Introduction
The term "environmental law" describes the many statutes, regulations, and court cases that deal with regulating and protecting the environment and the public health. To say that the majority of environmental laws and regulations are long and complex is an understatement. Even to attorneys who practice in arcane and thick areas as tax law and patent law, environmental law is a bewildering morass. Both taxes and toxic substances affect every person and every business regularly. Yet, for most people and companies, they will know much more about tax law than they will about hazardous waste law.
The complication and discombobulation embedded in environmental law is much of what makes it so inaccessible to most people, and this inability to grasp what goes on in environmental law makes it difficult for both people and corporations to combat the things that are degrading our environment. An understanding of the basics of environmental laws and regulations can help one to bridge the chasm between what people want from society and what may be possible to achieve. Although even a basic text on environmental law will of necessity embody some complexity, every attempt has been made to make this book as understandable as possible to the layperson and non-lawyer. For the corporate executive, plant manager or compliance officer, knowledge of the essentials of environmental law can help them spot potential problems and hopefully avoid them. Attorneys who do not regularly practice in the area of environmental law can also benefit from a primer on this area so that they can properly recognize environmental problems and steer their clients in the right direction.
When approaching any environmental law matter, it is important to remember several things: (1) virtually every possible environmental problem or situation is addressed in some manner by both federal and state statutes and regulations; (2) most environmental laws generally address one area of the environment, such as water pollution comes under the Clean Water Act and air pollution comes under the Clean AirAct, and (3) despite the general rule in (2), every problem may come under more than one statute, so one must look beyond the obvious. As an example, Big A Chemical Corporation produces a substance that results in a toxic by-product; most of that by-product is collected in the manufacturing process, but some of it ends up in the air emissions and the water discharges of the plant. At first glance, the situation with the toxic by-product appears to come under the federal law dealing with hazardous waste, the Resource Conservation and Recovery Act (RCRA). Under RCRA, wastes that meet its definition of "hazardous" must be disposed of in an approved manner. What about the same substance in the air and water coming from the plant? The air emissions are regulated under the Clean Air Act if it is one of the 189 toxic air pollutants that come under that statute. The water discharges are regulated under the Clean Water Act, and the plant must obtain a discharge permit that will set limits on how much of the substance can be discharged into the river. Also, the plant's officer responsible for environmental compliance would be smart to check on whether that by-product has contaminated the soil and groundwater of the facility; if so, the plant may have liability for cleaning up the land under the "Superfund" statute, the Comprehensive Environmental Response, Clean-up and Liability Act. If any of substance that has been released to the air, water or land impacts a rare species that has been listed as threatened or endangered, then the plant could also have potential Endangered Species Act liability and responsibilities. Thus, although we are dealing with one facility and just one chemical substance released by that facility, a variety of federal environmental laws are involved. Further, most states havetheir own laws that generally correspond to the federal statutory scheme, and this facility will also have to address its problems in terms of what the state requires in addition to the federal agencies. Even with a simple example, the complexity of environmental law becomes readily apparent.
The main foundation for all environmental law is the huge body of statutes written by Congress and state legislatures. Federal environmental statutes cover a wide range of subjects, but most of those statutes need regulatory agencies to implement them. Thus, although a statute will provide the basis for legal protection, regulations that implement that statute must be promulgated by the regulatory agency that has been given duties under that statute. For example, the Clean Air Act calls for air quality standards that set limits on how much of a pollutant can legally be in the air; the U.S. Environmental Protection Agency (EPA) is given the responsibility for enforcing the Clean Air Act, and the EPA sets air quality standards for each part of the country and for different pollutants through regulations. Large portions of environmental law are statutes and regulations that implement those statutes. This is also true for state environmental law.
Added to those statutes and regulations are the court cases that interpret them. Congress passes an environmental statute; the EPA issues regulations under that statute, and when a controversy arises, the federal courts interpret the legality of both the statute, the regulations and the implementation of both. Together, those three things -- statutes, regulations and court opinions -- make up the vast majority of what is called "environmental law."
The basic structure and scheme of federal environmental statutory law was set out in the late 1960's and early 1970's in response to growing public awareness that pollution was becoming a major problem. The laws enacted at that time to control pollution (Clean Water Act, Clean Air Act, etc.) had the stated aim of ending pollution entirely, but they made significant progress only towards reducing obvious and "easy" sources of pollution such as raw sewage discharged into rivers and smoke and soot discharged into the air.
However, the initial goal of the elimination of all pollution has been all but abandoned in the two decades since; completely eradicating conventional pollutants has been difficult from technological and political standpoints, and even beginning to get a handle on the more elusive and subtle toxic pollutants has been nearly impossible. Regulation of pollution has reached most of its effective limits, and new approaches to resolving environmental problems will be necessary if further significant progress is to be made.
This chapter will give a brief history into the background of environmental law in the United States. Then there will be an overview of the scope of this book.
A.A Brief History of Statutory Development
Until the current statutory scheme was enacted, federal environment laws had virtually no enforcement authority and no mechanisms to do anything about pollution other than to do rudimentary studies of it. While some of the basic structure of our current statutes were solidified in early acts, the enforcement authority currently in place is a recent phenomenon.
Initially, control of pollution came about through the courts in the form of trespass and nuisance law. As an example, in the first time that Georgia v. Tennessee Copper Co. was before the United States Supreme Court in 1907, Justice Oliver Wendell Holmes used a mixture of an air quality based approach and a technology forcing approach to give the defendants a reasonable amount of time to add to their treatment systems. At issue was the air pollution from smelters emitting sulphurous acid gas in Tennessee drifting into Georgia and causing damage. The second time the case went before the Court, it was obvious that the situation was not being remedied; the majority of the Court's frustration was obvious in the opinion as they set out specific emission limits without regard to the technological feasibility of what they were ordering thedefendant to do. Nonetheless, in New York v. New Jersey where a new sewage discharge from New Jersey was being proposed, the Supreme Court used a technological feasibility approach that based New Jersey's sewage treatment obligations on New York's planned technology and on New Jersey's agreement with the U.S. government to use certain technologies. Basically, because New York was planning on using a certain level of technology in water pollution control, the Court declined to enjoin New Jersey and require it to do more than New York was doing.
In Renken v. Harvey Aluminum, (Inc.), the issue was over a continuing trespass as a nuisance due to fluorine escaping from an aluminum reduction plant. There, the district court decided on a technology-based approach to control the source of the pollution; in other words, the court looked at what technology was available and ordered that it be used. Boomer v. Atlantic Cement Co., was another nuisance law case involving a cement plant, but the court refused to order the use of specific control technology for economic reasons. The New York Court of Appeals decided that a technology-based cost-benefit analysis was appropriate to determine what amount of pollution control should be implemented, and in lieu of ending the damage caused by the pollution, the court ordered the polluter to pay monetary damages to the neighboring land owners. Judge Jasen's dissent in Boomer set out a scheme of "technology forcing;" his was an environmental quality approach that would dictate that pollution must be brought down to a certain level within a certain time period regardless of the current technological feasibility or cost of doing so, thus forcing the development of technology to match the problem.
Overall, however, the federal and state courts were reluctant to delve deeply into the area of pollution control through judicial decree, because the judges felt that thescientific complexity of such cases could be handled better by some kind of administrative agency with expertise in the area. This was the rationale for the majority in Boomer. However, since the Congress and the state legislatures were slow in setting up such agencies, the courts did what they could on a case-by-case basis. Further, the indecision of the courts on whether to use a technology-based approach or a environmental quality approach would also infect Congress in the development of the various pollution control laws.
Legislation to control pollution took a course of slow evolution that had little impact on environment degradation until the current scheme was enacted. The Refuse Act of 1899 was one of the earliest environmental laws involving water pollution, but its concern was with navigation, and thus, if pollution did not interfere with navigation, it was not addressed. The 1948 Water Pollution Control Act dealt with only interstate waters, and it had a difficult plan for enforcement that was an unwieldy extension of common law nuisance that allowed the federal government to file a nuisance action. By the time of the 1956 amendments, only one enforcement action had ever been brought. In 1965 water quality standards for interstate waters were set forth, but they did little more than aid in proof of damage, if a case was ever brought, which was extremely rare.
In air pollution control, the 1955 Air Pollution Act provided little more than study for air quality standards and criteria, and although the 1963 Clean Air Act did beginto attempt control of air pollution, it addressed only interstate pollution. However, it did set up air quality criteria that would be carried over into the more recent amendments. The 1967 Air Quality Standards Act set out the modern scheme of having air quality control regions, air quality criteria with no concern for technological feasibility, air quality standards with some technology-based considerations, and implementation plans to be set up by the states where the states could determine the recommended control technology necessary to meet the standards.
When it adopted the Clean Air Act in 1970, Congress opted for an environmental quality approach; the Clean Air Act called for the EPA to set air quality standards for a few pollutants and to have industries limit their discharges such that the air met those standards regardless of what level of technology was needed to achieve that goal. However, when creating the modern Clean Water Act, adopted in 1972, Congress took a technology-based approach in that the Clean Water Act mandates that dischargers of water pollution use a certain level of available technology to control that pollution. In terms of limiting pollution, the technology-based Clean Water Act proved to be somewhat more successful than the environmental quality approach in the Clean Air Act. In 1990, when the Clean Air Act was substantially amended, Congress changed it to more of a technology-based approach like the Clean Water Act. It is likely that the change was not due to the idea that a technology-based approach may be generally more effective; it is more likely that the Clean Water Act has been more effective because water pollution is more easily handled (water is more easily contained and studied than the atmosphere) and because the Clean Water Act regulated all water pollutants and the Clean Air Act regulated only a handful of air pollutants.
