Environmental Health Law,

Regulation, and Policy

Paul A. Locke, JD, DrPH

Johns Hopkins University
Today’s Class

!  Define/discuss policy and the policy process

!  Define/discuss “law” and “environmental law”

!  US Constitution

!  Regulations (and administrative agencies)

!  Define/discuss challenges for public health and environmental law

!  Individual rights vs. societal needs
!  Turf wars (agencies, branches of government, federalism)
!  Environmental justice issues
!  Scientific uncertainty
!  Regulatory burden

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 Section A

Policy and the Policy Process

The material in this video is subject to the copyright of the owners of the material and is being provided for educational purposes under
rules of fair use for registered students in this course only. No additional copies of the copyrighted work may be made or distributed.
What Is Public Policy?

!  Policy = one of the tools that society uses to encourage or discourage behaviors by
individuals or groups
!  Another definition
!  A course of government action or inaction in response to public health problems;
and ...
!  An intent to achieve certain goals and objectives through conscious choice of
means, in specified amount of time
!  In the US, policy implementation and change is usually slow and incremental
!  Divided authority and consultation
!  Competing goals

!  Law and regulations are one way to reach policy goals

!  Policy implementation can occur without changes in laws and regulations

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The Policy Cycle

!  Agenda setting
!  How do new problems emerge and capture attention?
•  Gain social recognition (science/social justice)
•  Get on government docket (pressure)
•  Become ripe for decision making (trigger)

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The Policy Cycle

!  Agenda setting
!  How do new problems emerge and capture attention?
•  Gain social recognition (science/social justice)
•  Get on government docket (pressure)
•  Become ripe for decision making (trigger)
!  Convergence of three things
1.  Evidence of existence of problem (“science”)
2.  Processes to deal with problem (“law or “authoritative decision maker”)
3.  Willingness to act (“power to implement”)

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Overview of the Policy Cycle

!  Once issue is “on the agenda

!  Policy formulation—designing and drafting
!  Policy legitimization—mobilizing support
!  Policy implementation—programs (administration)
!  Policy evaluation—measure results
!  Policy change—modify or terminate programs

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Overview of the Policy Cycle

!  Once issue is “on the agenda

!  Policy formulation—designing and drafting
!  Policy legitimization—mobilizing support
!  Policy implementation—programs (administration)
!  Policy evaluation—measure results
!  Policy change—modify or terminate programs

!  Policy will include incentives or disincentives to take, or refrain from taking, certain
actions

!  These might be aimed at individuals or communities

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 Section B

Definition of “Law”

The material in this video is subject to the copyright of the owners of the material and is being provided for educational purposes under
rules of fair use for registered students in this course only. No additional copies of the copyrighted work may be made or distributed.
Definition of “Law”

!  Definition from Goodman et al. (Eds.). (2007). Law in public health practice (2nd ed.)
!  Rules or commands enforceable by the positive power of the state
!  Statutes, ordinances, court rulings backed by the government

!  Terms to discuss
!  Enforceable
!  Positive power of the state
!  Backed by the government

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Environmental Law

!  Difficult to define concisely

!  The use of governmental authority to protect the natural environment and human
health
!  The body of law (statutes, regulations, policy guidance) that govern the relationship
between humans and nature

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Environmental Law

!  Difficult to define concisely

!  The use of governmental authority to protect the natural environment and human
health
!  The body of law (statutes, regulations, policy guidance) that govern the relationship
between humans and nature

!  More practical view

!  Laws that protect nature and ecology; and
!  Laws that protect public health and welfare

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Major Air

Environmental "  Clean Air Act

Laws Water
"  Clean Water Act
"  Safe Drinking Water Act

Land
"  Resource, Conservation and Recovery
Act
"  Superfund

Toxic substances
"  Toxic Substances Control Act
"  Fungicide, Insecticide and Rodenticide
Act
"  Emergency Planning and Community
Right to Know Act

Planning
"  National Environmental Policy Act

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Major Air But don’t forget ...

Environmental "  Clean Air Act "  Laws covering radiation and nuclear
issues
Laws Water
"  Laws covering wildlife, rivers and
"  Clean Water Act management
"  Safe Drinking Water Act "  Laws covering procedure, right to
information, and administration
Land
"  Laws covering endangered species
"  Resource, Conservation and Recovery
Act "  Laws covering marine and coastal
resources
"  Superfund
"  Laws covering wetlands
Toxic substances "  Treaties/international environmental
"  Toxic Substances Control Act law
"  Fungicide, Insecticide and Rodenticide "  http://www.elr.info/welcome.cfm
Act
"  Emergency Planning and Community
Right to Know Act

Planning
"  National Environmental Policy Act

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Law and the Public Health System

!  Laws at all levels of government bestow the basic powers of government and
distribute these powers among various agencies. Law represents governmental
decisions and their underlying collective social values. It provides the basis for
actions that influence the health of the public.

