State University of New
York at Buffalo,
School of Law
Enforcing Environmental Law
Law 561, First Year Elective
Tu-Th, 3:00-5:00, Blocks 5 and 6, 2006
Overview This course uses the "citizen suit" provisions of federal environmental laws to illuminate practical and theoretical issues in the enforcement of environmental laws. Many of its lessons apply to the enforcement of laws generally.
Background Most of the federal environmental laws are enforced in the same manner as other regulatory statutes: a responsible regulatory agency (generally the US Environmental Protection Agency) investigates and recommends to the Department of Justice that a civil or criminal penalty action should be brought, and the responsible DOJ official (often a US Attorney) decides whether to file the action. However, there is an important difference in some of the nation’s primary environmental laws, such as the Clean Water Act and the Clean Air Act. Private parties (including environmental groups) can bring a citizen suit, and effectively step into the shoes of a government prosecutor. If they win their case, the private plaintiffs can recover costs and attorneys’ fees. Although they were little used until about 25 years ago, citizen suits are now a prominent feature of environmental practice.
Content This course uses environmental citizen suits to address both theoretical issues in law enforcement (Why do we generally give public prosecutors monopoly control over law enforcement? Is prosecutorial discretion a major source of injustice? What problems does placing the power to prosecute outside of normal channels of accountability pose?) and practical aspects of the lawyer’s role in an enforcement setting (How does a lawyer prepare and present an enforcement case? What defenses can be raised when the defendant’s own reports provide clear evidence of violations? How should penalties for regulatory violations be calculated?) Students will have the opportunity to review permit files for the purpose of identifying possible violations, to prepare and argue motions based on actual case files, and to meet with local lawyers who have been involved in citizen suits.
Mechanics Most of the materials for the course will be available at this website (via the hyperlinks from the syllabus linked in the column to the left). In addition, some materials will be distributed in hard copy. All students are expected to read the materials before the class for which they are assigned, and to participate actively in class. Students should have active email accounts so that the instructors can communicate with them when necessary. Grades will be based primarily on oral and written exercises: