Environmental Health Law

An Introduction

Russellyn S. Carruth, Bernard D. Goldstein

• Publisher: Jossey-Bass
• Year: 2013
• ISBN:
  9781118420874
• Edition: 1
• Topic: Medizin
• Subtopic: Gesundheitswesen, Verwaltung & Pflege

This important resource offers a comprehensive overview of the major U.S. environmental laws and approaches, strategies, standards, and enforcement techniques by which American law protects our environment and our health. Written for the non-lawyer, the book puts the spotlight on general concepts that go a long way to demystify the American legal system (what law consists of, who makes it, how it is made, and how it is enforced). The authors also introduce the major environmental laws and evaluate issues, controversies and developments in environmental policy.

Chapter 1

Overview of the US Legal System

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Key Concepts

• Checks and balances: Governmental power is divided between the national government and the states, and between the executive, legislative, and judicial branches, to avoid any one group wielding excessive power.
• Enumerated powers: The federal government is a government of limited powers, having only those powers explicitly granted it by the Constitution.
• Law: There are various kinds of “law” that come from multiple sources.

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The purpose of this chapter is to provide an introduction to the American legal system, governmental structures, and sources of law. The concepts discussed here are fundamental to all American law; they are not unique to environmental law. But these fundamentals provide a context for understanding environmental law.

THE STRUCTURE OF AMERICAN GOVERNMENT

The United States was created—or “constituted”—in 1789 by a document called the Constitution. The document was drafted by chosen representatives and then approved by the original thirteen states. At the time, this was a unique new phenomenon—a government created by, rather than imposed on, the governed. The people of America had very recently won their independence from England, and they were eager to protect their independence. Above all, they shied away from power concentrated in too few hands, which they saw as a recipe for tyranny.

The founders—the drafters of the Constitution—sought to establish a government strong enough to govern and defend the country while at the same time protecting the rights of the states and the people. They invented a system of government based on a new idea: separation and balance of powers. Power is divided among separate segments of government, as a check against abuse of power by any one segment. This idea, often called checks and balances, is a hallmark of American government.

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balance of powers

The balance achieved by separating governmental powers among multiple entities, to avoid abuse of power by any single entity

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checks and balances

A strategy of dividing power among separate segments of government to avoid abuse of power by any one segment; this is a hallmark of the American system

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SEPARATION OF POWERS: FEDERAL AND STATE

The Constitution created a unique federal system, consisting of a central—federal—government existing alongside sovereign individual states. The Constitution lists—or “enumerates”—specific powers allocated to the federal government, for example, the powers to declare war and print money. All other powers are reserved to the states and the people. Thus, the federal government is often called a government of enumerated powers or “limited powers.” The federal government exists in parallel to the state governments, now grown to fifty in number. Their structures and laws are largely similar, but not identical, to the federal government's structure described below. This separation of powers between the federal government and the states—often referred to as a vertical separation of powers—is one of the checks and balances introduced by the Constitution to protect against tyranny (see table 1.1).

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enumerated powers

Powers explicitly given to the federal government by the Constitution

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Table 1.1 Separation of Powers between National Government and States

National Government	States
Enumerated Powers	Reserved Powers
Delegated by Constitution	Any Powers Not Delegated to National Government
Includes:	Includes:
Regulate interstate and foreign commerce (authority for federal environmental laws) Establish foreign policy Print money Etc.	Environmental protection Protection of public safety and welfare Regulate intrastate commerce Create local governments Etc.

Note: The authority of national and state governments overlaps in many areas, including environmental protection.

In practice, the division between federal and state power is not quite as neat as in concept. The enumerated powers are explicit, but subject to interpretation. As a result, disputes are not infrequent as to whether a particular federal law crosses the line and encroaches on the powers reserved to the states. This is the theoretical question in debates over states' rights. The ultimate arbiter is the US Supreme Court. Because the Court is a part of the federal government, you might think that states would always lose the dispute. But that is not so. At times in our history, the Court has interpreted enumerated powers broadly—stretching the language like elastic—but at other times it has interpreted federal powers narrowly, ruling in support of states' rights.

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states' rights

A sobriquet for powers constitutionally reserved to the states rather than conferred on the federal government

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Separation of Powers: Branches of Government

In addition to the vertical separation of powers between the federal and state governments, the Constitution created what is often called a horizontal separation of powers within the federal government. There are three fundamental powers or functions of government: legislative, executive, and judicial. Historically, in other nations, all of these powers were exercised by one sovereign individual or group. By contrast, the US Constitution divided these functions in the federal government among three separate and independent branches: Congress, the executive branch, and the judiciary (the courts). This horizontal separation of powers is another of the checks and balances introduced by the Constitution to protect against the risk of tyranny that comes with concentration of power in too few hands (see table 1.2).

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separation of powers

The division of governmental powers among multiple entities, intended to avoid abuses by any single entity

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Table 1.2 Branches of Government

Legislative Branch	Executive Branch	Judicial Branch
Congress	President	Federal Courts
Consisting of:	Assisted by:	Consisting of:
Senate House of Representatives	Vice president Heads of agencies	US Supreme Court Circuit Courts of Appeal District Courts

Note: This table is intended to emphasize that the branches of government are independent and equal. Although the table specifically depicts the federal branches, it could equally serve to illustrate the branches of a state government.

Legislative Branch

Legislation is the adoption of statutory law Laws enacted by Congress or a state legislature—what most people think of when they hear the word “law.” Congress is the federal branch vested with legislative power. It consists of two elected houses—the Senate and the House of Representatives. The Senate consists of two senators elected from each state. Thus, all states have equal weight in the Senate, regardless of population. By contrast, the number of representatives elected to the House from each state is proportionate to its population. America's bicameral (two-house) legislature provides a layer of power-balancing. A bill (proposal) cannot become law unless approved by a majority of both houses.

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statutory law

Laws enacted by Congress or a state legislature

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Executive Branch

The federal executive branch consists of the president, vice president, and various departments and agencies. The head of each department (usually called the secretary) and the heads of some of the agencies (called administrators), along with a few other officials, comprise the president's cabinet. The president and vice president are elected. The heads of departments and agencies are appointed by the president, but must be approved by the Senate (another example of balancing powers).

Judicial Branch

The federal judiciary forms a pyramid with three tiers. The large bottom tier is the trial court level, called the US District Courts. The term “District” here refers to state-based geographic areas, for example, the Western District of Pennsylvania. The narrower middle tier is the appellate level, called the US Courts of Appeal, often referred to as “Circuit Courts.” The term “circuit” refers to a geographic area covering several states (see figure 1.1). For example, the Third Circuit encompasses Pennsylvania, New Jersey, and Delaware, so the US Court of Appeals for the Third Circuit presides over all the District Courts in those three states. The peak of the pyramid is the United States Supreme Court. A decision of an appellate court, such as the Third Circuit Court of Appeals, is binding only on the courts within its own circuit—that is, its own “jurisdiction.” But, if persuasive, its decision might be followed by courts in other circuits. Decisions of the Supreme Court are binding on all federal courts in all circuits. The Supreme Court a...