Extended Degree Program
Lecture Notes

Lesson 3. Sources of Legal Authority

Approximate Time:

6 hours.

Key Points

In chapter 2 of Grad's text, he discusses the legal basis of regulation in the field of public health.  Basically, environmental health regulation rests on the inherent police powers of the state to make and enforce rules and regulations (administrative law), and on the doctrines of nuisance and trespass (common law).

A. Administrative Law

Administrative law consists of:  statutes (enacted by federal and state legislative bodies);  ordinances (enacted by units of local government;  and, rules and regulations (promulgated by administrative agencies and boards).  These laws are a response to the increasingly complex nature of government and society.  Early statutory language attempted to include in the written statute considerable detail regarding the problem to be regulated.  The complex and changing nature of scientific, technical and economic developments often results in the passing of enabling legislation which addresses the subject in general terms.

1. General Powers:
   
1. The ability of a government agency to set and enforce environmental health rules and regulations rests on the inherent police powers of the state.  Each state in the United States has these plenary and inherent powers by the very nature of their formation and existence.
2. The exercise of these powers is manifested in the passage of laws by the state legislature.  These laws may provide for the regulation of individual behavior in order to preserve or protect the public health and welfare.
3. The state legislature also has the ability to delegate power to state and local agencies.  The powers delegated may be:
   1) Ministerial Authority - Delegation of administrative and enforcement authority to a new or existing agency to carry out the terms of the statute.
   2) Discretionary Authority - The ability of authorized officials to use professional judgment in making decisions and in carrying out the terms of the legislative mandate.
   3) Rule Making Authority - Gives power and responsibility to formulate rules, regulations and standards necessary to carry out the statute.  All such administrative rules and regulations, when properly formulated and not inconsistent with existing laws of the state or nation, have all the force and effect of law (legislation, statutes).
   
2. Types of Administrative Laws:
   
   1. Statutes.  The legislature delegates to the administrative agency power to either enforce a particular administrative code or the ability to develop and enforce rules and regulations covering an appropriate area.

 Police powers are delegated by legislative bodies (the U.S. Congress and state legislatures) to administrative agencies or units of local government.  Usually, there are two types of statutes involved: a general one authorizing the formation of the agency, and one or more specific statutes which authorize or require the agency to prevent or control a particular problem.  A third type of legislation (statute) is the appropriations act which provides the funding to carry out the programs authorized in the other statutes.

The general, or enabling, statute sets up, or authorizes a local government to set up, the administrative agency necessary to carry out the intent of the act.  The statute may contain a mandate that the agency protect the public health and welfare and grant to it discretionary powers.  These powers include the ability to promulgate (make and enforce) rules and regulations, set standards, establish a system of permits and licenses and fees, and/or perform other activities as necessary, consistent with the mandate. [Appendix B.6, RCW 70.05 is an example.]

 In addition, most enabling legislation for health departments, and often other agencies as well, will contain a provision that the department take whatever action is necessary to protect the public health and welfare.  This language does not specifically require the agency to do anything.  In practice, however, a significant part of a health department's enforcement effort may be devoted to the investigation of health hazards associated with rats, pigeons, noise, odors, sewage, etc.  In some cases, the agency may have established specific rules and regulations which adequately cover these problems.  In other cases, enforcement must fall back on the common law doctrine of public nuisance and the agency's statutory authorization to act in this area may rest on this general authorization clause.  We will examine nuisance law below.

Example:  RCW 70.05, Local Health Departments, provides local health departments with the authority to "enact such local rules and regulations as are necessary in order to preserve, promote and improve the public health and provide enforcement thereof" (Rule Making Authority).

The second, or specific, type of statute is designed to control a particular problem or class of problems of concern to the legislators, e.g., air pollution, water pollution, hazardous wastes, childhood lead paint poisoning, and rats.  Whatever the subject, the typical statute will include the following items.

1) A statement of the legislature's findings concerning the problem;
2) A statement of the legislature's intent in passing the act;
3) A delineation of the conditions, situations or activities covered by the act;
4) Delegation of authority to enforce the provisions contained in the act;
5) Either specific standards or criteria which are to enforced (e.g., banning as a food additive "any substance found to cause cancer in laboratory animals"), or authorization (or a requirement) for the designated agency to establish such rules and regulations, and standards, as necessary to carry out the intent and provisions of the act, or both;
6) Procedural provisions requiring certain activities or compliance with certain other statutes (e.g., all actions must be compliance with the state's administrative procedures act, freedom of information act, environmental policy act, etc.);
7) A penalty clause which provides for the prosecution of violators of the act;
8) A provision for funding the activities required by the statute.  (Note, however, that specific appropriation legislation must be passed in order to actually fund these activities.)
In addition, there may be other clauses addressing special concerns of the legislative body, such as a requirement for the establishment of a citizen's advisory board.

