Law and the Environment

Environmental law seeks to control the ecological impact of human activity. In the United States, the federal government began significant national regulation of the environment. Despite difficulties posed by the law making structure of the government and changing political climates, environmental law has endured to become a settled part of the legal landscape. This article reviews the inherent difficulty in making effective environmental law as a result of natural complexity and the legislative apparatus of the United States. The article goes on to review some major laws in their historical context.

Keywords Clean Air Act; Clean Water Act; Constitutional law; Environmental Law; Environmental Protection; Federalism

Law > Law & the Environment

Overview

Broadly stated, environmental law regulates human activity to limit ecological impacts that threaten public health and biodiversity. The content of the law, therefore, is determined by ecological inquiry regarding the effects of human activity. The goal of environmental law is not to prevent any changes in the environment, which are unavoidable and sometimes desirable, but to influence the type and degree of change caused by humans. To achieve this purpose, environmental legislation must overcome two inherent difficulties; addressing ecological problems in light of the need for certain human activity and the structure of the law making apparatus of the United States.

The natural world is intricate and delicate and the activities of highly industrialized economies are complex and intertwined. Environmental Law, to be responsive to the problems it seeks to address, must accurately reflect an understanding of the underlying causal relationships of nature, the underlying relationships of human economic activity and the extent which the latter influences the former. Such understanding is not easy because ecosystems can be fragile and interconnected in ways not readily apparent and because lawmakers must be sensitive to the needs of the economy it seeks to regulate. To begin the process, an extraordinary amount of scientific data is required to establish standards and regulatory regimes. That data must account for all potential factors that may contribute to a particular ecological threat. Otherwise, the law may fail to adequately address the problem and over-regulate some responsible parties while under-regulating others. Scientific uncertainty contributes to the difficulty of legislating for the purpose of controlling environmental change. Often, we are unsure of what would happen with the implementation of a particular law. Similarly, we are also often unsure exactly what will happen in the absence of the law. This uncertainty arises from the sheer complexity of a natural environment that often defies our understanding. Environmental regulations, once established, often require relatively frequent adjustment to reflect changes that develop from new information about causal relationships. Those developments can prompt relaxed or more stringent standards, and shifts to address new causes of a previously identified problem. In this way, something harmful can be redefined as something benign, and vice versa.

Given scientific uncertainty and the balance between economy and environment, environmental regulation will always cause controversy. That controversy comes from conflicts over natural resources, distribution of wealth, and differing values. Controversy arises because the party that gets the benefits is often not required to incur the costs for those benefits and vise versa. This mismatch is inherent in nature because resources are collected in common pools where harm committed in one place may have consequences in another place at another time; thus an activity upstream will have effects downstream. Therefore, when a regulation seeks to prevent injury to a common resource (e.g. the ozone layer, marine fishery, a drinking water aquifer), those subject to regulation will often perceive it as unduly burdensome because there may not be any perceivable injury to others. And in light of scientific uncertainty, casual relationships are not assured which bolsters the argument that regulation is unnecessary. Moreover, the short-term compliance costs and other effects on human activity are often more clear than the long term benefits of any given regulation. Those short-term economic costs of compliance can be viewed as adverse to human health in the same way environmental degradation would be and cause a clash between the human interests protected by the legislation and the short term human interests. This controversy is especially apparent when an environmental program does not have a clear connection to human health.

The difficult questions of science, causation, and economics that must be answered to enact effective environmental law must be done within the governmental structure established by the Constitution at both the state and federal levels. The division of power in the United States into fifty separate states and one federal government affects how the law can address or regulate activity that has an impact on the environment. Federalism is designed to give the Federal government certain specific powers and only specific powers. The states have all undefined powers not specifically given to the federal government. Because limited federal power is a basic assumption of the federal government, Congress does not necessarily have the power to take action that it deems in the public good. Congress must base every act on a specific grant of power found in the Constitution. As a general matter, the Constitution favors decentralized, fragmented and incremental lawmaking while environmental concerns lend themselves to national, or global, solutions.