In reality, this quandary over whether to use available technology or a set environmental quality standards as the basis for regulating pollution has been frustrating on both sides, because both approaches have failed to come close to eliminatingpollution. As the rest of this book will show, each law that deals with a different area of the environment will use different approaches to handle the various problems involved; however, technology-based and environmental quality based approaches will be the main thrust behind other regulatory alternatives used. It will become clear that these statutes and regulations have been primarily involved in regulating environmental problems; other methods of dealing with these problems, such as market-based solutions, tax incentives and criminal sanctions, have not generally been attempted. Due to the very limited progress that the regulatory approach is now achieving and to the increasing expense involved in further regulations, alternative methods of solving environmental problems may be needed if any further significant progress is to be made.
B.The Scope of this Book
This book will cover the basic requirements of the major federal environmental and related health and safety statutes and regulations. These laws can be roughly divided into categories of laws that limit and control government actions that impact the environment, statutes that limit private industry actions, land use and natural resources laws, and wildlife laws. Then, state laws and regulations will be covered along with how they parallel, implement and expand on what the federal laws require. Enforcement by the federal and state governments and by private parties, such as environmental groups, will then be covered. Despite the vast variety of laws and the differences between them in how they approach the problems they are supposed to handle, there are certain underlying principles of most environmental laws that can be discovered; understanding those essentials can help one understand any of these laws even if it is one that you have not dealt with before. The Freedom of Information Act and how individuals, organizations and industry can use it in environmental law matters will be examined. Finally, this book will make general suggestions and give ideas on how one can identify potential environmental law problems and how to resolve them in as effective and efficient manner as is possible.
This book is not intended to provide complete and definitive information on anyparticular statute, regulation or area of environmental law; it is designed to give the reader a basic understanding of how these environmental laws function and what the main provisions of the discussed laws are. For more information on the various statutes reviewed in this book, consult the following books available from Government Institutes, Inc.: Environmental Law Handbook for details on pollution and public health laws and Natural Resources Law Handbook for more specifics on wildlife and natural resource statutes. For the reader who desires in-depth and comprehensive coverage of a specific statute or area of environmental law, Government Institutes publishes a complete catalog of over 150 books and videotapes dealing with the various environmental laws in detail, such as Clean Air Handbook, Clean Water Handbook, Endangered Species Act Handbook (also by the Author), and a series of books devoted to the environmental laws of each state. While some of these books deal with a statute or area of environmental law, some are so specific as to handle a singular field of compliance, such as Corrective Action Response Guide for Leaking Underground Storage Tanks and Direct Purchase of Natural Gas by End Users. Whether one's need is for general or highly specific environmental law information, Government Institutes' covers the gamut. Government Institutes also provides a complete series of courses for those wishing to study various areas of environmental law from those experts and attorneys who deal with those statutes and regulations in their business.
Basics of Federal Statutes that Limit
Government Actions
Each of our individual environmental laws are generally designed to address a single subject matter: the Clean Water Act for water pollution, the Clean Air Act for air pollution, the Resource Conservation and Recovery Act for hazardous wastes, the Endangered Species Act for rare species, and so on. All of these statutes have underlying presumptions about how they will operate; some are based upon an environmental quality viewpoint, which means that they are designed to achieve a certain, desired level of cleanliness in the area of the environment that that law covers. Some of the statutes are based more on a technological achievability viewpoint; they seek to require pollution reduction to the point that certain technology can bring it, regardless of whether that technology is sufficient to achieve the goal of a desired level of pollution reduction.
A.National Environmental Policy Act
The National Environmental Policy Act (NEPA) is perhaps the shortest, and yet one of the most profound, of all the federal environmental statutes. This small act's purpose was to require all federal agencies to consider the environmental consequences of major federal actions; it is aimed at the federal government and not at individuals or the states. NEPA directs that all federal agencies must include in all "major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed project ...." This requirement is the genesis of what is commonly known as the environmental impactstatement (EIS), and the cases that deal with whether a federal agency must prepare an EIS on a particular project are legion. The idea of NEPA was to require that certain procedural steps be taken by an agency prior to the initiation of any project to assure that the decision maker and the public would be apprised of the environmental consequences of the project. NEPA puts the environment on equal footing with other factors government officials must consider, such as economics, defense needs, etc. The Supreme Court has held that NEPA is strictly procedural in nature, which means that NEPA requires only that an agency have a method for looking at the environmental consequences of any action. NEPA requires agencies to consider the environmental impacts of their decisions, but it does not mandate that the agency execute the most environmentally correct decision. NEPA requires an agency to take a hard look at environmental impacts, but that agency can still decide to take the most destructive course of action if it wants. There is no requirement in NEPA that the agency bias its decision in favor of protection of public health and the environment.
NEPA and the regulations adopted thereunder by the Council on Environmental Quality (CEQ) are binding on all federal agencies, and the CEQ regulations require that on every federal project an environmental assessment (EA) must be performed. The main purpose of the EA is to determine whether an EIS needs to be done; if, as a result of the EA, the agency finds that there is no "significant" environmental impact, then the agency issues a Finding Of No Significant Impact (FONSI) and continues on with the project without doing an EIS, which can often take years to do. The issue over what is "significant" has been heavily litigated, and if an agency issues a FONSI as the result of its EA, then they are guaranteed that any opponents to the project will argue that the FONSI was incorrect and that an EIS must be prepared prior to continuing.
The other major issues in NEPA litigation are whether the particular action in question is "a major federal action" and whether the EIS is adequate in its coverage of the elements required by NEPA. Additional information and more details on NEPA canbe found in NEPA Compliance Manual, published by Government Institutes.
B.Safe Drinking Water Act
Drinking water for those people who do not have their own well is usually provided by municipal governments or water supply authorities set up under state laws that provide for such entities. The Safe Drinking Water Act sets up a mechanism for the EPA to promulgate drinking water regulations and standards for the public water supply systems in the nation. It also provides some degree of protection to underground sources of drinking water from underground injection of brine and other waste fluids. The EPA sets a maximum contaminant level which is supposed to represent an ideal "zero risk" level and an enforceable maximum contaminant level which is the level as close to the ideal level that available technology and financial costs can currently achieve. EPA's promulgated maximum allowable contaminant levels is for certain inorganic and organic chemicals in drinking water, and EPA also has promulgated a list of chemicals now prohibited from disposal through underground injection.
As part of supplying drinking water, a public water supply system must test its water for the contaminants regulated under the Safe Drinking Water Act; depending on the size of the system, many of the contaminants will not be tested for except on rare occasions. For example, under the latest EPA regulations, a city which gets its drinking water from surface water must test its drinking water for such things as barium, cadmium, chromium, and mercury only once a year, and after three years, the city can request a waiver that will allow the city to forgo sampling for those contaminants for up to nine years.
Like many other environmental laws, the Safe Drinking Water act has not worked as it should. In 1993, 370,000 people in Milwaukee got sick from drinking the water from their taps, water that was legally supposed to be "safe." A number of those peopledied. The cause of the Milwaukee contamination was an intestinal parasite, Cryptosporidium, which the EPA had set no standard for and did not require water treatment facilities to test for. A study has found that, from 1991 through 1992, the EPA tracked over 300,000 violations of the Safe Drinking Water Act, and these violations affected over 100,000,000 people, 40 percent of the nation, but the EPA penalized just one percent of those violations. According to data from the Centers for Disease Control, contamination of the nation's drinking water is high enough that approximately 980,000 people per year get sick and up to 900 may die from drinking the supposedly safe water supplied to them.
The Safe Drinking Water Act is up for reauthorization in 1994. A bill backed by the Clinton Administration and a different bill supported by the water supply industry would both weaken the current law somewhat. Small water systems have difficulty meeting current EPA standards, because those standards are set for water systems serving one million people, and the technology that a large system can afford may be beyond the reach of the smaller systems. The Administration bill would retain the current standards approach but would require the EPA to regulate only those contaminants posing the most risk to public safety. The rival bill would require the EPA to set different standards for smaller water supply systems based upon the best technologies affordable to those systems; it would also change monitoring requirements so that systems would only have to monitor for contaminants that are most likely to occur in each system. Regardless of which bill triumphs, it appears certain that the Safe Drinking Water Act will undergo changes during the 1994 reauthorization.
C.Federal Facility Compliance Act of 1992
Under most environmental laws that regulate pollution, a state agency can receive the authority from the federal agency (usually the EPA) to run the federal permitting andenforcement program under a particular statute if that state has laws and regulations with at least equivalent power to the federal program. Thus, if a state water pollution statute is as strong as the Clean Water Act, the EPA can give the state environmental agency primacy to run the water pollution control program for that state. Under primacy, a facility wanting to discharge a pollutant into water need not go to both the state and the EPA for permits; it can go to just the state and meet all state and federal obligations at one time. Such a situation is designed to ensure compliance with federal mandates while giving industry the cost savings and convenience of dealing with local authorities.
