Is there a symbol next to the name of the case?
If so, what is the symbol and what does it indicate?
Click on the link which says: Shepardize this document. The resulting screen contains the Shepard’s Report. See the number next to “Citing Decisions,” and answer the next question: 1. How many subsequent cases [opinions or court decisions (NOT DOCUMENTS)] have cited Babbitt v. Sweet Home Chapter of Communities for a Greater Or.”? Free-of-Charge Case Citators: CourtListener (https://www.courtlistener.com) has a free legal citator; however, it is much more limited than Shepherds on LexisAdvance or Keycite on Westlaw. CourtListener has a limited database of cases – Boomer v. Atlantic Cement Co. is not in the CourtListener database, but Citizens to Preserve Overton Park v. Volpeis. Search for “401 U.S. 402.” A blue box will pop up saying “It looks like you’re trying to search for Citizens to Preserve Overton Park, Inc. v. Volpe, from 1971.” Click on that box to go to the case. CourtListener presents the text of the opinion but there is no information on that page to indicate whether the Overton Parkhas been overturned. (On NexisUni it is listed as “Questioned” by thirteen other cases).
How many citing references does CourtListener have listed for Overton Park?
Here is the main limitation – using CourtListener, a reader must in theory read each of Overton Park’s citing references to determine whether Overton Parkremains good law. This is obviously not practical; therefore, it is clear that there is almost no good way to determine a case’s citing references without using a fee-based database. ********************************************************* Question 4– Case Headnotes Court decisions are published in various repositories randomly. To help researchers, database editors identify issues and briefly note them in a section preceding the decision itself. On LexisAdvance, they are called “Headnotes” and on Westlaw they are called “Keynotes.” Headnotes and Keynotes categorize topics that appear in court opinions. For example, the Headnote 1 in Boomer v. Atlantic Cement Co.is “Remedies and Injunctions.” Clicking on Headnote 1 will lead to cases citing Boomer’s discussion of “Remedies and Injunctions.” Now, look up U.S. v. Billie, 667 F. Supp. 1485 (1987), on Nexis Uni by typing its citation (667 F. Supp. 1485) into the search box. Then, scroll down the case until you find “LexisHeadnotes.”
What is the title of the Third Headnote?
How many other cases cite U.S. v. Billiefor the information contained in Headnote 3? (REMEMBER. The verb used by Nexis Uni to denote subsequent cases citing a particular case is “shepardize,” so, imagine you were to ShepardizeU.S. v. Billieand search for cases that referenced just its Third Headnote).
********************************************************* Primary Sources: Federal Statutes Statutes are published in more than one form. Laws printed in chronological order as passed by the legislature are called session laws. Federal session laws are called (for the most part) Public Laws. When Congress passes a new law, it is assigned a Public Law number. For instance, the fourth law passed by the 105th Congress is P.L. 105-4. The number before the hyphen refers to the number of the Congress that passed the law. The numbers after the hyphen are a chronological serial numbering of the laws passed by that Congress. Question 5– Statutes at Large The Library of Congress’s legislation web site is called Thomas. The archived version of the Endangered Species Act of 1973, Pub. L. 93-205, Dec. 28, 1973; 87 Stat. 884, can be retrieved by using Google and searching for “Pub. L. 93-205.”
If the citation is 87 Stat. 884, which number indicates the volume containing the statute?
Though the Library of Congress’s legislation website, Thomas, available at <http://thomas.loc.gov>, carries many PDFs of public laws, remember that it does not cover all of them. ********************************************************* Next, you will look at the other form in which statutes are published – codes. The government-published federal statutory code is the United States Code(U.S.C.). The two most popular commercial alternatives are Lexis’ United States Code Service(or U.S.C.S), and Westlaw’s United States Code Annotated(or U.S.C.A.). The advantages of the U.S.C.A. and the U.S.C.S. over the official United States Codeare that they are much more timely (the official set is always at least two years behind) and these commercially produced sets are also heavily annotated with historical notes, C.F.R. sections, citations to leading cases interpreting code sections, and a variety of useful tables, indexes, and other research aids. ********************************************************* Question 6- The Federal Code (U.S.C.). The Endangered Species Act of 1973, Pub. L. 93-205, Dec. 28, 1973; 87 Stat. 884, is codified at Title 16 U.S.C. §§ 1531-1543. Go to Govinfo (https://www.govinfo.gov/) and locate one section of the Act.
Which section § did you locate?
How many titles does the U.S.C. contain? ___ (include titles which are currently reserved)
What do you think the term “title” represents (what does it contain)?
Is there a title containing all environmental statutes? ___What about the title labeled “Conservation,” what statutes do you think it covers?
********************************************************* Primary Sources: Federal Rules and Regulations Most statutes cannot regulate behavior without the details found in administrative regulations. Like federal statutes, federal administrative rules are published as they are issued in the Federal Register, and are also organized by topic, in the code federal regulations, which is the Code of Federal Regulations (commonly known as the C.F.R.). Unlike the Federal Register, the C.F.R. carries only the final rules and regulations that the executive branch agencies issue. ********************************************************* Question 7- TheC.F.R. Go to Govinfo, https://www.govinfo.gov/, and find the C.F.R. (https://www.govinfo.gov/app/browse/category/regulatory-info). Then, locate the 2018 edition of the C.F.R.
How is this codification generally organized?
What is a title?
