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Environmental Law


An amalgam of state and federal statutes, regulations, and common-law principles coveringair pollution, water pollution, hazardous waste, the wilderness, and endangered wildlife.

Almost every aspect of life in the United States is touched by environmental law. Drinking water must meet state and federal quality standards before it may be consumed by the public. Car manufacturers must comply with emissions standards to protect air quality. State and federal regulations govern the manufacture, storage, transportation, and disposal of the hazardous chemicals used to make deodorants, hair sprays, perfumes, makeup, fertilizers, herbicides, pesticides, detergents, cleansers, batteries, and myriad other common goods and products.

Common Law

Under the common law, environmental litigation revolves around six doctrines: nuisance, trespass, negligence, strict liability, prior appropriation, and riparian rights.

Nuisance Modern environmental law traces its roots back to the common-law tort of nuisance. A nuisance is created when an owner or occupier of land unreasonably uses that land in a way that substantially interferes with the rights of others in the area. A nuisance is sometimes referred to as the right thing in the wrong place, like a pig in a parlor instead of the barnyard.

Nuisances can be public or private. A public nuisance interferes with a right or interest common to the general public, such as the public's interest in healthful drinking water. A private nuisance interferes with a right or interest of a private individual, such as a homeowner's right to the quiet enjoyment of her land.

The primary practical difference between the two types of nuisance is that a government department, such as a state or federal environmental agency, traditionally brings suit to enjoin a public nuisance, whereas only private citizens and organizations may sue to stop a private nuisance. The two concepts can also overlap. A nuisance that interferes with a private use of property can simultaneously interfere with a public interest. For example, factory smoke that diminishes the value of neighboring property is a private nuisance, and it is at the same time a public nuisance if it also endangers surrounding wildlife.

Courts engage in a balancing test to determine whether a particular activity amounts to a public or private nuisance. A particular activity is declared a nuisance when its usefulness is outweighed by its harmfulness. The harmfulness of an activity is measured by the character and severity of the harm imposed, the social value of the jeopardized interest, the appropriateness of protecting the interest in a particular locality, and the burden to the community or individual in avoiding the harm. An activity's usefulness is measured by the activity's social utility, its suitability to a particular community, and the practicality or expense of preventing the harm it inflicts. Because there is no exact or universally agreed-upon value for each of the competing interests, it is often difficult for judges to apply the balancing test in a consistent fashion.

Gravity of the injury Although courts apply the balancing test for nuisance actions on a case-by-case basis, judges generally follow certain principles. The injury in question must be real and appreciable; the law does not concern itself with trifles. An occasional whiff of smoke, a temporary muddying of a well, a modest intrusion by roots or branches, and intermittent odors of sauces and stews will not rise to the level of a nuisance.

Courts also consider whether the alleged nuisance is of a continuing nature or has produced permanent or long-lasting effects. Nuisance law may excuse an isolated invasion of drifting pesticides, a single overflow of a sewer outlet, or a debris-burning incident lasting only a few days, and some courts have held that recurrence is a necessary prerequisite to a nuisance determination. For example, one court denied a prison inmate's nuisance claim that he was poisoned by pesticide delousing, because it occurred on only one occasion. In such cases, plaintiffs may have a viable claim for trespass or negligence (discussed later in this article) but not for nuisance.

In suits over pollution, courts also consider which party arrived first in the particular community, the polluter or the landowner alleging harm. The law has permitted polluters to escape liability by proving that a landowner alleging harm moved next to a preexisting nuisance with knowledge of its harmful activities. The rationale for this defense is that the landowner who "comes to the nuisance" generally pays less for the property because the nuisance has reduced its value. If such a landowner were then permitted to remove the nuisance, a windfall would inure to her or his benefit. Increasingly, however, courts place less weight on priority of arrival when evaluating a nuisance claim.

Nuisance claims have traditionally been evaluated from an objective point of view. If an "average" or "normal" person in the relevant community would be offended or annoyed by a certain intrusion, then the intrusion is considered real and appreciable. The idiosyncracies of a hypersensitive plaintiff are generally discounted. Persons with extreme personal tastes and aesthetic sensitivity are usually denied relief under this objective standard. Persons with abnormal physical vulnerabilities, such as those with heart conditions, breathing problems, and tender eardrums, are usually denied relief as well.

In recent years, however, nuisance law has offered greater protection to society's vulnerable members. People are not necessarily abnormal, courts have held, merely because they enjoy spending time outdoors, sleeping with the windows open, or cultivating crops near smoke-billowing smelters. These activities are increasingly viewed as normal activities deserving protection. Many courts are also becoming more sympathetic to plaintiffs with preexisting health conditions or genetic frailties.

Two cases illustrate this trend. In the first, Lunda v. Matthews, 46 Or. App. 701, 613 P.2d 63 (1980), a cement plant was held liable for emitting debris, dust, and fumes that encompassed a landowner's house and aggravated his bronchitis and emphysema. The court reached this determination despite arguments that the landowner's illness made him more vulnerable to debris and dust than would be persons of ordinary health. The court also held that the cement plant could not escape liability merely because it was complying with state pollution standards.

In the second case, Kellogg v. Village of Viola, 67 Wis. 2d 345, 227 N. W. 2d 55 (1975), a landowner was permitted to recover for the loss of mink kittens who were eaten by their skittish mother after being frightened by noises and odors from a nearby dump. The court was not persuaded that the mink were abnormally squeamish or that the landowner was primarily responsible for their death because he had chosen to move next to the dump with full knowledge of its activities.

Aesthetic nuisances are another area where courts have produced inconsistent results. On June 25, 1927, a Pennsylvania court wrote that "[i]n this age, persons living in a community or neighborhood must subject their personal comfort to the necessities of carrying on trade or business," and when an "individual is affected only in his tastes, his personal comfort, or pleasure, or preferences, these he must surrender for the comfort and preferences of the many" (Pennsylvania Co. for Insurance on Lives & Granting Annuities v. Sun Co., 290 Pa. 404, 138 A. 909, 55 A.L.R. 873).

This attitude was expressed more recently when a federal court denied the U.S. government's request that the court enjoin (prohibit) the construction of high-rise office buildings on the Virginia side of the Potomac River—even though the buildings would blight the Washington Monument, Lincoln Memorial, and other national landmarks (United States v. County Board, 487 F. Supp. 137 [E.D. Va. 1979]). These cases reflect judges' reluctance to hold themselves out as standard-bearers for good taste.

Yet aesthetic nuisances are still recognized by courts as viable claims when the extent of the injury is more serious. Judges distinguish between minor vibrations and bone-shaking tremors, normal barnyard smells and sickening stenches, and puffs of dust and blizzards of topsoil. An activity that overcomes extreme defensive measures taken by neighboring properties will be declared a nuisance. Nocturnal noises interfering with sleep can also sound the death knell for a particular activity, especially when there is evidence of widespread community dissatisfaction and not just a single complaint.

Utility of the activity An environmental injury will not be declared a nuisance unless it outweighs the utility of the activity. Determining the weight of a particular harm is often difficult for courts. Judges are human, and humans disagree on just about everything, including nuisance law. The easiest type of case for a judge involves an injury inflicted solely for the purpose of causing harm. A fence constructed with the intent to obstruct a neighbor's view will always be declared a nuisance. No socially redeemable value is assigned to animus and hostility.

Most cases, however, do not involve a nuisance created by adverse motivations. For instance, polluters usually produce useful products integral to a local economy, and the market value of an injured property is rarely greater than the business investments made by the polluter. But dollar figures are not always of paramount importance to judges.

Two leading cases illustrate the different results reached by courts in weighting utility. In the first, Madison v. Ducktown Sulfur, Copper, & Iron Co., 113 Tenn. 331, 83 S.W. 658 (1904), the court denied a landowner's requested relief, stating,

In order to protect by injunction several small tracts of land, aggregating in value less than $1,000, we are asked to destroy other property worth nearly $2,000,000, and wreck two great mining and manufacturing enterprises…. The result would be practically a confiscation of the [polluter's] property … for the benefit of the [landowner]—an appropriation without compensation.

In the second case, Hulbert v. California, 161 Cal. 239, 118 P. 928 (1911), the court granted the landowner's request for an injunction, over the polluter's claim of greater hardship, saying, "If the smaller interest must always yield to the larger, all small property rights, and all small and less important enterprises … would sooner or later be absorbed by the large and more powerful few."