A problem arose when states tried to enforce environmental regulations against facilities owned by the federal government. The federal agency would claim sovereign immunity and thus prevent the state from enforcing both state and federal environmental laws against it. In United States Dept. of Energy v. Ohio, the Supreme Court held that states could not fine federal agencies for environmental damage caused by those agencies. Under the various environmental statutes, a state can sue a polluter for fines and for damages when that polluter violates those statutes. A company that violates its water pollution discharge permit can be sued and fined by the state. But, under this ruling, the state was powerless if the violator happened to be a federal agency. Sovereign immunity prevents states from making the federal government protect the environment; even though, Congress said in the various laws that states could do so.
Particularly in regards to hazardous waste handling and disposal, it was learned in the late 1980s and early 1990s that many federal facilities had been extremely careless and sloppy about how they handled their pollution. In order to make federal facilities more accountable and to make it clear that states could enforce the environmental laws against federal facilities, Congress passed the Federal Facility Compliance Act of 1992, which amended portions of the Solid Waste Disposal Act, the statute that regulateshazardous waste and garbage. The key provision of the Federal Facility Compliance Act makes each department, agency and instrumentality of the federal government that deals with hazardous and solid waste disposal or management subject to all substantive and procedural requirements of federal, state and local governments just like anyone else would be. This section makes federal facilities subject to state and local permitting requirements, reporting requirements, administrative orders, injunctive relief, and penalty assessments; basically, this statute expressly waives the United States sovereign immunity for facilities handling or disposing of hazardous waste and garbage. The President is authorized to grant one-year exemptions to any federal facility from this statute's requirements but only if he determines that such an exemption is in the "paramount interest of the United States." If a state collects penalties or fines from a federal agency, this statute mandates that such moneys can be used "only for projects designed to improve or protect the environment or to defray the costs of environmental protection or enforcement."
D.Other General Statutes
There are a great number of statutes that limit what the federal government can do in regards to the environment. Even those statutes that are primarily aimed at regulating private interests can impact the federal government. Agencies that discharge water pollution must get a permit just like a private factory discharging pollution must. Some sections of regulatory environmental laws are also aimed at restricting government. The Endangered Species Act prevents private parties from killing rare species, but it also commands all federal agencies to do everything possible during the normal course of their operations to protect those species.
When looking at what laws limit federal government action or which set specific mandates for government agencies, one must keep in mind that general environmental procedural obligations will be found in NEPA and that specific procedural and substantive obligations may be found in sections of any number of other statutes. As with any other environmental problem or situation, one must look to those laws that address a specific area (Clean Water Act for water, Clean Air Act for air, etc.), and one must look for possible coverage of a situation by other laws (such as the Endangered Species Act impacting on a situation regardless of the main area of concern).
Basics of Federal Statutes that Limit
Private Industry Actions
The other major prong of federal environmental statutes involves the numerous laws enacted to allow the government to regulate polluters and to control how individuals and corporations impact the environment. These are the laws that most often affect corporations directly, although they can sometimes have regulatory effects on government agencies as well. They include such statutes as the Clean Water Act, the Clean Air Act, the Solid Waste Disposal Act, Superfund, and a host of others.
A.Clean Water Act
The Clean Water Act (CWA), sometimes also known as the Federal Water Pollution Control Act (FWPCA), was adopted in its modern form in 1972 and originally had a goal of the total elimination of pollution for the waterways of the nation. This goal has been abandoned; it has become obvious that the cost of totally eliminating pollution from water is more than industry and government is willing to pay and that something less than pollution-free water can still meet the basic industrial needs of American society. Drinking water is provided through expensive water treatment systems, and these systems can handle polluted water so long as the water is not too polluted. Therefore, it makes no sense to industry and to municipal sewage treatment systems to clean up their discharge completely when the downstream users of the water have the capacity to clean up the polluted water to drinking water level standards.
The Clean Water Act is primarily a technology-based approach to regulating pollution. Water quality standards and criteria are required by the CWA; theoretically, those environmental quality criteria are to be used to set the limits on how much pollution someone can discharge into a particular water body. However, the actualnumbers that a polluter must live by are set by determining the best available technology for treating that particular kind of waste stream. Polluters must obtain a National Pollution Discharge Elimination System (NPDES) permit before they can discharge pollutants into water, and that permit will contain limits on how much of each particular pollutant can be discharged. Even the name of the permit system is now a misnomer, as the goal of eliminating pollution discharges is no longer pursued. Since these permits are granted to new sources of pollution and can grant increased permit levels to old sources of pollution, NPDES permits do not work to eliminate pollution, as their name implies. The permit holder must monitor his discharge and report the monitoring results to the federal and state environmental agencies. Complying with the permit limits often satisfies the polluter's obligations under the Clean Water Act as far as the regulatory agencies are concerned, even if that permitted discharge causes damage to the receiving waterway.
If water quality standards are not met in the receiving water body, then the Act requires that permit limits be made more stringent regardless of the technological feasibility of doing so. Thus, if a permitted discharge still causes water quality damage, it is the duty of the regulatory agencies involved to impose stricter limits on the discharge. This added environmental quality requirement has rarely been imposed. Any discharge beyond the limits of the permit is illegal and the CWA provides for civil and criminal penalties for violations of permits or of other provisions of the statute.
Emphasizing a technology-based approach to water pollution control, the CWA requires the use of the best available technology for the treatment of pollution before it is discharged into water; the Environmental Protection Agency determines what is best available technology for each type of industry. "Best available technology" does not mean literally the best gizmos in the world; it means the best technology economically achievable. Thus, the cost to industry is considered, and polluters are required to have only the best technology that their type of industry can generally afford. Determining what is the best available technology for particular pollutants discharged by particular industries, the EPA issues effluent guidelines based upon those determinations oftechnology. By the middle of 1991, the EPA had issued 51 categorical effluent guidelines for various industries, of which 35 of the guidelines are for toxic pollutants, and the EPA plans to issue nine more new effluent guidelines by 1996. Members of the House Government Operations Subcommittee on Environment, Energy, and Natural Resources called this rate of guideline issuance inadequate.
Water quality standards under the CWA are set by each state for each water body and for each type of pollutant, and although the EPA sets out recommended water quality standards, the states may follow, increase or decrease what the EPA standard says. Generally, most states adopt the EPA-recommended standard for most pollutants, but all state water quality standards must get approval from the EPA. Only if a state refuses to set a specific water quality standard does the EPA have the power to adopt a standard for that state and the pollutant and waterway involved. These water quality standards are theoretically the maximum amount of each pollutant that society is willing to accept in a water body to meet our human requirements of how clean we want the water to be. The CWA states that all waterways in the country should have a high enough quality to be safe for fishing and swimming. These water quality standards are theoretically applied to setting permit limits; the best available technology chosen is supposed to allow the pollutants discharged to still be at a level in the waterway below the water quality standard. If the water body still does not meet water quality standards, the CWA provides that the permits limits are to be tightened even if there is no technology available at all to reduce the pollution further. In such a situation, the offending industry is supposed to simply stop discharging, and possibly go out of business; this scenario is so offensive to government and business that it has almost never been enforced. In a situation where no amount of technology will allow water quality standards to be met or such technology is deemed too costly, the government's preferred plan of action is often to loosen the water quality standards or to reclassify the waterway involved to a lower designation that has less stringent water quality standards.
In Alabama, for an example, there are several waterways classified at levels below what the federal government allows, with correspondingly lower water quality standards, but the state environmental agency refuses to upgrade those streams in order to accommodate the industries that are causing the pollution on those waterways. A prime example is the Mobile River. From its mouth at Mobile Bay to a point up in the Mobile/Tensaw Rivers Delta, a rich, biologically-diverse swamp, the Mobile River and a number of its tributaries are classified at a level below the minimum level necessary to protect fish and wildlife and to make the waters safe for fishing and swimming. The reason why is that those waterways have numerous paper mills and other industrial plants along their banks, and having a low water quality level for those waters makes the permit limits for those industries less stringent. The EPA protests this situation but does nothing substantive to stop it. Thus, despite the requirements of the best available technology and of adequate water quality standards, water will still be allowed to be polluted below acceptable levels to accommodate business interests. The Mobile River has become so polluted that the EPA has designated the upper portion of it as a Superfund toxic waste site in 1993.
Further, the EPA and the various state environmental agencies do not even know what the water quality is in most of the water bodies in this country; they simply have never checked. According to the General Accounting Office, out of the approximately 1.8 million river miles in the United States, the EPA and the states have studied or assessed the water quality in only 29 percent, and only 41 percent of the 39.5 million acres of lakes have had their water quality studied. Out of the waterways that have been assessed, 18,770 waters have been identified as "impaired" under the CWA, and only three percent of those impaired waters are scheduled for more stringent controls or for cleanup.
