“It may be true that the law cannot make a man love me, but it can stop him from lynching me, and I think that's pretty important.” -Martin Luther King Jr.
Introduction Introduction to U.S. Law, Policy, and Research – An Environmental Perspective is not the typical environmental law text that is often a compendium of the basic environmental statutes. Instead we offer a process-oriented introduction to the law and its use in environmental policy and decision-making. The origins and structure of the U.S. legal system are described and analyzed. Emphasis is placed on the litigation process and the reading of specific cases, statutes, and regulations that elucidate the common law and toxic torts, environmental administrative law, and environmental regulation through application and testing of statutory lawin the courts. There is special emphasis also on the development of legal literacy, research skills, and writing.
Learning Goals Introduction to U.S. Law, Policy, and Research – An Environmental Perspective provides hands-on use of online legal resources, especially through our Environmental Law and Policy companion website (http://environmentallawandpolicy.wikischolars.columbia.edu), and readings of opinions, statutes, regulations, and casebooks to allow students to achieve the following goals: 1. To develop legal literacy and read opinions of important cases that elucidate the common law and environmental and toxic torts, environmental administrative law, and environmental regulation through the application and testing of statutory law in the courts; 2. To use legal research tools to find “good law” by analyzing precedent, to understand citations, to locate statutes and their associated rules and regulations, and to find cases that determine the meaning of statutes; 3. To write briefsof cases at a professional level; to write an internal memorandum of lawas a municipal attorney; to research a specific federal environmental statute, its regulations, and its associated case law, and prepare a memorandum to explain how case lawdetermines the meaning of a statute; 4. To understand the origins, history, and structure of the U.S. legal system; to understand 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 All of the above requires learning the legal language. Legal literacy is a central focus of this book. The legal language, especially its vocabulary, is not only relevant, it is the sea in which we all swim. Important terms for the reader to look up in a legal dictionary are italicized and underlined throughout this book. Both general and specialized legal dictionaries are available in print and online. Black's Law Dictionary is the classic tome for the desk and is considered to be the best legal dictionary of American Law and contains definitions of legal terminology used in all fields of law, including Latin phrases, such as stare decisisand pro se. There are also specialized legal dictionaries for various fields of law, including Lee’s Dictionary of Environmental Legal Terms, which provides references to statutory and regulatory definitions of terms used in environmental legislation and regulations, for example, "acid rain program.” Barron's and Black's also produce very useful, handy paperback editions. Online free dictionaries are abundant, but not all are easy to use or give a meaningful definition. Useful websites include: 1. Law.com Dictionary (http://dictionary.law.com/); 2. Legal Information Institute, Cornell (https://www.law.cornell.edu/wex); and, 3. The Free Dictionary (http://legal-dictionary.thefreedictionary.com/).
The Importance of Studying Law Studying law is a fundamental imperative because of the pervasive role of the law in USA. Because the USA is perhaps the most litigious society on the planet, lawsuits are commonplace, legal actions are taken, and persons are sued. The law affects everybody, every day, from birth to death (both of which require legally mandated certificates). All, whether human or corporation, are governed by the law in every aspect of being. All are subject to the laws of a local municipality, county, state and federal government whether they enter into the contract of marriage, obtain a divorce or a driver’s license, buy real estate, change the oil in a car, discard trash, or invest in the stock market. More importantly, anyone born in the USA and any naturalized citizen automatically become entitled to specific rights and freedoms. Because of the above Introduction to U.S. Law, Policy, and Research – An Environmental Perspective is deeply rooted in basic civics, an understanding of the rights and duties of citizens and of how our country and government work. It is also deeply rooted in basic civics to encourage civic-mindedness and to address the fact that most citizens of the USA are woefully unprepared and ignorant of basic civics. This is why The Penguin Guide to the United States Constitution that includes the Constitution and Amendments, the Declaration of Independence, and commentary as well as a discussion of the origins of the Constitution, and key Federalist Papers and decisions of the Supreme Court, is required reading. In spite of gross deficiencies in civic education, citizens of the USA have an enormous respect for the law and believe in the “rule of law”. This fact was brought to the forefront dramatically in the events leading up to the case of Bush v. Gore (see our companion website and Sidebar 1) that decided the 2000 presidential election. Most citizens feel strongly about having their “rights” respected, including the right to free speech and to due process. Phrases such as “you are breaking the law”, “I will take you to court”, and “I