Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P47 potx

Legislature, and in 1826 he served as Delaware SECRETARY OF STATE for a two-year period. In 1829 Clayton entered the federal political system and represented Delaware in the U.S. Senate until 1836 . During his tenure, he served on the Judiciary Committee and directed an inquiry concerning scandalous activities in the U.S. Post Office. Clayton was a member of the Senate twice more, from 1845 to 1849 and from 1853 to 1856. Between his senatorial duties, Clayton acted as U.S. secretary of state during 1849 and 1850. He formulated the Clayton-Bulwer Treaty in 1850 with British emissary Sir Henry Bulwer, which settled a dispute concerning an isthmian canal in Central America by providing for neutrality by both countries in the use of the canal. Clayton died Novemb er 9, 1856, in Dover, Delaware. CLEAN AIR ACT The Clean Air Act regulates the release of air pollutants and establishes the Environmental Protection Agency as the entity responsible for overseeing the act’s requirements. The Clean Air Act (CAA) (42 U.S.C. §§ 7401 et seq.) regulates the release of air pollutants. The CAA is enforced by the ENVIRONMENTAL PROTECTION AGENCY (EPA). Since its enactment in 1963, the CAA has been amended by Congress several times to strengthen the EPA’s regulatory powers. The regulation of power plant emis- sions has been a major component of EPA oversight because coal has been the fuel of choice for most power plants. Despite statutes and regulations that seek to define the scope of environmental oversight, energy producers sometimes run afoul and trigger legal contro- versies. Thus, the courts have been called upon on numerous occasions to resolve dispute regarding AIR POLLUTION. The original 1963 enactment of the CAA was followed by the Clean Air Acts Extension of 1970. The 1970 statu te directed the EPA to establish national standards for air quality, including POLLUTION control standards and emissions standard s. Under the 1970 statute, the EPA became the entity responsible for enforcing these standards in each of the states John Middleton Clayton. LIBRARY OF CONGRESS ▼▼ ▼▼ 1800 John Middleton Clayton 1796–1856 1775 1825 1850 1875 ◆◆◆◆◆ ◆ ◆ ❖❖ 1775–83 American Revolution 1787 Delaware became first state in Union after ratifying the Constitution 1796 Born, Dagsborough, Del. (now Dagsboro) 1812–14 War of 1812 1815 Graduated from Yale 1824 Elected to Del. legislature 1826–28 Served as Delaware's secretary of state 1829–36 Served first term in U.S. Senate 1850 Formulated the Clayton- Bulwer Treaty with England 1849 Appointed U.S. secretary of state 1845 Began second term in U.S. Senate 1853 Began third term in U.S. Senate 1856 Died, Dover, Del. 1861–65 U.S. Civil War GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 448 CLEAN AIR ACT other than California. The 1970 act was followed by subsequent amendments in 1977 and 1990. Most of the current statutes are based on the Clean Air Act Amendments of 1990 (Pub. L. No. 101-549, 104 Stat. 2399). Most of the CAA focuses on mechanisms designed to ensure that air standards are met. In addition to its involvement in setting limits on air pollutants and emissions, the EPA also approves state implementation plans, which must establish that the state will attain and maintain air quality standards. Should a state fail to meet requirements set forth in its state implementation plan, the EPA may issue sanc- tions against the state and possibly take over enforcement of the CAA in that state. Local governments and tribal nations also have roles in developing implementation plans. Judicial Involvement with the CAA The Supreme Court has been called upon in several instances to resolve questions regarding EPA authority in interpreting the CAA and the EPA’s actual interpretation of the CAA. The courts will generally defer to the EPA interpre- tation of the CAA. However, this has not always been the case. Federalism Issues As a general matter, the Supreme Court has recognized that the CAA has given significant authority to the federal government to regulate air quality. In Train v. Natural Resources Defense Council (421 U.S. 60, 95 S. Ct. 1470, 43 L. Ed. 2d 731 [1975]), the Court referred to the 1970 amendments to the CAA as “taking a stick to the States.” In Alaska Department of Environmental Conservation v. EPA (540 U.S. 461, 124 S. Ct. 983, 157 L. Ed. 2d 967 [2004]), the Court was called upon to decide whether the EPA had the power to block construction of a major air pollutant emitting facility if the EPA concluded that state authorities had made an unreasonable determination regarding whether the facility was equipped with the “best available control technology” (BACT). In a 5–4 decision, the Court concluded that the EPA did have statutory authority to overrule a state environ- mental decision. The case involved Teck Cominco Alaska, Inc. (Cominco), which owned and operated the Red Dog Mine in Northwest Alaska, about 100 miles north of the Arctic Circle. The zinc mine was the largest employer in the area’s wage base. The mine began operations in 1988 after obtaining a permit that allowed it to operate five 5,000 kilowatt diesel electric generators. Of these five generators, two were operated only on a standby basis. The Alaska Department of Environmental Conservation (ADEC) issued another permit in 1994, allowing a sixth generator and authorizing the mine