Why have so few impaired waters been targeted for cleanup? When a water bodyis identified as "impaired" by not meeting water quality standards for toxic pollutants, under section 304(l) of the CWA, the states must develop "individual control strategies" for each industry that discharges any toxic pollutant that is causing the impairment. These additional control strategies would be a major financial burden to the industries involved, so government is reluctant to enforce this requirement of the CWA. Indeed, rather than impose new, stricter requirements on industry under the CWA, states have loosened their water quality standards for the toxic pollutants in question such that the water bodies in question no longer meet the definition of "impaired." The solution is to loosen standards until the current levels of toxic pollution in the waterway are below the looser standards instead of requiring industry to clean up their discharges until the levels are within the more stringent water quality standards. In Alabama, South Carolina, Tennessee, Georgia, Mississippi, Virginia and Maryland, if the state environmental agencies in 1991 and 1992 had adopted the EPA-recommended water quality standard for dioxin, several waterways below paper mills that discharged dioxin would have not met the standard and would have been considered "impaired" under the CWA. But, by adopting dioxin standards up to 92 times higher than the federally-recommended one, those states insured that none of those water bodies would meet the legal definition of "impaired," because the amount of dioxin in the waterways was below the less stringent standards. The paper industry was instantly spared hundreds-of-millions of dollars in additional pollution control costs. The Bush Administration EPA approved the adoption of these much less stringent standards due to immense political pressure from the paper industry. The CWA and the standards adopted under it can be manipulated into allowing higher levels of pollution by simply redefining what level of pollution is acceptable in a particular water body.
The goal of the Clean Water Act, as amended, was to eliminate water pollution by 1985; all government entities involved have abandoned this goal and continue to tolerate an "acceptable" level of water pollution. The Clean Water Act has shown that relying on a technology-based approach to controlling pollution will allow only a certain level of success beyond which there is no incentive to improve due to the costs involvedin developing new technology. Lax enforcement of water quality standards on both the federal and state levels has meant that there is little additional incentive to force the development of better technology. Many discharges of toxic pollutants are still not even regulated today, more than 22 years after passage of the CWA. A recent General Accounting Office report found that the majority of industrial chemical pollutants being discharged into the nation's waters are not being regulated under the CWA and are not being controlled by NPDES permits. The GAO's survey of 236 chemical, drug and paper manufacturing plants found that 77 percent of the toxic pollutants discharged by those facilities were not listed on their NPDES permits and were thus being discharged without any regulations whatsoever. One federal court has held that citizens may not sue a company for discharging pollutants not in its NPDES permit as long as that company still complies with EPA reporting requirements, and the court noted that the EPA does not require that facilities report discharge information on many pollutants.
Also, the buildup of toxic pollutants in the environment continues even when the amounts of some of the chemicals discharged are reduced. Many of these toxic compounds simply do not go away so that even smaller discharges of them still have a major impact on the environment, because the environment already has a significant burden of those chemicals. Despite two decades of pollution regulations under the CWA in the Great Lakes, the situation there remains critical. In a recent report, the General Accounting Office found that 84 percent of 583 large facilities that discharge into the Great Lakes violated their NPDES permit limits between October 1989 and March 1991; 51 of those facilities were in significant non-compliance with the CWA, but the EPA took action against only 24. The long-term buildup of toxics in the Great Lakes hasdetrimental impacts on wildlife despite the fact that the levels of those chemicals are below those levels believed to cause cancer in humans. In many instances, adult birds are healthy, but due to the increased impact of toxic chemicals on embryos and young birds, the birds are having difficulty reproducing or are producing inferior offspring. Even though the burning oil slicks and the raw sewage of the Great Lakes in the 1960s are mostly gone, the persistent toxic pollution which has been so under-regulated is still working to kill many of the species native to the Great Lakes. In regulation of toxic water pollutants, the idea in government seems to be to limit the level of the pollution to below the level that is thought to cause cancer in humans, and everything is okay. Nature is showing us that our keeping pollution levels low enough theoretically to prevent cancer in us is still not low enough to prevent destruction of wildlife and the ecosystems exposed to those chemicals.
Further, keeping pollution levels low enough to prevent cancer in humans still does not keep them low enough to prevent birth defects, learning disabilities, diminished sexual capacity, and retarded growth. Because many toxic pollutants are often bioaccumulative, they build up in the body fat of mammals, including humans; therefore, a small concentration of a toxic pollutant in the water can mean a significant concentration of it in fish and a larger concentration of it in the people that eat the fish. Mothers in Michigan who ate large amounts of fish from the Great Lakes have had children with reduced birth weights and dimensions. These children grow up with reduced behavioral and intellectual capabilities compared to children born of mothers who did not eat fish. Recent studies show that certain toxic pollutants cause adverse effects in the ability of wildlife to reproduce, because those chemicals imitate some of the effects of the female hormone estrogen. Even in very minute quantities below what is requiredto cause cancer, these chemicals, including DDT, DDE, kepone, dieldrin, PCBs and a host of others, can cause reproductive effects from diminished sexual capacity and feminized males to a complete failure to reproduce at all.
Even for the easier to manage pollutants like the components of raw sewage, our efforts under the CWA have often been ineffective. A 1991 report from the Natural Resources Defense Council found that more than 2400 beaches in just ten coastal states had been closed in 1989-90 due to contamination from sewage and storm water runoff. The culprits for those beach closings were inadequate and overloaded sewage treatment systems. Although raw sewage does not run into our rivers constantly as it did prior to the Clean Water Act's passage in modern form in 1972, the law still allows a certain amount of raw sewage to pollute our waterways during times of heavy use, heavy rainfall, or when a system has a problem. Despite providing the impetus for the initial building of sewage treatment systems, the CWA does very little in the way of encouraging upgrades to those systems or mandating replacement of aging and ineffective equipment. The results are frequent by-passes of the treatment systems, the discharge of raw sewage into waterways on a still-too-frequent basis, fish kills, algae blooms, and the closing of beaches due to high bacteria levels.
The filling in of wetlands is also regulated under the Clean Water Act. Under section 404, the Army Corps of Engineers is authorized to grant permits to people who want to fill in or dredge wetlands. During the last 200 years, the United States has lost more than 50 percent of the country's wetlands; some states such as California have lost as much as 91 percent. Even today after more than 20 years of wetlands "regulation"under the CWA, we are still losing 290,000 acres of wetlands per year.
Many opponents of the CWA claim that the Corps of Engineers denies many of the requested permits and thus the protection of wetlands is hurting the economy. Such a claim is simply not true. In 1991 in the southeastern region of the country, the Corps of Engineers denied only 87 dredge and fill permits out of a total of 1244 applications. Just seven percent of the applications to destroy wetlands were denied; that is hardly a major drain on the economy. The loss of wetlands, however, is a major source of environmental degradation. Wetlands are some of the world's most biologically diverse areas, and many of the threatened and endangered species in the United States live in or utilize wetlands. Of our nation's commercial fish industry, 71 percent of the annual catch feeds and spawns in wetlands. Loss of wetlands leads to loss of commercial and sport fish species, loss of waterfowl and loss of other types of wildlife. Wetlands stabilize coastal areas and shorelines, prevent erosion, absorb and store flood waters, clean water by trapping pollutants and sediments, produce oxygen, clean the air, and provide recreational opportunities such as fishing, hunting, boating and bird watching. Further, marshes and swamps are quite simply some of the most beautiful and mysterious places on Earth.
For further information on the details of the CWA and compliance under it, Government Institutes has a number of books available. Good starting places include Clean Water Handbook, Storm Water Management for Industrial Activities, Ground Water Handbook, and NPDES Permit Handbook (which includes many of the engineering issues involved).
B.Clean Air Act
The modern version of the Clean Air Act (CAA) was adopted in 1970 and was primarily an environmental quality approach that attempted to achieve certain levels of"clean air" with only a secondary interest in the technology necessary to achieve those desired levels. The massive 1990 amendments to the Act show how ineffective it had been up until then; while smoke, soot, sulfur dioxide, ozone and other conventional pollutants have been reduced to varying degrees, emissions of toxic pollutants have gone on almost entirely unabated. The 1970-version of the Clean Air Act was a very cumbersome and difficult to enforce statute. Government could determine when a certain area had air quality below the set standards, but it was virtually impossible to determine what sources of the pollution were causing the problem, as the types and amounts of pollution discharged by each polluter were usually not monitored. Further, under the act, the EPA only regulated a handful of toxic pollutants; out of the thousands of different types of air pollutants being discharged, the EPA regulated and limited only eight of them.
A good example of the feebleness of the CAA can be seen in the case of the Navajo Generating Station in Arizona, near the Grand Canyon. This coal-fired power plant was built without any air pollution control devices on its stacks, because the air was so clean in the area that the CAA allowed this one plant to deteriorate air quality in the region. One of the strange parts of the old CAA was that it allowed significant new sources of air pollution in areas that had very little pollution to begin with; there was little effort to keep clean what was clean. Therefore, the Grand Canyon and six other national parks in the area suffered from the pollution released by the Navajo plant; visibility was often dramatically cut in an area long associated with grand vistas. In August of 1991, the owners of the plant, which include a number of power companies and the federal Bureau of Reclamation, signed an agreement to install scrubbers on its three stacks by 1999 and to reduce the emission of sulfur dioxide by 90 percent. President George Bush held a huge press conference with the Canyon as a backdrop when this agreement was signed. Even though protection of national park air quality had been mandated by the CAA for years, this agreement was the first time the EPA hadever acted against an existing facility. From beginning to end, the struggle to get just this one plant to clean up 90 percent of its emissions will take almost three decades; even though, this plant degraded the air quality of some of the most loved and important of our national parks. Such slow "progress" illustrated the impotence of the old Clean Air Act, and the new CAA does not promise to cure that impotence very much.