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Executive Branch

!  US Constitution, Article II
!  § 1—“The executive power shall be vested in a president of the United States of
America.”
!  Powers of President—§ 2
•  Commander-in-Chief
•  Power to make treaties (advice/consent of Senate)
•  Nominate judges, appoint ambassadors, etc.
!  Executive branch—agencies
!  President elected every four years

!  EPA was created by President Richard Nixon to administer environmental laws and
programs

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Regulations (and Administrative Agencies)

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Executive Branch

!  US Constitution, Article II
!  § 1—“The executive power shall be vested in a president of the United States of
America.”
!  Powers of President—§ 2
•  Commander-in-Chief
•  Power to make treaties (advice/consent of Senate)
•  Nominate judges, appoint ambassadors, etc.
!  Executive Branch—agencies
!  President elected every four years

!  EPA was created by President Richard Nixon to administer environmental laws and
programs

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Legislative Branch

!  US Constitution, Article I
!  § 1—“All legislative powers … shall be vested in a Congress … which shall consist of a
Senate and House of Representatives”
!  Powers of Legislature—§ 8
•  Power to tax
•  Power to spend
•  Power to regulate commerce among states, tribes, foreign nations
!  Legislators elected at regular intervals

!  Today—a complicated picture

!  Many committees
!  Many laws

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Judicial Branch

!  US Constitution, Article III

!  § 1—“The judicial power shall be vested in one supreme court, and in such inferior
courts, as the Congress may ... establish. The judges … shall hold their offices
during good behaviour ...”
!  § 2—The judicial power shall extend to all cases ... arising under this constitution,
the laws of the United States, and treaties made … .”

!  Judiciary has the power ...

!  To interpret laws
!  Of judicial review (to void a law repugnant to the Constitution)

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US Constitution

!  Power to tax (Article I, section 8)

!  Power to spend (Article I, section 8)

!  Power to regulate commerce (Article I, section 8)

!  These are the most important powers and underlie almost all environmental health
laws

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How the US Federal System Operates

!  The legislative branch enacts laws

!  The executive branch executes or implements the laws

!  The judicial branch interprets the laws

!  Administrative agencies are central to public health protection, and all three branches
affect their actions

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 Section C

Administrative Agencies

The material in this video is subject to the copyright of the owners of the material and is being provided for educational purposes under
rules of fair use for registered students in this course only. No additional copies of the copyrighted work may be made or distributed.
Administrative Agencies

!  Federal agencies are at the heart of US public health law

!  Agencies must ...

!  Comply with the Administrative Procedure Act, 5 USC § 551 et seq.
!  Implement statutes that Congress assigns them

!  What agencies do
!  Research
!  Adjudication
!  Rulemaking

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Administrative Agencies

!  In executive branch (CEO = President)

!  Particularized expertise
!  Health (HHS, CDC, ATSDR, OSHA, EPA)
!  Environmental protection (DOI, EPA, NOAA)
!  Other (OMB)

!  Run by political appointees, civil servant workforce

!  Interpret (regulation) and enforce laws written by Congress

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Rulemaking and Adjudication

!  Rulemaking—agency decisions that affect groups of people, especially the regulated

community
!  Informal rulemaking—notice and comment
!  Formal rulemaking—hearing

!  Adjudication—a decision about a particular claim by a particular entity

!  Assess penalty
!  Injunctive or declaratory relief

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Federal Administrative Agencies

!  Examples !  What they do

!  CDC !  Rulemaking
!  EPA !  Adjudication
!  NRC !  Research
!  OMB !  Communication
!  FWS

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Three Branches
of the Federal
Government and
Administrative
Agencies

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 Section D

Challenges for Public Health

and Environmental Law

The material in this video is subject to the copyright of the owners of the material and is being provided for educational purposes under
rules of fair use for registered students in this course only. No additional copies of the copyrighted work may be made or distributed.
Three Key Challenges

1.  Societal needs vs. individual rights

!  Striking the proper balance
!  Constitutional issue—rights

2.  Turf wars—Who makes, interprets and enforces the laws?

!  National vs. state vs. local government
!  Branches: Executive vs. Legislative vs. Judicial
!  Agencies: EPA vs. CDC vs. NIOSH vs. OMB

3.  Science
!  Uncertainty in evidence (support for policy/law)
!  Who bears burden of going forward?

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Jacobson v. Massachusetts (1905)

!  Facts of case
!  Cambridge, Mass., ordinance requiring inoculation of
adults (smallpox)
!  Jacobson refused inoculation—was fined $5.00

!  Case holding
!  State has the authority to compel individuals to undergo
inoculation
!  Individual liberties can be encroached upon in the name of
public safety

!  Individual rights vs. community needs—a key legal question

facing environmental health law

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Corollary Challenges in Environmental Law

!  Siting a waste facility or industry

!  High-level nuclear waste—Yucca Mountain
!  Mining—uranium mine
!  Local “nuisance”—recycling facilities, transfer stations

!  Environmental justice and disenfranchisement

!  Addressing disparities
!  Cumulative impacts

!  Regulatory burden
!  Are costs of complying with regulations a constitutional issue?

!  Regulating personal behavior

!  Radon in homes
!  Food choices and nutrition

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Turf Wars: Who Decides? Who Act?

!  Federal government
!  House and Senate—draft laws
!  Executive branch (President)—implements laws and promulgates regulations
!  Judicial branch—interprets laws and regulations

!  Agencies—Who acts on behalf of environmental health?

!  CDC vs. EPA vs. DOE
!  Different agencies, similar (or identical) issues

!  Federal, state or local?

!  Which level of government?

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Scientific
Uncertainty

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Relationship between Law, Policy, and Public Health

“Although neither law nor public health can function without the other, they
need not serve each other well.”

Source: Parmet, Wendy. Introduction: The interdependency of law and public health. In Goodman et al. (2007). Law in public health practice (2nd ed.). 7
 Paul A. Locke
615 North Wolfe Street, E7620
[email protected]
410-502-2525

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