July 24, 2017

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Environmental Law

Environmental Law in the United States is made up of federal and state legislation intended both to remedy past damage to the natural environment and to protect the current and future quality of the environment from government action and actions of private industry that might harm the environment. At common law, environmental protection could only be accomplished through litigation based on the theories of nuisance, trespass, negligence, strict liability for abnormally dangerous activities, and riparian rights, among others, and this litigation left many holes through which polluters happily poured contaminated water, polluted air, hazardous wastes, and other destructive materials during the industrialization of America.

Strong federal intervention, in the form of legislation protecting the air, water, land and wildlife in the U.S., began to develop relatively recently, in the late 1960s. In 1969, Congress enacted the National Environmental Policy Act (NEPA). NEPA contains a Declaration of National Environmental Policy requiring the federal government to use all practicable means to create a productive harmony between man and nature, and lays out a systematic approach by which the federal government takes environmental impact into consideration as part of all decision making. For all major federal actions, the federal agency taking the action must:

  • Prepare an Environmental Analysis (EA) to determine whether there will be a significant environmental impact;
  • Where a significant environmental impact is likely, prepare what are known as Environmental Impact Statements (EIS), which discuss in detail:
    • the need/purpose for the proposed federal action;
    • the likely environmental impacts;
    • present reasonable alternatives to the proposed federal action.
  • Prepare a statement regarding its final decision that shows how the federal agency took the EIS into account, including the presentation of alternative actions.

NEPA also gave the federal government authority to create agencies for the purpose of pursuing various environmental improvements. As a result, Congress created both the Council on Environmental Quality (CEQ) and the Environmental Protection Agency (EPA).

  • The CEQ researches and publishes a report annually that evaluates the government’s current environmental performance in various areas and makes recommendations to further environmental policies.
  • The EPA administers federal environmental laws and policies.

Currently, the EPA administers nearly 20 federal statutes directed at environmental concerns. Some of the most wide-reaching legislation includes:

  • The Clean Air Act (1970), which affects smokestack emissions, incinerator emissions, fossil-fuel emissions, and other factors affecting air quality.
  • The Endangered Species Act (1973), implementing conservation efforts to protect imperiled species from imminent extinction.
  • The Resource Conservation and Recovery Act (RCRA) (1976), regulating solid waste and hazardous waste landfill standards.
  • The Clean Water Act (1977), which affects diverse water-quality contaminants, including intentional discharge of harmful effluents into water sources like rivers and lakes by industrial interests, as well as incidental run-off of toxic substances from farming, construction, landfills, mining and other sources.
  • The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the “Superfund” Act (1980), passed to identify and clean up the worst of the nation’s aging population of abandoned, substandard hazardous waste landfills, and the Superfund Amendments and Reauthorization Act (SARA)(1986), which made a variety of improvements and amendments to CERCLA.

In addition to the EPA, Congress has created other federal agencies charged with overseeing environmental protection and implementing legislation in specific areas, like the Nuclear Regulatory Commission (NRC), which handles all matters relating to the creation, use, storage, and disposal of radioactive materials; and the Office of Surface Mining (OSM), created within the Department of the Interior and charged with implementation of the Surface Mining Control and Reclamation Act (SMCRA)(1977), which was enacted to address environmental dangers presented by surface mining of coal used to produce energy.

Most federal environmental statutes allow the states to administer their own programs that are no less stringent than federal standards, when their programs are approved by the federal agencies involved. Many states have adopted more stringent statutes than those promulgated at the federal level. Environmental treaties also involve the U.S. in larger, worldwide efforts to combat environmental threats to the ozone layer, ban nuclear weapons testing, protect wildlife, and maintain the quality of the world’s oceans, among other things.