operation to run five of the generators full time. Cominco sought to expand zinc production by 40 percent in 1996, aided by funding from the state of Alaska. Cominco proposed adding a seventh generator and a BACT called Low Nox to limit nitrogen oxide omissions. ADEC staff concluded that a BACT called SCR would do a much better job reducing omissions, but the ADEC leadership endorsed Cominco’s propos- al. Cominco’s proposal assumed that one or more generators would not be running, but if all seven were running the amount of annual emissions would rise by 79 tons. The National Park Service filed an objection to the BACT decision in 1999, and soon after, the EPA wrote to ADEC, voicing doubts about the effectiveness of the Cominco air pollution plan. ADEC then conducted another review that concluded the SCR technology was too costly for the mine; if SCR was required, ADEC estimated that Cominco would have to raise its zinc prices by 20 percent, which would not be economically feasible. Therefore, ADEC reaf- firmed its decision to issue a construction permit with the Low Nox system. The EPA protested this decision and argued that ADEC had failed to conduct a thorough economic analysis to determine whether SRC technology was too costly. The EPA issued an order in December 1999 barring ADEC from issuing Cominco a construction permit until ADEC “satisfactorily documents why SCR is not BACT” for the generators. ADEC filed suit in the Ninth Circuit Court of Appeals challenging this decision. While the lawsuit proceeded, ADEC granted Cominco a permit to use the additional generators but required SCR if the Supreme Court ruled in ADEC’s favor. The Ninth Circuit upheld the EPA’s power to issue the order against ADEC. The appeals court had the authority to determine whether a state agency had “reasoned justification” for a permitting decision. In a 5–4 decision, the Supreme Court agreed with the Ninth Circuit. Justice RUTH BADER GINSBURG , writing for the majority, ruled that GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CLEAN AIR ACT 449 the federal law trumped state control of air quality issues. Though the C AA gives the states authority to determine the best ways of controlling pollution in areas that have met clean air standards, the federal governme nt has reserved the right to intervene if it concludes that the state has failed to meet these standards. In this case, ADEC had ignored the recommendations o f its staff for the SCR technology and had offered a vague economic analysis as to why SCR was too costly for the mining operations. In Ginsburg’sview, ADEC’s own records “showed there was scant, if any, evidentiary basis for choosing less stringent emission-reduction technology.” In addition, it made no sense to believ e Congress wouldhavegiventheEPA“an expensive surveillance role” but t hen “preclude the agency from verifying substantive compli- ance.” The m ajority cautioned, however, that the EPA can step in only when it believes a state has made a decision without good reason in light of the CAA objectives. Deference to the EPA Under the authority of Chevron, U.S.A. v. Natural Resources Defense Council (467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 694 [1984]), when Congress gives an agency the authority to construe a statute, the Court should give deference to an agency’s interpretation of the statute unless the interpretation is unrea- sonable. In Massachusetts v. EPA (549 U.S. 497, 127 S. Ct. 1438, 167 L. Ed. 2d 248 [2007]), the Court reviewed a case involving the EPA’s conclusion that it had no authority to regulate emissions of greenhouse gases from motor vehicles. In a narrow 5–4 LANDMARK decision, the Court found that gases that cause global warming were pollutants under the federal Clean Air Act; that EPA did indeed have the statutory authority to regulate them; and that it had acted arbitrarily and capriciously in refusing to exercise that authority. This long-winded controversy centered on Section 202(a)(1) of the Clean Air Act, specifi- cally, 42 U.S.C. § 7521(a)(1), which states in relevant part: The [EPA] Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare… The Act defines air pollutants to include “any air pollution agent…including any physical, chemical…substance…emitted into…the ambient air.” In 1999, various environmental groups filed an administrative rule-making petition formally requesting that EPA establish standards for motor vehicle greenhouse gas emissions, which consist primarily of carbon dioxide and other heat-trapping gases. Four years later, in 2003, the EPA denied the administrative petition, stating that it lacked authority to regulate such gases. It argued, in part, that carbon dioxide and other greenhouse gases were naturally occurring substances in the atmosphere and, therefore, did not constitute “air pollutan ts” within the meaning of the Clean Air Act. Further, even if it did have authority, arguendo, it would discre- tionarily decline in favor of voluntary programs and further research. The EPA noted that a causal link between greenhouse gases and increased global surface temperatures had not been positively established. Therefore, such a piecemeal approach would conflict with the president’s more comprehensive environmental package, which included non-regulatory pri- vate-sector voluntary reductions and tech- nologically innovative research into other climate-change