Three articles of the U.S. Constitution create a federal government composed of three major branches. The legislative branch (under Article I) primarily creates laws; the executive branch (under Article II) primarily enforces laws; and the judicial branch (under Article III) primarily interprets laws. While performing their major functions as described in the relevant article, the executive and legislative branches also create law. Additionally, there is a fourth source of law, administrative agencies.
The following sections describe how each of these branches serves as a source of law. Table 1-1 shows where you can find the laws created by these branches of the federal government, as well as laws created by state and local governments. When you look for environmental laws, you will find that they may be created by all of these branches, and, therefore, may be found in all of these sources.
|Table 1-1: Where to Find Enviromental Law|
|Level of government||Legistlative Laws||Executive Orders||Common Law / Judicial Interpretations||Administrative Regulations|
|Federal||United States Code (USC)
United States Code Annotated (USCA)
United States Statutes at Large
|Title 3 of the Code of Federal Regulations
Codification of Presidential Proclamations and Executive Orders
|United States Reports (U.S.)
United States Supreme Court Reporter (S.CT.)
Federal Reporter (F.Supp.)
Environmental Law Reporter (ELR)
Federal agency reports titled by agency, e.g. FCC reports)
|Code of Federal Regulations (CFR)
|State||State code or state statutes (e.g. Baldwin's Ohio Revised Code)||Regional reporters
|State administrative code or state adminstrative regulations|
|Local||Municipal ordinances||Municipality administrative regulations|
Article I, Section 1, of the U.S. Constitution states, “All legislative Powers herein granted shall be vested in a Congress of the United States which shall consist of a House and Senate.” The process by which Congress makes a law (called a statute) is important to understand because Congress creates most environmental law.
The federal legislative process is similar in many respects to the process followed by state legislatures, but each state constitution may require slightly different procedures. We focus on the federal process because it is the model on which state processes are based and because most environmental legislation is either federal or is modeled on federal law. The reason our environmental laws are primarily federal is that environmental problems do not recognize state borders and, therefore, a uniform, nationwide approach is often necessary.
All laws originate from legislative proposals called bills. A bill is introduced into the House or Senate by a single member or by several members. The bill itself may well have been drafted by a lobbyist. Most environmental groups often have their own lobbyists who will attempt to persuade…legislators to introduce and support their bills. Various business interests also hire their own lobbyists.
Once introduced, a bill is generally referred to the committee of the House or Senate that has jurisdiction over the subject matter of the bill. For example, a bill seeking to provide subsidies to firms willing to get half their energy from solar power will be referred to the House Committee on Energy and Commerce, which will, in turn, refer it to an appropriate subcommittee.
In most cases a bill is simultaneously introduced into both the Senate and the House and referred to the appropriate committee and subcommittee in each. Once the bill is referred, the subcommittee holds hearings on the bill, listening to testimony from all concerned parties and establishing a hearing record. Lobbyists will be active during this time, sometimes through testimony at congressional hearings.
Following these hearings, the bill is marked up (drafted in precise form) and then referred to the subcommittee for a vote. When the vote is affirmative, the subcommittee forwards the bill to the full House or Senate committee, which may accept the subcommittee’s recommendations, put a hold on it, or reject it. If the House or Senate committee has voted to accept the bill, the committee reports it to the full House or Senate membership for a vote. Throughout this process, the bill may be amended several times in attempts to secure its passage. Sometimes opponents of a bill will also amend it, with the hope that their amendment will cause the bill to be defeated. Other times opponents will amend the bill in an attempt to water it down. As a bill is going through this process, interested parties may follow its progress in the Congressional Quarterly Weekly, a publication that keeps track of what is happening to proposed legislation (most university libraries subscribe to this publication).
By the time the bill is passed by both the House and the Senate, a different version of the proposed law will usually have been adopted by each chamber. Therefore, the bill will need to go to a Senate-House Conference Committee where, after compromise and reconciliation of the two bills, a single bill will be reported to the full House and Senate for voting. Very often you will hear discussions in the media about differences between House and Senate versions of environmental laws that are making their way through this process. Often, one chamber’s version will be supported by business interests and the other by environmental groups. The president will often throw his support publicly to one version or the other.
A final affirmative vote by both houses of Congress is required for a bill to become law. If passed, the bill is then forwarded to the president, who may either sign or veto the bill. When the president signs the bill into law, it becomes a statute. It then is written down and codified in the United States Code and the United States Code Annotated. If the president vetoes the bill, it may still become law if two-thirds of the Senate and House membership vote to override the veto. If the president takes no action within 10 days of receiving the bill from Congress, the bill becomes law without his signature. One exception to this procedure is that if Congress adjourns before the 10-day period has elapsed, the bill does not become law. The bill will have been pocket vetoed by the president—that is, the president will have “stuck the bill in a pocket” and vetoed it by doing nothing. Supporters will then have to reintroduce the bill during the next session of Congress.
