Environmental Law

Overview
Up until the 1960s, environmental regulation in the United States was mostlyleft to state and local governments. There was very little, if any, nationalcontrol. Since most regulation occurred at the city and state government level, it was difficult for authorities to enforce laws beyond their own territories, especially if the source of the pollution emanated from another region or state. Business and industries that caused large amounts of pollution couldaffect vast areas around them with little concern of either discovery or thepayment of legal reparations.
The climate during the 1960s was ripe for the federal government to adopt a national strategy on environmental regulation. The country was becoming more aware that complete freedom for business and industry resulted in large scaleenvironmental damage and that safety limits needed to be instituted to protect waterways, air, natural resources, and scenic areas.
Several elements influenced the national movement toward greater control overpolluters. First, the 1960s was a decade of incredible commercial growth. There was greater production on the part of manufacturing and industry and thatconsequently resulted in greater consumption. More waste was produced, national cancer rates soared, and the public enjoyed an unbridled economic growththat brought with it a high price tag. Second, in 1962, Rachel Carson published Silent Spring. In her book, she questioned the use of chemical pesticides and demonstrated how they could penetrate the food chain through reproductive dysfunctions, thereby posing significant health risks to animals andhumans. National suspicion grew over the use of pesticides, prompting research and eventually contributing to the ban of the pesticide DDT in the United States in 1973. Third, on 22 April 1970, the first Earth Day was held. This educated hundreds of thousands of Americans to the need for sound environmentalhealth. Fourth, the occurrence of several environmental catastrophes throughout the last two decades gradually made the country conscious of the destructive power of pollution and the contamination of the environment. Events thatcontributed to increased attention on the environment included: the nuclear accident at Three Mile island in Harrisburg, Pennsylvania, in 1979; a devastating emission of poisonous gas at a Union Carbide plant in Bhopal, India, in 1984; the discharge of radiation at the Chernobyl nuclear power plant in the Soviet Union in 1986; the dumping of 11 million gallons of oil into Prince William Sound, Alaska, in 1989; and the burning of hundreds of oil wells in Kuwait during the Persian Gulf war in 1991.
As more evidence of environmental degradation appeared, the United States federal government was forced to delegate a greater focus on regulation. State and local governments played a major role in the battle against pollution, butit was the U.S. Congress that passed the most comprehensive laws, requiringthe states to shape their pollution control programs to fit federal standards. States are free to set tougher standards within their own jurisdictions, but they must adhere to the federal minimums.
The first significant federal legislation came with the passage of the National Environmental Policy Act (NEPA) in 1969. It required that all federal government agencies follow certain rules when considering a proposed project. These rules include requiring federal agencies to use a systematic procedure inenvironmental decision making. Detailed reporting, commonly called impact studies, regarding the effects of proposed projects must be completed. The report for a proposed project must include the expected environmental impacts, anyunavoidable negative impacts, short and long-term benefits and consultationwith other involved agencies.
In 1970, the Environmental Protection Agency (EPA) was created in response tomounting environmental concern in the United States. The main responsibilityof the EPA is the management of many complex and highly technical programs that regulate such broad and diverse problems as air and water pollution, waste disposal and toxic contamination. The EPA's primary duty is to require compliance with several major environmental statutes, including the Clean Air Actof 1963, the Clean Water Act of 1977, the Resource Conservation and RecoveryAct of 1976, the Toxic Substances Control Act of 1976, and the ComprehensiveEnvironmental Response, Compensation, and Liability Act of 1980, also knownas Superfund.
Industrial, recreational, agricultural, and commercial activities that degrade the environment must be restricted through laws which balance the benefitsand risks between the economic costs and the desired environmental outcomes.Setting limits on economic activity is a difficult task, especially when lawmakers and scientists are involved. The following statutes reflect the effortinvolved in trying to balance between these benefits and risks.
Clean Air Act
In 1963, the first Clean Air Act was passed. While it was amended and strengthened in 1965 and 1967, much of the enforcement for controlling air pollutioncontinued to rest with the individual states. A more comprehensive Clean AirAct was passed in 1970, and it was further fortified in 1977 and 1990. One of the longest and most complicated of the environmental laws, the Clean Air Act withholds federal highway funding to states that do not meet air quality standards.
Motor vehicles are the main source of air pollution. With the introduction ofcatalytic converters in 1975, auto emissions of hydrocarbons and carbon monoxide have been reduced by 90 percent and nitrogen oxides by 75 percent. Stateand federal environmental agencies can penalize, fine, and imprison those who violate the Clean Air Act. However, it is difficult to police polluters, and as a result, many who disobey the law go unpunished.