alternatives. The state of Massachusetts joined the original petitioners as an intervening party and sought review of the EPA administrative deci- sion in the Court of Appeals for the D.C. Circuit. Although each of the judges wrote a separate opinion, the ultimate decision let stand the EPA decision and denied APPELLATE review. The U.S. Supreme Court granted CERTIORARI to review the case. In response, the EPA, joined by ten intervening states and six trade associations, argued that the Supreme Court first needed to address whether the petitioners even had legal standing to invoke the Court’s jurisdiction. The Court agreed. In order for the petitioners (at least one) to have standing, there needed to be a JUSTICIABLE controversy under Art. III of the U.S. Constitution, which means that petitioners needed to show that they suffered particular injury (actual or imminent) because of the EPA actions (or failure to act). The Supreme Court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 450 CLEAN AIR ACT found that the petitioners did have standing, particularly Massachusetts, as Congress had ordered EPA to protect Massachusetts and other states and that the EPA refusal to regulate greenhouse gas emissions presented a risk of actual and imminent harm. This preliminary question being resolved in favor of petitioners, the Court went on to address the case on its merits. The Court found that greenhouse gases fit well within the definition of “air pollutants” contemplated by the CAA. Therefore, EPA does have the authority to regulate them. Even though regulating motor vehicle emissions may not by itself reverse global warming, this does not mean that the Court does not have jurisdiction to decide whether EPA has a duty to act to slow or reduce it. The Court then concluded that under the act’s clear terms, EPA can decline to promulgate regulations only if it determines that green- house gases do not contribute to global climate change or if it provides explanation as to why it cannot or will not exercise its discretion to determine whether such gases do contribute to climate change. If scientific uncertainty prevents EPA from making such a determination, it must state so. It had not. Nor did the Court find persuasive the other EPA arguments, for exam- ple, that regulation of motor vehicle carbon dioxide emissions would require it to tighten mileage standards, which was really the purview of the U.S. DEPARTMENT OF TRANSPORTATION. The Court held that even if there was overlap in responsibilities, EPA may not shirk its duty to protect the public health and welfare under the Clean Air Act. Having found the EPA’s respon- sive reasons less than acceptable, the Court held that EPA had acted arbitrarily, capriciously, or otherwise not in accordance with law. Accord- ingly, the Court remanded the matter fo r EPA to specifically articulate plausible reasons for its action or inaction. Other Issues In several cases, parties have challenged the EPA interpretation of the CAA by arguing that the interpretation failed to take into account cost considerations. The Supreme Court has generally sided with the EPA on this issue. For instance, in Whitman v. American Trucking Association (531 U.S. 457, 121 S. Ct. 903, 149 L. Ed. 2d 1 [2001]), the Court rejected an argument made by several industries that the EPA had failed to take cost into account when issuing rules regarding air quality standards. The Court in that case concluded that these industries had failed to show that Congr ess had given clear direction to the EPA to consider costs in setting these standards. FURTHER READINGS Ashford, Nicholas A., and Charles C. Caldart. 2008. Environmental Law, Policy, and Economics: Reclaiming the Environmental Agenda. Cambridge, Mass.: The MIT Press. Bell, Christopher L. 2009. Environmental Law Handbook, 20th ed. Lanham, Md.: Government Institutes. Emerging Issues in Environmental Law and Climate Change. 2008. Newark, N.J.: LexisNexis/Matthew Bender. CROSS REFERENCE Clean Water Act. CLEAN SLATE DOCTRINE See SUCCESSION OF STATES. CLEAN WATER ACT The federal Clean Water Act sets standards and review processes for industries that discharge material into navigable waters. History Congress enacted the CLEAN WATER ACT (CWA) (33 U.S.C. §§ 1251 et seq.) to address the problem of WATER POLLUTION in the United States. The origins of the modern statu te dates back to the nineteenth century, when Congress enacted legislation that prevented the discharge of waste into navigable bodies of water. The first version of the Clean Water Act itself was the Federal Water POLLUTION Control Act (Clean Water Act) of 1948 (Pub. L. No. 845, 62 Stat. 1155), which authorized the SURGEON GENERAL to work with governmental entities at the federal, state, and local levels to develop plans to reduce pollution of interstate waters. Under this statute the surgeon general was required to develop these plans while also taking into account the need for water for industrial, agricultural, and recreational use. Despite the efforts of the federal govern- ment through the 1948 act, the water pollution problem in the United States worsened. Many streams by the mid-1960s resembled cesspools, and the public demanded that Congress take action. In 1966 and 1970, Congress enacted legislation designed to address the growing problem. Congress also required states to adopt GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CLEAN