have my rights” are part of the popular vocabulary. These feelings are deeply imbedded in our culture. American law is everywhere today because of its double nature as both a product of popular culture and a creator of popular culture. Talk about individual rights and due process of law thrive in school, at home, on TV, and in the digital media. Legal concepts generate perhaps more popular culture (including songs and movies) than they do academic writings. American general culture and especially the media often cover legal knowledge (e.g., A Civil Action by Jonathan Harr, John Grisham’s series of novels, the TV series Law & Order,Boston Legal, Suits or Billions). For this reason we are never too far from law or legal discourse. We learn from the media but while we learn, we may not be learning the truth. We need to be able to think critically and debunk media myths and errors. The idea of “legal rights” has become an intrinsic value that is widespread in the American culture. The only way to understand the value of such belief is by being able to identify the specific right itself, whether it is mentioned by the Constitution, a statute, or issued by a court, and then by searching its historical interpretation and application by courts. This is the way to avoid legal information that comes from a source that lacks proper authority, instead of developing a critical approach to legal information. Americans tend to believe that the U.S. Supreme Court acts as the guarantor of our individual freedoms and makes important decisions that affect the nation.” Appreciation of the role and history of the Supreme Court and of the lower federal appeals and trial courts is limited. Indeed, who knows that in 1967, in a case called Loving v. Virginia, the U.S. Supreme Court invalidated laws prohibiting interracial marriage (see our companion website and Sidebar 2). This is a riveting example of how the study of law combines theory and practice, that is, real cases and stories of real people. It demonstrates how theory is applied in a historical context and how the content they are learning has a real-life application. Americans also are aware that endangered species are protected by statute but have little understanding of how regulations to carry out the law are created, of the role of the Federal Register, of the Administrative Procedures Act, and of the Code of Federal Regulations. How does a species become listed as endangered or threatened? What agencies protect endangered species? Are endangered species that live on private property protected? Or, how might violations of the law involve the FBI? And, most significantly, how does case law ultimately determine the meaning of statutes and regulations? Study of the law has special meaning for environmental scientists and activists. Anyone who is seriously involved in protecting and improving the environment, or making a positive change in society, realizes that the effort is made within the law and nothing is done without the law. The law is a powerful tool for the environmental movement but this realization did not come until the citizens’ movement and legal actions of the Storm King controversy (described in this book) paved the way for the new environmental movement. This movement included the rapid growth of environmental legislation in the late 1960s and early 1970s that created the EPA; the Endangered Species Act; the Comprehensive Environmental Response, Compensation and Liability (Superfund) Act; the Clean Air Act; the Clean Water Act; the Toxic Substances Control Act; and a host of other major statues. These statutes in turn created rapidly increasing opportunities for legal employment and environmental consulting. Even if you don’t become a lawyer, study of the law provides important opportunities for self-improvement. In Introduction to U.S. Law, Policy, and Research – An Environmental Perspective we call this self-renewing, intellectual resourcefulness. This means that whatever is learned by the use of this book and its companion website is only the beginning. We pay conscious attention to those tools and skills that will allow you to continue the study and learn about the law throughout a lifetime. These include the ability to research cases, statutes, regulations, and precedent. A new powerful dimension can now be added to that history or English paper. The deeper significance or truth of a newspaper article that covers a legal story can now be understood. The study of law provides the ability to move freely within a whole new language. It reinforces the ability to synthesize complex ideas, to read primary sources and think critically. The study of law also allows insight into a whole-range of disciplines because the law applies to everything under the sun. The emphasis on writing skills offered by this book and our companion website, for instance, the writing of briefs and memoranda, reinforces the ability to synthesize complex ideas and to think critically. And, most significantly, all of the skills mentioned above are transferable. Hopefully, this book and its companion website will be the starting points of what could become a lifetime interest in American law, starting with the way in which it works, and ending with the ability to critically think about how the law can be an instrument of social justice.
Personal notes from the authors about how they came to teach environmental law and have the need to write this book and create this companion website This book has evolved from the teaching of Environmental Law at Barnard. Dr. Bower, who developed this course, has taught it since 1993 and has taught it every spring with Dr. Neacsu since 2003.
Peter Bower I have taught geology and environmental science at Barnard College and Columbia University for over forty years. I was the motive force in bringing the Department of Environmental Science into being at Barnard. During the same time (1988-1996) I served on the City Council and was Mayor of the Township of Teaneck (pop. ~ 40,000). It was here in various environmental struggles such as, creating parkland and Teaneck’s first recycling program, fighting illegal dumping of refuse on township property and prosecuting wrongdoers, reversing zoning by ordinance and over-development, or protecting the Greenbelt along a major highway through town, that I learned that everything I did or wanted to do on the Town Council involved the law and was surrounded by and defined by the law. I needed to learn what the law was, how it was created, and how it all worked. The first and most important decision I made on becoming Mayor was to choose a Town Attorney. Of course the most important fact of the City Council of seven was to be able to count to four. Without four votes nothing happened. My selection depended on two main factors: Did the attorney know the law (especially NJ state law)? And, could this attorney be creative to move us from A to B? I selected Martin Cramer, attorney for Jimi Hendrix and for Woodstock, who instilled in me a thirst to learn about the law and the ability to be able to ask the right questions. For several years I was at his side learning by doing. I spent days and weeks in the Columbia Law Library learning to read cases and do legal research. It was at this point that I was convinced that my undergraduates at Barnard and Columbia needed an environmental law class, but one rooted in basic civics, reading cases, researching precedent, writing briefs, and researching statutes, and regulations. Given that the environmental law class has been taught for over twenty years, these roots have been well developed but, given the concern for environmental protection, deep roots of civic-mindedness and the role the law and lawyers may play have also been developed.
Dana Neacsu Law dictates behavior when it establishes social boundaries, the limits of socially tolerable. Certainly, legal tolerance is different than moral or religious tolerance, because if immoral behavior meets a raised eyebrow, illegality meets with various civil and penal liabilities. Just from this pragmatic approach to consequences, the logic behind teaching law seems irrefutable. A society governed by the rule of law promotes a peaceful future, or better yet, the only future civilization should strive for. This book is the fruit of a two-decade belief that Law, a concept whose consequences are so extraordinary because it affects everybody, every day, from birth to death, whether human or corporation, needs to be taught organically, both conceptually, and through its specific consequences. This is why we co-teach substantive environmental law and policy, with the necessary constitutional and torts components, as well as legal research and writing, with the added civil procedure elements for understanding the constraints of legal rewriting and reasoning – but also technology, because technology has greatly influenced how law realizes itself as individual statutes, court and agency decisions, or agency rules, and produces its specific, fact-based, consequences. Most of my professional life has involved legal teaching, and as such I have long been preoccupied with the way students are introduced to law. In Bucharest I taught introduction to civil law to 1L students, and at Columbia I developed my job to include teaching legal research to 1L and LLM students. My own research has focused on the elite law school’s curriculum. In an older article on the value of the law school curriculum I argued that law was not taught within the confines of a free-market of ideas: important schools of ideas were missing from the elite law schools’ curriculum. More recently, in The Many Texts of Law (2014), with my co-author, I engaged in the debate about the Socratic method which makes students learn as they espouse their ignorance. The birth of this method dates back to 1870, the year when Christopher Columbus Langdell became Harvard's Dane Professor. Thus, my quest for a better approach to teaching law, which starts with my two decade teaching experience in both Europe and North America, seems only natural. My theoretical investigation also builds on the old conversation about the use of casebooks in today’s age of technology. If technology has been hailed as the new equalizer, giving everybody a chance to expand their horizon, in legal education, technology seems to encourage the reverse, narrowing things down, and giving students the ability to be even more precise while avoiding the essential broader subject-matter connections. And this is what we are set to avoid. Within the law school environment, technology, database-driven research, seems to accelerate what legal educators have been fighting against for 75 years, the closed universe. In our class, due to our legal, cultural, philosophical, policy, and scientific immersion into the world of environmental law are exposing the students to the essence of the rule of law, while enabling them to understand the specificity of law, because there is no rule of law outside a working legal regime whose specific rules are constitutional because they mirror our society and its mores.