In the area of environmental law, the most important federal authority to regulate the environment are: the power to regulate interstate commerce, the power to tax and spend, the power to enter into treaties, and the power to regulate use of public lands. The power to regulate interstate commerce is most important because it extends to the regulation of private entities. Ultimately, federal courts decide whether Congress may legislate based on the authority of the commerce clause, and until relatively recently, the courts have allowed Congress significant latitude to use the commerce clause. To pass an environmental law based on the commerce clause, the activity being regulated must "affect commerce." That test may include consideration of the aggregate effects of a number of local activities that if taken together would affect commerce. For most of the twentieth century, Congress's power under the commerce clause seemed unlimited. In the mid-1990's the Supreme Court decided cases that limited that authority and appeared to halt the trend toward federal power in favor of states' rights to legislate on their own behalf with authority of their general powers. For the time being, the core of Congress's ability to legislate environmental issues seems to not be threatened. However, the regulation of the environment under the commerce clause is on uneasy legal ground, and should federal courts adopt stricter and more literal interpretation of the commerce clause, federal authority to pass environmental legislation could be severely limited.

Oddly, while the federal government does not have the general authority to regulate environmental issues, the use of the commerce clause to do so does restrict the power of the states, which do have that general authority to address environmental concerns. The Constitution makes an affirmative grant of authority to Congress to regulate interstate commerce and under the supremacy clause of the Constitution, federal law takes precedent over, or preempts, state law that conflicts federal law. Even if Congress has been silent on an issue, the constitutional grant of power is interpreted to prevent the states from passing laws in areas committed to Congressional authority. This prohibition is called the silent commerce clause. The silent commerce clause prevents state law from discriminating against interstate commerce and from passing laws that impact interstate commerce to a greater extent than justified by the state's justification for the law. For example, a state may not impose limits or taxes on out-of-state garbage dumping to protect its local industry.

Environmental problems do not respect political boundaries, and a problem in one state may have been caused by activity in another state. Any particular state may legislate to protect its own environment and fail to adequately take into account the repercussions of its regulations on other states. In such cases, because environmental problems often arise from interconnected ecological systems that cover large areas and develop over long periods of time, an affected state would be unable to protect its own environment. Another disadvantage of decentralized law making is the inability of a state to regulate effectively because of an economic need to attract or retain industry with lax or lower environmental standards than other states. This contributes to the possibility that other states will follow suit, causing environmental protection to spiral downward.

On the other hand, there are advantages to having power vested in those closest to the environment at issue. State power to regulate the environment allows the public motivated to address environmental issues to do so without being held back by other less-interested citizens of other states. Local governmental bodies are more likely to have first hand knowledge of the scope of the problem and the causative factors involved. Consequently, state governments can be more responsive to the desires of their own populations. Additionally, one of the advantages of federalism generally, is that each state can act as "laboratory" to test the effectiveness of regulation. This advantage applies to environmental regulation that can be tested in a given state and if effective, adopted by other governments.

In addition to the challenges posed by federalism, the fragmentation of authority in the tripartite US system of government, with each branch having distinct functions--separation of powers--favors slow and incremental legislation and poses special challenges to environmental legislation. A large number of often conflicting government interests are implicated in an attempt to enact, administer and enforce a piece of environmental legislation. For example, within the executive branch, there are agencies charged with developing the law (EPA, Department of the Interior, National Oceanic and Atmospheric Administration and the President's Council on Environmental Quality), those charged with enforcing the law (Department of Justice and the EPA), those subject to the law (Department of Transportation, Department of Defense, and Department of the Interior), and those concerned with its budgetary and economic impact(the Office of Management and Budget and the Department of Commerce). Likewise, the legislative branch has a large number of committees and subcommittees that have varying responsibilities to propose and appropriate funds to legislation.

