April 8, 2013

Are environmental law and the rule of law in conflict?

By Jonathan Wood Attorney

In his best known work The Morality of Law, legal philosopher Lon Fuller identified the conditions that must be satisfied for any legal system to comply with the rule of law.  Among other things, rules must be of general application – ad-hoc and inconsistent rules are forbidden – and be publicized, clear, and consistent.  Many of these elements are incorporated into the U.S. Constitution through the Due Process Clause.  While most everyone agrees that the rule of law is a value that should be respected, it is often honored more in the breach than in the observance in environmental law.

For example, in Sackett, a family wanted to challenge the EPA’s assertion of authority over their private property.  They believed that the EPA was asserting greater power than the statute allowed.  The EPA threatened substantial daily fines if the family did not comply with an order to restore the site to its natural state.  The EPA argued that the family could not challenge the order but must instead either comply or wait for the agency to enforce the ever growing civil penalty.  Thankfully, the Supreme Court agreed with the Sacketts.  As a result of court oversight, these orders are more likely to be subject to clear constraints that are generally applied and in line with the provisions of the CWA.

Similarly, the Corps implementation and enforcement of the CWA fails on these criteria.  The statute applies to the navigable waters of the United States, but the agency has greatly expanded its control (even asserting that a dry arroyo falls within its ambit!).  The Supreme Court has rejected the Corps’ broad assertions and strongly suggested that the agency adopt regulations more clearly defining its jurisdiction.  It hasn’t.  Rather, the Corps continues to regulate by informal guidance and interpretive memos, which are not publicized, clear or consistent.  A similar problem is at issue in the California Association for Recreational Fishing case.  There the California Department of Fish and Wildlife adopted regulations in an environmental report without going through the notice and comment procedures required by law.  These procedures ensure that regulations are clear, consistent, and publicized. However, the trial court, citing the importance of environmental policy, excused this failure.

Perhaps the biggest rule of law deficit in environmental law is clarity.  It is hopeless for a layperson to attempt to understand what environmental law requires of her.  The maxim that “ignorance of the law is no excuse” works well in a system where the law is comprehensible and discoverable (because it is publicized, clear and consistent).  But, modern environmental law makes scofflaws of people who have no reason to think that what they are doing is illegal or wrongful.  Actions as innocuous as trying to construct a family home, removing trash from private property, or riding a recreational vehicle in a park can expose anyone to the risk of crushing fines or criminal prosecution.  These rule of law violations are not necessary to environmental protection.  Rather they are the product of the courts declining to police agencies and Congress failing to announce clear and comprehensible rules.

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