WATER ACT 451 water quality standards for interstate waters. However, the state standard s were typically weak and poorly enforced. Then Congress enacted the Federal Water Pollution Control Amendments of 1972 (Pub. L. No. 92-500, 86 Stat. 816 [1972]). This statute represented a major revision and expansion of the 1948 legislation. The 1972 act established broad objectives at the national level and set forth goals regarding the regulation and main- tenance of the integrity of U.S. waters. More- over, the statute was the first to ASSIGN primary responsibility over enforcement of water quality standards. In particular, the 1972 statute delegated authority to the ENVIRONMENTAL PROTECTION AGENCY to enforce the statute’s requirements. The 1972 CWA adopted a new strategy of regulating discharge of polluta nts from their point sources, such as pipes. The act applies to point source discharges into NAVIGABLE WATERS within the United States. The discharges are subject to technology-based performance limita- tions known as the National Pollutant Discharge Elimination System (NPDES). The act retained the state water-quality programs to supple- ment the NPDES. The EPA initially issued many of the NPDES permits, but most states have since assumed authority to issue these permits. The 1972 CWA had several ambitious goals. One was to make all waters in the United States safer for fishing and swimming by the year 1983. The act also sought to have zero discharge of pollutants into U.S. waters by 1985. The act achieved neither of these goals, however. Re- search conducted in the 1970s and 1980s showed that additional sources of pollutants, especially from nonpoint sources, were major contributors of water pollution. Congress reacted to this data by enacting the Water Quality Act of 1987 (Pub. L. No. 100-4, 101 Stat. 7-90), which requires NPDES permits for industrial and municipal stormwater nonpoint pollution sources to obtain permits. Reach of the Clean Water Act In several cases, the Supreme Court has addressed how broadly the CWA reaches. Because the act only applies to navigable waters, the Court has had to resolve questions of what a navigable water is. In some cases, such as United States v. Riverside Bayview Homes (474 U.S. 121, 106 S. Ct. 455, 88 L. Ed. 2d 419 [1985]), the Court determined that Congress had intended to give the term navigable water a very broad meaning. However, in other cases, the Court has determined that the term navigable water does not extend to certain isolated bodies of water. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (531 U.S. 159, 121 S. Ct. 675, 148 L. Ed. 2d 576 [2001]), the Court reviewed a case involving wetlands that con- sisted of isolated and intrastate ponds. The U.S. Army Corps of Engineers attempted to exercise jurisdiction over the wetlands after concluding that the migratory birds often visited the site. In 1986 the Corps had adopted a rule that purported to extend the application of navigable waters to include intrastate waters that serve as a habitat for migratory birds. The Court reviewed whether Congress had acquiesced to the Corps’ Migratory Bird Rule. The Court concluded that Congress had given no clear indication that it intended the result argued by the Corps. The Court noted that it had to give meaning to the word navigable, and the isolated, intrastate ponds simply could not meet this definition. Thus, the Court held that the Corps could not exercise jurisdiction under the CWA. In other instances, the Supreme Court has approved the regulation of wetlands that are adjacent to navigable waters, but the regulation of more remote wetlands remained unresolved. In Rapanos v. United States (547 U.S. 715, 126 S. Ct. 2208, 165 L. Ed. 2d 159 [2006]), the Court addressed but failed to deliver a clear ruling on how courts and the Corps are to deal with wetlands. In a PLURALITY decision, Justice ANTHONY KENNEDY announced a “significant nexus” test that appeared to give the federal government continuing control over the man- agement of wetlands. John Rapanos, a Michigan REAL ESTATE developer, owned three parcels of land about 20 miles from Lake Huron which he wanted to use for a shopping center. The state of Michigan classified the parcels as wetlands because after a heavy rain the water from these fields flowed into a drainage ditch, then into a small stream that emptied into Lake Huron. Under the CWA a permit is required before a landowner may drain or fill a wetland. When it became clear that Rapanos would not receive a permit, he had the land filled in with sand. He was convicted of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 452 CLEAN WATER ACT criminal charges for his actions, and a CIVIL ACTION was filed by the federal government seeking multimillion dollar fines. Rapanos claimed that his property was not a wetland, but a federal district court concluded otherwise. On appeal, the Sixth CIRCUIT COURT of Appeals upheld the lower court ruling that the Corps had not exceeded its authority under the CWA. The Supreme Court could not reach a majority conclusion. Four justices held that the Corps had exceeded its authority and that a new definition of wetlands was required. Four justices dissented, arguing that prior Court precedents and deference to the Corps justified the lower court rulings. Justice Anthony Ken- nedy, in a separate opinion, announced a new test for determining whether