Constitutional Challenges to Environmental Laws Commerce Cause o Article 1 Section 8 o Overarching for many different programs o New Deal Anything went 1995 Major Case out of Supreme Court Congress had the power to regulate interstate commerce o Challenge to Gun Free School Zone o Found that that a gun near a school had no connection to interstate commerce o Three Categories Channels Activities Instrumentalities CWA ESA Facial Challenge Entire Law As Applied Challenge one use of the law that substantially affect interstate commerce Statures that regulate land use within states subject to Commerce Clause Challenge Red Wolf Case Gibbs v Babbit not a supreme court case 4th circuit Fish and Wildlife Serves had been breeding in captivity and releasing in to the wild Moved in to public land Homeowners wanted to get rid of them but that was against the ESA o Taking Valid Constitutional o Tourism o Research o Protection of livestock and crops o Fur pelt market Unconstitutional o Pelt trade not viable o All within one state Aggregation of individual taking of red wolves allowed o Adding up the impacts CONSITUTIONAL o Taking of endangered species affects interstate commerce o Also part of a compressive scheme to preserve and protect endangered species Nonsensical to allow regulation of abundant species but not rare species because they do not cross state lines Must extend to private land or would put ESA efforts in peril The Dissenting judge o Judge Gibbs o Not economic activity shouldn t be allowed to aggregate it o Even if economic no substantial affects on Interstate commerce from 41 wolves on private land within one state o Pelt trade is ridiculous Substantially Affected Economic Activity is found then you can aggregate Non economic activity is still an open question whether aggregation is permissible Diiferent Rationales for Upholding ESA o The commercial value of the species Feature pharmeutical value o The commercial natural of the prohibited activity Stopping a hotel o The effect of the overall regulatory program on interstate commerce Cant take one part away and expect the rest to have validity ESA Rendered extinct by economic growth and development Delta Smelt and the Commerce Clause Small Fish Lives in the Sacramento delta in CA only Range has diminished No commercial value at present o Once used for bait Congress has the power to regulate intrastate activates that s part fo a larger scheme Species are listed because of overuse for commercial purposes ESA prohibits commerce in protected species ESA protects future and unanticipated commercial value of species Regeneration allow for future commercial use Patient Protection and Affordable Care Act Was not part of the commerce clause But was a TAX Constitutional under Commerce clause Individual Mandate buy insurance or pay penalty o Yes Cost of medical care of uninsured will be passed on to others 18 of GDP on health insurance o No Cant force citizens to buy insurance Commerce clause does not regulate staying OUT of the market Supreme Court finds it is a valid exercise of Congress power to tax but is not a valid exercise of its Commerce Clause power Power to regulate commerce not compete it The Regulatory Process Requirements in the Rulemaking Process Executive Order 12 866 1993 o Cost benefits analysis and review by OMB if 100 million or more annually Adverse effects on economy Novel legal or policy issues Interference with action of another agency Executive Order 13 563 2011 o Retrospective review of regulations by agencies Judicial Review Actions for Judicial Review o Actions filed to challenge agency actions o A challenge to an agency decision to go forward with a project of the agency s issuance of a regulation o Each environmental stature has a provision setting forth Requirements for challenging Agency Actions o Final agency action o No committed to agency discretion by law o Exhaustion of administrative remedies Have to file public comments Use other methods first o Standing o Ripeness Administrative Procedure Act APA Courts are to overturn agency actions only if it is arbitrary capricious and abuse of discretion to otherwise not in accordance with the law A fairly deferential standard but will still take a hard look and overturn agency decisions Chevron vs NRDC Most important case in administrative law o Deference to agencies Also an important air pollution case Defendant EPA and chevron Stationary Source o Validity of market based regulation and New Source Review o Bubble permit needed if modifications made ONLY if total emissions increases can offset modifications with new with no permit o No Bubble permits needed for each modification made Decision o 6 0 Deference In favor in of the bubble policy o What is deference Strong deference presumed correct No deference judges start from scratch Two Step Analysis expanded judicial deference to agency decisions o Step 1 Has congress directly spoken to the precise question at issue IF yes and intent is unambiguous Court gives effect to intent of Congress IF no court asks o Step 2 Is the agency s interpretation of the statute reasonable and entitled to deference If Congress has left a gap agency has authority to fill that gap Court may not substitute its judgment for that of the agency Court does not ask is the bubble concept appropriate rather it asks was the agency s view that it is appropriate a reasonable interpretations of the statue Address the PROCESS for review agency regulations does not predetermine the Outcome Research o Step 1 was used 60 struck down o Step 2 was used 95 upheld Examples o Polar Bear Upheld FWS s threatened determinations for polar bears finding that FWS s determination was reasonable and entitled to deference at Step 2 o Wetlands Struck down EPA s determination that isolated wetlands could be regulated under the CWA The Truth About Regulation Professor Rena Steinzor Warm Up Government must keep people safe from outside forces I would stop the government from denying that global warming exists and ratify the past international treaties that we haven t ratified before Staying on parents healthcare Free Market Don t really have a free market o Subsides o Tax market is rigged o Government Monopoly is some sectors Beginning in 2007 Deep Water Horizon 2010 o Drilling deeper and deeper Texas City Refinery 2005 o 15 people killed o Already reported to be dangerous o Still did nothing Big Branch Mine o No response with new legislation Imported Products Food