Divorce is a game played by lawyers. -- Cary Grant
STRUCTURE OF GOVERNMENT
The United States is a federalist system. The national government has
specific, enumerated powers, and the fifty sovereign states retain
substantial autonomy and authority. Both the national government and
each state government is divided into executive, legislative and
judicial branches. Written constitutions, both federal and state, form a
system of separated powers, checks and balances among the branches.
Any powers not delegated to the federal government in the Constitution,
nor prohibited by it to the states, are reserved to the states, or to
the people. U.S. Const. amend. X. Nonetheless, the powers of the federal
government are extensive. The federal government's authority to regulate
interstate commerce, U.S. Const. art. I, sec. 8 cl. 3, makes it the
predominant force in environmental regulation. The states, under their
general police powers to protect the public health, safety and welfare,
also retain substantial independent authority to issue environmental
protection laws applicable to their citizens and residents.
Potential conflicts between state and federal regulation in all areas,
including environmental protection, are governed by the Supremacy Clause
of the U.S. Constitution. U.S. Const. art. VI. The federal Constitution,
federal laws, and international treaties are supreme to state or local
law; state and local laws that contradict federal laws or treaties are
thus preempted and can be declared unconstitutional by a federal court.
Although the Constitution sets forth the basic framework for national-
subnational relationships in the U.S., many environmental statutes add
detail to specific aspects of those relationships within the broader
constitutional framework. For example, federal statutes might explicitly
preempt, or explicitly waive any preemption of, state law. See, e.g.,
Toxic Substance Control Act (TSCA), 15 U.S.C. sec. 2617; Clean Water Act
(CWA), 33 U.S.C. sec. 1370; Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA), 7 U.S.C. sec. 136v; Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), 42 U.S.C. sec. 9614;
and Resource Conservation and Recovery Act (RCRA), 42 U.S.C. sec. 6929.
Some federal environmental statutes create national minimum standards
delegating primary implementation of federal programs to states that
meet certain federal standards. States are free to enact stricter
regulations. See, e.g., CWA, 33 U.S.C. sec. 1370; RCRA, 42 U.S.C. sec.
6929. When a state is delegated federal authority, EPA and the state
will sign a Memorandum of Agreement establishing their respective
responsibilities and necessary procedures. Many federal environmental
statutes also provide for grants, technical assistance and other support
to assist the states in furthering national policies or programs. See,
e.g., TSCA, 15 U.S.C. sec. 2627; CWA, 33 U.S.C. sec. 1329 (h). A U.S.
citizen can be subject to both federal and state law on environmental
NATIVE GOVERNMENTS / ABORIGINAL PEOPLES
Native Americans have significant rights of self-government under the
U.S. Constitution, which stem from their own sovereignty. Among other
powers, tribal governments have the power to tax, to pass their own laws
and to have their own courts. Nonetheless, the general rule is that
federal laws of general applicability apply equally to Native Americans
and their property. Federal Power Commission v. Tuscarora, 362 U.S. 99,
116 (1960); U.S. Department of Labor v. Occupational Safety and Health
Administration, 935 F.2d 182 (9th Cir. 1991). Exceptions to this general
applicability of federal law apply where Congress intended to exempt
Native Americans; where the issues relate to the core of Native American
self-governance and self- organization; or where application would
abrogate rights guaranteed by Native American treaties. Even in these
areas, however, Congress can expressly apply a statute to Native
Many of the federal environmental laws have specific provisions
explaining how the law applies to Native American tribal lands. The
provisions vary, but typically grant to Native American tribal
governments similar rights and responsibilities as those granted to
states. See, e.g., CWA, 33 U.S.C. sec. 1377; Safe Drinking Water Act
(SDWA), 42 U.S.C. sec. 300j-11; Clean Air Act (CAA), 42 U.S.C. sec.
7601(d); CERCLA, 42 U.S.C. sec. 9626; and Surface Mining Control and
Reclamation Act (SMCRA), 30 U.S.C. sec. 1300.
The Bureau of Indian Affairs (BIA) is charged with carrying out the
major portion of the trust responsibility of the United States to Native
American tribes. This trust includes the protection and enhancement of
Native America lands and the conservation and development of natural
resources, including fish and wildlife, outdoor recreation, water,
rangeland, and forestry resources. BIA was created in the War Department
in 1824 and transferred to the Department of the Interior in 1949. In
addition, the trust responsibility generally applies to all other
federal agencies as well.
