ENVIRONMENTAL LAWS

1
ENVIRONMENTAL LAWS COMPLIANCE
The Legal Context of Environmental Health

• William G. Brookman M.P.H.
• Florida Department of Health

2
(No Transcript)
3
FUNDAMENTALS OF ENVIRONMENTAL LAW

• ENVIRONMENTAL LAW AS A SYSTEM
• Command-and-control
• Polluter pays
• Cap-and-trade
• International conventions
• Stockholm 1972 UN Environmental Program
• Montreal 1987 Ozone
• Kyoto Protocol Climate Change

4
WHAT IS ENVIRONMENTAL LAW?

• The environmental law system is an organized way
  of using all the laws in our legal system to
  minimize, prevent, punish, or remedy the
  consequences of actions which damage or threaten
  the environment, public health, and safety.

5
HOW POLICY IS MADE

• Rule making is a process of adopting regulations
  in accordance with the federal Administrative
  Procedures Act (APA)

6
LEGAL CONTEXT OF ENVIRONMENTAL HEALTH

• U.S. Constitution
• (Duties Responsibilities of Government
  Citizens)
• Making Environmental Laws
• (Policy Development)
• Permits and Inspections (Health Inspection)
• Litigation (Swimming with the Sharks)
• Expert Witness Testimony
• Depositions

7
The Legal Context of Environmental Health
The Constitution of the United States
Reading assignment The U.S.
Constitution Administrative Procedure Act
8
(No Transcript)
9
The U.S. Constitution

• Supreme law of the land
• Limited powers
• The doctrine of enumerated powers

Review portions of the U.S. Constitution
10
The Police Power
The term police power is not mentioned in the
Constitution of the United States, it is
inferred. Chief Justice John Marshal of the U.S.
Supreme Court first used the term in 1824. He
noted, The police powers form a portion of that
immense mass of legislation which embraces
everything within the territory of the state, not
surrendered to the general government all of
which can advantageously be exercised by the
states themselves. Inspection laws, quarantine
laws, health laws of every descriptionare
component parts of the mass. Gibbons v. Ogden.
22.U.S.1 (1824)
11
Due Process.

• In its most straightforward sense, due process
  means fairness in the procedural application of
  the law.
• The most basic of process fairness are
• Notice
• An opportunity to be heard

12
Equal Protection.

• Equal protection of the law refers to the simple
  goal of even-handed application of law.
• Discrimination between similar persons
• Not distinguishing legitimate differences
• Applies both to the law and its implementation
• Does not require the same treatment in all cases
• Individuals and groups can be treated differently
  if there is good reason
• Rational basis
• Strict scrutiny

13
Limits on Government Power

• Fourth Amendment
• The right of persons to be secure in their
  persons, houses, papers and effects against
  unreasonable searches and seizures.

14
Limits on Government Power

• Fifth Amendment
• No person shall be subject to serious criminal
  charges unless first indicted by a grand jury
• No double jeopardy
• No person shall be compelled to be a witness
  against themselves
• No person shall be deprived of life, liberty, or
  property without due process of law
• No private property shall be taken for public use
  without just compensation

15
Statutory Law

• Composed of federal laws, state laws, and local
  ordinances enacted by a legislative body.

16
Regulatory Law

• Created by agencies, regulations have the force
  of law
• In theory, agencies implement policies set by
  legislation
• In practice, agencies establish policy

17
SECTION 1 - REVIEW QUESTIONS

• From what source are police powers derived ?
• What is due process?
• What is equal protection ?
• Who makes statutory law
• Who makes administrative or regulatory law?
• What are some limits on government power?
• What are the major implications of the
  Administrative Procedures Act?

18
The Legal Context of Environmental Health
2. Making Environmental Health Laws
Reading assignment
A Review of Model Public Health Laws
19
A REVIEW OF MODEL PUBLIC HEALTH LAWSQUESTION
AND ANSWER DISCUSSION
20
INFORMAL RULE MAKING

• A complicated process

21
(No Transcript)
22
(No Transcript)
23
(No Transcript)
24
SECTION 2 REVIEW QUESTIONS

• In Step 1 of informal rulemaking, what may be
  some of the initiating actions?
• According to the article A Review of Model
  Public Health Laws, what groups are actively
  involved in rulemaking?
• What role may public health professionals play in
  policy development and rulemaking?
• Whats your favorite federal environmental law
  acronym?

25
LEGAL CONTEXT OF ENVIRONMENTAL HEALTH
3. Permits and Inspections
26
The Legal Context of Environmental Health

1. Licensing Operating Permits
2. Inspections

27
The Legal Context of Environmental Health

• Licensing / Operating Permits
• Licensing protects public health safety
• It is a formal permission to do something
• Certain activities are illegal without a license
• Authority to issue a license is derived from
  police power

28
The Legal Context of Environmental Health

• Three major categories of health licensure
• Occupational and Professional Licenses may
  limit who may engage in a practice or regulate
  use of official designations
• Health care delivery institutions (hospitals)
• Businesses with particular impact Licenses or
  operating permits impose operational standards on
  businesses that affect the public health

29
The Legal Context of Environmental Health
But doesnt licensing and the requirement of
operating permits restrict many constitutional
rights? Despite due process requirements, a
licensure applicant gives up some of the rights
of the average citizen, in effect, consenting to
governmental intrusion in the form of
investigation and monitoring. The legal rationale
for allowing licensure laws to force licensees to
give up some of their constitutional protections
is licensing is optional and confers benefits on
the licensee.
30
The Legal Context of Environmental Health

• Inspections
• What constitutes an inspection ?
• ..a visitation or survey to determine whether or
  not conditions deleterious to health exist.
  Unlike police searches, inspections are not
  conducted with the particular aim of uncovering
  evidence for purposes of criminal prosecution.
• What about 4th Amendment rights..the right of
  persons to be secure in their persons, houses,
  papers and effects against unreasonable searches?

31
The Legal Context of Environmental Health

• INSPECTIONS
• A business operates by privilege a home has the
  right to privacy
• Every search must be authorized by law
• Authorized by state law or regulation
• Expressed as a condition of the license or permit
• Consent given to conduct the inspection

32
SECTION 3 REVIEW QUESTIONS

1. Explain why obtaining a license or operating
   permit is not a violation of Fourth Amendment
   rights.
2. What is a license?
3. Authority to issue a license or operating permit
   is derived from what source?
4. How is it that every search or inspection must be
   authorized by law?

33
LEGAL CONTEXT OF ENVIRONMENTAL HEALTH
4. Litigation
34
SWIMING WITH THE SHARKS VIDEO2935
35
ENVIRONMENTAL LAWS COMPLIANCETHE LEGAL CONTEXT
OF ENVIRONMENTAL HEALTH

• U.S. CONSTITUTION
• MAKING ENVIRONMENTAL HEALTH LAWS
• LICENSES, PERMITS, INSPECTIONS
• LITIGATION

36
QUESTIONS