Posted on October 11, 2012 by Ridgway Hall
For the first time in its long history, the American Law Institute will consider two projects involving environmental law: 1) the law regarding environmental impact assessments, and 2) principles of environmental enforcement and remedies. In each case, if the proposal is approved, the relevant federal, state and local law would be reviewed exhaustively by a working group with environmental experience. Their product would then be reviewed by the full ALI membership, probably resulting in a report of some sort.
Most of us know ALI as the author of the Restatements of the Law in such fields as torts, contracts, property, trusts, etc. The Restatements typically report with great thoroughness on the relevant case law and statutes, with the goal of setting forth a highly accurate statement of the law, including variations among jurisdictions, and sometimes indicating where clarification would be helpful. The result is a consensus-based formulation of the law of the land, widely relied on by practitioners, teachers, courts and others. Harvard Law Professor Clark Byse has referred to it as “The law of Restatemania.”
Because the field of environmental law is relatively new and largely dominated by federal statutes, it has been widely thought until now that there is little need for a “Restatement of Environmental Law” or even a significant part of it. A few previous ALI projects have touched on environmental law issues. For example, the Restatement of Torts addresses nuisance, negligence, trespass and strict liability for highly hazardous activities, all of which can arise in an environmental context. ALI’s 1991 “Reporters’ Study on Enterprise Responsibility for Personal Injury” addressed some aspects of toxic tort liability, including joint and severable liability.
The current effort is the result of the deliberations of some 47 ALI members who practice or teach environmental law, who concluded that there are a number of areas in environmental law where there is substantial confusion which could benefit from the type of thoughtful analysis and reporting for which ALI is well known. After screening over 30 possible projects, the group is recommending the two described at the outset.
The Enforcement Law project would survey both civil and criminal law. It would discuss how environmental liability arises, who can be liable, who can seek enforcement, and what remedies are appropriate. It would discuss areas of overlapping federal and state jurisdiction, and consider both statutes and common law.
The Environmental Impact Assessment project would discuss the triggering and nature of an obligation to assess potential environmental impact (including federal, state and local NEPAs), the scope of the inquiry and the methods.
This effort is being led by a 5 person steering committee chaired by Professor Tracy Hester, Director of the Environment, Energy and Natural Resources Center of the University of Houston Law Center. He can be reached at firstname.lastname@example.org for further information. The other committee members are Dean Irma Russell and Professors Robert Percival, Victor Flatt and Joel Mintz. Given the ALI’s clout in the legal profession, this initiative should be of considerable interest to ACOEL members.