With the 1990 amendments, the CAA became more like the Clean Water Act with a permit system and regular monitoring of the pollutants discharged from major sources of air pollution; unlike almost every water pollution source which has been monitored in some degree, most air pollution sources have been totally unregulated until now. The new CAA also requires the EPA to regulate and set emission standards for at least 189 toxic air pollutants set out by Congress in the Act; this list is still far short of the number of toxic pollutants actually emitted, and even these regulations are not required to be finally and completely formulated until November 2000. Like most large, complex environmental statutes, the CAA requires that the EPA promulgate regulations to implement the statute, and the EPA has not yet issued the entire set of regulations for the new CAA. The regulations that are being debated and proposed now show that the EPA may substantially weaken some of the protections that are intended in the CAA by making the permit system difficult to monitor and enforce. Also, further research is showing that air pollution is even more insidious than originally suspected; even amounts of air pollution legal under the CAA and meeting all EPA standards can kill people. A recent study showed that cities with higher levels of air pollution, though still within legal limits, had higher mortality rates for air pollution-related illnesses; also, other studies have found a correlation between air pollution and respiratory diseases.
In March 1994, the EPA issued some of the regulations required by the 1990 Clean Air Act; covering toxic air pollutant emissions from 370 chemical plants, the regulations were designed to reduce the amount of those emissions by 88 percent below1990 levels within three years. EPA missed the statutory deadline for promulgating these regulations; the regulations were late by 15 months and were issued only after environmental groups sued the EPA in order to force the agency to issue the new rules. Under many environmental statutes, but particularly under the CAA, the EPA has had a long history of missing statutory deadlines for promulgating the regulations that implement pollution control laws. Failure to promptly issue implementing regulations basically means that many key provisions of environmental statutes go unenforced for the entire time such regulations are delayed.
Good references for more detailed information on the CAA can be found in the following Government Institutes books: Clean Air Handbook, Control Technologies for Hazardous Air Pollutants, and Acid Rain: The View from the States.
C.Solid Waste Disposal Act
Designed to be the nation's "cradle-to-grave" system for regulating hazardous wastes, the Solid Waste Disposal Act (SWDA) includes the Resource Conservation and Recovery Act (RCRA), and the SWDA also includes a subtitle dealing with garbage disposal. In the United States, Americans create approximately 250 million tons of hazardous wastes every year; that is a ton for each person in the country. The nation's largest hazardous waste landfill is at Emelle, Alabama, and it is permitted under the SWDA. Most garbage disposal is regulated by the states, but Subtitle D of the SWDA allows the EPA to set certain standards for garbage landfills, and these regulations were issued in 1991 to require certain liner designs and leachate and methane collection systems. As for the control of hazardous wastes, RCRA has done a fairly good job of allowing us to identify and track hazardous wastes from where they are generated through their transportation to their place of disposal. Any industry or business that generates, stores, transports, or disposes of a hazardous waste, as defined by the Act, is subject to multitudinous requirements under the SWDA and the matching federal regulations.
Excluding those businesses and persons who criminally evade compliance with the law, RCRA has done a good job of regulating hazardous wastes presently generated in the United States. However, other than the costs associated with complying with RCRA, the Act provides little incentive for reducing the amount of hazardous waste generated in the first place. Designed to regulate this problem rather than solve it, RCRA has had little effect on reducing the amount of hazardous waste generated by industry; only reduction in the generation of these dangerous substances provides the best solution to the millions of tons of these toxics America generates every year.
The garbage regulations under Subtitle D have had the effect of putting thousands of small municipal and county landfills out of business. Building a landfill to the regulations' specifications is very expensive. Under the current rules, only large municipalities, coalitions of smaller towns and counties banded together, and large garbage corporations can afford to comply with the regulations. In essence, the Subtitle D regulations have replaced one set of environmental problems with another. The problems associated with many small, unlined landfills, such as groundwater contamination and uncovered garbage, are reduced, but problems associated with huge regional landfills have increased. These problems include the concentration of garbage and its toxic components in one place, drastically increased garbage truck traffic and the moving of garbage across the country from large cities to rural areas for disposal. Unlike many environmental regulations that can have an adverse economic impact on industry, the Subtitle D regulations have been a godsend to the large garbage companies, because the new rules and the expense of complying with them have driven out all smaller competitors and have given the big corporations a much larger share of the garbage disposal market, including granting them de facto monopolies in many parts of the country.
Government Institutes has a wide range of books on hazardous waste issues. These include RCRA Hazardous Wastes Handbook, Managing Your Hazardous Waste: A Step-by-Step Guide, and Transportation of Hazardous Materials.
D.Toxic Substances Control Act
The Toxic Substances Control Act (TSCA) is an eclectic package that deals with the production, distribution, use and disposal of new toxic substances, with removal of asbestos from schools, with radon levels in buildings, and with the disposal of polychlorinated biphenyls (PCBs). Only recently has the EPA begun to make much use of TSCA; by comparison, RCRA has seen heavy use.
TSCA requires that manufacturers and processors of a chemical conduct certain toxicological tests when there is little data on the chemical and it "may present an unreasonable risk of injury to health or the environment" or when large quantities of the substance will be produced and many people will be exposed to it. The EPA's discretion in determining when such tests must be conducted is quite broad. However, the EPA's discretion is not limitless, and there are guidelines that the agency must follow in order to make its case to require a company to test the chemical it is manufacturing. Any company that obtains information that reasonably shows that a chemical it produces "presents a substantial risk of injury to health or the environment" must immediately inform the EPA of that information.
1992 amendments to TSCA added a subchapter on lead exposure reduction. This new portion of TSCA is designed to regulate the removal of lead-based paints, to make sure that the contractors who do so have been properly trained and accredited, andto provide technical assistance and public information regarding the hazards of exposure to lead. Under this subchapter, the EPA is supposed to issue regulations implementing both it and the Residential Lead-Based Paint Hazard Reduction Act of 1992.
For more information on TSCA, consult the TSCA Handbook and a number of other TSCA manuals from Government Institutes.
E.Superfund
Popularly known as "Superfund," the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), was designed to clean up and compensate for the numerous sites contaminated by toxic substances. Despite having billions of dollars to spend on cleaning up old dump sites, spill sites, and contaminated places, the Superfund has been largely a failure. Much time and much of the Fund's money have been spent in litigation over sites and procedures.
CERCLA was designed to provide a comprehensive response to the problem of hazardous waste substance releases. Two separate mechanisms -- one public, one private -- provide for cleanup, compensation, and liability. CERCLA has reporting requirements; section 103(c) requires the present and past owners and past transporters to report sites used, the wastes involved, and the quantities involved, and section 103(a) requires the reporting of releases of hazardous substances from vessels. Remedial actions are provided for in section 104, and section 105 modifies the National Contingency Plan (NCP) (which was set up in the Clean Water Act). The NCP sets up a hierarchy of agencies to address releases headed by the National Response Team and requires that sites be evaluated on a risk basis using the Hazard Ranking System; each state must use the HRS to make up a priority list for releases. State lists are then consolidated into a National Priority List (NPL), which must have at least 400 sites and at least one from each state.
In 1990, the NPL had a total number of 1,071 sites; 178 sites were added to the NPL that year, and only one was deleted. Only about 20 sites had been "cleaned up" by that year. By the end of 1992, the NPL had a total of 1,209 sites; 32 sites were added that year and only nine were deleted. Superfund has done little in the way of cleaning up toxic sites, but it has done much for increasing our awareness of just how much damage we are causing parts of the Earth and the country and how difficult that damage will be to rectify.
Superfund was also supposed to make the polluters who dumped the toxic waste at these sites pay for the cleanup. Liability provisions in the law appear to be very serious and stringent in their language. In practice, however, CERCLA has led to more litigation over liability than actual payments from polluters for the toxic mess they have caused. As of mid-1993, out of the 7.1 billion taxpayer dollars spent in the Superfund program up until that time, polluters were liable for $4.3 billion of that amount, but only $843 million had been recovered by the EPA. Despite more than 15 years of effort, Superfund has cleaned up only a handful of sites, and of those sites where polluters are liable for the cost of cleanup, less than 20 percent have been made to pay what they owe.
CERCLA was amended in the 1986 Superfund Amendments and Reauthorization Act (SARA) to provide for more money in the fund and to set forth the Emergency Planning and Community Right-To-Know Act (EPCRTKA, also known by the acronym EPCRA). EPCRTKA is designed to let interested members of the public know what kinds of hazardous substances and in what amounts are being used, stored, released, and disposed of by certain industries. Facilities covered by EPA regulations under this actand that release more than a threshold amount of any of the chemicals listed by the EPA under EPCRTKA must file a Material Safety Data Sheet (MSDS) for each chemical. The EPA makes this release data available to the public in their Toxics Release Inventory (TRI).
According to various estimates, EPCRTKA significantly underestimates the total amount of substances discharged into the environment, and Congress has regularly considered expanding its scope. In January 1994, the EPA proposed to add by regulation to the list of chemicals and industries that must report chemical releases under EPCRTKA. Currently, only releases of 320 chemicals with potentially adverse effects on humans and the environment are required to be reported, and the EPA is proposing to expand that list to 630 chemicals. A final rule on the increase is expected by the end of November 1994. The EPA is also considering expanding the types of facilities that must make TRI reports.
