U.S. environmental law

DEFINITION: Federal and state legislation regulating uses of the environment

Although a relatively recent aspect of the American legal landscape, environmental law has come to play a dominant role in the use of natural resources. Environmental legislation is often controversial in the political arena, but there is widespread popular support among Americans for protecting the environment through statutes, regulation, and court cases.

At the origin of the American legal system, no body of laws existed that directly regulated the environment. Over the course of the twentieth century, however, the nation built up a body of state and federal laws designed to conserve, protect, and restore the environment. Several regulatory agencies are entrusted with the authority to administer these laws. Although there is a large body of environmental law in the twenty-first century United States, it is not easy to navigate, as it is divided among federal, state, and even international jurisdictions, is made up of numerous statutes across various legal codes, and is administered in pieces by a host of administrative agencies. For example, the Occupational Safety and Health Act of 1970, which addresses workplace safety issues, has numerous provisions relating to environmental concerns. This law’s provisions are administered by both the Department of Labor and the Environmental Protection Agency (EPA).

Conservation Laws

Sustained environmental legislation in the United States began as efforts to conserve public land. Under early common law, the right to property was considered nearly absolute, even when it included the extravagant consumption of natural resources. The influential eighteenth-century British jurist William Blackstone described the rights of a property owner over his or her land as “sole and despotic.” The only environmental restraint on use of property was direct damage to the property of another person through the law of nuisance or trespass. Although the emphasis among early American settlers was on bringing natural resources quickly into economic use, there was also a sense, dating from the colonial era, that common lands needed to be conserved. For example, a South Carolina statute from 1671 outlawed the poisoning of waterways with impurities. In 1681, William Penn decreed that for every five trees cut down in his Pennsylvania colony, one had to be conserved. The public trust doctrine obligated states to protect tidal shorelines for the common enjoyment of the public.

With the heavy industrialization of the United States during the late nineteenth century, an awareness began to grow that the nation’s natural bounty was becoming endangered. Writers such as Henry David Thoreau and John Muir pointed out the fragile beauty of the land and did much to foster a nascent conservation movement. In 1872, the US Congress established Yellowstone National Park, the first national park, to preserve the land from spoliation. The first federal environmental law is generally considered to be the Rivers and Harbors Act of 1899, which banned of the nation’s waterways. The Burton Act of 1905 limited hydroelectric power drawn from Niagara Falls. In 1916, Congress established the National Park Service. Everglades National Park was created in 1947. The Wilderness Act of 1964 allowed for what would eventually be more than 40.5 million hectares (100 million acres) to be set aside as wilderness areas.

By 2022, the United States had created 423 national parks comprising 85 million acres of conserved land; more than 560 national wildlife refuges were also in existence. In addition, various social and economic legislation passed during the Progressive and New Deal eras had beneficial effects on conservation. For example, the Civilian Conservation Corps was created in 1933 as a New Deal public works program with a focus on the conservation of natural resources.

Environmental Protection Legislation

Although the conservation laws noted above were important for the preservation of federal lands, they were not concerned with protecting the in general. During the 1970s, the environmental movement came of age, so much so that this period is sometimes described as the “environmental decade.” Writers such as Marjorie Stoneman Douglas and Rachel Carson had earlier publicized the plight of endangered habitats; the nation was shocked in 1969 when the polluted Cuyahoga River in Cleveland caught fire. The first Earth Day was held in 1970. The American people had increasingly become aware that something had to be done to protect a decaying environment.

Congress responded by passing the National Environmental Policy Act of 1969 (actually signed into law on January 1, 1970), which established a framework for comprehensive supervision of the environment. Under this framework Congress passed wide-ranging legislation that constitutes the core of US environmental law. In 1970, Congress enacted amendments to the 1963 Clean Air Act that established regulations on emissions from factories and automobiles. The amendments set minimum standards of air quality and required industries to meet those standards by reducing conventional industrial pollutants. (In 1990, the Clean Air Act was again significantly amended to include requirements that would cut of chlorofluorocarbons, or CFCs, and also reduce and acid rain by limiting sulfur dioxide transmissions.) The Clean Water Act (also known as the Federal Water Pollution Control Act Amendments) of 1972 regulates of pollutants and toxic substances into waterways, as well as the filling of wetland areas.