Native American tribes are usually not subject to state law except under
very limited circumstances. See Cabazon Band of Mission Indians v.
California, 480 U.S. 202 (1987).
SOURCES AND HIERARCHY OF LAW
The Constitution of the United States is the "supreme law of the land;"
it provides the basis for the U.S. government, and guarantees the
freedom and rights of all U.S. citizens. No laws may contradict any of
the Constitution's principles and no governmental authority in the U.S.
is exempt from complying with it. The federal courts have the sole
authority to interpret the Constitution and to evaluate the federal
constitutionality of federal or state laws.
Treaties made by the United States are the Supreme law of the land and
under the U.S. Constitution, as are federal. In the case of a conflict
between a treaty and a federal statute, the one that is later in time or
more specific will typically control. Treaties to which the United
States is a party may be found in the U.S. Treaties Service, the
Statutes at Large, the Treaties and other International Acts Series
issued by the State Department, and the United Nations Treaty Series.
Treaties are often implemented by federal statutes.
Federal Statutes are published first in Slip Law, then in the Statutes
at Large and subsequently in the United States Code. An example of a
cite to a federal statute is: 42 U.S.C. sec. 9607, which would refer to
title 42, section 9607 of the U.S. Code. Federal statutes may be
challenged in federal court.
Agency Rules and Executive Orders.
Federal administrative bodies issue rules and regulations of a quasi-
legislative character; valid federal regulations have the force of law
and preempt state laws and rules. Rules and regulations may only be
issued under statutory authority granted by Congress.
The President also has broad powers to issue executive orders. An
executive order is a directive from the President to other officials in
the executive branch. Proposed and final rules, executive orders and
other executive branch notices are published daily in the Federal
Register. No person may be subject to any rule required to be published
in the Federal Register and not so published. 5 U.S.C. sec. 552(a)(1).
Every federal agency must publish: descriptions of its organizational
structure; general statements of how the agency functions; its rules of
procedures, available forms and descriptions of all papers, final
reports or examinations; and all substantive rules or statements of
general applicability adopted by the agency. Rules may be challenged in
The federal courts have sole authority to review agency rules and
actions to ensure they are legal under the substantive federal statute.
An official citation to the Federal Register includes the volume, page
number and year, for example: 43 Fed. Reg. 11,110 (1978). Final
administrative rules are published first in the Federal Register and
then in the Code of Federal Regulation; an example of an official
citation to the Code is 40 C.F.R. pt. 260, which refers to title 40,
part 260 of the Code of Federal Regulations.
The United States is a common law country. Every U.S. state has a legal
system based on the common law, except Louisiana (which relies on the
French civil code). Common law has no statutory basis; judges establish
common law by applying previous decisions (precedents) to present cases.
Although typically affected by statutory authority, broad areas of the
law, most notably relating to property, contracts, and torts are
traditionally part of the common law. These areas of the law are mostly
within the jurisdiction of the states, and thus state courts are the
primary source of common law. Federal common law is relatively narrow in
scope; primarily limited to clearly federal issues that have not been
addressed by a statute.
Reported decisions of the U.S. Supreme Court and of most of the state
appellate courts can be found in the official reporter of the respective
courts. Those decided from at least 1887 to date can also be found in
the National Reporter System, a system of unofficial reporters.
Decisions of lower state courts are not published officially but can
usually be found in unofficial reports. When referring to a case, a
citation typically includes the name of the case and the volume and
pages of the reporter, as well as the date for example, Kleppe v. New
Mexico, 426 U.S. 529 (1976). Citations to federal courts of appeals are
found in volumes abbreviated F., F.2d, or F.3d, and district courts are
in volumes abbreviated F. Supp. The decisions of other specialized
federal courts such as Claims of bankruptcy decisions are also reported.
The system for citing state cases is similar. A correct citation would
be Wagen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W. 2d 437 (1980),
meaning the case was decided in 1980, is found on page 260 of volume 97
of the second series of Wisconsin State Reporters (the official
reporter), as well as page 437 of volume 294 of the second Northwestern
set of the National Reporter System.
