The National Environmental Policy Act (NEPA) was passed in 1970 along with the Environmental Quality Improvement Act, the Environmental Education Act, and the Environmental Protection Agency (EPA). The main objective of these federal enactments was to assure that the environment be protected against both public and private actions that failed to take account of costs or harms inflicted on the eco-system.
The EPA was supposed to monitor and analyze the environment, conduct research, and work closely with state and local governments to devise pollution control policies. NEPA has been described as one of Congress's most far reaching environmental legislation ever passed. The basic purpose of NEPA is to force governmental agencies to consider the effects on the environment of their decisions.
State laws also reflect the same concerns and common law actions in nuisance allow adversely affected property owners to seek a judicial remedy for environtal harms harms.
Some of the areas litigated under environmental laws include groundwater and drinking water contamination; Brownfields (the redevelopment of contaminated properties); Superfund cases; permitting and compliance matters (including governmental agency challenges); hazardous substance discharges; wetlands; CAFRA, regulatory "takings" matters, and toxic torts.
Environmental Law and Business
Environmental laws in the United States protect air and water resources and control certain aspects of land-use as well, particularly disposal of wastes on land. Basic laws are federal but many states have laws of their own, often more stringent than that of the federal law. Laws on the books also control the environment in the workplace and noise levels caused by machinery, especially aircraft. Regulations on food purity and the safety of drugs frequently have environmental aspects. And the management of radiating substances is also within the compress of "environmental law." The chief regulatory agencies are the U.S. Environmental Protection Agency (EPA) and the Nuclear Regulatory Commission (NRC)—but some 13 other agencies are directly and yet others indirectly involved in enforcing laws. All states also have environmental agencies.
Environmental law in its current form developed in the 1960s and culminated in the passage of the National Environmental Policy Act of 1969. In the mid-2000s 18 major pieces of legislation entirely or partially administered by EPA and five laws administered by the NRC constitute the corpus of environmental law as shown below:
EPA-administered laws (in date order) are the following:
- Federal Food, Drug, and Cosmetic Act (FFDCA). 1938.
- The Freedom of Information Act (FOIA). 1966.
- National Environmental Policy Act of 1969 (NEPA). Basic environmental law.
- The Clean Air Act (CAA). 1970.
- The Occupational Safety and Health Act (OSHA). 1970.
- Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). 1972.
- The Endangered Species Act (ESA). 1973.
- The Safe Drinking Water Act (SDWA). 1974.
- The Resource Conservation and Recovery Act (RCRA). 1976.
- The Toxic Substances Control Act (TSCA). 1976.
- The Clean Water Act (CWA). 1977.
- Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). 1980. Deals with hazardous waste sites.
- The Emergency Planning & Community Right-To-Know Act (EPCRA). 1986.
- The Superfund Amendments and Reauthorization Act (SARA). 1986.
- The Pollution Prevention Act (PPA). 1990.
- The Oil Pollution Act of 1990.
- Food Quality Protection Act (FQPA). 1996.
- Chemical Safety Information, Site Security and Fuels Regulatory Relief Act. 1999. Amends the Clean Air Act.
NCR administered laws:
- Atomic Energy Act of 1954, as amended. Basic law on nuclear energy.
- Energy Reorganization Act of 1974.
- Uranium Mill Tailings Radiation Control Act of 1978.
- Nuclear Waste Policy Act of 1982.
- Low-Level Radioactive Waste Policy Amendments Act of 1985.
Other major agencies involved in the implementation of these laws include the following:
- Army Corps of Engineers—Regulates construction projects on navigable waters; coordinates administration of Superfund cleanups; engages in construction projects to protect wildlife on shorelines and in navigable waters; and other projects.
- Consumer Product Safety Commission—Charged with enforcement of various enabling acts designed to protect consumers, including responsibility for protecting consumers from toxic (hazardous) chemicals.
- Council on Environmental Quality (CEQ)—Oversees compliance with the National Environmental Policy Act (NEPA) by agencies throughout federal government.
- Bureau of Land Management—Manages federally owned lands, which total over 350 million acres, as well as the resources on those lands, including timber; oil, gas and minerals; rivers and lakes; plants, animals, and fish and their habitats.
- Federal Energy Regulatory Commission—Regulates dams and hydroelectric power.
- Federal Maritime Commission—Certifies that ships carrying oil and hazardous materials have the ability to cover the cost of any spills.
- Food and Drug Administration—Charged with enforcement of statutes designed to protect the public from harmful food or drugs. Also works with the EPA to protect the public from hazards associated with pesticide residues in food.
- Mine Safety and Health Administration—Regulates to protect the health and safety of workers in mines and to protect the public from hazards associated with mining.