Some environmentalists maintain that the law must protect the environment at any cost, whereas extreme advocates of the free market believe that business must be allowed to expand unhindered by governmental regulation. Certain results reached by particular judges may appear unreasonable to both extremes, but courts have attempted to strike a moderate balance over the long run.

Technology has often provided the means to moderation. Requiring businesses to shut down and relocate, or homeowners to endure a nuisance or move, are remedies not favored by the law. Courts avoid such remedies by exerting pressure on companies to develop technologies to make their operation safer for the environment. For example, one court ordered a smelting business to install specific arsenic control measures to abate a nuisance, instead of closing down the business as requested by the landowner (American Smelting & Refining Co. v. Godfrey, 158 F. 225 [8th Cir. 1907]).

Many nuisances can be remedied without state-of-the-art technology. For example, airports have been forbidden to authorize low-level flights over certain residences, and farmers have been ordered to confine foul odors to particular buildings. Other nuisances can only be abated by the best available technology. Sometimes, however, it is economically impractical or prohibitively expensive for a polluter to use such technology.

Courts disagree about what should be done when a polluter can do nothing short of ceasing operations to lessen an injury. Many courts deny injunctive relief if the polluter is already using the most modern pollution control methods available. Some courts grant an injunction ordering the polluter to shut down when state-of-the-art controls hold no further promise of relief. Other courts award damages for a nuisance that occurs despite the use of the best available technology.

Trespass and Negligence Nuisance actions deal primarily with continuing or repetitive injuries. Trespass and negligence actions provide relief even when an injury results from a single event. A polluter who spills oil, dumps chemicals, or otherwise contaminates neighboring property on one occasion might avoid liability under nuisance law but not under negligence or trespass law.

Trespass involves an intentional interference with the property interest of an owner or occupier of land. Negligence occurs when a defendant fails to exercise the amount of care that would be exercised by a reasonably prudent person under the circumstances. Whereas trespass requires the injury to result from deliberate misconduct, negligence results from the accidental and inadvertent.

Under nuisance law, liability is based on an unreasonable and substantial interference with the legal interests of a landowner's property. Conversely, trespass is proved by evidence of any tangible invasion of a landowner's property, however slight. Similarly, pollution resulting from negligence need not produce a substantial injury in order for a landowner to recover. However, a landowner who suffers only minor injuries from the negligence or trespass of a polluter will receive only nominal damages.

Strict Liability The doctrine of strict liability for abnormally dangerous activities provides a fourth remedy for those suffering environmental harm. To recover under this doctrine, the landowner must demonstrate that a condition or activity qualifies as abnormally dangerous and was in fact the cause of the environmental injury. Many common activities have been decreed abnormally dangerous, including collecting large quantities of water in hydraulic power mains, storing gas in large amounts, and transmitting high-powered electricity under city streets.

Courts sometimes struggle in determining when something rises to the level of abnormally dangerous, and liability generally also attaches for extraordinary, abnormal, exceptional, and nonnatural activities or conditions. Examples of such activities are oil well drilling, crop dusting, pile driving, and blasting.

Prior Appropriation and Riparian Rights A riparian proprietor is the owner of land abutting a stream of water or river and, as such, has a qualified right in the soil to divert the stream as permitted by law. Generally, a riparian owner has the right to all the useful purposes to which a stream passing through the land may be put. Specifically, the rights of riparian owners have been divided into two discrete categories.

The first category is known as prior appropriation. Under the principles of prior appropriation, the law provides that whoever first appropriates stream water for a beneficial purpose acquires a vested right to the continued diversion and use of that water against all claimants who might later do the same. Courts often describe prior appropriation as the principle "first in time is first in right."

Prior appropriation places downstream owners at a distinct disadvantage because it permits upstream owners to completely divert or contaminate stream water so long as they do so for a beneficial purpose. Early cases suggested that no beneficial purpose was served when water was diverted for reasons other than commerce or profit, such as for mere personal pleasure. Today, however, courts permit riparian owners to appropriate water for almost any aesthetic, recreational, preservational, or pollution control purpose.

Prior appropriation principles are followed in many western states where water is scarce, and efficient and economic uses for streams and rivers are necessary. In the eastern states, the doctrine of riparian rights is followed. This doctrine has two strains. The first provides that each riparian owner has an absolute right to the flow of stream water uninterrupted by any unnatural (i.e., human) causes. The second strain provides that each riparian proprietor has a right to any reasonable use of the stream water passing through his or her land, and is protected from unreasonable uses upstream. This doctrine does not encourage the economically efficient use of water, as does the doctrine of prior appropriation—but water is not scarce in the eastern states where riparian rights theory is applied.

Statutory 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

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

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.

Environmental Justice

The field of Environmental Justice sprung from grassroots organizations formed to combat environmental racism. In the 1970s, groups of minorities organized to protest the disproportionate number of waste producing and polluting industries located in areas where minorities or poor people lived. These groups included African Americans, Latinos and Native Americans. This effort against environmental racism was viewed as outside the broader Environmental Movement, which had white middle to upper class backing.

In the 1980s, the environmental racism movement reorganized and became known as the Environmental Justice movement, which focused on the equitable distribution of environmental health and risk. At that time their efforts began to receive more mainstream attention and recognition. Since that time, the topic of Environmental Justice has been addressed by colleges and universities, as well as environmental and religious groups. The field has begun to move beyond issues of equitable distribution to include concerns about reducing and stopping environmental risk. This later aspect may be called ecological justice and deems that the earth and the environment have intrinsic value.

Environmental Racism Environmental racism has been defined by environmentalists as the deliberate targeting of communities of color for discriminatory treatment in governmental policy and corporate practices. Placement of toxic waste facilities in low income neighborhoods and nuclear waste dumps in indigenous territory have been cited as examples of this practice. Community activists have challenged what they believe is inherent and explicit racism in corporate strategies and discriminatory treatment in enforcement of environmental regulations.

Private Title VI Lawsuits and Environmental Racism Title VI of the civil rights act has been one of the most commonly used statutes in Environment Justice lawsuits in recent times. Some of this is due to the failures from other statutes and some of it is the uncertainty about the viability of Title VI as a remedy for environmental racism. Title VI has two main parts to it, section 601 and section 602. One of the main differences in the two sections is whether it gives a private right of action to plaintiffs. A private right of action determines whether ordinary citizens have the right to bring the case based on the statute before a court to determine the validity of the claims. Section 601 has been determined by the United States Supreme Court to hold a private right of action for lawsuits. Section 602 however has not been interpreted as to whether or not it holds a private right of action within it. The issue of intent is defined differently in the two sections. Section 601 has a model of proving intent based on the equal protection clause of the fourteenth amendment. This model is that of proving purposeful discriminatory intent by a government agency or other group who is discriminating. This very strict interpretation of the statute has served to quell any Environmental Justice lawsuits under section 601. For cases where discriminatory intent is obvious, section 601 is a good alternative since it allows for more punishment than section 602, which can only terminate funding. This allows corporate defendants to use reasons such as economic impacts and geographical situation to explain away unjust allocation of environmental burdens. Section 602, however, allows for disparate impacts to be used instead of intentional discrimination as a means of implicating defendants in the violations.

In February of 1994, President bill clinton signed an executive order which brought together several federal agencies and offices in a battle against discrimination. This order was an outline of what each agency was required to do to promote Environmental Justice in its policies and practices and what each agency needed to do to ensure the continued compliance with Title VI. The EPA has used this order as a staging point for their new wave of Environmental Justice focuses. An Environmental Justice Strategy has been formed by the EPA for the evaluation of Environmental Justice concerns brought to the EPA. The Executive Order is very limited in its scope and enforceability and has been widely criticized despite the fact that it facilitated the creation of the EPA Title VI policy.

further readings

Gerrard, Michael B., ed. 1999. The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks. Chicago: American Bar Association.

Rogers, William H., Jr. 1986. Environmental Law: Air and Water Pollution. St. Paul, Minn.: West.

——. 1977. Environmental Law Hornbook. St. Paul, Minn.: West.

Stern, Carole, John A. McKinney Jr., and David B. Graham, eds. 1996. CERCLA Enforcement: A Practitioner's Compendium of Essential EPA Guidance and Policy Documents. Chicago: American Bar Association.


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