OVERVIEW

We have or should have an abiding interest in preserving and protecting the natural environment for ourselves as well as for future generations. Environmental Law is relatively complex and is governed by various federal and state statutes; there are also many regulations that interpret and implement the statutes. Aspects of other disciplines, such as biology, geology and engineering are also involved. As a result of new scientific discoveries, the laws that pertain to the environment is under a constant state of evolution. This article will present an overview of the laws that apply to protecting the environment and how they are enforced.

LAWS AND REGULATIONS

Environmental Law is the product of federal and state statutes. These laws were passed, as government became increasingly aware that industrial and other forms of pollution are seriously damaging our air, water and land. Additionally, it has become clear that the quality of the environment directly affects our health. Various agencies enforce these laws and enact regulations that help to implement them. Aside from these statutes, common law tort actions, i.e., regular civil lawsuits based upon theories of nuisance and negligence, can still used to sue and obtain money damages from persons or companies that harm persons or property as a result of their actions. If a plaintiff can demonstrate that a defendant’s negligence caused a specific harm (e.g., toxic pollution causing cancer), a civil damages claim can be brought against the polluter.

National Environmental Policy Act (NEPA)

Federal programs that have the potential of harming the environment require an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) to determine what effect, if any the program or project may have. The public is entitled to comment on the proposed project. The EIS report is non-binding, and a finding that a project will have an adverse environmental impact does not necessarily mean that it will not be approved and undertaken. Many states have enacted their own versions of NEPA.

Clean Water Act

The Clean Water Act (CWA/FWCPA) is a program for the control of water pollution. It regulates all dumping of pollutants into navigable waters, requires pretreatment of discharges into sewer systems and maintains a permit program for dredging and filling in navigable waters and wetlands. Under the CWA, technology standards and limits are set for the treatment of discharged pollutants. The law also requires states to establish water quality standards for all bodies of water within their territorial limits. Regulations under the CWA are enforced through fines and criminal penalties.

Clean Air Act

Under the various programs of the Clean Air Act, the Environmental Protection Agency (EPA-see below) sets limits and standards on pollutants that may be emitted by motor vehicles and structures. States are required to pass their own legislation to implement these standards. Under the Clean Air Act, the EPA also has passed regulations concerning acid rain (sulfur emissions) and controlling ozone depletion in the atmosphere.

Acid Rain

When emissions of sulfur dioxide and nitrous oxides mix with moisture in the air, they produce acid rain. Acid rain has had an adverse impact on many forests and lakes, particularly in the Northern Hemisphere. The full extent of the effect of acid rain is still being studied- many believe that acid rain is not as serious a problem as was first thought.

Ozone

Ozone is formed from automobile emissions and from organic compounds discharged into the air, particularly from industrial sites. Ozone can aggravate or cause a variety of respiratory problems and contributes to smog development.

Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (RCRA) is a grouping of  statutes that regulate the disposal of hazardous waste and its transport. Under this law, hazardous waste cannot be disposed of underground unless it is determined that that will be no migration or seepage of the material into surrounding land or water or that the waste has been appropriately treated to meet clean-up levels.

Comprehensive Environmental Response, Compensation and Liability Act

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA),  calls for the clean-up of hazardous substances that were disposed of in the past in an environmentally unsound way so that there is a threat of or actual release of such substances. The owners of the property are liable for the cost of cleanup, unless they were innocent purchasers of the property without notice of the hazardous material. CERCLA has retroactive application- that is, it applies to hazards, such as toxic dumps, that pre-dated passage of the law.

THE ENVIRONMENTAL PROTECTION AGENCY

The Environmental Protection Agency (EPA) is the federal agency that has the primary responsibility for enforcing major federal pollution control statutes. The EPA is managed by an administrator appointed by the President and is located in Washington, DC. To assist in implementing statutes, the EPA has passed a variety of regulations interpreting the statutes, much in the same way that IRS issues regulations interpreting tax law. The EPA issues permits for environmentally sensitive projects and brings enforcement actions against parties who violate the law.

Additional Federal Agencies

There are several other agencies that have environmental responsibilities, including the Department of the Interior, the Department of Energy, OSHA, and the Food and Drug Administration (FDA).

Judicial Review

Agency decisions that a party disagrees with may be appealed to the federal courts- generally, the U.S. Court of Appeals. The court will review agency decisions and decide whether an agency finding is ‘arbitrary and capricious’- that is, not adequately supported by the law and science.

TOXIC SUBSTANCES

Toxic substances, or toxic pollutants, are substances that can cause health problems, such as cancer or genetic defects, even when the levels are relatively low. Often, there is little data about the effect of toxic substances on human health. There are several preventative federal statutes dealing with toxic substances; if the courts find that they are more likely than not to cause harm, the regulation that prohibits or controls these substances will be upheld.

Acceptable Levels

In some circumstances, the federal agency may be able to determine what level of exposure to toxic substances are still an acceptable health risk and include these levels into the statute. In the absence of a known acceptable level of exposure, the courts generally require the government to demonstrate a ‘significant risk’ before the substance will be controlled and regulated.

Pesticides

The EPA must register all pesticides that have been proven to be effective before they can be used; it has the responsibility of determining whether the pesticide will cause unreasonable harm to the environment.

ENFORCEMENT

In order to enforce the laws and regulations that apply to environmental protection, the EPA may initially issue an order requiring a violator to come into compliance with the law. If a compliance order is not complied with, civil penalties (fines) may be imposed after an administrative hearing.

Injunctions

The EPA may also bring an action in the federal courts for injunctive relief (an order from the court requiring a defendant to cease and desist from some action or to comply with an order). It may also seek civil penalties- a money award- at the same time.

Criminal Penalties

‘Knowing’ violators of the law may be subject to criminal sanctions, including fines and prison terms, even for a first violation.

Civil Lawsuits

As was noted earlier, private citizens who are directly harmed as a result of violation of a statute or regulation, can bring a civil action against the violator to recover money damages for actual injuries suffered as a result of the violation or wrongful act.