State Constitutions and Statutes.
State constitutions are the supreme law within the state. State statutes
must conform to the respective state's constitution. All state
constitutions and legislation can be preempted by federal legislation or
the federal Constitution. See Section 1.1.3: National-Subnational
Relations. Municipal charters, ordinances, rules, and regulations apply
only to local issues; they typically can be preempted by either state or
To ensure uniformity in citation styles for all law-related publications
or writings, most citation to legal sources in the United States follows
the Uniform System of Citation, also known as the Bluebook. The Bluebook
is updated every few years by a consortium of law schools. Among other
things, the Bluebook provides the abbreviations for all state and
federal courts, statutory compilations, and administrative rules.
ROLE OF THE LEGISLATURE IN THE LAW-MAKING PROCESS
The U.S. Congress has exclusive authority to enact federal legislation.
The process by which a proposed bill becomes a law can be very complex
and take years. (For more detailed information)
Introduction of Bills.
Bills may originate in either the House of Representatives or the
Senate, except that all bills for raising revenue must originate in the
House of Representatives. U.S. Const. art. I, sec. 7. Only Senators and
Representatives (also known as Members of Congress) can introduce a bill
in their respective chamber. When bills are introduced, they are given a
bill number. The numbering system starts over with each session of
Congress, and bill numbers run in chronological order according to when
the bill is introduced. Bills in the House of Representatives are given
the initial H.R. and Senate Bills are given the initial S. Thus, H.R. 1,
would be the first bill introduced in a new session of Congress or the
House of Representatives (a session of Congress lasts for two years).
After a bill is introduced, it is assigned to one or more committees in
the chamber where it was introduced. A committee can amend, rewrite,
recommend, or ignore the bill or report back to the full chamber with no
recommendation. Committees typically also submit a report explaining
their views of the bill when sending a bill to the full House or Senate.
(For more information)
Floor Debate and Vote.
Once the bill has emerged from committee consideration, it moves to the
"floor" of either the House of Representatives or the Senate (again
depending on where the bill was introduced). The entire chamber debates
and may amend the bill. It then takes an open vote on the bill. For
noncontroversial votes, the chamber will take a voice vote, but if any
legislator asks for a roll call, then each member's vote is made
separately and publicly.
Passage in Both Chambers.
If the bill passes the first chamber, it is sent to the other chamber
where the process described above is repeated. If the bill is amended in
the second chamber, it must be sent back to the first Chamber because
both chambers must agree on the amendments. If the two chambers cannot
immediately agree on how to pass identical legislation, the bill will be
sent to a joint committee (comprised of both House of Representatives
and Senate members), which will attempt to work out a compromise among
the different versions of the bill. If the joint committee is
successful, the bill will be returned to both chambers for a vote.
Overriding a Presidential Veto.
Once an identical bill passes both the House and the Senate, it is sent
to the President who can do the following: (1) sign it and thus make it
a law; (2) do nothing and after 10 days, if Congress stays in session,
it becomes law; (3) do nothing and if Congress adjourns within 10 days,
it does not become law; or (4) reject the bill by vetoing it and the
bill will not become law unless the veto is overridden by Congress.
Congress may override the President's veto by approving the bill again
with at least a two-thirds majority vote in both the House and the
Senate. The bill then becomes a law despite the President's veto.
Public Access to Information.
All floor debates and votes are published the following day in the
Congressional Record. Legislators can review the Congressional Record
before it is published to change or add a statement. Committee reports
for major legislation are published separately by the Government
Printing Office. In recent years, many committee hearings, floor debates
and votes have been broadcast live through CSPAN (Cable Satellite Public
Affairs Network), a cable television network that provides twenty-four
hour coverage of public affairs.(For more information about C-SPAN)
The state legislatures act in much the same way, although the process
for enacting a bill within the legislatures is often more streamlined.
Every state legislature, except Nebraska's, has two chambers. Most
governors have veto power over state legislation, analogous to the veto
power of the President.
