Wm McLauchlan

This course will provide students with an overview of the substance and procedures relating to environmental regulation and protection in the United States. Secondly, this course will provide some technical understanding of the statutory and regulatory law that has emerged over the past half century in this country to govern the use of resources and the resulting pollution. In the process of looking at these subjects, this course will treat underlying problems of (1) natural resources and consumption that have resulted in environmental pollution or deterioration, (2) the political and policy context in which environmental policies have been formulated, (3) the regulatory approaches or frameworks which have emerged from various policy objectives, (4) the administrative or regulatory procedures required by law or judicial decision to deal with various problems, and (5) the dynamic interests at play in the regulatory and consumptive arenas where these policies are made and implemented. The core focus on these topics will be the laws that have developed and been implemented in various settings to protect the environment or remedy environmental degradation.

 The required casebook for this course is:

 Nancy Kubasek and Gary Silverman, Environmental Law 6^th ed (Prentice-Hall, 2008).

The components of the final grade in this course are the following:

 The examinations for this course will include (1) a Final Examination, probably conducted at the designated time during the week of Finals – the week of April 28, 2008.  [N.B. Do not make travel plans for the close of the semester before you know the Final Exam schedule!]  In addition, (2) a variety of short (10-20 minute) examinations will be presented in class during the semester. These will involve students responding to specific, analytic questions about course materials and the subjects covered during the term.  These questions will focus on assigned reading and cases, as well as legal issues raised in class discussion.  These will not be extensive or lengthy essays exams, but rather brief, analytic-question examinations. These will be "given" in class.  They will be unannounced in advance, and there will be a number of them during the semester.  Students who miss these will not be permitted to make them up later.

 Class Participation will focus on the individual, oral responses that students make to questions posed in class. This will involve the instructor calling on students a variety of times during the semester. These opportunities will focus on the assigned readings from the course – text materials and the assigned cases (court opinions) as well as hypotheticals that develop during class discussion. The quality of the student's responses to the questions will be graded. Each student must be prepared for class every day. If the student is unprepared or silent when called on, s/he will receive a grade of zero (0) for that day.

 It is absolutely essential that students attend class everyday. The discussion and the subjects covered during each class build or accumulate throughout the semester. Sporadic or occasional attendance will severely limit the development of a student's comprehensive understanding of environmental law.  Such absences will also prevent the development of essential analytic skills in the course. The substance of this course accumulates from the beginning of the semester to the end. Missing daily discussions will severely limit student learning and understanding. Furthermore, regular, daily preparation (in advance) for class is important to learning the substantive material and the analytic methods involved in the class. Students must prepare all the reading assignments BEFORE CLASS so they can engage in discussion during class and so they can follow the discussion in class.

Learning the materials for this course cannot be passive for students, but rather it is an active endeavor! That means, each student is expected to invest time and energy outside of class learning the materials for this course. That includes reading the assignments in advance and coming to class prepared to discuss those assignments. It also means you should discuss the assignments and projects outside of class, with fellow students as well as the Instructor. Furthermore, this approach is based on students initiating and completing informal, additional learning by exploring supplementary materials in the Library.  Given the complexity and the amount of materials in this course, students are expected to form informal study groups that divide the reading up in equitable and functional forms, and then generate usable summaries of all the cases, so students have a complete set of case-notes, that have been prepared by themselves and the other members of their study group.

Note that the reading assignments for this course will involve (1) the specific materials (chapters or parts of chapters) from Kubasek & Silverman.  (2) There will also be a significant  set of court opinions assigned in the reading assignment section of this course (that will be discussed in class).  These Reading Assignments are linked here and from the front page of this website.  This set of assignments will be updated throughout the semester.  Students will be expected to check the website daily for assignments and other information about the course.

 A variety of writing assignments will be made during the semester.  These will constitute a substantial portion (35%) of the Final Grade. These will involve library and internet research, the analysis of data, and then the exposition of your analysis or the summary and analyses of court decisions. These will not be descriptive writing assignments, but rather they will emphasize analysis of legal issues arising in the context of environmental policies.  These Writing Assignments are linked here and from the Front Page of this website.  This assignment page should be consulted regularly and frequently, from the beginning of the semester.  Students must determine which assignments they will complete.  In addition, the due dates for these various assignments will be posted on this page.

Late papers will not be accepted.  The deadline for a paper is important, and writing a paper that comes in late may make no pedagogic sense.  Students need to be able to allocate and manage their workloads to meet deadlines, and that will be expected in this course.

A significant portion of this course will involve reading and analyzing appellate court opinions that resolve various cases that arise in the context of environmental law and policy.

"Cases" are the written opinions prepared by courts for the purpose of announcing and explaining the decision the court reaches in a legal dispute. The opinion may be lengthy (hundreds of pages) or brief (a paragraph or two). Judges often use a peculiar language - "legalese." Unless you have read a good many opinions or learned to "speak the language," this writing may be difficult to understand and slow to get through. It may be awkward, convoluted, complex, and layered. On the other hand, it may be clear and concise and understandable. It will take some practice and some work to learn how to read cases quickly, summarize them succinctly and clearly, and even analyze the reasoning. What follows may give you some guidance as you begin the process of reading and understanding court cases.

