“And to all those who have wondered if America’s beacon still burns as bright – tonight we proved once more that the true strength of our nation comes not from our the might of our arms or the scale of our wealth, but from the enduring power of our ideals: democracy, liberty, opportunity, and unyielding hope.” Obama Election Night Speech, November 4, 2008

11/5/08ESPP 782 Law and the Environment Law’s formal functions –Expression and definition of public values –NEPA: not nature or natural resources but environment –Regulatory statutes and standards –Participatory mechanisms –Enforcement mechanisms Remedies and sanctions Law’s epistemic (knowledge shaping) functions –Could we even have the “environment” without law? Natural categories: pollutants, toxics, risk Social responsibilities: prevention, mitigation, restoration Analytic methods: risk assessment, cost-benefit analysis

11/5/08ESPP 783 Law’s Metaphysical Functions What sorts of things are these: –Unreasonable risk –Fine particulates –Chemical carcinogens –Endangered species How do we know that they exist in the world? Who brings them into being? Can we make them go away?

11/5/08ESPP 784 Framework of Environmental Law Divided responsibilities (federal and state ) –Commerce (interstate) vs. land use –Environmental media vs. stationary sources –Political opportunity or political hindrance? Categories of environmental legal disputes –Public law actions(in areas regulated by statute) Standing to sue DC Circuit: a federal administrative court? –Common law actions (in unregulated areas) Suits by and against private parties

11/5/08ESPP 785 Public Law: Regulatory Process Legal (statutory) mandate: who is responsible for what? –Proposed rule –Notice and comment –Hearings –Inputs from experts and citizens –Final rule Litigation: on what basis? –Unlawful: going beyond legal mandate –Unreasonable: not justified by substantial evidence; arbitrary and capricious –Failure to act (e.g., Mass v. EPA, NEPA litigation) Modified rule (or stalemate)

11/5/08ESPP 786 Private Law: Tort Litigation Environmental disaster or chronic pollution event Basis for private lawsuit –Evidence of harm (burden of proof on plaintiff) –Evidence of negligence or lack of warning Daubert admissibility criteria –Testability; error rate; peer review; general acceptance Trial fact-finder (jury or judge) Appeal (issues of law at trial; size of verdict)

11/5/08ESPP 787 Rights of Environmental Citizenship Legal rights of environmental citizenship include –Right to know Of exposure to risks (TRI) For informed consumption of foods, drugs, etc. (labels) –Right to participate (Administrative Procedure Act) –Right to offer expertise –Right to seek information (FOIA) and have access to advisers (FACA) –Right to demand reasons (APA) –Right to challenge irrational decisions (APA) –Right to appeal