land could be classified as a wetland under the CWA. Because of this splintered decision, Kennedy’s opinion appeared to give the most guidance to the lower courts and the Corps. However, Chief Justice Roberts, in a concurring opinion , lamented the fact that the Court had failed to reach a majority conclusion “on precisely how to read Congress’ limits on the reach of the Clean Water Act.” Because of this failure, lower courts “and regulated entities will now have to feel their way on a case-by-case basis.” Chief Justice JOHN ROBERTS and Justices ANTONIN SCALIA, CLARENCE THOMAS, and SAMUEL ALITO voted to restrict the definition of wetlands. Justice Scalia, writing for the four justices, argued that the Corps of Engineers had exceeded its authority “beyond parody” by regulating land that contained nothing but drainage ditches, storm sewers, and “dry arroyos in the middle of the desert.” The federal ENCROACHMENT on local lands had diminished the ability of the states to manage land and made the Corps look like “a local zoning board.” Scalia proposed that the only wetlands subject to the CWA were those “with a continuous surface connection” to actual water- ways, “so that there is no clear demarcation between ‘waters’ and wetlands.” The linkage between a wetland and a waterway also had to be defined more restrictively. He contended that the waters adjacent to the wetlands must be “relatively permanent, standing, or flowing.” Justice Kennedy disagreed with this inter- pretation. He argued that the current regula- tions gave the Corps too much discretion to classify land as wetlands, but there was no need to establish a restrictive bright-line rule advocated by Scalia and the other three justices. Instead, Kennedy proposed the adoption of a “significant nexus test” that would be applied on a case-by-case basis. Under this test, the wetlands must have a significant nexus to a body of water that is actually navigable. This meant that ev en temporary channels could qualify as a tributary to navigable waters. He pointed out that the Los Angeles River in California is dry for much of the year, yet it can send “torrents thundering” down its steel and concrete protected waterway for short periods of time. Kennedy believed the Corps needed to rewrite its regulations to identify “categories of tributaries” that were “significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform importan t func- tions for an aq uatic system incorporating navigable waters.” Though he voted to vacate the lower court ruling so the district court could conduct a hearing based on his significant nexus test, Kennedy believed the federal government could make its case for the Rapanos wetlands. The wetlands drained into a stream that flowed into Lake Huron. Justice JOHN PAUL STEVENS, in a dissenting opinion joined by Justice DAVID SOUTER, RUTH BADER GINSBURG , and STEPHEN BREYER, contended that the Kennedy test “will probably not do much to diminish the number of wetlands covered by the act in the long run.” However, in the short term, the test “will have the effect of creating additional work for all concerned parties.” Stevens believed the Court should have paid more deference to the Corps’ regulations, which attempt to manage a complicated system of water management. He also accused Justice Scalia and the conservatives of judicial activism in attempting to rewrite the CWA. As of December 2009, Congress was consid- ering passage of a bill known as the Clean Water Restoration Act. Part of the goal of this legislation, which has been introduced through bills in several sessions of Congress, would be to clarify the scope of the CWA with regard to waterways and wetland s. However, critics have charged that the proposed legislation would overhaul the CWA because the legislation would remove the requirement of that the water must be navigable. FURTHER READINGS Ashford, Nicholas A., and Charles C. Caldart. 2008. Environmental Law, Policy, and Economics: Reclaiming GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CLEAN WATER ACT 453 the Environmental Agenda. Cambridge, Mass.: The MIT Press. Bell, Christopher L. 2009. Environmental Law Handbook, 20th ed. Lanham, Md.: Government Institutes. CROSS REFERENCE Clean Air Act. CLEAR Free from doubt, burden, or obstacle; without limitation; plain or unencumbered. The term is used to mean unambiguous or definitive and has various applications. For example, a clear intent to make a gift means that there is no doubt that the donor had the intent to relinquish all dominion and control over the property. CLEAR AND CONVINCING PROOF is EVIDENCE that establishes a firm belief in a person’s mind that a fact much more likely than no t exists. CLEAR AND CONVINCING PROOF A standard applied by a jury or by a judge in a nonjury trial to measure the probability of the truthfulness of particular facts alleged during a civil lawsuit. CLEAR AND CONVINCING PROOF means that the EVIDENCE presented by a party during the trial is more highly probable to be true than not and the jury or judge has a firm belief or conviction in it. A greater degree of believability must be met than the common standard of PROOF in civil actions, preponderance of the evidence, which requires that the facts more likely than not prove the issue for which they are asserted. The standard of clear and convincing proof—also known as “clear and convincing evidence”; “clear, convincing, and