Can you find the title that covers environmental regulations?
Quiz #3: 1. Write your name and Quiz #3 as title heading. 2. Choose a case, and indicate the heading of the case below your name. Choose either Overton Park, Scenic Hudson, or Tennessee Valley Authority, and write down its citation, including (the year of its decision.) 3. Locate a statutory provision in your chosen case. Write it down as a United State Code citation: Title #U.S.C. Section #. Copy and paste the text of that statutory provision (# U.S.C.#). 4. Then, locate that particular statutory issue discussed in your chosen case (whether a particular statutory provision applies and why), and write down the legal issue the court addressed about that provision (Did the court apply # USC # etc?) 5. Find the court’s holding regarding the issue in 4, and write it down (Answer: Yes, the court .... # USC #). 6. Write down the court’s judicial interpretation (rationale) for the issue in 4. You may use quotes. 7. Support or criticize the court’s rationale behind their holding regarding the chosen statutory provision from 3 and the connected issue you spotted in 4, in 500 words or less.
“Apres l’Audience” (“after the hearing”) by Honore Daumier (1838).
Midterm: U.S. Supreme Court Justice Benjamin Cardozo once said that the ultimate goal of the law is social welfare. If he had lived today he would have probably said that protecting the environment is tantamount to social welfare. With his words in mind, for this midterm, using your own words, please explain how and to what extent (if any), nuisance and trespass litigation, as used in Wilsonville, Spur, Borland, and Branch helped create US environmentalism/environmental law. You should aim to write your answer within 1000 words. Anything past 1100 words will not be read.
Final Research Paper: How Case Law Defines Statutory Law The exercise requires you to create a word document which should include a cover page with the title, Final Research Paper: How Case Law Defines Statutory Law, your name, date, course, and professor’s name. The document will also contain the following sections: 1. Section 1: A relevant federal codification, copied and pasted in Section 1 (By way of example, let’s say, you find section 42 U.S.C. §7401, through govinfo.gov. You copy and paste the body of that statutory section in the first section of your paper). 2. Section 2. A general discussion of the federal statute (Public Law), whose relevant section you included in Section 1 (500 words maximum, double-spaced, 1" margins all-around). (By way of example, for instance, if you chose 42 U.S.C. §7401, then you summarize the meaning of the Clean Air Act). 3. Section 3: Copy and paste a case discussing the chosen statutory provision and federal regulation. (In class, you learn the most efficient method to find such a relevant case) 4. Section 4: Brief the case copied and pasted in Section 3, making sure that the issue discusses a question about the statute identified in Section 1, and the rationale explains the court’s reasoning for the holding regarding the issue chosen in your brief.
The Honor Code and Academic Integrity The Barnard Honor Code (established in 1912) reads:
We, the students of Barnard College, do hereby resolve to uphold the honor of the College by refraining from every form of dishonesty in our academic life. We consider it dishonest to ask for, give, or receive help in examinations, quizzes, or to use in them any papers or books in any manner not authorized by the instructor, or to present oral or written work that is not entirely our own, except in such way as may be approved by the instructor. We pledge to do all that is in our power to create a spirit of honesty and honor for its own sake.
The Honor Code governs all aspects of academic work. If a violation should arise, it will be reported to the Dean of Studies for appropriate action. Honor Board Guidelines on the procedures for implementing the Honor System and acting on charges of dishonesty can be found in the Student Handbook. Remember that Barnard students reaffirm their acceptance of the Honor Code by signing their registration form. Columbia students commit themselves to the Honor Code upon registering for a Barnard course. Because the Honor Code is not entirely specific and contains qualifications and exceptions, such as “authorized by the instructor” or “approved by the instructor”, please read the following summary of “What behaviors constitute academic dishonesty?”
What behaviors constitute academic dishonesty?
Cheating on examinations, quizzes, tests, or other assignments: the giving of assistance to another or the receiving of assistance from another person, another examination paper, other written material, or any source not explicitly permitted by the instructor, is cheating. Thus, you may not look at another’s paper or answers; you may not show your paper or answers to another or leave your paper or answers around for others to look at; and, you may not verbally read or reveal your answers to another. It is also cheating to have access, without the instructor’s approval, to examination, quiz, or test questions prior to the administration of the examination, quiz, or test.
Plagiarism: the submission or presentation of ideas or work in any form that are not one’s own without appropriate acknowledgement of the source(s). Even with the acknowledgement, close paraphrasing can constitute plagiarism. You may quote the work of others if properly attributed. Close paraphrasing also requires attribution; close paraphrasing is, however, a gray area on a slippery slope, and the slope tends to become steeper and more slippery with the length of the paraphrase.
Submission of the same work for more than one course without the explicit permission of the instructors involved.
Falsification or misrepresentation of data in any coursework.
Altering, defacing, or concealing library materials.
Participating in the academic dishonesty of another student by offering assistance or advice that encourages such behavior.
Misrepresentation of one’s sate of health or personal situation to gain deferrals of examinations or extensions of academic deadlines.
Forgery of a signature on any document or form related to a student’s academic life, including the adviser’s signature on a program, drop/withdrawal slip, or petition.
Except for the above I encourage and expect students to share and work together, to ask questions, and to receive help from instructors and other students. Admittedly, there are gray areas but these gray areas will not be an issue if the intent of the foregoing is understood. Of course, it is prudent to ask if you have any questions on any matter related to the foregoing.