"A Climate of Lawlessness": Upholding a Government's Affirmative Duty to Protect the Environment Using Deshaney's Special Relationship Exception
![handle is hein.journals/jlawp29 and id is 291 raw text is: A CLIMATE OF LAWLESSNESS: UPHOLDING A
GOVERNMENT'S AFFIRMATIVE DUTY TO PROTECT
THE ENVIRONMENT USING DESHANEY'S SPECIAL
RELATIONSHIP EXCEPTION
Katherine G. Horner*
[T]he direct consequences of the [federal Office of Surface
Mining's] decade-long delay [are] thousands of acres of
unreclaimed strip-mined land, untreated polluted water, and
millions (potentially billions) of dollars of State liabilities.
The indirect results, however, may be more damaging: a
climate of lawlessness, which creates a pervasive impression
that continued disregard for federal law and statutory
requirements goes unpunished, or possibly unnoticed.
Agency warnings have no more effect than a wink and a nod,
a deadline is just an arbitrary date on the calendar and, once
passed, not to be mentioned again. Financial benefits accrue
to the owners and operators who were not required to incur
the statutory burden and costs attendant to surface mining;
political benefits accrue to the state executive and legislators
who escape accountability while the mining industry gets a
free pass. Why should the state actors do otherwise when the
federal regulatory enforcers' findings, requirements, and
warnings remain toothless and without effect?
J.D. Candidate, Brooklyn Law School, 2021; M.A. in Psychology, Chatham
University, 2016. A special thanks to my parents for their constant support, love
and guidance and to my employer, Michelle Stem, without whose patience and
encouragement I would not have been able to manage working full time while
attending law school. Thank you also to the members of the Journal of Law and
Policy for their edits, attention to detail, and advice.
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