satisfactory”; “clear, cognizant, and convincing”; and “clear, unequivocal, satisfactory, and convincing”—is applied only in particular cases, primarily those involving an EQUITABLE REMEDY, such as reforma- tion of a deed or contract for mistake. CLEAR AND PRESENT DANGER An early standard by which the constitutionality of laws regulating subversive expression were evaluated in light of the First Amendment’s guarantee of freedom of speech. Justice OLIVER WENDELL HOLMES JR., writing for the U.S. Supreme Court in SCHENCK V. UNITED STATES , 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919), stated: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a CLEAR AND PRESENT DANGER that they will bring about the substantive evils that Congress has a right to prevent.” The famous free speech standard proved easier to formulate than to apply, when less than a year after first articulating it in Schenck, Holmes dissented from a majority opinion that invoked the clear-and-present-danger test to justify upholding the convictions of five anti- war protestors who had distributed allegedly seditious pamphlets. ABRAMS V. UNITED STATES, 250 U.S. 616, 1180, 40 S. Ct. 17, 63 L. Ed 1173 (1919). The clear-and-present-danger doctrine is a FREEDOM OF SPEECH doctrine first announced by the U.S. Supreme Court in Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919), during a controversial period in U.S. history when the FIRST AMENDMENT often clashed with the government’s interest in maintaining order and morale during wartime. Various formulations of the doctrine have appeared in other significant Supreme Court decisions throughout the years. In Schenck, the defendants had been con- victed of violating the ESPIONAGE ACT OF 1917, 18 U.S.C.A. §§ 11, 791-794, 2388, 3241; 22 U.S.C.A. §§ 213 et seq.; 50 U.S.C.A. §§ 191 et seq., which prohibited the making of false statements with the intent to interfere with the operation of the armed forces or to cause insubordination, disloyalty, or MUTINY in the armed forces. The act also made it a crime to obstruct military recruitment and enlistment. Charles T. Schenck, who was the general secretary of the SOCIALIST PARTY, and the other defendants had printed and distributed 15,000 leaflets opposing the then recently enacted Selective Service Act and mailed many to WORLD WAR I draftees (May 18, 1917, c. 15, 40 Stat. 76). At trial, Schenck had not denied that the leaflets were intended to obstruct recruitment and enlistment by attempting to persuade people to resist the draft, in violation of the ESPIONAGE Act. Instead, he had argued that the leaflets were protected by the First Amendment. The U.S. Supreme Court upheld the convictions. Justice Oliver Wendell Holmes Jr., writing for a unanimous Court, stated that speech could be punished if “the words are used in such GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 454 CLEAR circumstances and of such a nature as to create a clear and present danger that they w ill bring about the substantive evils that Congress has a right to prevent.” According to Holmes, the leaflets in Schenck were printed during wartime with the intent to obstruct induction efforts, an intent that was prohibited by federal law, and thus constituted such a clear and present danger. “When a nation is at war,” he wrote, “… things that might be said in time of peace that are such a hindrance to its effort … will not be endured so long as men fight and … no Court could regard them as protected by any constitutional right.” In later decisions, the Supreme Court revisited and, in some instances, reformulated the clear-and-p resent-danger standard as first enunciated by Holmes. In another World War I decision issued just eight months after Schenck, Abrams v. United States, 250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173 (1919), five Russian-born immigrants had been convicted of distributing allegedly seditious pamphlets that were critical of the U.S. government for sending troops into Russia. A seven-justice majority of the Court upheld the convictions. In his majority opinion, Justice JOHN H. CLARKE followed Holmes’s reasoning in Schenck, noting that the pamphlets had been distributed “at the supreme crisis of the war ” and that they were “an attempt to defeat the war plans of the Government.” Thus, Clarke concluded, the leaflets presented a clear and present danger. Holmes dissented from the majority decision and modified his earlier statement of the clear-and-present-danger test. Concerned about a rising tide of hysteria that could potentially impinge on free expression, Holmes argued for a broader interpretation of the clear-and-present-danger standard, writing that speech could be punished only if it “produces or is intended to produce a clear and imminent danger that will bring about … certain substantive evils that the United States … may seek to prevent.” All opinions, he argued, must be protected “unless they imminently threaten immediate interference with the lawful and pressing purposes of the law.” Holmes believed that in Abrams, the “surreptitious publishing of a silly leaflet” did not create such a danger. Six years after Abrams, the Court decided GITLOW V. NEW YORK, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), in which Benjamin Gitlow, a member of the Socialist party, had been convicted of distributing leaflets advocat- ing the overthrow of the government