The federal courts and most state courts constitute the judicial branch of government and are charged by their respective constitutions with interpreting the Constitution and statutes on a case-by-case basis. Most cases interpreting these laws are reported in large volumes called reporters, compilations of federal or state case law. When two parties disagree about the meaning of a statute, they bring their case to the courts for interpretation. For example, if a bill to provide solar energy subsidies was signed by the president and became law, two parties might still disagree about its meaning and ask the federal courts to interpret it.
One disagreement that might arise under this bill could be the time limit within which the firm must obtain half its energy from solar power. Though you would think that something as important as a time for conversion would be clearly stated in the statute, such an omission is not unusual. Congress, especially in the environmental area, often makes very broad laws and leaves it to the courts to “fill in the gaps.” As one senator said when Congress was about to pass the Superfund legislation, “All we know is the American people want these hazardous waste sites cleaned up…[L]et the courts worry about the details.”
Congress may have also made the law intentionally vague because a more specific bill could not garner sufficient support for passage. The sponsors may have specifics in mind, but they know there will be strong opposition to those details. So they water down the language in the bill and hope that the courts will interpret the law so as to impose those specifics the drafters had in mind. That strategy can be somewhat risky, because Congress never knows exactly how the courts will interpret a law. However, in the event that the judiciary interprets the law in a manner not intended by Congress, the legislative body can always amend the law, in effect overruling the judicial interpretation.
The judicial branch, when interpreting a law, sees itself as trying to ascertain congressional intent. The court first looks at the “plain language” of the statute, that is, words are given their ordinary meaning. The court then looks at the legislative history to determine the intent of the legislature. This history is found in the hearings held by the subcommittees and committees, as well as any debates on the Senate and House floors. Hearings are published in the U.S. Congressional News and Administrative Reports and may be ordered from the Government Printing Office or found in most university libraries in the government documents section. Debates about a bill are published daily in the Congressional Record, which may also be found in most libraries. When lawyers are arguing before the court on behalf of their interpretation of the law, many of their arguments will in fact be drawn from what is found in the Congressional Record. Thus, when trying to get a watered-down bill passed, its drafters will often try to insert language into the Congressional Record that would be supportive of their preferred interpretation of the law.
Not all judicially crated law is based on a statutory or constitutional interpretation. Such laws for which there is no such basis are referred to as common law. Common law emerges from actual court cases. It develops when a problem arises for which there is no applicable statute or constitutional provision. We then have what is known as a case of first impression. Cases of first impression obviously provide judges with the greatest latitude to make law. The judge must create a law to resolve the problem. The rule laid down to resolve this case is called a precedent. If a similar case arises in the future, the courts have a tendency to follow the precedent. Very little environmental law, however, is created in this manner; most environmental law is based on statutes.
The rule that the court lays down when interpreting a statute or ascertaining the constitutionality of a statute is also known as a precedent. Such precedent will be relied upon in the future when other judges are ruling on interpretations of statutes and the Constitution. This process of reliance on precedent is called stare decisis, which literally means “let the decision stand.”
Not all precedents are equally important. The decisions of a court are binding precedent on only those courts on a lower level and in the same system. For example, precedents from the Ohio Supreme Court bind the Ohio appellate and Ohio trial courts. These precedents do not bind the Michigan courts. However, an Ohio precedent may be used in a Michigan case as a persuasive device. In other words, lawyers in a Michigan case may point out how Ohio resolved the law and argue that the Ohio court’s reasoning was logical and therefore should be adopted. Likewise, in the federal system, a Fifth Circuit Court of Appeals decision would not have any precedential effect on another circuit court appeal. However, the precedent would be binding on the district courts within the Fifth Circuit.
Although the process of stare decisis seems very straightforward, its application actually provides the judge with opportunity to implant his or her values in the law. Judges have discretion because no two cases are ever exactly the same. The judge therefore will be able to distinguish the case at bar from the case that others are arguing should provide the precedent. When distinguishing a case, the judge finds a difference between the case before him and the precedent-setting case significant enough to allow him to rule differently in the second case. In many cases one lawyer will be arguing that the case before the court is similar to the potential precedent, and the opposing lawyer will be trying to point out significant differences between the two.
Another factor making reliance on precedent less predictable than one might assume is that there are frequently conflicting precedents, especially at the trial and initial appellate levels. Finally, a judge may always simply overrule the clearly applicable precedent. Whereas the judge will generally cite some reason for overruling the precedent, such as changes in technology or community values since the precedent was established, he or she need not do so. He or she may simply say that the prior ruling was erroneous and that overturning the precedent is simply a matter of “correcting” the law.
