Summary of Week 3

Consent Decrees

To "settle" (resolve without a court verdict) environmental claims
Usually involves:

• payment of civil penalties
• award of attorney's fees
• schedule of compliance
• stipulated penalties for failure to meet schedule
• $s to support environmental activities (E.g. Hudson River Foundation)

Administrative Law

• Agencies follow Administrative Procedure Act
• Must provide due process
• Must act within scope of authority
• Cannot act arbitrarily or capriciously
• Cannot abuse discretion or act unlawfully
• Re: Environmental Impact Assessment
  • Make a substantial inquiry
  • A thorough, probing, in depth review
  • i.e. take a "hard look" (See Overton Park case)
• Analysis
  • Did agency act within scope of authority?
  • Was action arbitrary or capricious, an abuse of discretion or otherwise unlawful?
  • Were procedural requirements followed?

Standing

• A barrier to judicial review
• Lead agencies may claim an environmental group lacks standing to bring a lawsuit
• Traceable to Constitutional requirement for an "actual case or controversy"
• Requires a showing of actual or potential injury (E.g. personal, economic, recreational, other)
  • Compare Scenic Hudson case with Sierra Club case
  • Recent attempts to limit standing: Lujan,Gwaltney,Magnesium III, and Friends of the Earth (2-Ct. of Appeals) and (3-Supreme Court) cases.

• Current Test for Standing as Reiterated by the Supreme Court in Friends of the Earth v. Laidlaw (January 12, 2000)
  • Injury in fact (to plaintiff - not environment)
  • Causation
  • Redressability (deterrent effect of civil penalties under a citizen suit satisfies redressability)

Mootness

• Another barrier to judicial review
• Requires an actual case or controversy throughout the litigation
• Voluntary cessation of challenged action does not automatically render the case moot
• Mootness only if subsequent action makes it absolutely clear that violations could not reasonably be expected to recur( see Friends of the Earth v. Laidlaw)