The traditional law-making process in the U.S. does not lend itself well to the peculiar needs of effective environmental legislation. Environmental legislation often redistributes resources by preventing certain activities or increasing costs associated with certain activities, and many people will resist those types of changes. The controversial nature of environmental legislation makes it difficult to gain the required consensus and support in Congress to pass a law, which must subsequently be signed by the President and then often defended in court. Opponents also base objections on the inherent scientific uncertainty. Environmental legislation must be responsive and often requires amendment, continued debate, and support must be maintained over long periods of time to prevent a potential environmental catastrophe. Indeed, Presidents have sought to circumvent the lawmaking process to remedy what they believed to be an environmental threat that demanded immediate attention. The incremental nature of the deliberative law making process causes potential remedies to be divided up according to social systems, while ecological problems tend to require comprehensive solutions. The concerns related to the fragmentation, or horizontal distribution of power across branches of government, is not confined to the federal level and are generally true at the state and local level as well. Despite these difficulties, environmental law has made important advances.

Applications

The states are typically on the forefront of environmental legislation in response to local problems and have the general authority to legislate regarding the environment within the boundaries of the federal system. However, here the focus will be on federal environmental legislation.

In the 1970's, federal environmental legislation made significant advances in forging a comprehensive national environmental policy. In 1970, President Nixon signed into law the National Environmental Policy Act (NEPA). NEPA imposed environmental responsibility on all federal agencies and fundamentally changed the manner the federal government conducted its business. NEPA made it a policy for all federal agencies to use all practicable means available to administer programs in the most environmentally sound manner possible. NEPA also created the President's Council on Environmental Quality, with the President's office, responsible for advising the President on environmental issues and ensuring governmental compliance with NEPA. Prior to the NEPA, federal agencies lacked the authority to consider environmental concerns in their decision making even if they wanted to. NEPA ensured that every federal agency had the authority to consider environmental consequences of its actions. NEPA enforced this core requirement by requiring agencies to prepare an Environmental Impact Statement (EIS) in every recommendation or report on proposals for legislation or other major federal action. The EIS was subsequently available to higher level agency officials, other agencies, and the public. Environmentalists brought NEPA challenges against many agencies that tried to construe the law narrowly to resist making the required impact statements. However, federal courts rejected such narrow readings and routinely prevented agencies from acting until they prepared the statements. Also created in 1970 was the Environmental Protection Agency (EPA), the agency that administers environmental laws; self-described as the "guardian" of environmental protection law. The EPA has gone beyond acting as a mere administrator of programs and has taken the lead in developing new statutory and regulatory innovations.

In 1955, Congress began to respond to concerns about air quality by providing technical assistance and financing to the states. In the 1960's, Congress authorized federal agencies to conduct further research and get directly involved in the abatement of interstate pollution, automobile emissions and to supervise and enforce certain state laws. After minimal progress generated by the previous regime, in 1970, Congress passed the Clean Air Act with overwhelming support. The reach of the Clean Air Act was unprecedented and dramatically increased federal authority to regulate pollution. The Act provided national standards for the emission of pollution by directing the EPA to compile a list of hazardous substances and publish final emission standard regulations. The act also mandated rapid and substantial reductions in harmful automobile emissions. The Act required each state to submit a plan to the EPA and implement the plan to meet the minimum national air quality standards. While the Act left the states with primary authority for assuring air quality in their geographic region, it required states to meet the quality standards specified.

In 1972, Congress took action to control pollution in the nation's waterways with the Federal Water Pollution Control Act (FWPCA). Prior to the FWPCA, pollution in interstate or navigable waterways was controlled by reference to state quality standards and was only enforced to prevent imminent health hazards or when a particular discharge reduced water quality below the specified standards. These attempts to control pollution failed because of difficulty in enforcement and problems of proof associated with multiple polluters in the same waterway. The 1972 FWPCA dramatically altered the previous approach. Water pollution presented challenges different from air pollution as experience prior to 1972 had revealed. Accordingly, the FWPCA imposed uniform quality standards that focused on controlling the sources of potential aquatic pollution as opposed to general water quality standards. The Act set aggressive goals of "fishable and swimmable waters" by 1983 and the eradication of pollutant discharges in navigable waters by 1985. The previous standard of overall water quality was replaced with standards that applied to individual limitations on sources of pollution. While the 1972 amendments contemplated that the states would enforce the standards, they also allowed the federal government to directly intervene to enforce the standards. The FWPA was amended and renamed the Clean Water Act in 1977 (Findlay, 2004).