in violation of New York state CRIMINAL LAW. The Supreme Court upheld Gitlow’s conviction with Justice EDWARD T. SANFORD writing, “A state may punish utterances endangering the foundations of organized government and threatening its overthrow by violent means.” Sanford, while conceding that Gitlow’s pamphlet did not immediately incite CRIMINAL ACTION, nevertheless maintained that it could constitute a “revolu- tionary spark” that could later result in a “sweeping and destructive conflagration.” Holmes strongly disagreed with the majority’s contention that words not associated with action could be punished. Joined by LOUIS D. BRANDEIS in dissent, Holmes once more argued for application of a standard requiring that danger be imminent before speech could be punished. According to Holmes, Gitlow’s pam- phlets presented no such danger: “[E]loquence may set fire to reason. But whatever may be thought of the … discourse before us, it has no chance of starting a present conflagration.” Holmes and Brandeis joined forces again two years later in Whitney v. California, 274 U.S. 357, 47 S. Ct. 641, 71 L. Ed. 1095 (1927), in which they once more argued that before speech could be prohibited, a clear and present danger must be imminent. Charlotte Whitney, a prominent member of the Socialist party, had participated in a convention establishing the California branch of the new Communist Labor party. Whitney argued for the adoption of a resolution dedicating the party to seek political change through ballot measures. Her efforts were defeated by a competing resolution argu- ing for revolution as a means to overthrow capitalism. Whitney remained a participant in the convention and attended one or two meetings of the party. She was later convicted under a California law prohibiting participation in groups advocating criminal activity (Criminal Sydicalism Act of California, Statutes 1919, c. 188, p. 281). A unanimous Supreme Court sustained Whitney’s conviction, holding that by assembling with others to form a group that advocated the forceful overthrow of the govern- ment, she had acted in a manner that posed a danger to the “public peace,” in violation of the state law. Holmes and Brandeis, though con- curring in the judgment, believed that the law had improperly infringed on Whitney’s free speech rights and maintained that speech could GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CLEAR AND PRESENT DANGER 455 be restricted only if the assembly created an imminent danger. Brandeis wrote that “to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated…. The fact that speech is likely to result in … violence or in destruction is not enough to justify its suppression.” Subsequently, the Supreme Court applied the clear-and-present–danger test in a variety of other contexts. In Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940), for example, the doctrine was used to protect LABOR UNION PICKETING , and in Bridges v. California, 314 U.S. 252, 62 S. Ct. 190, 86 L. Ed. 192 (1941), the Court relied on it to overturn the conviction of a union leader who had criticized a judge in a pending case. Some 30 years after Holmes first enunciated the clear-and-present-danger test in Schenck, the Court returned to the doctrine in another case involving individuals advocating the over- throw of the government. In Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), 11 Communist party leaders had been convicted of violating the SMITH ACT,18 U.S.C.A. § 2385, which made it a crime to advocate the overthrow of the government by force and violence. In upholding the convic- tions, the Court applied the clear-and-present- danger standard. Chief Justice Fred M. Vinson, writing for the majority, stated that in consid- ering whether speech could be prohibited, the Court must determine “whether the gravity of ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” The Court’s approach was thus seen as a “balancing test” that weighed free speech against the govern ment’s interest (e.g., in national SECURITY) offered to justify restraints on free speech. The Court’s new formulation of the clear-and-present-d anger test was widely criti- cized by civil libertarians for omitting the requirement of proving imminent danger, as originally envisioned by Holmes. Eighteen years later, the Supreme Court appeared to return to Holmes’s views in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969). In Brandenburg, the Court reversed the conviction of a KU KLUX KLAN leader under a state statute, Ohio Rev. Code Ann. § 2923.13, prohibiting advocacy of crime and violence as a necessary means to accomplish political reform. The Court held that a state could not “forbid or proscribe advocacy of the use of force … except where such advocacy is directed to producing immi- nent lawless action and is likely to incite or produce such action.” Though the Court’s opinion fails to mention specifically the phrase clear and present danger, many constitutional law scholars have seen Brandenburg as a return to the Holmes-Brandeis immediacy test first set forth in Abrams. However, the Court has not specifically address ed the clear-and-present- danger doctrine since Brandenburg, and thus it is not clear whether the Court would embrace it anew or would fashion an entirely new standard for determining whether, in certain circum- stances, free expression can be punished. FURTHER READINGS Dow, David R., and R. Scott Shieldes. 