Clean Water Act
The Clean Water Act (CWA) was enacted in 1977 in response to nationwide waterpollution issues. The CWA established national programs for the prevention,reduction, and elimination of pollution in national navigable waters and groundwater. The CWA functions primarily by requiring persons or businesses engaging in polluting activities to obtain a permit from the EPA. This permit details the amount, type, and manner in which the substance may be discharged into the water. If permit conditions are violated, the permit holder is subjectto civil or criminal penalties. The CWA authorizes each state to implement and enforce its provisions.
There are three categories of water pollution sources: point sources, non-point sources and dredge and fill operations. Point sources refer to any discernable, confined conveyance from which a pollutant may be discharged, such as apipe or ditch. Non-point source pollution is spread by rainwater and meltingsnow runoff into, over, and through soils to surface water or through soilsto underground reservoirs. The EPA considers non-point source pollution the largest cause of water contamination in the nation. Agricultural activities are the biggest contributor to this type of water pollution via the use of pesticides, herbicides, and fertilizers. Logging and mining operations, waste disposal sites and landfills, urban areas and roads, and atmospheric depositionare secondary sources of non-point source pollution. Finally, dredge and filloperations include sludge disposal, dredging operations, and in-water construction.
Safe Drinking Water Act
The Safe Drinking Water Act (SDWA) was designed to correct flaws in the CleanWater Act. The SDWA requires that the EPA set primary drinking water regulations for any pollutants that may have an adverse effect on human health. It focuses on groundwater contamination whereas the CWA focuses on surface watercontamination. The primary objectives of the SDWA are: to protect the nation's sources of drinking water; and to protect public health to the maximum extent possible, using proper water treatment techniques. The EPA has set primarydrinking water standards entitled "maximum contaminant levels" (MCL) for 27pollutants, and secondary MCLs for nearly 82 additional contaminants that canbe found in tap water. The National Wildlife Federation estimates that 100,000 violations of the SDWA occur every year nationally.
In August of 1996 the SDWA was updated to overhaul the act's standard-settingprocess and to establish a funding mechanism to help states improve their drinking systems. The major innovations to the SDWA include the greater responsibility of individual states as well as a revolving fund system which allowsstates more latitude in monitoring contaminants. States are permitted to havepartnerships with public water systems, local governments and private companies to achieve their goal of water contaminant reduction.
Resource Conservation and Recovery Act
The Resource Conservation and Recovery Act (RCRA) was passed in 1976 to address management of the country's huge volume of solid waste. The law requires that the EPA regulate the management of hazardous waste, which includes wastesolvents, batteries, and many other substances considered potentially harmfulto human health and to the environment. RCRA controls all aspects of hazardous wastes from the point of generation, to treatment, storage, and disposal.Those states that meet the EPA specifications are eligible for monetary assistance and technical support. The RCRA was further amended in 1984 to includerecycling as part of the state requirement for a solid waste disposal plan.
Comprehensive Environmental Response, Compensation, and Liability Act
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, popularly known as Superfund, is an act that provides for liability, compensation, cleanup, and emergency response for hazardous substancesreleased into the environment. It was created in response to the Love Canaltragedy and includes cleanup of inactive hazardous waste disposal sites, suchas abandoned warehouses, manufacturing facilities, processing plants, and landfills.
The Superfund program is administered by the EPA through the Office of SolidWaste and Emergency Response in cooperation with individual states. Once Superfund locates a hazardous site anywhere in the United States, it investigatesand then cleans up the site. When those responsible for the damage cannot belocated, Superfund passes the cost of the cleanup on tohe taxpayer. Over 30,000 toxic waste disposal sites have been targeted for cleanup.
In 1986 when Congress amended the Superfund law, it added the Emergency Planning and Community Right-to-Know Act (EPCRA). This came as a result of publicfears over the Union Carbide chemical release in Bhopal, India. The EPCRA isdesigned to help communities prepare for and respond to emergencies involvinghazardous substances. It also requires facilities to report hazardous chemical inventories and comply with toxic chemical reporting. Any facility that releases more than a predetermined amount of certain hazardous substances intothe environment must notify the appropriate state and local emergency planning entities immediately.
Toxic Substances Control Act
The Toxic Substances Control Act (TSCA) of 1976 governs the manufacturing, importing, distributing, and processing of all toxic chemicals. TSCA requires that all such chemicals be inspected and approved by the EPA before they enterthe market. The EPA has the option of restricting the chemical run tests andgathering data during its preapproval judgment of whether the chemical represents a threat to health or the environment. The TSCA has never been strictlyenforced because of deficient funding and the large volume of chemicals constantly being developed and manufactured.