Other major pieces of federal environment laws in the 1970's included: the Federal Insecticide, Fungicide, and Rodenticide Act (1972); the Noise Control Act (1972); Coastal Zone Management Act (1972); Endangered Species Act (1973); the Safe Drinking Water Act (1974); Forest Rangeland Renewable Resources Planning Act (1974); the Federal Coal Leasing Act Amendments (1976); the Toxic Substances Control Act (1976); the Resource Conservation and Recovery Act (1976); the National Forest Management Act (1976); Clean Air Act Amendments (1977); Clean Water Act Amendments (1977); Surface Mining Control and Reclamation Act (1977) and the Outer Continental Shelf Lands Act (1978).

In the 1980's, Congress passed two significant environmental laws that were signed by President Carter in the waning days of his Presidency. The first was the Alaska National Interest Lands Conservation Act (ANILCA). ANILCA was the single most important federal natural resource law ever enacted. The Act set aside, for conservation, a national park larger than California. By doing so, it legitimized federal retention and management of public land in the face of state-rights movement, called the Sagebrush Rebellion and supported by incoming President Reagan, that sought decreased federal land control in favor of state control. The other significant legislation was the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as the "Superfund." CERCLA differed from the laws passed in the 1970's because it was a liability law as opposed to a regulatory law, and imposed monetary liability on those responsible for pollution. The law targeted hazardous waste sites that companies had little incentive to make safe; a prominent example is the Love Canal site in Buffalo, New York, that leeched carcinogens into local schools and homes. The Superfund is financed by a tax, initially imposed on chemical companies but later expanded to corporations in general, and is used to pay for cleanup costs where a solvent responsible party cannot be found. With the passage of CERCLA, environmental contamination went from someone else's problem to everyone's problem and promoted industry to actively pursue production methods to eliminate hazardous waste and take all possible precautions to minimize the chances of any future problems. Congress passed other important environmental legislation including substantial amendments to many of the laws passed in the 1970's. President Reagan was skeptical of the benefits of environmental legislation and concerns about the detrimental economic impact of costs of compliance on the nation's economy, and his administration made efforts to ease the regulatory burden on industry and reduce federal involvement. Despite these executive efforts, with the support of Congress and the judiciary, environmental laws become more far-reaching and a settled part of the legal landscape ingrained in public expectation.

In the 1990's, with some exceptions, significant new environmental legislation and expansive amendments of existing laws largely halted. However, that does not mean that the decade marked a defeat for environmental law; the decade was remarkable for that lack of activity. In a political reversal from previous decades, Congress and the Judiciary became skeptical of environmental law and the Executive branch became its champion. In 1994, Republicans gained control of both the House and the Senate and promoted an agenda called the "Contract with America." The Contract called for reduced government bureaucracy and a stronger economy, but did not overtly address environmental law. When law makers sought to convert their promise into law, significant reductions in the number and enforcement of environmental programs were often included. Although President Clinton had not identified environmental law as a priority during his candidacy, his administration seized on the opportunity to cast Republican efforts as an attempt to sacrifice the public's health in favor of corporate profits. Vice President Al Gore, author of the 1992 book Earth in Balance: Ecology and the Human Spirit and producer of the award winning documentary on global warming titled An Inconvenient Truth, embraced the cause of environmental protection. Thus, the most remarkable event of the 1990's was that the Republican proposals for the curtailment of environmental law were never enacted.