The U.S. Supreme Court and most state supreme courts have what is generally known as the power of judicial review, that is, the power to determine whether a statute is constitutional. Although not expressly provided for in the Constitution, the Supreme Court established this right in the landmark case of Marbury v. Madison, making the Supreme Court the final arbiter of the constitutionality of every law. This power gives the Court the ultimate power to restrict legislative and executive branch activity.
The executive branch includes the president, the president’s staff, and the cabinet. The heads of all executive departments (e.g., the secretary of state, the secretary of labor, the secretary of defense, the secretary of the treasury) make up the cabinet. The executive office is composed of various bodies, such as the Office of Management and Budget (OMB) and the Office of Personnel Management (OPM). The executive branch is influential in the rule-making processes of both the legislature and the administrative agencies. The president influences Congress by proposing legislation, publicly supporting or opposing proposed laws, and the use of the veto. The executive branch exercises direct rule making through its power to make treaties and issue executive orders.
The president has the power, subject to the advice and consent of the Senate, to make treaties. These treaties become the law of the land, based on the supremacy clause of the Constitution (Article XI), and supercede any state law. For instance, when President Reagan entered into the Montreal Protocol, a treaty mandating reductions in the production of chlorofluorocarbons and halons, that treaty became the law of the land, and its provisions superceded any existing federal or state laws inconsistent with the treaty. Thus, the Kentucky legislature could not subsequently pass a law that would allow the unlimited production of those chemicals within the state’s borders. Treaty making is one of the few ways that the United States can influence the environmental policies of other nations. Even though we think of traty making as being primarily the job of the executive branch, we cannot overlook the Senate’s role. For example, the executive branch negotiated the Kyoto Treaty in December 1997. As of May 1998, 34 countries had signed the Kyoto Treaty. However, in September 1998, the treaty had not even been presented to the Senate for approval, to a large extent because the executive branch was not confident that it would be able to secure enough votes for ratification.
Throughout history, the president has made laws by issuing executive orders. For example, President Reagan, by virtue of an executive order, ruled that all executive federal agencies must do a cost-benefit analysis before setting forth a proposed regulation for comment by interested parties. In 1992, President Bush issued an executive order temporarily freezing the promulgation of new rules by administrative agencies, an act that had the potential to affect environmental law severely because agencies are constantly making rules implementing environmental laws.
The executive order as a source of law is also used by state governors to deal with emergencies and with budget functions. Often a governor will call out the National Guard by executive order or, in some states, implement particular aspects of the budget process. For example, a governor may order a freeze on hiring in the state university system or order an across-the-board cut in budgets in all state departments when quarterly tax revenues are lower than anticipated.
Less well known to the general public as a source of law are the federal regulatory agencies, among them the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA). Congress has delegated to these agencies the authority to make rules governing the conduct of business and labor in certain areas. This authority was delegated because it was thought to be in accord with the public interest, convenience, and necessity. There was some concern, however, about the delegation of so much power to bodies with no elected representatives, so their rule-making processes are especially open to public participation. Proposed rules, as well as those rules finally implemented by an agency, must be published in the Federal Register, and the public must be given the opportunity to comment on these proposals.
Because of their substantial impact on the laws of this nation, administrative agencies sometimes represent what many observers have called a fourth branch of government.
Environmental law is classified as a branch of administrative law. This classification means that these laws are overseen by a body known as an administrative agency, and that many of the specific regulations in this area are also established by this agency.
The first federal administrative agencies were created by Congress near the end of the nineteenth century and the beginning of the twentieth century. They were the Interstate Commerce Commission (ICC) and the Federal Trade Commission (FTC). Congress felt that the anticompetitive conduct of railroads and other corporations could best be controlled by separate regulatory bodies with defined statutory mandates. Following the crash of the stock market and the Great Depression of the 1930s, Congress saw a need for additional agencies that could assist in guiding market decisions in the public interest. Since then, numerous agencies have been created whenever Congress believed there was an area that required more intense regulation than Congress could provide.
An administrative agency is generally defined as any body created by a legislative branch (e.g., Congress, a state legislature, or a city council) to carry out specific duties. Most agencies, however, are not situated entirely in the legislative, executive, or judicial branch of government. They generally have legislative power to make rules for an entire industry, judicial power to adjudicate individual cases, and executive power to investigate corporate misconduct. Numerous agencies play a role in creating and enforcing environmental regulations; especially important is the Environmental Protection Agency (EPA).
Congress creates most administrative agencies through statutes called enabling legislation, although the president sometimes creates administrative agencies through an executive reorganization plan. Generally, the enabling statutes contain broad delegations of congressional legislative power to agencies for the purpose of serving the “public interest, convenience, and necessity.” This power to create rules is sometimes referred to as quasilegislative because the agency’s rule-making authority is limited in scope to the authority it is granted by Congress. Using this mandate, a particular administrative agency issues rules that control individual and business behavior. In many instances, such rules carry civil, as well as criminal, penalties.