 The purpose of reading a court opinion is to understand the holding of the case. That is the substantive meaning of the case. The holding is sometimes apparent and self-evident from the way the court opinion is written, but in other circumstances it is buried in wordy logic and treatment of extraneous material, to say nothing of being "buried in the footnotes." In some cases, there are several issues or legal questions, each with a separate holding that needs to be parsed from a careful reading. It is important to note that the holding in a case should be stated as narrowly as possible and it must derive from (and answer) the question(s) posed for decision. Everything that the court opinion contains IS NOT the holding, and a good deal of the logic or reasoning is obiter dictum (defined as a digression or a discussion of side or unrelated points). Students’ analytic skills have to be developed and used to sort out the narrow holding in the case and separate it from the dicta.

The initial step in discovering the holding is to determine what question(s) a court treats or addresses in the opinion. Your reading of the case should be to discover what the question(s) in the case is(are). The opinion will often contain or provide the reader with the question(s). That is sometimes very useful, but at other times, the questions presented to the Court are not directly connected to what the Court holds in the case. You should phrase the question(s) so that the answer(s) can be developed in simple yes/no terms. Thus, look for the question(s), then the answer(s) to the question(s), so that you can develop the holding in the case.

The questions in a case arise out of the facts in the case. Each case is really a story involving people, actions, statutes or other laws, and problems that arise as a result of these items. The story is about individuals or organizations, companies, governmental bodies or the like. It is about humans and the troubles they have. The story is high drama for the parties and others because of the problem it presents. It may have to do with the power of the government to force hundreds of thousands of American citizens to leave their homes and possessions because of their race. It may have to do with the authority of the government to seize and sell private property gained because of or related to illegal drug sales. The drama is always important to the specific parties, perhaps to third parties who participate formally in the case - amicus curiae - and to subsequent generations of people who will be bound by the Court’s decision when it is used as precedent. The story (the facts) is always the first point the student should get from the case.

It is essential to read cases carefully, looking for the story. Students may not be called on to recite the story or the facts in a case, but this is the context from which the legal question(s) emerge(s). The wording of the statute in question, the events and their sequence, along with the damages or impact of those events, and "who said what to whom" are important to your understanding of the case and the holding. Without the story the case is really an "unknown."

The sequence of (1) holding, (2) question(s), and (3) facts is actually backwards. The end objective of your reading is the holding. Thus, first you need to develop an understanding of the facts or the story, then formulate the question(s) in the case, and last develop the holding. The preceding discussion emphasizes the end objective or result - the holding in the case and the development of constitutional doctrine. However, first get the facts or the story, and then develop clear question(s).

In addition to developing and understanding the holding in a case, students should be able to outline the reasoning or the justification the court develops to support its holding.  Thus, when you are able to state the holding in a case, then ask yourself "Why?" the court decided the case the way it did.  How does the court justify its decision?

 A valuable way of developing analytic skills and understanding a cases is to brief it. Writing a brief is time-consuming at the outset, but students can become efficient at it during the semester. Students should be able to answer the following questions about each case when they have finished briefing it:

1. What are the facts in this case?  (This question may include the precise wording of the statute or the regulation involved in the case, but it must focus on the crucial facts that generate the legal question in the case.
2. What issue(s) or question(s) is(are) raised by these facts for the court to decide?  These questions should be posed so that they can be answered with a simple "yes" or "no."
   1. What statutory or regulatory provisions are in question?
   2. What questions arise about interpretation (meaning) of the statute or regulation (or both)?
   3. Are the issues about the application of the statute or regulation to the particular facts involved in this case?
3. What answer(s) did the court give to the issue(s) or question(s)?  These should be Yes/No answers to the questions posed above.
4. What reasoning did the court provide to justify or support its answer(s)?  This should probably be a succinct paragraph for each question decided in the case.
5. What countervailing or dissenting arguments could be or were made by members of the court for different conclusions (i.e., answers) or different justifications for the answers arrived at?
6. [What hypothetical or "next questions" does this case leave for decision?]

The written briefs that students prepare should reflect each of these components in concise, clear, understandable form. If that is done, then hypothetical questions or different factual assumptions (see the last bullet above) can be discussed and the implications of the case developed in class. It is strongly recommended that students prepare written briefs on all the cases for this course, well in advance of the discussion of each case in class. These serve as notes for class discussion and refreshers for subsequent studying of the materials in the course.

This kind of analysis of each case will permit students to understand the development of legal doctrine relating to various environmental policies over time. The variations in holdings, reasoning, and facts that emerge from reading cases this way will facilitate discussions of trends in doctrinal development. This permits students to "see" how court reasoning evolves or changes from case to case or over time as circumstances and questions change.  More importantly, this will provide students with an extensive understanding of the substance of environmental law as it has developed in this country. Thus, the textual analysis that emerges is central to understanding the Supreme Court as a political and a legal institution. It is also essential to comprehending the development of constitutional doctrine and precedent.