Monday, July 12, 2010
Robin Kundis Craig (Florida State University College of Law) has posted "Due Process Challenges in Environmental and Natural Resources Law" on SSRN.
The abstract states:
Environmental and natural resources attorneys are likely to encounter a broad range of due process issues in their practices. In the administrative and civil implementation of environmental and natural resources laws, many of these issues are relatively commonplace. For example, basic administrative law highlights the issues of whether the Constitution’s guarantees of procedural due process require a federal or state agency to hold a hearing on a pending matter and, if so, what kind of hearing. However, other kinds of due process issues arise less frequently in the practice of environmental and natural resources law but can have great practical import in particular cases. For example, in 2008, the U.S. Supreme Court implied that substantive due process as well as general principles of maritime law limit the amount of punitive damages that a jury could impose on Exxon in connection with the 1989 Exxon Valdez oil spill in Alaska.
This chapter provides an overview of the most common and important procedural and substantive due process issues that arise in environmental and natural resources law. While most of these challenges are unsuccessful, they provide an important check on how the government interacts with regulated entities and the rationality of government action. Moreover, this chapter highlights two due process issues that have yet to be resolved by the U.S. Supreme Court: the constitutionality of Administrative Compliance Orders in the enforcement of environmental and natural resources laws; and the relevance of the Court's punitive damages/due process jurisprudence to environmental and natural resources penalty provisions.