Also available from Government Institutes are a wide array of books on CERCLA and EPCRTKA, including Superfund Manual: Legal and Management Strategies and Emergency Planning and Community Right-to-Know Act Handbook. The EPA maintains a toll-free EPCRA Information Hotline that can provide information on TRI reporting requirements, data, the available reports, and EPA contact persons in each region. That number is 800/535-0202.
F.Federal Insecticide, Fungicide, and Rodenticide Act
Designed to regulate the manufacture, labeling and distribution of chemicals intended to be used for controlling pests, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates the usage of a wide array of consumer and commercial pesticides. Anyone who wishes to distribute or sell a pesticide must first register that chemical with the EPA. Registration requires information on the applicant, the name of the pesticide, the claims made for it and the directions for its use, the complete formula of the pesticide, and a full description of the tests done on the pesticideand their results. Basically, FIFRA places the burden on a pesticide's manufacturer or distributor (usually the same corporation) to show that the chemical works as advertised.
A pesticide can be registered for general or restricted use. A general use pesticide is one that, when used in accordance with the label instructions and warnings, "will not generally cause unreasonable adverse effects on the environment;" pesticides sold for home usage by the consumer fall into this category. Restricted use pesticides are those that, when used as instructed, "may generally cause, without additional regulatory restrictions, unreasonable adverse effects on the environment, including injury to the applicator." Some pesticides can be classified for both general and restricted use depending upon the various uses to which the chemicals are put. Registration is good for five years. Also, one can get an experimental use permit from the EPA in order to test and study the effects and impacts of the pesticide outside of the laboratory.
For restricted use pesticides, one who applies the pesticide must be a certified applicator by the state environmental agency or by the EPA, depending on whether that state has an EPA-approved applicator registration program under FIFRA. Certified applicators must keep detailed records of the chemicals applied, how much was applied, and when and where they were applied. FIFRA sets up specific labeling requirements for all pesticides in order to protect the users and the environment from any improper application of the chemicals.
FIFRA prohibits the distribution of any unregistered pesticide, any pesticide that does not meet the claims made for it, any mislabeled pesticide, any pesticide that has a different composition than that described in the registration, and any pesticide that is not properly colored or discolored. It is unlawful to change or remove the labeling required under FIFRA from any pesticide container or to distribute or sell restricted usepesticides to one who is not a certified applicator. It is also illegal to use any pesticide in a manner inconsistent with its labeling. The EPA is also given the authority to stop the sale of a pesticide that violates FIFRA and to seize supplies of pesticides.
Government Institutes books available on FIFRA and pesticides include Federal Insecticide, Fungicide, and Rodenticide Act: Compliance/Enforcement Guidance Manual and Pesticides Inspection Manual.
G.Underground Storage Tanks
Due to the growing hazard of leaking underground storage tanks (USTs), mainly those that hold gasoline, a system of regulating such tanks was added to RCRA in 1984. There were an estimated 5,000,000 underground tanks in the United States by the mid-1980s; most of those were made from unlined and unprotected steel that can corrode in the moisture of the soil. In an attempt to limit and stop groundwater contamination, the regulations for USTs set up standards for new USTs and a scheme for removing and cleaning up after old tanks. Many states have adopted their own USTs programs in order to run the federal program within their state.
Existing USTs must be registered so that their locations can be known, and those existing tanks must be upgraded to meet the law's requirements. Steel tanks must be lined internally and regularly inspected or cathodically protected or both. Metal pipes that routinely carry petroleum or a hazardous substance and that are in contact with the ground must be cathodically protected. Also, existing tanks must add spill and overfill prevention equipment. All these requirements must be in place by the late 1990s.
New USTs that are installed must meet similar requirements. Also, the owner of the new tank must notify the government regulatory agency of its installation and must certify certain things such as that the installation was done by a person certified by the UST manufacturer or was a registered professional engineer experienced in USTinstallation and that the UST has cathodic protection and release detection systems. Certain financial responsibility requirements also must be met, such as proving that the UST owner or operator can pay for cleaning up contamination and for third-party claims of damage from the contamination. The operation and maintenance of new and existing USTs may also be regulated by the state UST programs in various ways. When there is a release from an UST, there are certain reporting requirements that are designed to insure early detection, quick response and minimized environmental damage.
For large oil companies and service station chains, compliance with this statute and its regulations has been mostly an additional business expense that is absorbed into the large-scale economics of their business. For small station owners who have just one or a few tanks, this law has proved to be more costly in terms of their ability to pay for compliance and to meet the financial assurance requirements. The cost of removing an underground storage tank of a certain type and size is essentially a constant, and a multi-billion dollar corporation can absorb that cost much more easily than a Mom-and-Pop convenience store. Some states have adopted UST trust funds, somewhat like the Superfund established under CERCLA and somewhat like insurance, that can provide financial assistance to those who must remove USTs and who have limited financial resources for compliance with the federal and state regulations. Such a system of financial assistance, if properly run, can help alleviate some of the economic sting of the detailed and broad-based environmental requirements over USTs.
Useful references on petroleum and other chemical storage tanks can be found in Corrective Action Response Guide for Leaking Underground Storage Tanks, Underground Storage Tank Management: A Practical Guide, and Aboveground Storage Tank Management: A Practical Guide, all available from Government Institutes.
H.Occupational Safety and Health Act
Although not an "environmental" statute in the traditional sense, the Occupational Safety and Health Act (OSHA) impacts on business in many of the same ways and areasas other environmental laws do. The hazardous wastes and materials that will cause environmental concerns in terms of pollution and disposal will also impact on the working conditions of a facility's employees. Employees that handle or come into potential contact with hazardous materials will have to have certain equipment, clothing and detection devices approved under OSHA requirements. Any business that uses or produces any toxic substance that triggers pollution law obligations will, in all likelihood, also have OSHA obligations regarding its employees who handle those toxics. Also, under OSHA, there are certain duties that the employer owes to employees and others who may come into contact with hazardous substances regarding informing them about those potential dangers, and employers must have a set, written program for communicating all work place hazards. Such a program must include education and training for employees on the proper handling and safety procedures.
Like many of the environmental statutes, individual states can play an important enforcement role under OSHA, but OSHA's scheme of federal/state interaction and preemption is somewhat unique. When there is no promulgated federal standard relating to a certain safety issue, the states are free to set their own standards; however, once the Occupational Safety and Health Administration sets a federal standard, the standard preempts any further state regulation unless the state submits a plan for implementation of a different state standard and the administration approves that plan.
For those interested in the details of OSHA and how it interacts with other environmental laws and regulations, Government Institutes publishes OSHA Compliance Handbook by W. Scott Railton and the very manuals used by OSHA inspectors.
Basics of Federal Land Use and
Natural Resources Laws
A.Mineral, Oil and Gas, and Mining Laws
For mining on private lands, there are a number of federal laws that regulate certain activities. Mine worker safety is regulated under the Federal Mine Health and Safety Act and the regulations issued thereunder by the Department of Labor. The various pollution and environmental quality laws administered by the EPA may impact on mining operations, depending on each mine's characteristics. If a mine has to discharge waste water into a nearby stream, it will have to comply with the Clean Water Act and get a permit to do so.
The Surface Mining Control and Reclamation Act of 1977 (SMCRA) deals with the regulation and restoration of areas mined through surface mining techniques, such as strip mining. Aimed at coal mining, SMCRA also addresses the surface effects of underground mining operations. The Office of Surface Mining Reclamation and Enforcement (OSM) administers SMCRA, and it is an agency of the Department of Interior. Like with the EPA and the pollution statutes such as the Clean Water Act, a state with equivalent laws and authority can administer the SMCRA program for that state if it is given primacy by the Secretary of Interior. SMCRA sets out detailed environmental protection performance standards that coal mining operations must meet. Under SMCRA, one must get a surface mining permit from the OSM or the authorized state agency with primacy before one can surface mine for coal; the law defines suchmining broadly so as to include virtually all underground coal mining as well. The application for such a permit must include detailed plans for reclamation of the mine site, and the applicant must post a bond sufficient to cover the costs of complying with SMCRA and the permit in the event that the mining applicant defaults and fails to reclaim the site. SMCRA also has an abandoned mine reclamation fund which is funded by a fee on every ton of coal produced by permitted mines.
The center piece statute on the mining of federally-owned lands is the Mining Law of 1872, which is quite controversial. Under this law, one can state a claim to minerals on federal land, work the claim for five years (with just 500 dollars worth of effort), buy the land for two dollars and fifty cents ($2.50) or five dollars (depending on the type of claim) per acre, and then extract the minerals without having to pay any royalties to the government. There have been cases where a mining company was able to buy federal lands for a few thousand dollars and then extract billions of dollars worth of minerals without ever paying a single penny in royalties. Also, once the land has been purchased under the guidelines of this Act, one does not have to mine the land; one can do whatever one wants with it. Thus, under this mining law, developers have been able to manipulate it such that they acquire prime federal lands for a few thousand dollars that they then turn into multi-million dollar ski resorts, housing and condominium projects, shopping malls and a host of other valuable developments from which the taxpayer gets virtually nothing. Unless an area of federal land is specifically "withdrawn" from consideration under this law, the Mining Law of 1872 applies to all federal lands, including the National Forests and the vast holdings in the West of the Bureau of Land Management. Withdrawals include areas such as certain wildlife refuges, Indian reservations, national monuments and other lands so designated by Congress or by the President. In the last several sessions of Congress, there has been a growing push to change this law such that it cannot be abused and so that the taxpayergets a royalty from mineral extraction just like a private landowner does.