The 1947 Federal Insecticide, Fungicide, and Rodenticide Act was amended in 1972 to regulate the use of pesticides. The Noise Control Act, also signed into law in 1972, addresses excessive noise. Another environment-related law passed in 1972 is the Marine Mammal Protection Act, which protects endangered sea life such as whales, dolphins, sea otters, and seals. Of wider scope was the Endangered Species Act of 1973, which contains provisions aimed at the maintenance of biological diversity and the protection of animal groups in danger of extinction. The Safe Drinking Water Act of 1974 focuses on waters that are the source of drinking water in the United States, mandating basic standards of safety and quality. The Solid Waste Disposal Act and the Resource Conservation and Recovery Act, both enacted in 1976, regulate the treatment and disposal of hazardous wastes. The Toxic Substances Control Act, also passed in 1976, regulates the commercial use and removal of toxic substances such as asbestos, radon, and polychlorinated biphenyls (PCBs).

As important as the laws that were enacted were the administrative agencies entrusted with the laws’ implementation and enforcement. Administrative agencies are a modern phenomenon of the American legal system, created in the twentieth century as governmental entities with a mixture of executive, legislative, and judicial functions. Administrative agencies are delegated the authority to enact regulations implementing congressional legislation, to enforce those regulations, and to adjudicate disputed issues.

The agency that has the most direct oversight of environmental law is the Environmental Protection Agency (EPA), which Congress established in 1970 to consolidate enforcement of various federal laws and duties relating to the environment. The EPA has functions relating to air, water, and noise pollution and to the handling of toxic and substances. It both sets standards and regulations implementing congressional legislation in these areas and enforces these standards with permits, sanctions, lawsuits, and other remedies.

The Department of the Interior oversees the national parks and other vital resources. It plays a crucial role in conserving federal lands, forests, and parks; managing and supplying fresh water; and protecting marine and land wildlife. The Department of Energy runs programs to promote the use of solar energy and the conservation of fossil-fuel resources and to ensure the proper disposal of by-products of energy development, such as radioactive waste. The Department of Agriculture addresses soil issues in forests and on farms. The Council on Environmental Quality, a division of the executive office of the president, is responsible for coordinating governmental responses to environmental issues.

In 2015, President Barack Obama, in an effort to follow through on his administration's goals to address climate change despite opposition from Congress, established a new rule, known as the Clean Power Plan, that, under the authority provided by the Clean Air Act, allowed the EPA to set new regulation standards on carbon emissions produced by the nation's power plants. The plan, which gave each state goals for reducing emissions, aimed to lower carbon emissions from these plants by 32 percent from 2005 levels by 2030 and was set to take effect in 2022. However, several states contested the rule as illegal and filed lawsuits; additionally, in the fall of 2017, the administration of Donald Trump announced it was actively working to repeal the plan. (By 2021, the Trump administration had repealed or rolled back over one hundred climate policies that the administration viewed as an impediment to business.) Then, in West Virginia v. Environmental Protection Agency (2022), the Supreme Court found sections of the Clean Power Plan to be unenforceable as the EPA did not have the authority to regulate emissions in existing power plants by mandating fuel source changes to cleaner alternatives. It did, however, rule that the EPA could regulate the emissions of existing power plants through emission reduction technologies. Building off the framework of the Clean Power Plan, President Joe Biden signed into law the Inflation Reduction Act of 2022 in August of that year. The act, which allocated more than $390 billion to fight climate change, served as the largest investment made by the US government against climate change in history.

The EPA's ability to set standards was hampered in 2024 when the US Supreme Court granted a temporary hold to a rule to reduce air pollution that crosses state lines. The rule was primarily aimed at reducing ground-level ozone, which can pose a health risk to many individuals. Representatives of heavy industry and mining were pleased with the court's decision to put the rule on hold while the challenge by Indiana, Ohio, and West Virginia proceeded in the lower courts. The eleven states where it was already enacted saw a collective 18 percent reduction in nitrogen oxide, the gas that helps to make smog, in 2023. The 2024 ruling followed Supreme Court rulings that halted the EPA's efforts to develop plans to reduce pollution from coal-fired power plants and to protect water.

