Unit 2 Lecture Notes - Sources of Law

The basic source of law for our federal and state governments as well as the governments of most other countries is the constitution for the respective government. A constitution is a document that defines the powers of a government. Although our Constitution <http://www.house.gov/house/Constitution/Constitution.html> not the first, it was a great innovation at the time it was adopted. The states (at least the 13 original states) existed before the creation of the federal government. By ratifying the Constitution the states gave up some of their power. The federal government is, therefore, a government of limited powers because it is limited to those powers that the states gave in the Constitution. The power of the states, on the other hand, is limited only by the limitations that the states have placed in the Constitution and the limitations found in their own respective constitutions.

A sovereign is an independent government or country. When a government is said to have sovereignty that means that it has some or all of the characteristics of an independent country. Thus the states have those characteristics of independent countries which were not transferred to the federal government through the Constitution. The states are not units of the federal government. Contrast this with counties within a state. Counties are created either by the state constitution or by statute and have no power apart from the state. Counties are, therefore, units of state government.

Federalism <http://lcweb2.loc.gov/const/fed/fedpapers.html> describes the relationship between the federal government and the states. The supremacy clause (Article VI of the Constitution) makes federal law, where applicable, superior to state law. Sometimes federal regulation occupies the entire field and there is no room for state regulation. In such situations the federal law is said to preempt the state law, which means that the state law is of no effect. Sometimes, however, the federal regulation does not occupy the entire field and there is room for state regulation. In such circumstances the state and federal governments are said to have concurrent jurisdiction. Sometimes Congress, by statute, specifically preserves he authority of the states. Through much of environmental law we will find that the states and the federal government may exercise concurrent authority.

When the Constitution was approved by Congress in 1789 and ratified by the states in 1791, the nation was confined to the Atlantic coast east of the Appalachian mountains. Most of the North American continent was occupied by powerful European and Native nations with military potential sufficient to extinguish the new nation. Thus it is hardly surprising that protecting the environment was not high on the list of priorities of the Founding Fathers. (Indeed I am not aware that the issue is even mentioned in the history of the Constitutional Convention.) When Congress decided that federal environmental regulation was needed there was no environmental clause to look to for authority. Thus the authority for most federal environmental law is the Commerce Clause. Since pollution and other environmental problems affect interstate commerce, Congress, therefore, has the power to regulate. There are, of course, other clauses of the Constitution that play a role in federal regulation of the environment.

State regulation of the environment is limited by the contract clause of the Constitution that prevents the unreasonable impairment of private contracts. The Fourth Amendment prohibits unreasonable searches and seizures in the course of enforcing environmental laws. The Fifth and Fourteenth Amendment due process clauses require that those accused of violating environmental laws be given the opportunity to be heard and to appeal before sanctions are imposed. The Fifth Amendment takings clause limits the ability of governments to burden property with environmental regulation unless the property owner is compensated. The equal protection clause of the Fourteenth Amendment serves as a bar to governmental favoritism. The spending clause permits the federal government to regulate he environment hen government funds are involved.

Unlike the federal Constitution, the N.C. Constitution addresses environmental concerns by requiring the state government to conserve natural resources. Also unlike the Constitution, the N.C. Constitution contains no clause preventing governmental takings of private property without compensation.

Statutes enacted by state legislatures and Congress are a key source of law. Co-equal with this source of law are treaties with foreign governments. Under the Constitution states cannot enter into treaties with foreign governments. Statutes and treaties are both important sources of environmental law.

Under our system published decisions of the courts become law. Our system is a called a "common law" system to distinguish it from the civil law system used in other countries. Common law systems are used in countries where the British colonial system established the British common law system. Under the common law system a court and courts inferior to it in the same system are bound by decided cases under the rule of stare decisis. Opinions in decided cases are referred to as precedents. Precedents are only binding within the same court system. Executive orders issued by governors and the President are also sources of law, although sources that are inferior to constitutions, treaties, statutes, and written judicial opinions. Under the authority granted in statutes administrative agencies issue regulations that have the force of law. Finally, cities, counties, and other units of local governments may issue rules, ordinances or other regulations that are also sources of law.

Please reference the D.H. Hill Library website, prepared for this course, on legal research. <http://www.lib.ncsu.edu/courses/are309> Reference librarians are available to answers questions that you may have about legal research.