The Mining Law of 1872 covers precious metals like gold and valuable stones such as geodes. The Act does not cover "leasable" minerals such as oil and gas, coal, oil shale, phosphate, potash, sodium and sulfur, the leasing of which are governed by other laws. Also, standard varieties of building materials such as sand, gravel and building stone found on federal land are dealt with in the Materials Act of 1947 and the Surface Resources Act of 1955. The 1947 law also covered vegetative resources such as timber, making it clear that they could not be claimed and disposed of through the procedure set out in the Mining Law of 1872.
Further, the Mining Law of 1972 applied to "public domain" lands only, which are lands acquired by the United States from other countries or entities and have always been in public ownership; these lands include the federal areas of the Louisiana Purchase. The law does not apply to federal lands that the government acquired from previous private owners, such as most of the lands in the eastern National Forests. For such acquired lands, the Mineral Leasing Act for Acquired Lands, passed in 1947, generally applies the provisions of the Mineral Leasing Act of 1920 to these federally-owned acquired lands. Thus, for the minerals and resources specifically set out in the 1920 law, its procedures and the additional ones set out in the Acquired Lands law must be followed. For the minerals not covered by the 1920 laws, such as precious metals, there is no statute that sets forth a procedure for the exploration and extraction of such resources from acquired federal lands. The Department of Interior has promulgatedregulations relating to those minerals on acquired lands, using their general authority to permit commercial mineral activities on acquired forest lands; the rules set out by the Department of Interior basically apply the procedure of the Mineral Leasing Act for Acquired Lands to the minerals not covered by that law, along with a requirement that the Forest Service also consent to the leasing.
Oil and gas operations must comply with the various environmental quality and pollution prevention laws that any other facility must comply with, like the Clean Water Act and the Clean Air Act. For oil and gas leases on federal lands, onshore leasing is governed by the Mineral Leasing Act of 1920 (see above discussion). For offshore oil and gas leases, they are administered by the Secretary of Interior through the Outer Continental Shelf Lands Act. The various states that lie along the coasts own and control the lands under the water out to a certain distance, three miles for most states but more for Florida and Texas which came into the United States from unique circumstances and which had greater offshore claims (nine miles in the Gulf of Mexico coastal areas). Within those state areas, the leasing of oil and gas reserves is within the province of those states, and each state handles its offshore leasing program in its own way. Beyond those state limits and out to the claim of the United States (currently 200 nautical miles), the leasing of oil and gas is controlled by the Department of Interior.
B.Laws regarding National Forests
The main statutes regarding management of the National Forests, which cover more than 191 million acres, are the Forest and Rangeland Renewable Resources Research Act of 1974 (FRRRPA), the Multiple-Use Sustained-Yield Act of 1960(MUSYA), and the National Forest Management Act (NFMA). The U.S. Forest Service, an agency of the Department of Agriculture, manages the 156 National Forests and 20 National Grasslands. Other statutes also affect how the Forest Service manages the National Forests; the laws having significant impacts on the National Forests include the Endangered Species Act, the Wilderness Act and the Wild and Scenic Rivers Act.
The National Forest system was established in 1905, and the first chief of the Forest Service, Gifford Pinchot set forth a policy of stewardship of the forests. "In the administration of the forest reserves ... all land is to be devoted to its most productive use for the permanent good of the whole people and not for the benefit of individuals or companies." However, since Pinchot's time, the policy of the Forest Service has changed, and particularly since the early 1960s, the National Forests have been managed mostly for timber production in order to benefit a few politically-connected individuals and companies. Currently, the Forest Service loses as much as 500 million dollars in taxpayer money each year through timber sales on the National Forests. Of the 122 National Forests that have timber sales, 109 of them lost money in 1992. According to a study by the General Accounting Office that analyzed more than 3,000 National forest timber sales and the resulting loss of money, and basing their conclusions on economics alone, the GAO stated that "some national forests should not be managed fortimber production." Indeed, even the Forest Service admits some of this fiscal mismanagement; in April 1993, the agency proposed to stop selling timber from 62 National Forests due to consistent loss of money from timber sales.
Under the requirements of NFMA, the Forest Service must provide and manage for a wide array of uses and services on the National Forests. This requirement to manage for many uses limits the Forest Service's ability to harvest timber as a primary function of the forests. In the past, the Forest Service has heavily emphasized even-aged management techniques such as clearcutting and has failed to provide fully for multiple use and sustainable yield of the products and services of the forests. Failure to provide protection for the full diversity of native plant and animal communities in the National Forests is a clear violation of NFMA, and failing to ensure that timber will only be harvested from National Forest System lands where protection is provided for streams, stream banks, shorelines, lakes, wetlands and other bodies of water is also a violation of the Act.
The Forest Service has historically over the past few decades failed to comply with all the requirements of NFMA by utilizing clearcutting and other even-aged timber harvesting methods in a manner not consistent with the protection of soil, watershed, fish, wildlife, recreation, and aesthetic resources, and the regeneration of the timber resource, as NFMA requires. Some federal courts have found that the past management practices of the Forest Service have been too heavily weighted in favor of timber production to the detriment of the other resources the forests are legally mandatedto provide. Other courts, however, have given the Forest Service a great deal of latitude in using their agency discretion to determine whether the agency is adequately providing for non-timber resources.
The Forest Service is required by NFMA to "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives." The Forest Service has often failed to comply with NFMA by allowing even-aged timber harvesting practices without any inventories of the flora and fauna in each compartment scheduled to be harvested, without consideration of uneven-aged management practices, without regard to preservation of old growth forests, and without any consideration of habitat as a need.
Under NFMA, the Forest Service must prepare comprehension management plans for each National Forest; these plans are 10 to 15 year blueprints that allocate the various parts of the forest to different management areas, and each type of management area provides for certain uses and how those uses are to be conducted. NFMA section 1604 places clear, substantive limits on the Forest Service's logging activities when it is designing these management plans. The plans must be in accordance with the provisions of MUSYA. The regulations for development and revision of those management plans must include guidelines which:
"insure that timber will be harvested form National Forest System lands only where-
"(i) soil, slope, or other watershed conditions will not be irreversibly damaged;
"(ii) there is assurance that such lands can be adequately restocked within five years after harvest;
"(iii) protection is provided for streams, stream banks, shorelines, lakes, wetlands, and other bodies of water from detrimental changes in water temperature, blockages of water courses, and deposits of sediment, where harvests are likely to seriously and adversely affect water conditions or fish habitat; and
"(iv) the harvesting system used is not selected primarily because it will give the greatest dollar return or the greatest unit output of timber."
As for the timber harvesting methods used, clearcutting can be used "only where" it "is determined to be the optimum method" and other even-aged methods can be used if "appropriate," and before such methods can be used, the Forest Service must know "the potential environmental, biological, esthetic, engineering, and economic impacts on each advertised sale area have been assessed." Further, timber harvesting by even-aged methods must be "carried out in a manner consistent with the protection of soil,watershed, fish, wildlife, recreation, and esthetic resources, and the regeneration of the timber resources."
Under the Clinton Administration, the Forest Service has admitted to such abuses of its statutory authority and claims to be rearranging its operations such that all uses are properly provided and accounted for; the agency calls this new approach one of "ecosystem management." Throughout the National Forests, the result of clearcutting, seed-tree cutting, shelterwood cutting or even-aged management by any other name has been the same thing: replacement of mixed-age, mixed-species forests with single-age monoculture tree farms. Tree farms are not forests any more than corn fields in Iowa are prairies. Tree farms are incapable of preserving the full species diversity native to our natural forests; indeed, pine tree farms in the South lose 95 to 99 percent of the biodiversity that was present in the previous natural forest. Also, tree farms cannot provide the recreational opportunities, the scenic beauty, the solitude and the other intangible values that a natural forest provides.
