Environmental Law

Much of the early environmental legislation at the federal level was drafted in response to the shortcomings of the common law, and the inadequate and inconsistent protection of the environment by the states. The common law was slow to respond to changes in technology, and often provided inadequate or antiquated remedies. By nature, common-law doctrines were developed only in response to lawsuits filed between the disputing parties. The initial disagreements were often protracted in nature, and litigation was usually the last resort. As a result, by the time a lawsuit was filed, a particular environmental hazard may have become so pervasive or problematic that no common-law remedy could adequately address it.

Even when an appropriate common-law remedy was available, many state courts refused to enjoin larger businesses from polluting, out of concern that the polluters might harm the local economy by laying off employees or increasing prices. Although some states enacted pollution control statutes, many did not. The states that did enact such statutes varied in the level of protection provided and in the quality of enforcement. Thus, an activity might be deemed impermissible under the environmental legislation of one state, but permissible under the legislation of another. Federal air, water, and soil pollution standards and national wilderness and wildlife preservation regulations were drafted largely in response to these problems.

The NATIONAL ENVIRONMENTAL POLICY ACT (NEPA), 42 U.S.C.A. §§ 4321 et seq., is the fulcrum for these federal pollution and preservation regulations. NEPA, passed in 1969, requires the federal government to give environmental issues priority when planning major projects. It was created to establish councils and agencies that, in cooperation with state and local governments and public and private interest groups, would use all practicable means to monitor and protect the environment.

The Council on Environmental Quality (CEQ) and the ENVIRONMENTAL PROTECTION AGENCY (EPA) were both created under the auspices of NEPA. The CEQ prepares an ANNUAL REPORT that discloses the quality and condition of the country's environment, evaluates federal programs that may affect the environment, and recommends specific policies to foster environmental protection and improvement. The EPA administers these policies and most federal environmental statutes. Each of the fifty states has drafted environmental regulations similar to those written on the federal level, and the state and federal regulations work together to address the various environmental issues.

Air Pollution Air pollutants are divided into five main classes: carbon monoxide, particulates, sulfur oxide, nitrogen oxide, and hydrocarbons. Carbon monoxide is a colorless, odorless, and poisonous gas produced by the burning of carbon in many fuels. Motor vehicles are one source of this pollutant.

Particulates are solid or liquid particles produced largely by stationary fuel combustion and industrial processes.

Sulfur oxides are acrid, corrosive, and poisonous gases produced by burning fuel containing sulfur. Electrical utilities and industrial plants are their principal sources.

Nitrogen oxides are produced when fuel is burned at very high temperatures, as is the case with stationary combustion plants and motor vehicles. Once emitted into the air, nitrogen oxides can be chemically converted into sulfates and nitrates, which may return to earth as components of precipitation, known as acid rain.

Hydrocarbons, which are produced by cars, motorboats, and power plants, form smog when combined with nitrogen oxides in the atmosphere under the influence of sunlight.

Each of these pollutants is a threat to human health. Acute cases of air pollution have caused marked increases in illness and death, especially among older people and among those with respiratory and cardiac conditions. Such pollutants also contribute to the health problems of society's less vulnerable members, increasing the incidence of emphysema and bronchitis among the general population. For instance, smokers living in polluted cities are more likely to contract lung cancer than are smokers in rural areas.

Federal regulation of air pollution is controlled primarily by the Clean Air Act (CAA) and its amendments. Air pollution is broadly defined by the act to mean any air pollution agents or combination of agents. The act directs the EPA to establish the National Ambient Air Quality Standards (NAAQS) for air pollutants that endanger public health or welfare. The EPA may consider not the economic or technological feasibility of attaining NAAQS, but only whether the standards are set at levels necessary to protect the public.

States are not divested of the authority to regulate air pollution under the CAA. They retain "primary responsibility for assuring air quality" within their boundaries. Yet, following the promulgation of NAAQS, each state must submit for EPA approval a state implementation plan (SIP) designed to develop and maintain the air quality standards within its jurisdiction. SIPs that are found lacking may be amended by the EPA. States are also required to comply with the minimum national thresholds created by the CAA. These national thresholds permit state governments and their subdivisions to enact more stringent air pollution regulations than those enacted by the federal government, but not less stringent ones.

The CAA has three titles. Title I governs stationary sources of air pollution, including all buildings, structures, facilities, and installations emitting air pollutants. Title II governs mobile sources of air pollution, such as automobiles, trucks, and aircraft. Both titles prescribe the amount of pollution that may be emitted into the air without violating the act.