Examples:
1) PL 94-469. Toxic Substances Control Act is a typical federal statute of this type.
2) RCW 18.20. Boarding Homes  is a Washington state statute which authorizes local health departments to enforce the state's rules and regulations (WAC 248-16) governing boarding homes (ministerial authority).

2. Ordinances.  These are laws passed by units of local government -- cities, counties, etc.  They may resemble statutes, or in many instances they be more closely akin to the rules and regulations promulgated by an administrative organization.
    In some cases a model ordinance or code may be adopted by reference, i.e., the city or county passes an ordinance in which the current version of a nationally recognized model code is adopted by the jurisdiction and enforced by the agency.  In other cases, the model is adopted by copying the provisions of the model code word for word.  And, in other cases, the model code is adapted to local needs by copying some provisions and modifying others as desired locally in drafting the wording of the ordinance.
   

   Examples:
   1) APHA-CDC Recommended Housing Maintenance and Occupancy Ordinance is an example of a code developed by a professional association and adopted by many health departments.
   2) Food Service Sanitation Manual contains a model food protection code developed by the FDA and adopted by many departments.

3. Rules and Regulations.  Rules and Regulations may be promulgated by local boards of health or by the agency itself depending on where the rule making authority has been vested for a particular program.  The content of a specific rule and regulation may be drafted by the agency, in conjunction with its legal counsel, or it may be taken from existing codes -- those used in other state or local agencies, or from model codes promulgated by professional associations, or state or federal agencies.  The King County Rules and Regulation No. 2 governing food [Appendix B.10] and No. 8. Solid Waste [Appendix B.11] are typical of the rules and regulations passed by local boards of health.
   

B.  Common Law

1. Nuisances:  One of the common law areas with which the environmental health practitioner deals is nuisance law, especially in a complaint based program.  Nuisance law is derived from English Common Law and has been defined as "the class of wrongs that arise from unreasonable, unwarrantable or harmful use by a person of his own property either real or personal, or from his own unlawful conduct working an obstruction of or injury to the right of another or of the public and producing material annoyance, inconvenience, discomfort, or hurt".1
   1. Authority.  Grad discusses the legal issues which surround the problem of public health nuisances.  Note that while the health officer generally has broad discretionary powers to deal with nuisances, the preferred course of action is through expressed statutory authority.  This is primarily due to the difficulty which exists in defining exactly what constitutes a public nuisance and under what conditions.
   2. Types of Nuisances.  There are two types of nuisances -- private and public.  And, although everyone in the legal profession acknowledges that the distinction between public and private nuisances is vague and shifting, it is important for the practitioner to make the distinction because only public nuisances are within the jurisdiction of the health department.
      1. Public Nuisances.
         a) Definitions - several statutory definitions of public nuisances are included in the reading assignment for this lesson.
         b) Enforcement - Once a determination is made that a condition is a public nuisance, the next question is what to do about it.  The answer is simple -- except in the most extraordinary of circumstances -- follow the code or ordinance exactly and completely.
      2. Private Nuisances.
2. Trespass:  A trespass is an unlawful interference with one's person, property or rights.  Under common law, trespass was a form of action brought to secure damages for any injury to one's person, property or relationship with another.  Nuisance is generally distinguished from trespass.  A nuisance consists of a use of one's property so as to cause injury, while a trespass involves a violation of the property rights of another.2
    The most effective use of the doctrine of trespass in environmental health related programs was during the early days of the modern environmental movement.  Many of the air and water pollution cases tried in the early 1960's were based on trespass, as well as on nuisance.  "In an action for trespass . . . ., entry upon another's land need not be in person. Iit may be made by causing or permitting a thing to cross the boundary of the premises. (See Martin v. Reynold's Metal Co. [221 Ore 86, 342 P 2d. 790 (1959), 362 U.S. 918 (1960)].)
    In recent years, some courts have used private nuisance and trespass almost identically with the result that the distinction is somewhat clouded. 3
   ________________________
   1 Black's Law Dictionary
   2 Arbuckle, J. Gordon, et al., Environmental Health Law Manual [6th ed.], Government Institutes, Inc., Washington DC, 1979, pp. 46-53.
   3 Ibid

Progress Assessment Exercise

Download the following Microsoft Word file and answer the questions. Your responses should be brief, yet contain sufficient depth to demonstrate your understanding of the issues and/or concepts involved. All progress assessment exercises should be typewritten, well organized and clearly presented. You will be evaluated on the effectiveness and organization of your responses as well as on the substance of the content. When you have finished, email your answers to the instructor. You may also send them by US mail to:

Mr. Charles D. Treser
Department of Environmental & Occupational Health Sciences
University of Washington
Campus Box 357234
Seattle, WA 98195-7234

Exercise No. 3

When you have finished you may proceed to Lesson 4. Scope and Limits of Legal Authority