Federal Insecticide, Fungicide, and Rodenticide Act
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) of 1972, regulates the manufacture, storage and application of EPA registered pesticide products. The impetus for the passage of this legislation was national concernabout the beneficial effects of pesticides used to control insects, rodents and fungi in comparison to the environmental harm caused by the use of pesticide products. Congress required the EPA through FIFRA to obtain toxicological,health, and environmental effects data on all pesticides in use.
Endangered Species Act
In 1973, the Endangered Species Act (ESA) was enacted to stop the extinctionof many species of wild animals and plants in the United States, other nations, and at sea. It provided mechanisms for the conservation of ecosystems on which endangered species depend. It also discouraged the exploitation of endangered species in other countries by banning the importation and trade of anyproduct made from such species. Of critical concern was the loss of biodiversity through species extinction. This is an irreversible process and a fundamental environmental problem. The Secretaries of the Interior and Commerce administer the ESA. The National Marine Fisheries Service is responsible for marine species while the U.S. Fish and Wildlife Service is responsible for freshwater and terrestrial species.
The ESA provides two levels of protection for listed species. Those that areconsidered to be in immediate danger of extinction are listed as endangered and are provided with stringent protection regulations. If a plant or animal is in danger of extinction throughout all or a significant portion of its range (the region in which it lives), then it is considered endangered. Species that are likely to become endangered in the future are listed as threatened and protected with less restrictive regulations. A candidate species is a species under review for listing. The ESA prohibits the using, taking, possessing,selling, or marketing for sale or trade those species registered on the endangered list. Any international species may be recorded on the endangered species list.
Once a species is confirmed for the listing, a critical habitat must be specified. The critical habitat is the area which is required for the species to essentially thrive. Through this special protection the conservancy of the species is instituted. A species may be listed as endangered or threatened for one or more of the following reasons: alteration or reduction of habitat or range; overuse for business, recreational, scientific, or educational purposes;futile protection regulations; disease, predatory effects or poaching, and any other natural forces or human activities affecting the survival possibilities. Generally, the economic impact as well as other factors are taken into consideration when designating critical habitat.
The ESA requires that the Secretary of Interior institute a recovery plan forlisted species. A recovery team sets down parameters and management plans specific to the endangered species' critical habitat. By May of 1997 only slightly more than half of the listed U.S. species had recovery plans. More than 1,200 species worldwide, including more than 600 in the U.S. alone, are listedas threatened or endangered. Additionally, over 3,500 species are under consideration for listing.
A similar act to the ESA is the Marine Mammal Protection Act (MMPA) of 1972,which was enacted as a result of the large number of dolphins that were beingkilled by tuna fishing operations in the early 1970s. The MMPA protects allspecies of whales, dolphins, sea lions, seals, polar bears, walrus, manatees,and sea otters from the impact of human activities. In the United States, 30percent of endangered species are aquatic.
Sanctions
Administrative, civil, and even criminal sanctions may be used to enforce environmental laws. The possible types of restrictions may include denial or revocation of operational permits, the closing of operations, poor publicity, economic sanctions, fines, or even imprisonment. These sanctions occur at various levels of environmental enforcement--national, regional, and local.
The United States has had much experience in enforcing environmental requirements against public authorities. With only a few exceptions, the U.S. federalgovernment has waived its exemption from fines and financial penalties. It has given both state governments and citizens the right to take the federal government and its agencies to court if the government authorities do not comply with federal, state, or local environmental requirements. However, it is easier for environmental associations such as Greenpeace and Sierra Club, and not individuals, to seek legal action as they have greater resources and expertise for advancing public interests in court. Based on the U.S. Constitution's Article III "case or controversy" requirement, a plaintiff's alleged injurymust show fact, causation, and redressability. Proving these three requirements can be difficult for a single citizen.
Despite the comprehensive scope of diverse environmental laws, many corporateand individual polluters go undetected. General principles or guidelines arenecessary to interpret and implement a flexible environmental law. These principles must include precautions in regulating pollution, cooperation betweenthe regulating bodies and industry, maintenance of biodiversity, non-degradation of natural resources, the idea of polluter-pays, access to information and participation, and the theory of burden of proof. As stated by Sevine Ercmann in Environmental Law, "These principles should orient the decision-makers when they take decisions interpreting or enforcing certain issues under different circumstances. National and global environmental deterioration has gone too far, and confidence and patience in experimenting with new toolsof enforcement are diminishing." As international environmental destruction escalates at a greater rate than in the United States, it is important to remember that everyone is made vulnerable by environmental problems wherever theyoccur. The destruction of the tropical rainforest, the widespread damage done by acid rain, global warming, ocean dumping, and ozone depletion are but afew of the international concerns for countries throughout the world. Strictcomprehensive, enforceable treaties dealing with these issues will require nations to relinquish some autonomy in their economic activities. However, without these measures in place, the future of the environment is in jeopardy.