1998. “Rethinking the Clear and Present Danger Test.” Indiana Law Journal 73, no. 4 (fall). Available online at http://www.law. indiana.edu/ilj/volumes/v73/no4/04.html; website home page: http://www.law.indiana.edu (accessed July 13, 2009). Elliott, Stephen P., ed. 1986. A Reference Guide to the United States Supreme Court. New York: Facts on File. Hopkins, W. Wat. 1995. “Reconsidering the ‘Clear and Present Danger Test’: Whence the ‘Marketplace of Ideas’?” Free Speech Yearbook 33. Levy, Leonard W. 1990. Encyclopedia of the American Constitution. New York: Macmillan. Savage, David G. 2004. Guide to the U.S. Supreme Court. 3d ed. Washington, D.C.: Congressional Quarterly. Schwartz, Bernard. 1995. “Holmes versus Hand: Clear and Present Danger or Advocacy of Unlawful Action?” Supreme Court Review 237. CROSS REFERENCE Balancing. CLEAR TITLE Unencumbered or unrestricted legal ownership that is free from doubt as to its validity. The phrase implies that ownership is not subject to claims by anyone but the person holding title. It is also called MARKETABLE TITLE,or title that can be easily transferred or sold because of its lack of encumbrances. v CLEAVER, LEROY ELDRIDGE ELDRIDGE CLEAVER rose to prominence in the late 1960s as a leading African American intellectual and political revolutionary. As minister of information for the BLACK PANTHER PARTY during tumultuous years of social upheaval, Cleaver became a symbol of rebellion, freedom, and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 456 CLEAR TITLE eloquence for those seeking political and social change. His 1968 best-selling book of essays Soul on Ice served as a kind of guidebook for radicals in the New Left, student, and CIVIL RIGHTS movements of the day. Cleaver was involved with the U.S. legal system as a convict, social critic, political activist, political candidate, fugitive, and business owner. LEROY ELDRIDGE CLEAVER was born August 3, 1935, in Wabbaseka, Arkansas. When he was still young, the family moved to Phoenix, and then to the Watts section of Los Angeles. While in Los Angeles during his teenage years, Cleaver was arrested for bicycle THEFT and for selling marijuana, and was sent to two different reformatories. In 1954 he w as again arrested for dealing marijuana and was sente nced to two-and-a-half years at the California State Prison at Soledad. Unreformed by his first prison stay, Cleaver resumed dealing drugs and embarked on a series of rapes, directed first at black women, then at white women. He later came to see the recklessness and inhumanity of these crimes as both a product of his own misguid ed choices and a reaction to the racism of U.S. society. In Soul on Ice, he described the delight he felt at “defying and trampling upon the white man’s law” through these actions. He also claimed that his motivation in the rapes was to get “revenge” for “the historical fact of how the white man has used the black woman.” In 1958, roughly a year after his release from the Soledad prison, Cleaver was arrested aga in, this time for armed assault when he attempted to RAPE a nurse in a parking lot. During his subsequent eight-year stay in the San Quentin and Folsom prisons, Cleaver read widely and became a member and minister of the NATION OF ISLAM, often called the Black Muslims. He also became an admirer of Malcolm X, a Nation of Islam leader. When Malcolm X broke from the group in 1963, Cleaver followed his example. Cleaver was released from prison for the second time in 1965—the same year that Malcolm X was assassinated, allegedly by Nation of Islam members—with the help of Beverly Axelrod, a white San Francisco lawyer. Corre- spondence and a brief love affair between Axelrod and Cleaver had led to Axelrod’s help Eldridge Cleaver 1935–1998 ▼▼ ▼▼ 19251925 20002000 19751975 19501950 ❖ 1935 Born, Wabbaseka, Ark. ◆ ◆ ◆ ◆ 1939–45 World War II 1950–53 Korean War 1961–73 Vietnam War ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ 1946 Family moved to Watts section of Los Angeles 1954 Brown v. Board of Education decided 1958 Arrested for armed assult; converted to the Nation of Islam 1965 Released on parole; began writing for Ramparts 1967 Joined the Black Panthers 1975 Returned to U.S. on FBI terms; spent a year in prison 1968 Soul on Ice published; after shoot-out Cleaver went into exile in Cuba, Algeria, North Korea, and Paris 1978 Soul on Fire published 1992 Arrested again for cocaine possession; charges dropped 1984 Ran for U.S. House seat, lost 1986 Ran for U.S. Senate seat, lost 1987 Arrested for cocaine possession ❖ 1998 Worked as diversity consultant for University of La Verne, near Los Angeles; died, Pomona, California Eldridge Cleaver. AP IMAGES. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CLEAVER, LEROY ELDRIDGE 457 . Born, Dagsborough, Del. (now Dagsboro) 18 12 14 War of 18 12 1815 Graduated from Yale 1 824 Elected to Del. legislature 1 826 28 Served as Delaware's secretary of state 1 829 –36 Served first term in U.S minister of information for the BLACK PANTHER PARTY during tumultuous years of social upheaval, Cleaver became a symbol of rebellion, freedom, and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 456. receive a permit, he had the land filled in with sand. He was convicted of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 4 52 CLEAN WATER ACT criminal charges for his actions, and a CIVIL ACTION was