In the 2000s, the George W. Bush administration had an acrimonious relationship with environmental law, attempting to weaken the jurisdiction of the EPA and loosening standards for resource drilling on federal lands, among other activities (Natural Resources Defense Council, 2013). Environmental protection and progressive environmental law were parts of President Barack Obama’s campaign platforms in both 2008 and 2012. He has stated that combating global warming is a top priority, notably ensuring that fuel-efficiency standards for vehicle are heightened, but his overall environmental record has been mixed, the results of which remain to be seen (Roberts, 2011).

Conclusion

During the last three decades of the twentieth century, environmentalists made great strides in developing comprehensive federal environmental protection, and momentum is building to construct an international environmental law framework. The debates of the past still occur. States, who enforce and implement most environmental laws, complain of excessive federal oversight and mandates. Industry complains of the inflexibility of environmental agencies and the lack of concern for the cost of compliance with the laws. Economists argue that environmental law would operate more effectively with economic incentives as opposed to the command-and-control approach that dominates federal law. Command-and-control means that the federal government sets a national standard, a command, which federal or state governments apply to individual polluters through permits or other controls. Environmentalists complain that current law contains loopholes or is not adequately enforced to achieve environmental goals.

Environmental law has become a fixture of society and significant debates will not cease in the near future as the issues of global warming and climate change become front-page news.

Terms & Concepts

Compliance costs: The expense incurred to abide by environmental regulation; varies according the individual requirements and standards of a law.

Ecosystem: A localized group of interdependent organisms together with the environment that they inhabit and depend on.

Environmental Impact Statement (EIS): A statement of the environmental impact that must be included by federal agencies in every recommendation or report on proposals for legislation or other major federal action.

Federalism: The separation of the United States government into dual sovereign governments; federal and state. Each government has different authority to legislate, the federal government has limited and defined powers and the states have undefined general power to legislate for the public welfare.

Tripartite system of government: The U.S. system of government that divides power between three branches of government: the executive, legislative and judiciary

Bibliography

Findlay, R.W., & Farber, D.A. (2004). Environmental law in a nutshell (6th ed.). St. Paul, MN: West Publishing.

Lazarus, R.J. (2004). The making of environmental law. Chicago, Illinois: The University of Chicago Press.

Johnson, S.M. (2004). Economics, equity, and the environment. Washington D.C.: Environmental Law Institute.

Lion, H., Donovan, J.D., & Bedggood, R.E. (2013). Environmental impact assessments from a business perspective: Extending knowledge and guiding business practice. Journal of Business Ethics, 117, 789–805. Retrieved November 19, 2013 from EBSCO online database, Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=91907387&site=ehost-live

Natural Resources Defense Council. (2013). The Bush administration's dirty legacy. Natural Resources Defense Council. Retrieved November 19, 2013 from http://www.nrdc.org/bushrecord/

Roberts, D. (2011). How is Obama's overall record on the environment? Grist. Retrieved November 19, 2013 from http://grist.org/politics/2011-09-15-how-is-obamas-overall-record-on-the-environment/

Suggested Reading

Carey, J. (2007). Lighting a fire under global warming. Business Week, (4030), 33. Retrieved April 24, 2007, from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=24625417&site=ehost-live

Schulte, B. (2007). Climate Change. U.S. News & World Report, 142, 28-30. Retrieved April 24, 2007, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=24660728&site=ehost-live

Simmons, G. (2013). Clearing the air? Information disclosure, systems of power, and the national pollution release inventory. Mcgill Law Journal, 59, 9–48. Retrieved November 19, 2013 from EBSCO online database, Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=91025156&site=ehost-live

States join forces to reduce greenhouse gas emissions. (2007). Business & the Environment with ISO 14000 Updates, 18, 16. Retrieved April 24, 2007, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=24597764&site=ehost-live

Schulte, B. (2007). Is the Endangered Species Act in Danger? U.S. News & World Report, 142, 40-41. Retrieved April 26, 2007, from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=24726902&site=ehost-live

Sponberg, A. (2006). Supreme Court ruling leaves future of Clean Water Act murky. Bioscience, 56, 966-966. Retrieved April 26, 2007, from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=23547680&site=ehost-live