- National Institute for Occupational Safety and Health (NIOSH)—Under jurisdiction of the Centers for Disease Control (CDC), conducts research on the effects of toxic substances on humans, the results of which are used by OSHA, EPA, and other agencies.
- National Park Service—Charged with managing the various parks that comprise the nation's national park system.
- Occupational Safety and Health Administration—Regulates to protect the health and safety of workers within workplaces (excluding mining).
- U.S. Fish and Wildlife Service—Manages the National Wildlife Refuge System.
- U.S. Forest Service—Manages public forest resources for lumbering, mining, farming, grazing, and recreation.
As the old Tom Lehrer song, "Pollution," put it: "If you visit American city,/You will find it very pretty./Just two things of which you must beware:/Don't drink the water and don't breathe the air." The song appeared in 1965 and was, in a way, background music to the development of environmental legislation. The verses, however, pinpoint the chief rationale behind most environmental legislation: it is to protect human health and welfare by keeping fundamental resources, like air and water, clean and usable. Once basic legislation was in place, it came to be extended to preventing poisons reaching people indirectly through plant life and food species in toxic substances and hazardous waste legislation. Modern law goes further and also protects species endangered by human activity and regulates how industry must treat and restore land disturbed by such activities as mining.
AIR AND WATER
Air and water pollution control legislation sets strict limits on what kinds of pollutants may be emitted to the environment in what concentrations over defined periods of time—so that small amounts deemed permissible are emitted in small quantities ensuring mixing and dispersion. Emission laws result in emission standards—which may change over time. Economic pressures act at times to loosen the standards; public pressure acts to tighten them. Whatever the standard, enforcement activity may be energetic or lax, and the type of enforcement itself may be the result of policy. In addition to setting standards, the laws also specify technological means of treating effluent streams; the specifics of how to do that are elaborated in regulations. The regulations are detailed, down to specific chemicals and specific circumstances of emission. Since cities, as public bodies, are a large source of polluted water (sewage), federal law also provided financial grants to partially pay for the building of water and sewer treatment plants.
Control in these categories is based both on an administrative and a physical "process," the former requiring permits, monitoring, and periodic audits; the latter governing actual pollution control processing. Federal regulatory action in these two areas (as elsewhere) takes place through the publication of proposed regulations on which public comment is invited, followed by final regulations which incorporate some and reject other suggestions by interested parties.
Federal law does not regulate land disposal of ordinary urban and commercial waste by prescribing methods, but federal guidelines describe best practice. Regulatory action may be present indirectly if groundwater contamination results from landfill leachates and, in consequence, safe drinking water standards are not met. Incineration of wastes falls under air pollution laws. State laws and regulations do control solid wasteland disposal, but requirements vary from state to state.
Toxic and Hazardous Wastes
Handling of such wastes is tightly regulated relating to transport, storage, and disposal of wastes. To the extent that such wastes are liquefied before processing or are incinerated, water and air regulations apply. Many decades of haphazard toxic/hazardous waste disposal preceded the emergence of environmental regulations so that many hundreds of "legacy" sites still exist. Superfund legislation controls both the clean-up process and the assignment of responsibility for the clean-up.
Federal law relating to drinking water is a standard-setting process under which maximum levels of contaminants are set. Federal regulators take into account water purification technology in setting or revising standards; attempts to tighten standards are usually triggered by improvements in treatment technology—and resisted because new methods have higher costs.
The protection of endangered species takes multiple forms, including prohibitions against hunting, protection of habitats from development or restrictions on access to and exploitation of resources inside habitats. Nuclear materials handling is a world unto itself in which very tight safeguards are prescribed for every aspect of nuclear materials handling—including in such "non-atomic" environments as medical laboratories. Storage, transport, labeling, and handling of toxic and hazardous materials in the workplace are covered by Department of Transportation and OSHA regulations—again aimed at protecting people directly involved and the broader population outside the workplace in case of fires or disasters.
THE SMALL BUSINESS CONNECTION
The small business may very likely be touched in one way or another by environmental law even in businesses that do very little or very basic manufacturing. If solvents and lubricants are used—which will be likely in a machine or in a printing shop; or if chemicals are used—in a flower shop or gardening enterprise—environmental laws will be invisibly present. A careful inspection of the business, looking for chemicals, fire hazards, and inspecting the type of waste generated may be worthwhile unless the owner keeps up-to-date on the subject. A good means of doing so is through product vendors who usually provide information or track legal restrictions on chemicals closely. Trade publications also routinely report on new regulator developments in the industry they cover and thus provide early warning signals that action may be necessary to get on the right side of environmental law.
SEE ALSO CERCLA; Clean Air Act; Clean Water Act
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