Unlike the federal government, several states also allow for citizen
initiatives. In some of these states, citizens can hold a direct vote on
a specific proposed law directly. In other states, citizen initiatives
may force the legislatures to vote on an issue. To get a specific
initiative on the election ballot or on the legislature's docket
typically requires that organizers collect a certain number of
signatures of eligible voters.
ROLE OF THE EXECUTIVE IN THE LAW-MAKING PROCESS
The U.S. Executive Branch is responsible for implementing most laws
passed by the Congress. Agencies in the executive branch issue rules,
make adjudications and provide other opinions and guidelines in an
effort to implement the laws. The Administrative Procedure Act (APA)
governs these activities.
The President also has the power to issue executive orders. Executive
orders are Presidential directives governing actions by other federal
officials and agencies. The President's authority over the executive
branch is limited only by the Constitution and federal statutes.
NOTICE AND COMMENT RULEMAKING
Under the APA, any agency decision that sets binding obligations or
standards for a class of people is a rule. Rulemaking is particularly
important in technical areas such as environmental law, where the
Congress has historically delegated broad discretion to the agencies to
implement the statutes. Most administrative rules go through a process
known as notice and comment rulemaking. Before issuing most rules, the
agency must issue a notice of proposed rulemaking in the Federal
Register. This notice must describe the proposed rule, and give the
public at least thirty days to provide comments. After receiving the
comments, the agency can issue a final rule, along with a general
statement describing the rule's authority and purpose. Because the
agency is required to consider all nonfrivolous comments, the agencies
will often respond to comments in issuing a final rule. Rules made by
regulatory agencies have the force and effect of legislation. Any
interested party that participates in the rulemaking can challenge the
legality of the rule in a court.
The second major type of agency action is an adjudication. Adjudications
occur where the agency is making a binding, case-specific decision for
example, siting, permitting, or licensing a particular activity or
facility. In such instances the agencies are acting like courts in
making decisions that settle specific disputes between parties or
between the government and a party. Under the APA, these adjudications
must be made "on the record after opportunity for a hearing."
Any party to the adjudication can typically appeal the decision for
judicial review. See Section 1.5: Role of the Courts.
State Administrative Procedures.
State agencies operate similarly. Every state has an administrative
procedures statute, which provides procedural rights for affected
parties and for the public. Many of these are based on a Model State
ROLE OF THE COURTS
The role of the judiciary is to decide cases and controversies between
adversarial parties, including the government. Through the concept of
stare decisis judicial decisions in U.S. jurisdictions can act as
binding precedent for subsequent decisions. In most cases, when an
appellate court makes a decision it not only decides who wins the
specific case, but also provides a detailed written opinion that
explains the basis for the court's decision to guide lower courts in
handling future cases.
Every level of the federal courts has the power to interpret the federal
Constitution, and federal laws and regulations. The courts also exercise
judicial review over federal statutes and agency actions, and determine
the constitutionality of federal and state laws. To the extent any
statute or agency action is found to be unconstitutional, it is invalid.
Federal courts also interpret federal legislation and federal agency
rules and decisions.
Judicial Review of Agency Action.
Many federal environmental statutes provide specific standards for
judicial review of agency actions under the statute. See, e.g., CAA, 42
U.S.C. sec. 7607; RCRA, 42 U.S.C. sec. 6976; TSCA, 15 U.S.C. sec. 2618.
In the absence of any specific statutory review procedures, the APA
grants a general right of judicial review of any adverse, final agency
action. The reviewing court can decide all relevant questions of law,
interpret constitutional and statutory provisions, and determine the
meaning or applicability of the agency action. The reviewing court has
the authority to compel any agency action unlawfully withheld or
unreasonably delayed, or to set aside any agency action, findings or
conclusions the court finds to be: (A) arbitrary, capricious, an abuse
of discretion or otherwise not in accordance with law; (B) contrary to
constitutional right, power, privilege or immunity; (C) in excess of
statutory jurisdiction, authority or limitations, or short of statutory
right; (D) adopted without procedures required by law; (E) unsupported
by substantial evidence in administrative cases; or (F) unwarranted by
the facts to the extent that the facts can be reviewed by the court.
Many judicial challenges to administrative agency rules go directly to a
court of appeals and are not further tried by the district courts. 5
U.S.C. secs. 701-706.
