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When I began teaching environmental law to undergraduates in 1982, there were very few such courses offered outside of law schools. There were even fewer resources available for teaching courses to anyone other than law students. My first semester, I taught the course using one of the two available law school texts.
The next year I began putting together my own materials, materials that over the next few years evolved into an environmental law "textbook" designed especially for nonlaw students that I made available to my students through a copy service. To improve the quality of the materials before attempting to publish them, I asked my colleague Dr. Gary Silverman, the director of our university's Environmental Health Program, to write the chapters on water quality control and management of waste and hazardous releases, areas in which he has special expertise.
The result was the first edition of Environmental Law, a book designed to introduce those without any legal or special scientific training to the system through which our nation attempts to preserve the environment. Although this book was written for college students at either the undergraduate or master's level, I had hoped that it would also be useful to anyone interested in learning about our system of environmental law, and that it would be a helpful reference for anyone in business who is attempting to negotiate the morass of environmental regulations that affect businesses today. From the comments that I have received from users of the book, it is clear that in some sense the book is meeting these goals. Readers of the book range from graduate and undergraduate students to businesspersons and ordinary citizens interested in environmental law.
Reflecting the fact that background knowledge is often important for understanding specific areas, this book provides two key types of background necessary for understanding environmental law. First, the initial chapters explain how our legal system functions in general. Second, the initial portions of the latter chapters provide the basic scientific knowledge necessary for understanding environmental law. Thus the reader may gain a fundamental understanding of not only what the laws are but also why they are needed.
Several people helped to make the first edition of this book, and consequently this fourth edition, a reality, and I would like to thank them for their contributions. Thorough and insightful reviews were provided by the following professors:
James Carp, Syracuse University
William Clements, Norwich University
Frank Cross, University of Texas
David Hoch, University of Southwestern Louisiana
May Kieffer, Ohio University
Richard Kunkle, The College of St. Thomas
Patricia Tulin, University of Hartford
Their reviews led to vast improvements of the final version of the first edition of this book. In fact, it is only because of a suggestion of one of these reviewers that a very important chapter of this book was written, the chapter on energy policy and natural resource protection.
When changes in environmental law necessitated the first revision of Environmental Law, helpful reviews were provided by Paula C. Murray, of the University of Texas, and Eric Oates, of the Wharton School. Numerous changes were made in response to their comments.
Reviewers were once again helpful when it came to this third edition of the book. I would like to once again thank the following professors for their helpful insights:
Donald A. Fuller, University of Central Florida
Mary Keifer, Ohio University
Michael Magasin, Pepperdine University
Michael A. Tessitore, University of Florida
Perhaps the most significant contributor to the third edition was Carrie Williamson, a former environmental law student and my research assistant at the time of the third revision. Having used the book for a class, she was able to point out places where it was unclear and make suggestions for its improvement. She also spent numerous hours doing research to ensure that this edition contained the most up-to-date figures possible at the time of publication. Finally, she contributed to the improvement of this book by drafting essays featured in the "Controversial Issues" sections. Her assistance on this revision was invaluable.
As in past revisions, the students and professors who used the first three editions of this book and offered helpful criticisms, cannot be omitted. Although they are too numerous to list by name, their contributions were invaluable.
The widespread adoptions of the first three editions of this book for a broad range of undergraduate and graduate courses leads me to believe that the first three editions went a long way toward satisfying the need for a basic introduction to environmental law. I realize, however, that there is always room for improvement, and so I tried to revise this edition in a manner consistent with suggestions from users of those early editions. Although the basic structure remains the same as that of the third edition, I have made one significant change. The former Chapter 9, "Natural Resources and Energy Policy," has been divided into two separate chapters to allow expansion of both of these areas. Many users were saying that they would like to devote more time to natural resources issues, and the new energy crisis of 2001 certainly has stimulated a growing interest in energy issues. Many questions, such as "Should we build more nuclear power plants?" were considered nonissues in the 1990s, but today such questions are being hotly debated, and this textbook should enable readers to be active participants in these debates.
I would like to give special credit for the improvements in this edition to my current assistant, Anne Hardenbergh. A former student in my environmental law class, she used her experience with the book as a student to suggest areas of improvement, and did extensive work updating many of the chapters. She also helped to upgrade the quality and number of Web sites at the end of each chapter. So much environmental information is available on the Internet today that I would feel remiss if I did not provide the reader with some of the more helpful sites. Obviously, some of the sites may change over time, but I tried to incorporate the sites I felt would be of longer duration. If you know of any additional sites that would be of value to readers, I would appreciate your passing them on to me so that I can include them in future editions.
Finally, I would like to thank some of my users and readers who sent me helpful suggestions. Five such individuals whose suggestions were especially helpful stand out: Dennis Card, Lester Lindley, Mike Eckhoff, Mary Niez, and Thomas Ostrom. Thanks to Professor Lindley, this edition will have a more comprehensive case and statutory supplement to accompany it. Thanks also to Mark Cordano, Attorney Brad Tupi, and Irene Dinning, for the environmental case "Bo1dNu's Potential Acquisition of PPC," which they have allowed us to make available to adopters of the text.
