Environmental Law Midterm Exam 2
PLST 35001
Amanda Webb
March 28, 2017
Sovereignty in general means authority or supreme power. Sovereignty exists in environmental law within the powers that control and regulate environmental law. State and National governments' hold authority over environmental law with the Supreme Court being the ultimate arbiter of the inter-sovereign relations. One way that sovereignty exists within environmental law is through the state police power. The state police power is the traditional body that regulates health, safety, and welfare, which includes environmental matters. The state police hold their power in environmental law by regulating the resources themselves and regulating the harms caused by pollution and environmental externalities. Generally, the states' environmental quality was the main province of the states through their police power, but has switched between the federal and state government. Before the states the full purpose sovereigns in the United States are displayed through preemption.
A state law that affects intersta te commerce must be tested under the Pike test. First the state law is evaluated to determine if the statute holds a legitimate local public interest. If a legitimate local purpose is found, then n ext the burden on interstate commerce must be weighed against local benefits. This is a complex calculus that seeks to account for the importance of the local benefits and the extent of the bur den on the interstate commerce and whether this could be promoted as well with a lesser impact on interstate activities. An example of this test being applied is shown in Minnesota v. Clover Leaf Creamery Co. , 449 U.S. 456 (1981). Minnesota created a statute that restricted plastic milk containers that arguably favored pulpwood manufacturers (a Minnesota industry) and disfavored plastic manufacturers (a non-Minnesota industry). The Court found that the statute was not discriminatory and proceeded to measure the burdens on interstate commerce. The Court concluded that even if the out of state plastics industry was burdened, the burden is not clearly excessive considering the substantial state interest in promoting conservation of energy and other natural resources and easing solid waste and disposal problems.
Although the Snail Darter case is not widely known it is widely recognized as classically illuminating. This case was the Supreme Court's first encounter with ESA § 7. This case has held a highly significant impact on the country's interpretation on laws regarding endangered species. ESA §7 became a significant regulatory program in the years immediately following the snail darter decision resulting in substantial increases in its annual budget allocations and a new degree of respect for its regulatory potency from agency bureaucrats and industrial lobbyists. Scientific surveys for endangered species impacts became an accepted part of agency project planning and permit application processes. Since this case the courts have been more attentive to the Act's requirements. The courts have strictly interpreted this act without reference to the significance of the species concerned.
The Clean Air Act's standards for regulating hazardous air pollutants first step involved the EPA identifying the air pollutant levels consistent with the goal of the air throughout the country being safe to breathe. Next the states would choose the means of achieving the goal of clean air. Mobile sources would be regulated primarily by the federal government and the stationary sources would be regulated primarily through the states.
The harm-based approach dealing with hazardous air pollutants was substituted by a technology based approach that called for the employment of MACT. The legislation called for 180 substances to be regulated by that method. Technology based standards can be costly for the industry to comply with and adopt. One inadequacy of the harm based standards was the EPA was required to compile a list of HAPs and promulgate emission standards directly applicable to sources that emitted the hazardous pollutants in question. The harm based approach was not easily applicable to the problems of HAPs. The agency was limited by the availability of adequate scientific studies on which to propose standards and dogged by judicial challenges to those standards that they did propose.