Restoration, Cleanup, and Litigation

The environmental laws enacted in the 1970s focus on protecting the environment from future harm. Once these laws were in place, legislators turned to the question of repairing and restoring damage that had already been done. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) created a mechanism (a Superfund) to fund the cleanup of certain environmental disasters—toxic sites that had been caused by waste products. By 1992, more than twelve hundred toxic sites were being cleaned up under Superfund supervision. In addition, CERCLA allows for criminal liability in certain circumstances, in addition to civil penalties.

In 1989, the Exxon Valdez oil tanker spilled 11 million gallons of oil onto Prince William Sound off the coast of Alaska. Litigation in the case of Exxon v. Baker over the extent of Exxon’s liability, including punitive damages, went on for two decades. In response to the spill, Congress enacted the Oil Pollution Act of 1990.

Most US environmental statutes have specific clauses allowing private citizens and entities to sue for environmental harms. Many of the legal debates surrounding these clauses have involved the concept of standing—that is, who has the right to sue. Standing is a traditional legal concept that indicates which persons have suffered sufficient direct harm such that they can become plaintiffs. A major case involving standing was Massachusetts v. Environmental Protection Agency (2007), in which the US Supreme Court permitted a coalition of environmental groups and state attorneys general to bring a lawsuit compelling the EPA to determine whether carbon dioxide emissions are an under the Clean Air Act.

Perhaps the paradigm environment-related litigation is that concerning asbestos. Hundreds of thousand of Americans are estimated to have contracted asbestos-related cancers. Although there is no question that the nation owes relief to these victims, the long-running litigation has been criticized. For example, the Manhattan Institute’s Center for Legal Policy asserted in a 2003 report that massive asbestos tort litigation was more suited to enriching lawyers than to compensating victims. The Manhattan Institute estimated that of the $70 billion paid out by companies for asbestos claims, $40 billion had gone to lawyers. Companies were driven into bankruptcy by asbestos lawsuits, some of which had little connection to the original asbestos exposure.

Some commentators continue to express fears that widespread environmental lawsuits and mass tort litigation are a boon to lawyers but costly for everybody else. Another lively debate concerns whether governmental supervision of polluters should consist of mandated design and performance standards or market-based incentives.

State and International Laws

The individual US states have environmental laws that run parallel to federal mandates, and the interaction between federal and state laws is complex. Federal environmental laws have priority, but under most federal environmental legislation, state authorities are delegated the power to supervise environmental standards. In other words, even though federal legislation may set the guidelines, state agencies run the programs. For example, the EPA sets recommended standards for water quality under the Clean Water Act, but the states enact specific standards for their localities. In the absence of federal legislation addressing emissions, numerous states, California in particular, have passed legislation to restrict such emissions. One of the most significant pieces of interstate environmental legislation is the Great Lakes Compact, a legal agreement among eight states that details the use and management of the Great Lakes water supply.

Environmental law in the United States can also be affected by international agreements, especially as environmental problems are of an increasingly global dimension. The best-known examples are agreements regarding greenhouse gases. The 1992 United Nations Framework Convention on Climate Change, a major international effort to reduce greenhouse gas emissions, was followed by a comprehensive extension, the Kyoto Protocol, which took full effect in 2005. The Kyoto Protocol made binding on signatory nations many previously agreed-upon reductions in greenhouse gas emissions; the United States, however, is not a signatory to the protocol. Three international agreements have influenced US legislation regarding depletion of the earth’s ozone layer: the Vienna Convention for the Protection of the Ozone Layer (1985), the Montreal Protocol on Substances That Deplete the Ozone Layer (1987), and the London Amendment to the Montreal Protocol (1990).

In December 2015, as part of a United Nations effort, 195 countries, including the United States, approved the Paris Agreement, an international accord that, unlike the Kyoto Protocol, demands involvement from all countries, including both the developed and the developing. By September 2016, the United States had formally signed the deal, which aimed to reduce greenhouse gas emissions enough to prevent the temperature of the atmosphere from increasing by 3.6 degrees Fahrenheit. However, by August 2017, the Trump administration had officially notified the United Nations that the United States would be withdrawing from the agreement, which was ultimately effective in 2020. Then, during his first day in office in January 2021, President Biden implemented measures to allow the US to rejoin the Paris Agreement, which it did shortly thereafter.

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