When passing an enabling statute, Congress also delegates executive power to agencies to investigate potential violations of rules or statutes. Through enabling statutes, Congress also delegates judicial power to settle or adjudicate individual disputes that an agency may have with businesses or individuals. For example, the EPA administrator, using the congressional mandate under the Clean Air Act, sets forth rules governing the amount of certain hazardous air pollutants that may be emitted into the atmosphere. Using these standards, another branch of the EPA sends investigators to inspect a plant suspected of violating the act. If the inspector finds a violation and the EPA imposes a penalty, the plant operator will most likely contest the imposition of the fine, and a hearing will be held before an administrative law judge employed in another division of the EPA.
Administrative agencies perform the following functions: rule making, adjudication of individual cases brought before administrative law judges by the staff of an agency, and administrative activities.
Americans are probably most familiar with administrative agencies because of their rule-making powers. Administrative agencies are granted the authority to perform the legislative function of making rules or regulations by the enabling statutes that bring them into existence. For example, the enabling statute creating OSHA gave the secretary of labor authority to set “mandatory safety and health standards applicable to businesses affecting interstate commerce.” The secretary was given the power to “prescribe such rules and regulations that he may deem necessary to carry out the responsibilities under this act.” In some cases, the procedures for implementing the rule-making function are spelled out in the enabling act. When this is not done, one of three alternative models for rule making may be used: informal, formal, or hybrid.
One reason for the creation of administrative agencies has been the idea that they could be staffed with people who had special expertise in the area the agency was regulating and, therefore, would be capable of knowing what types of regulations were necessary to protect citizens in that area. Also, because they were not elected, agency employees, in their rule-making capacity, would not be subject to political pressure. Agencies would also be able to act more swiftly than Congress in enacting laws. Today, administrative agencies actually create more rules than Congress and the courts combined.
The primary type of rule making used by administrative agencies is informal, or notice-and-comment rule making. As provided by Section 553 of the Administrative Procedure Act (APA), informal rule making applies in all situations where the agency’s enabling legislation or other congressional directives do not require another form. An agency initiates informal rule making by publishing in the Federal Register the proposed rule, along with an explanation of the legal authority for issuing the rule and a description of how one can participate in the rule-making process. Following this publication, opportunity is provided for all interested parties to submit written comments. These comments may contain data, arguments, or other information a person believes might influence the agency in its decision making. Although the agency is not required to hold hearings, it has the discretion to receive oral testimony if it wishes to do so. After considering the comments, the agency publishes the final rule, with a statement of its basis and purpose, in the Federal Register. This publication also includes the date on which the rule becomes effective, which must be at least 30 days after the publication. Table 3.1 shows the Informal Rule-Making process.
Informal rule making is most often used because it is more efficient for the agency in terms of time and cost. No formal public hearing is required, and no formal record need be established, as would be true in formal rule making. Some people, however, believe that informal rule making is unfair because parties who are interested in the proposed rule have no idea what types of evidence the agency has received from other sources with respect to that rule. Thus, if the agency is relying on what one party might perceive as flawed or biased data, that party has no way to challenge those data. A second type of rule making, formal rule making, avoids that problem.
Section 553(c) of the APA requires formal rule making when an enabling statute or other legislation requires that all regulations or rules be enacted by an agency as part of a formal hearing process that includes a complete transcript. This procedure is initiated in the same manner as is informal rule making, with publication of a notice of proposed rule making by the agency in the Federal Register. The second step in formal rule making is a public hearing at which witnesses give testimony on the pros and cons of the proposed rule and are subject to cross-examination. An official transcript of the hearing is kept. Based on information received at the hearing, the agency makes and publishes formal findings. On the basis of these findings, an agency may or may not promulgate a regulation. If a regulation is adopted, the final rule is published in the Federal Register. Because of the expense and time involved in obtaining a formal transcript and record, most enabling statutes do not require a formal rule-making procedure when promulgating regulations. If a statute is drafted in a manner that is at all ambiguous with respect to the type of rule making required, the court will not interpret the law as requiring formal rule making.
After agencies began regularly making rules in accordance with the appropriate procedures, the flaws of each type of rule making became increasingly apparent. In response to these problems a form of hybrid rule making became acceptable to the courts and legislature. Hybrid rule making is an attempt to combine the best features of both. The starting point, publication in the Federal Register, is the same. This publication is followed by the opportunity for submission of written comments, and then an informal public hearing with a more restricted opportunity for cross-examination than in formal rule making. The publication of the final rule is the same as for other forms of rule making.
The above text is from selections of Chapters 1, 2, and 3 of Environmental Law, Third Edition, by Nancy K. Kubasek and Gary S. Silverman (Prentice Hall, 2000)