Title III outlines procedures for the enforcement of the act through legal or administrative proceedings. State and federal governments may enforce the act, as may private individuals in so-called citizen suits. The CAA provides a variety of administrative, equitable (nonmonetary), civil, and criminal penalties, ranging from informal measures such as violation notices to more formal measures such as injunctive relief (a

Air pollution from factories is regulated by Title I of the Clean Air Act.
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court order to perform or refrain from performing a particular act), money damages, and fines.

International attention has focused on three particular forms of air pollution: acid rain, global climate changes, and ozone depletion. Acid rain is created when sulfur from fossil fuels is emitted into the air and converted into a pollutant through oxidation, later mixing with rain or snow and returning to the earth as a component of precipitation. Although the CAA has commissioned a number of federally sponsored studies on the subject, scientists still disagree on the severity of the problems presented by acid rain.

Scientists also disagree about whether air pollution can influence the global climate. Some scientific studies conclude that air pollution has caused the average temperature on earth to increase during the last twenty-five years or so, resulting in a condition called global warming; some conclude that the average temperature has decreased, resulting in global cooling. Other studies indicate that the global climate remains unaffected by air pollution and will continue to do so. Because of the discord in the scientific community, the CAA has commissioned federally sponsored studies to investigate the relationship between air pollution, acid rain, and the global climate.

The CAA has also commissioned federally sponsored studies regarding the relationship between air pollution and the destruction of the ozone layer. The ozone layer shields the earth from the harmful effects of the sun's radiation, and may be depleted by the release of chlorofluorocarbons (CFCs) into the atmosphere. CFCs serve as a coolant for refrigerators and air conditioners, as a foaming agent for insulation, as a solvent for computer chips, and as a propellant for aerosol products. The CAA bans nonessential uses of CFCs, but leaves room for judicial interpretation as to what the phrase nonessential uses might mean.

Noise pollution is another form of air pollution regulated by the federal government. The rumbling sounds of eighteen-wheelers on the highway, 747s in the air, and jackhammers in the street are all familiar to the modern era. The Noise Control Act of 1972 (NCA) (42 U.S.C.A. § 4901 et seq.) was created to eliminate or reduce such noises when they pose problems to public health and welfare. Under the NCA, the EPA conducts studies on industrial areas with excessive noise, and establishes noise emissions standards. Airports, airplanes, railroads, trains, and trucks have all been required to reduce noise levels through the development of quieter motors, engines, and equipment. Any citizen may bring legal action to enforce the provisions of the NCA, but the EPA retains the right to intervene. Remedies include injunctive relief, fines, and criminal penalties.

In the late 1980s and early 1990s, the regulation of air pollution moved indoors. Studies conducted during the late 1980s and early 1990s have shown that people are exposed to higher concentrations of air pollution for longer periods of time inside buildings than outdoors. One prevalent source of indoor air pollution is cigarettes. Many states restrict or prohibit smoking in a variety of public places, including indoor stadiums, restaurants, theaters, grocery stores, buses, trains, and airplanes. The federal government, through the OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA), 29 U.S.C.A. § 651 et seq., protects employees from "occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors."

On February 27, 2001, the U.S. Supreme Court issued its decision in Whitman, Administrator of Environmental Protection Agency, et al. v. American Trucking Associations, Inc., et al, a case which challenged the EPA's revised National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter. The Court, in a unanimous decision, held that Section 109(b) of the Clean Air Act (CAA) prohibits the EPA from considering implementation costs when the agency sets NAAQS; that Section 109(b)(1) of the CAA does not delegate legislative powers to the EPA; therefore, the EPA did not violate the non-delegation doctrine in issuing its revised ozone and particulate matter standards pursuant to this section; and that the EPA's implementation strategy was an unreasonable agency interpretation of an ambiguous statutory scheme, and is therefore unlawful. The issue was therefore returned to the EPA so that it could develop a reasonable implementation strategy.

Water Pollution Like clean air, healthy water is indispensable to human existence. Humans depend on water for drinking, cooking, swimming, fishing, and farming. Discharges of organic wastes, heated water, nutrients, sediments, toxic chemicals, and other hazardous substances can all make water unfit for human use. Organic wastes, produced by animals and humans, decompose through the use of oxygen. If a body of water spends too much oxygen during the decomposition of organic wastes within it, certain types of fish will not survive. Aquatic life can also be harmed by the discharge of heated water into lakes and streams, because the increased temperatures accelerate biological and chemical processes that reduce the water's ability to retain oxygen.