In finishing the fourth edition of this book, I realize that in spite of the conscientious review of all stages of the book's production by many people, it is almost inevitable that mistakes have crept in, for which I accept responsibility. I would therefore appreciate readers' corrections and comments as to how future editions may better achieve the goals this book is designed to attain. Please send your comments, criticisms, corrections, or suggestions to me at the Department of Legal Studies, Bowling Green State University, Bowling Green, Ohio 43403. Or e-mail me at firstname.lastname@example.org.
The fourth revision of this book was finished at a time when it was starting to look as if many of the strides that we have made in environmental law were going to be reduced. Headlines such as "Bush Declares War on the Environment" were appearing during months before this edition was turned in. However, just before the manuscript was finished, the administration seemed to be recognizing that they were not going to be able to modify every environmental protection without protest. So they had backed off a little in terms of what had initially appeared to be an aggressive policy of retracting most of the orders designed to protect the environment that had been issued near the end of President Clinton's last term in office. I can only hope that some of the dire predictions of commentators turn out to be incorrect, and that the first decade of the new millennium does not turn out to be a decade of devolution of environmental protection.
Nancy K. Kubasek
Kubasek, Nancy K. : Bowling Green State University
Silverman, Gary : Bowling Green State University
I. AN INTRODUCTION TO THE LAW.
1. The American Legal System: The Source of Environmental Law.
Sources of Law. Classifications of Law. Constitutional Principals Underlying the American Legal System. A Constitutional Right to Environmental Protection? Concluding Remarks. Questions for Review and Discussion. For Further Reading. On the Internet. Notes. Thinking Critically About Issues Related to Environmental Law.
2. The Litigation Process and Other Tools for Resolving Environmental Disputes.
The Adversary System. The U.S. Dual Court System. Primary Actors in the Legal System. Steps in Civil Litigation. The Threshold Issues. Pretrial. The Trial. Appellate Procedure. Alternatives to Civil Litigation. Arbitration. Mediation. Concluding Remarks. Questions for Review and Discussion. For Further Reading. On the Internet. Notes. Thinking Critically About Issues Related to Environmental Law.
3. Administrative Law and Its Impact on the Environment.
Creation of Administrative Agencies. Functions of Administrative Agencies. Administrative Activities. Limitations on Agency Powers. Important Agencies Affecting the Environment. Concluding Remarks. Questions for Review and Discussion. For Further Reading. On the Internet. Notes. Thinking Critically About Issues Related to Environmental Law.
II. THE ENVIRONMENTAL LAWS.
4. An Introduction to Environmental Law and Policy.
The Need for Regulation. Alternative Ways to Control Pollution. Evolution of Our Environmental Policy. National Environmental Policy Act. Pollution Prevention Act of 1990. Concluding Remarks. Questions for Review and Discussion. For Further Reading. On the Internet. Notes. Thinking Critically About Issues Related to Environmental Law.
5. Air Quality Control.
The Major Air Pollutants. Airborne Toxins. Some Significant Air Quality Problems. The Initial Approach to Air Quality Control. The Current Approach to Air Quality Control. The 1990 Clean Air Act Amendments. Solutions Beyond the Clean Air Act. Concluding Remarks. Questions for Review and Discussion. For Further Reading. On the Internet. Notes. Thinking Critically About Issues Related to Environmental Law.
6. Water Quality Control.
The Major Water Pollutants. Some Significant Water Quality Problems. Protecting Water Through Government Actions. Water Rights. Protecting Waters of the Nation. Protecting Drinking Water. Concluding Remarks. Questions for Review and Discussion. For Further Reading. On the Internet. Notes. Thinking Critically About Issues Related to Environmental Law.
7. Controlling Toxic Substances.
Identification of Potentially Toxic Substances. Federal Regulation of Toxic Substances. International Regulation of Toxic Substances. Toxic Torts. Concluding Remarks. Questions for Review and Discussion. For Further Reading. On the Internet. Notes. Thinking Critically About Issues Related to Environmental Law.
8. Waste Management and Hazardous Releases.
Waste Control Techniques. Municipal Solid Waste. Hazardous and Solid Waste Amendments of 1984. Hazardous Waste. Enforcement of RCRA. CERCLA: An Overview. Emergency Response Plans and Right to Know. Federal Response to Contaminated Sites. Underground Storage Tank Program. Concluding Remarks. Questions for Review and Discussion. For Further Reading. On the Internet. Notes. Thinking Critically About Issues Related to Environmental Law.
Energy Policy: A Historical Overview. Energy Consumption and Production. Coal: The Oldest Energy Source. Petroleum and Natural Gas. Nuclear Energy. Renewable Fuels.
10. Natural Resources.
Protecting Public Lands. Wetlands, Estuaries, and Coastal Areas. Protection of the Great Lakes. Wild and Scenic Rivers Program. Endangered Species. Concluding Remarks. Questions for Review and Discussion. For Further Reading. On the Internet. Notes. Thinking Critically About Issues Related to Environmental Law.
11. International Environmental Law.
The Need for International Environmental Law. The Nature of International Law. Sources of International Environmental Law. Institutions That Effectuate and Influence International Environmental Law. Addressing Specific International Environmental Problems. The Future of International Environmental Law. Environmentalism and Trade. Concluding Remarks. Questions for Review and Discussion. For Further Reading. On the Internet. Notes. Thinking Critically About Issues Related to Environmental Law.
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