The U.S. is a common law country. Every state is based on the common
law, except Louisiana (which is based on the French civil code). Common
law has no statutory basis; judges establish common law through written
opinions that are binding on future decisions of lower courts in the
same jurisdiction. Broad areas of the law, most notably relating to
property, contracts, and torts, are traditionally part of the common
law. These areas of the law are mostly within the jurisdiction of the
states, and thus state courts are the primary source of common law. The
area of federal common law is primarily limited to federal issues that
have not been addressed by a statute.
All courts follow a strict set of procedural requirements. In 1938 the
Supreme Court promulgated the Federal Rules of Civil Procedure, which
are periodically updated and renewed by the U.S. Judicial Conference.
They are uniform in all federal jurisdictions, although each federal
court may also adopt additional rules. Every state court has its own set
of rules, which are typically not as detailed or strict as the federal
rules. In courts of original jurisdiction, judges are usually provided
with juries to decide all questions of facts. The right to a jury is
generally guaranteed by the federal Constitution in federal cases, and
state constitutions typically contain similar provisions which apply in
ADOPTION OF TREATIES, TREATIES IN DOMESTIC LAW
The President has "power, by and with the advice and consent of the
Senate, to make treaties, provided two-thirds of the Senators present
concur." U.S. Const. art. II, sec. 2. The treaty power is thus divided
between the executive branch and the legislative branch of the U.S.
government. The Senate's role is to advise and consent to a treaty; the
President's roles are to make and to ratify or accede to a treaty. The
Senate can attach a condition to its consent requiring that the treaty
be amended by the President, or that the President enter certain
"reservations." The President may only ratify or accede to the treaty
with the Senate's changes. See Restatement (Third) of the Foreign
Relations Law of the United States, Section 303, Reporter's Note No.3
Senate's Advice and Consent.
The Senate's Committee on Foreign Relations has exclusive jurisdiction
over treaties and executive agreements. The Committee prepares the
resolution, which gives the Senate's consent to the ratification of the
treaty. The Senate can base its approval on conditions set forth in the
resolution. Conditions can be amendments, reservations, understandings,
declarations, and statements (or provisos) and they may be offered at
any time during the Committee's deliberations, or during consideration
in the full Senate prior to the vote on the resolution. A majority vote
is required in Committee and in the Senate for incorporating a condition
into the resolution. Adoption of the resolution then requires a two-
thirds vote in the Senate.
The Senate has several options. It can amend, make a reservation, issue
a Senate "understanding" or "declaration" regarding the general issue,
or make "statements regarding related issues of U.S. law."
After the Senate consents to a treaty, the President is free to ratify
it. Ratification is the formal process declaring the willingness of the
state to be bound by a treaty. Ratification is usually confirmed in a
formal document called an "instrument of ratification." The President
must give effect to all conditions imposed by the Senate for its
consent. If the President decides that under international law the
treaty cannot be interpreted as the Senate has required, he has no
authority to ratify the treaty, unless the instrument of ratification is
accompanied by express language conforming to the Senate's
understanding. The instrument of ratification includes the title of the
treaty, the date of signature, the countries involved, and the languages
used. The President can also attach a statement of understanding or a
declaration regarding the Senate's understanding of a treaty, even if
the Senate did not offer a formal reservation or understanding.
Exchange and Deposit.
To be bound internationally, a state must exchange or deposit its
instrument of ratification. It is this international act of exchange or
deposit which allows the formal entry into force of a treaty, usually at
a later specified date. Generally, bilateral treaties are exchanged,
while multilateral treaties are deposited. If treaties are to be
deposited, they usually state where and with whom.
When the necessary exchange or deposit has been completed and the
treaty has entered into force, the President issues a Presidential
proclamation that the agreement is in force. The proclamation of a
treaty is a national act by which the text of a ratified treaty is
publicized. After signing, the President returns the proclamation to the
Secretary of State, which will publish it with the treaty text in U.S.
Treaties and Other International Agreements, and register it with the
United Nations Secretariat pursuant to Article 102 of the UN Charter.
According to Article 102, no party can invoke a treaty agreement before
any organ of the United Nations until it is registered with the United
Nations. U.N. Charter art. 102, para.2.
from Summary of Enviromental Law in the United States - CEC
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