The release of nutrients and sediments, such as detergents and fertilizers, can also harm bodies of water. Eutrophication, the natural process by which lakes evolve into swamps and eventually dry land over the course of thousands of years, is accelerated by the discharge of nutrients that make lakes more biologically productive. Discharges of toxic chemicals, heavy metals, and other hazardous material can render both the water and its aquatic life unsafe for human consumption. The three major sources of these types of water pollution are industry, municipal activity, and agriculture.

Federal regulation of water pollution begins with the Federal Water Pollution Control Act (FWPCA) (Pub. L. 87-88, July 20, 1961, 75 Stat. 204, 33 U.S.C.A. §§ 1151 et seq.; 43 U.S.C.A. § 3906). The FWPCA was designed to make waters "fishable and swimmable" and to eliminate the discharge of pollutants into NAVIGABLE WATERS. The act delineates water quality standards, requiring many water polluters to implement the best practicable control technology or the best available technology economically achievable. Pursuant to the FWPCA, the EPA is required to maintain a list of toxic substances and to establish separate limitations for each of them based on public health rather than technological or economic feasibility. Although the primary responsibility for the enforcement of the act was left with the states, the federal government and private citizens are also authorized to pursue remedies.

In 1977, the FWPCA was amended by the Clean Water Act (CWA) (Pub. L. No. 95-217, Dec. 27, 1977, 91 Stat. 1566, 33 U.S.C.A. §§ 1251 et seq.). Under the CWA, conventional water pollutants, such as oil, grease, and fecal coliform bacteria, are to be measured by the best conventional pollutant control technology. The CWA requires the EPA to weigh "the reasonableness of the … costs of attaining a reduction in [pollution and the] benefits derived." No cost-benefit analysis was permitted for toxic substances and nonconventional pollutants such as ammonia, chlorides, and nitrates. Civil and criminal penalties, including fines of up to $25,000 a day, are authorized under the CWA.

Oil spills and ocean dumping present two troubling problems for clean-water advocates in the international arena. Section 311 of the FWPCA announces that "it is the policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States [or] adjoining shorelines." The same section later prohibits the discharge of any harmful quantity of a hazardous substance into any navigable waters of the United States.

In accordance with this provision, the EPA, on behalf of the president of the United States, has determined that discharges of harmful quantities of oil include, with some minor

The Federal Water Pollution Control Act was designed to make waters, such as Mystic River in Massachusetts, fishable and swimmable.
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exceptions, any discharge that discolors or leaves a film on the water or adjoining shorelines. Since the discharge of even a few gallons of oil can leave a film, this provision is tantamount to a no-discharge policy.

It also represents a strict liability standard. There is no escape from liability for a harmful discharge of oil that results from negligence, even if the accident could not have been prevented. By contrast, previous federal legislation prohibited only oil spills that were knowingly discharged. Courts have broadly interpreted the CWA to cover oil discharged by trucks, pipelines, vessels, drilling platforms, and both onshore and offshore facilities. A civil penalty of not more than $5,000 is prescribed for each offense, and some penalty must be imposed for every violation regardless of its severity.

Accompanying the civil penalty scheme are cleanup provisions. These include (1) preparation and publication of a national contingency plan for the removal of hazardous substances and the prevention of spills; (2) authorization for the United States to take summary action (including the removal or destruction of a vessel) whenever a marine disaster creates a substantial threat to the nation's environment, including threats to fish, wildlife, shorelines, and beaches; (3) authorization for the U.S. attorney general, under the direction of the president, to abate any "imminent or substantial" marine disaster through legal action; and (4) imposition of costs for cleanup upon the owner or operator.

The Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA) (27 U.S.C.A. § 1401 et. seq.), popularly known as the Ocean Dumping Act, is the second piece of federal legislation drafted in response to these two international water pollution problems. The MPRSA has three titles. Title I establishes a permit program, administered by the EPA, for dumping materials into and transporting them through ocean waters. Title II creates a research program, under the auspices of the secretary of commerce, to determine ways in which ocean dumping can be reduced or eliminated. Under title III, the secretary of commerce may designate certain parts of ocean water as marine sanctuaries to preserve and restore recreational, ecological, or aesthetic interests.

The MPRSA flatly prohibits any dumping of radiological, chemical, or biological warfare agents into ocean waters. The Coast Guard is responsible for surveillance under the act. Violators face civil penalties of up to $50,000 for each violation. Criminal penalties and injunctive relief may also be pursued by the government. Private citizens harmed by ocean dumping may seek relief as well.

Permits for ocean dumping may be granted in certain circumstances. Both the administrator of the EPA and the secretary of the Army have the power to dispense permits, but the administrator may VETO permits issued by the secretary. The considerations in evaluating permit requests include the need for dumping material into ocean waters, other possible methods of disposal, and the appropriateness of the chosen dumping location. Generally, permits are granted when ocean dumping will not "unreasonably degrade or endanger human health, welfare, amenities or the marine environment, ecological systems or economic potentialities."

On January 9, 2001, in a 5–4 decision, the U.S. Supreme Court struck down the Migratory Bird Rule, which was the basis of jurisdictional authority for the U.S. Army Corps of Engineers over a non-navigable, isolated, intrastate water of the U.S. The Migratory Bird Rule stems from a 1986 interpretation by the U.S. Army Corps of Engineers of its regulatory definition for "navigable waters," the statutory limit to the Corps' jurisdiction under the Clean Water Act (CWA). The property at issue in the decision was a 553-acre abandoned sand and gravel mine, which contained water-filled excavation trenches that were used by approximately 121 bird species. The area did not qualify as "wetlands." The U.S. Army Corps of Engineers found the site jurisdictional based on its use by migratory birds. The Court of Appeals for the Seventh Circuit upheld the U.S. Army Corps of Engineers' jurisdiction over the site. The petitioners, a consortium of 23 suburban Chicago cities and villages who intended to fill the site as a sanitary landfill, appealed to the Supreme Court, claiming that: (1) the Migratory Bird Rule exceeded the Corps' authority under the CWA and (2) the exercise of such jurisdiction was inconsistent with the COMMERCE CLAUSE, U.S. Constitution, Art. 1 § 8, cl. 3. The Supreme Court reversed the Court of Appeals decision by supporting petitioner's first assertion and declined to make a judicial determination on the validity of the second assertion. Specifically, the Court did not overturn its prior decision in U.S. v Riverside Bayview Homes, 474 U.S. 121 (1985), which affirmed the Corps' jurisdiction over wetlands adjacent to open water bodies. The Court distinguished between wetlands, which actually abut a navigable waterway, and an isolated, abandoned sand and gravel pit. The Court clarified that although the Riverside Bayview Homes decision established that the navigable requirement was of "limited import," the requirement has some meaning, particularly when applied to water bodies that are decidedly not wetlands.

Toxic and Hazardous Substances The federal government uses various forms of legislation to regulate the manufacture, storage, disposal, sale, and discharge of hazardous substances, which include toxic substances. States have also enacted hazardous substance laws with varying success results.

After the supertanker Torrey Canyon spilled crude oil off the coast of England in 1967, both Congress, in the Port and Waterways Safety Act of 1972 (PWSA), and the State of Washington enacted more stringent regulations for tankers and provided for more comprehensive remedies in the event of an oil spill. The ensuing question of federal PREEMPTION of the State's laws was addressed in Ray v. Atlantic Richfield Co., 435 U.S. 151. In 1989, the supertanker Exxon Valdez ran aground in Alaska, causing the largest oil spill in U.S. history. Again, both Congress and Washington responded. Congress enacted the Oil Pollution Act of 1990 (OPA). The State created a new agency and directed it to establish standards to provide the "best achievable protection" (BAP) from oil spill damages. That agency promulgated tanker design, equipment, reporting, and operating requirements, giving the state of Washington stricter standards than those required by federal law. In United States v. Locke, 120 S.Ct. 1135 (2000), the United States Supreme Court unanimously struck down a Washington State oil tanker law and held that the state's safety and environmental standards were preempted by the comprehensive federal regulatory scheme governing oil tankers.

Pesticide regulation The sale and distribution of pesticides in the United States are governed by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (Pub. L. No. 100-532, Oct. 25, 1988, 102 Stat. 2654, 7 U.S.C.A. §§ 136 et seq.). Under the FIFRA, no pesticide may be introduced into the stream of commerce without approval by the administrator of the EPA. If the administrator finds that a pesticide will "cause unreasonable adverse effects on the environment," the pesticide will not receive approval. An unreasonable adverse effect on the environment is defined as "any unreasonable risk to [humans] or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide."

Once a pesticide is approved by and registered with the EPA, registration may be suspended by the administrator upon proof that continued use would "likely result in unreasonable adverse effects on the environment." Before suspension, the registrant is entitled to an expedited administrative hearing during which the danger and usefulness of the pesticide are measured. In emergency circumstances, the administrator may suspend registration prior to a hearing on the merits.

Chemical manufacturing regulation The manufacture of chemicals is regulated on the federal level by the Toxic Substance Control Act (TSCA) (15 U.S.C.A. 2601 et seq.). The TSCA is underpinned by three policy considerations. First, industry has the primary responsibility for ascertaining the environmental effects of the chemicals it is manufacturing. Second, the government should have the authority to prevent unreasonable risks of injury to the environment, especially imminent risks. Third, the government should not exercise this authority in a manner that places unreasonable economic barriers to technological innovation. As with most of the statutory law in the environmental arena, the relative weights given to each value are balanced against each other.

The central provisions of the TSCA are sections 4, 5, and 6. Section 4 empowers the EPA to adopt rules requiring a manufacturer to test each substance that may "present an unreasonable risk" to the environment, "enter the environment in substantial quantities," or present a likelihood of "substantial human exposure." Section 5 requires manufacturers to give the EPA notice before producing new chemical substances. New chemicals covered by section 4 must then be tested. New chemicals not covered by section 4 but listed by the EPA as potentially hazardous are evaluated at a hearing provided under section 6.

Resource Conservation and Recovery Act The Resource Conservation and Recovery Act (RCRA), Pub. L. No. 94-580, Oct. 21, 1976, 90 Stat. 2795, 42 U.S.C.A. § 6901 et seq., was passed in 1976 as a response to a growing public awareness of problems relating to the disposal of hazardous waste. In 1981 the EPA estimated that 290 million tons of hazardous waste were produced in the United States annually, 90 percent of which would have been improperly disposed of before the RCRA became law. The chemical, petroleum, and metal industries were the nation's leading generators of hazardous waste during this period. In 1983 government studies indicated that as many as fifty thousand inactive disposal sites contained hazardous waste, with as many as twenty-five hundred posing a serious threat to groundwater and to public drinking supplies.

Hazardous waste was traditionally disposed of on the land of the generator. Occasionally, the generator would transport the waste to an off-site disposal area. During the twenty-year active life of a disposal site, ownership and operation frequently changed hands. Very few records were kept at the disposal sites, leaving many subsequent owners and operators without any indication of their prior use.

The RCRA attempted to answer these problems by providing "cradle-to-grave" regulation of hazardous materials. The RCRA requires the EPA to promulgate criteria for identifying hazardous waste in light of a substance's toxicity, persistence, degradability, corrosiveness, flammability, and potential for accumulation in organic tissues. Standards are prescribed for the generators and transporters of hazardous materials as well as for storage and disposal sites.

Generators and transporters are subject to record-keeping, reporting, and labeling requirements, with transporters also being subject to the strictures of the Hazardous Materials Transportation Act. Sites for underground storage tanks containing petroleum products, pesticides, and other hazardous products are governed by RCRA provisions that enable the detection, correction, and prevention of leaks. Disposal sites are regulated by a permit system in which the EPA is given broad powers to inspect a site, issue compliance orders, institute civil actions against violators, and seek injunctive relief. Criminal penalties may also be imposed for violation of the permit system.

In 1984, Congress amended the RCRA, shifting the focus of hazardous waste management from safe land disposal to treatment alternatives. Under the 1984 amendments, land disposal is now the last alternative, and is permitted only when the waste is pretreated to meet standards issued by the EPA, or when the EPA determines "to a reasonable degree of certainty that there will be no migration of hazardous constituents from the disposal unit …for as long as the wastes remain hazardous."

When land disposal is deemed permissible, new landfills must use double liners and groundwater monitoring systems, unless the EPA finds that an alternative design or operating practice would be equally effective in preventing the migration of hazardous waste. In addition to providing for EPA regulation and enforcement actions, the RCRA authorizes private citizens to institute legal proceedings against violators of its provisions.

Comprehensive Environmental Response, Compensation, and Liability Act The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund, was passed in 1980 to clean up hazardous waste disposal sites (42 U.S.C.A. §§ 9601 et seq.). The act consists of four elements. First, CERCLA establishes a system for gathering information to enable federal and state governments to characterize chemical dump sites and develop priorities for response actions. The administrator of the EPA is required to issue regulations designating which chemicals would be hazardous to the public if released into the environment. The owners and operators of hazardous waste storage, treatment, and disposal sites are required to notify the EPA of the amount and types of hazardous substances on-site, and of any known, suspected, or likely releases into the environment. Based on this information, the EPA develops a national priorities list (NPL), which ranks the nation's hazardous waste sites in order of importance.

Second, CERCLA establishes federal authority to respond when hazardous waste has been discharged into the environment. The president is authorized to provide removal and remedial actions consistent with a national contingency plan (NCP), which establishes procedures for cleaning up such discharges. Removal actions are short-term responses to emergencies, whereas remedial actions are intended to offer long-term solutions. The federal government's response actions at sites appearing on the NPL are limited to cases in which the responsible parties cannot be found or fail to take the necessary actions.

Third, CERCLA creates a class of persons who are potentially responsible parties (PRPs), who will be held liable for cleanup and restitution costs. The act provides that all generators and transporters of hazardous materials, and every owner and operator of a disposal or treatment facility, shall be liable for all removal and remedial costs incurred by the state and federal government not inconsistent with the NCP, as well as any other necessary response costs such as consulting fees or attorney fees in certain situations. In each case, CERCLA imposes strict liability upon the responsible party, independent of traditional notions of culpability such as intent and recklessness.

Fourth, the act creates the multi-billion-dollar Hazardous Substance Trust Fund to pay for removal and remedial actions. Money for the fund is raised through federal appropriation and through taxes paid by some disposal site owners and operators. The fund cannot be used to remedy environmental injuries from hazardous waste that "occurred wholly before the enactment of this Act." Private claims may be made against the fund only if the PRPs cannot be found or are insolvent.

The stickiest legal questions arise when courts assign liability for cleanup. For example, lending institutions regularly foreclose, take title, and resell property without any knowledge or indication that the property was previously used as a hazardous waste site. Such institutions clearly fall within CERCLA's definition of a landowner, yet they assume no traditional responsibilities of land ownership.

Early CERCLA cases imposed liability upon lending institutions in these circumstances, even when the costs of cleanup exceeded the value of the property (see United States v. Maryland Bank & Trust Co., 632 F. Supp. 573 [D. Md. 1986]). Although Congress later amended CERCLA to protect such "innocent landowners," courts still impose liability if the lending institution "had reason to know" of the hazardous waste disposal or failed to make "all appropriate inquiry" into the previous ownership before acquiring the property.

Liability under CERCLA is joint and several liability, which means that once it is established among a group of defendants, any one of the defendants can be held responsible for the entire cost of cleanup. Although defendants are permitted to offer evidence that they are responsible for only part of an environmental injury, the commingling of chemicals at dump sites makes such a defense difficult to prove. Defendants may also seek reimbursement from codefendants who were primarily responsible for a hazardous discharge, but this relief proves futile when a responsible codefendant has disappeared or filed BANKRUPTCY. Thus, wealthy landowners are often left paying the costs of the CERCLA cleanup.

Preservation of Wilderness and Wildlife NEPA requires the government to "fulfill the responsibilities of each generation as trustee for succeeding generations" to ensure "safe, healthful, productive and aesthetically pleasing surroundings" and protect "important aspects" of the "national heritage."

The federal government has three land preservation categories: the National Park System, the National Wilderness Preservation System, and the National Wildlife Refuge. National parks include forested areas, recreational areas, and places of historical importance. Wilderness preserves are not intended for use, and are primarily found in Alaska and the Florida Keys. A wildlife refuge is a sanctuary for fish and game. Federal legislation protects each of these three areas from spoliation, degradation, and misuse.

In addition to establishing sanctuaries and refuges for wilderness and wildlife, Congress has passed the ENDANGERED SPECIES ACT,16 U.S.C.A. §§ 1531 et seq., which charges the DEPARTMENT OF THE INTERIOR with the protection of animals teetering on the brink of extinction. The U.S. Supreme Court has interpreted this act very broadly, as reflected by the snail darter case (Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d 117 [1978]).

The snail darter, a plain-looking, three-inchlong fish, was an endangered species inhabiting the rivers of Tennessee when the TENNESSEE VALLEY AUTHORITY began the construction of a $100 million dam that would have destroyed its habitat. After noting that Congress deemed all species to have incalculable value and finding that the Endangered Species Act "admit[ted] of no exception[s]," the Supreme Court held that the dam could not be completed.