As an example of the Forest Service's new attitude, the Alabama office of the Forest Service has openly admitted to its past mismanagement of the four National Forests in Alabama. In a pamphlet called "Ecosystem Management" released in October of 1993, the Forest Service claimed to have learned from past mistakes and to have been converted to a belief in managing for all the components of the forest. This booklet has a number of revealing admissions: "The Ecosystem Management Concept is now being integrated into the management of the National Forests in Alabama." This means that before October 1993, the agency did not manage under an ecosystem concept and is only now beginning to learn about it and "integrate" it on an unspecified time table. "You will see a more balanced approach to timber, wildlife, recreation, water quality, wilderness, and other types of management you've seen in the past." This statement says that the previous management was unbalanced; indeed, it was heavily weighted towardtimber production at the expense of all other uses and needs. For the Conecuh National Forest, the Forest Service admitted that it replaced much of the native Longleaf Pine Ecosystem with Slash Pine, which was more valuable for timber. This booklet admits, "About 5 years ago, the Forest Service realized this [Slash Pine conversion] was not proper ecosystem management and is now looking at many areas where slash pines were planted to be converted back to longleaf pine." This means that after 30 years of conversion, they realized their mistake, but after realizing that mistake, it has still taken them another five years to get around to even starting to do something about it. As for the Oakmulgee Division of the Talladega National Forest, the pamphlet admits that "until 1984 work centered on changing the ecosystem from one that had native longleaf pines and hardwoods to one with more of a loblolly pine environment. The idea was to grow loblolly pine on a short rotation in order to maximize the production of timber." This is a shockingly forthright admission that the mission of the Forest Service was to replace diverse, natural, native forests with tree farms solely in order to produce more timber.) Despite the change in management in 1984 to convert the Oakmulgee back to what it should be, restoration has been slow. Hopefully, these admissions signal a real change toward true ecosystem management, but the Forest Service's past record is not encouraging.
The lines shown on most maps of where a National Forest is located do not actually correspond to federal ownership. The boundaries shown on most maps, particularly for forests in the eastern U.S., are acquisition boundaries that show the limit of how large the federal ownership can go; many of the eastern National Forests were purchased in the early part of this century as a way to recover worn-out and abused private farm and timber lands. Inside these boundaries, the federal lands that actually make up the National Forest are mingled with private lands called inholdings; as such, detailed maps of a National Forest show a patchwork quilt of federal and private lands. The Forest Service can acquire additional lands for the National Forests either through purchase or land exchange under the Weeks Act of 1911, as amended. Land exchangehas been used to consolidate federal land holdings and to eliminate inholdings within designated wilderness areas.
C.Coastal Zone Management Act
The Coastal Zone Management Act (CZMA) was passed in 1972 and was designed to manage and protect the habitats, resources, and scenic and recreational qualities of the areas along the country's coasts. Another statute that encourages heavy state participation and initiative in regulating the subject matter of the law, the CZMA assists the various states in setting up programs under the Act and developing their coastal zones in a comprehensive manner. Under the CZMA, the "coastal zone" is the coastal water and adjacent shorelines, including intertidal areas, salt marshes, wetlands, beaches and estuaries.
Much of the CZMA is administered by the Secretary of Commerce through the National Oceanic and Atmospheric Administration (NOAA), but the EPA also has some duties. States are supposed to set up approved management programs to set out objectives, policies and standards for guiding public and private uses of the areas coming in the coastal zone. The Secretary of Commerce can make matching grants to the states for developing and administering these programs. Management programs must include identification of the boundaries of the coastal zone, definitions of what are and are not permissible land uses and water uses within the coastal zone, an inventory of areas of particular concern, the legal authority under state law to carry out the program, the structure of the state agency or agencies that will carry out the program, guidelines on priorities of uses in particular areas, a planning process for protection of public beaches and other public coastal areas, a planning process for energy facilities that may locate within the coastal zone (such as drilling rigs and pipelines), and a means of controlling beach erosion. States must coordinate their programs with other states.
Also under the CZMA, states must develop programs to manage nonpoint sources of water pollution (like agricultural runoff and leakage from septic tanks) in order torestore and protect coastal waters; the EPA and the Secretary of Commerce share the responsibility of reviewing and approving these programs. EPA also has the duty of providing technical assistance in developing these nonpoint source programs. The CZMA also sets up the National Estuarine Research Reserve System, which is a collection of prime estuaries that are protected so that they can be studied and used as representative examples of coastal ecosystems that allow us to know how healthy other systems are.
D.National Parks
The idea of national parks is entirely an American one. The United States designated the first national park in the world in 1872: Yellowstone. Although the policy of protecting unique and special natural areas as national parks has spread to many other countries, the United States' National Park system has continued to be the premier example. Administered by the National Park Service, America's National park system includes parks, monuments, battlefields, seashores, recreation areas, and a host of other types of protected areas, including the White House. In all, the system covers more than 74 million acres in more than 350 units. These areas are managed under the authority of the National Park Service Organic Act.
The National Park system is genuine source of national pride that is well deserved as it embodies much of what environmental law can achieve. Despite the enormous success of the park system, however, or perhaps due to that success, many of the National Parks are in peril. The number of visitors to the National Parks has caused many of the more popular sites to suffer from overuse; they are being "loved to death." In 1991, the National Parks received more than 300 million visitor days from over 57 million people. Those numbers are expected to double by the year 2000. There area host of other reasons why various parks are in decline: water diversion (Everglades and Zion), air pollution (Shenandoah, Acadia, Grand Canyon, Zion, Bryce Canyon, Arches, Canyonlands, Great Smokies and many more), urban and suburban encroachment (Glacier and particularly with many Civil War military parks), loss of native wildlife (Yellowstone, Everglades, and many more), clearcutting of National Forest lands along the boundaries of the National Parks (Olympic, Yellowstone and many others), mining and oil and gas exploration, and commercial development in and around the parks (Yosemite, Zion, and many more). Further, scientists have recently learned that protecting even large areas of natural lands, such as Yellowstone, many not be sufficient to preserve the biodiversity of those areas, particularly with large predators like Panthers, Wolves and Grizzly Bears that require large ranges. Thus, many of America's National Parks, even the big ones, are losing major species or wildlife.
E.Wilderness Act
The Wilderness Act of 1964 provides the strongest level of protection that federally-owned land can have. Designation of wilderness areas can be done only by Congress in legislation under this Act. As of early 1994, more than 90 million acres of National Forests, Bureau of Land Management lands, National Parks and other federal lands had been designated as wilderness; most of that land, 62.3 percent, is in Alaska.
Under the Wilderness Act, human activities incompatible with preservation of the wild character of the land are prohibited. The Act strives to preserve lands that still maintain an essentially wild character. Wilderness is defined in the Act as:
"an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this chapter an area of underdeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions andwhich (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; and (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historic value."
Although no new development or incompatible uses are allowed, there are some exceptions allowed for limited use of motorized vehicles, mining and grazing where such activities occurred in an area prior to its designation as wilderness. Further, particularly for designated wilderness areas in the eastern U.S., Congress recognized that allowances for the heavily impacted nature of federal lands in the east had to be taken into consideration. Thus, under the Eastern Wilderness Act of 1975, areas in the eastern U.S. do not have to meet as stringent a test of being pristine before Congress can consider them for possible wilderness designation. Lands in the east that have been logged or otherwise impacted in the past but that have recovered much of their natural appearance and functions can be designated as wilderness; also, areas less than 5,000 acres can be, and often are, designated as wilderness in the east. The Leaf Wilderness in the DeSoto National Forest of Mississippi is only 940 acres, and the wilderness in the Pelican Island National Wildlife Refuge is just six acres; these are quite different from the designated wilderness in Wrangell-St. Elias National Park in Alaska of 8,700,000 acres.
F.Wild and Scenic Rivers Act
The Wild and Scenic Rivers Act is designed to preserve rivers and streams that still flow free and have many of their wild characteristics intact. As of mid-1992, 223 rivers and stream consisting of a total of 11,277 miles had been protected under the Act;this compares to the total river and stream mileage in the United States of 3.6 million miles. Approximately 80,000 dams over 25 feet high have been constructed on American rivers, and there are few rivers of any significant length that do not have at least one dam on them. Congress recognized that this amount of dam building needed to be "complemented by a policy that would preserve other selected rivers or sections thereof in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes."
The Act designates rivers or portions of them in three classifications: "wild" areas which "represent vestiges of primitive America" and are generally inaccessible except by trail, "scenic" areas which are largely undeveloped but accessible in places by roads, and "recreational" areas which are readily accessible by road, have some development along the shore and may have undergone impoundment or diversion in the past. Rivers are designated under this Act through legislation passed by Congress.
G.National Trails
The National Trails Systems Act of 1968 was passed to protect significant recreational trails and historic trails such as the 2,100-mile Appalachian Trail. The Act sets up four categories of trails: "National Scenic Trails" which are extended routes inside protected corridors, such as the Appalachian and Pacific Crest (2,300 miles) Trails; "National Historic Trails" which are routes of past exploration, migration or military movement, such as the Natchez Trace and the Trail of Tears; "NationalRecreation Trails" which are trails designated by individual federal agencies as part of the system, and "Side and Connecting Trails" which are trails providing access to and between other trails in the system.
Congress must pass a law to designate National Scenic and Historic Trails, and once designated, those trails receive special protection from harm, incursion and development. There are 17 National Scenic and Historic Trails. National Recreation Trails, however, can be administratively designated by the agency that has jurisdiction over them, such as the Forest Service designating a special hiking trail inside a National Forest. As administratively designated components of the system, National Recreation Trails receive no special legal protection under the Act. Therefore, when the Forest Service clearcut a portion of the Tuskegee National Forest right up to and along the Bartram National Recreation Trail in 1993, the agency did not violate any provision of this Act; even though, it did significant harm to the recreational and esthetic qualities of a portion of that trail.
Basics of Federal Wildlife Laws
A.Endangered Species Act
Essentially, the Endangered Species Act (ESA) is a simple statute. It is not very long, its language is quite clear and direct when compared to most environmental laws, and its mandatory commands are explicit. Most environmental statutes are quite long and complicated and have long volummes of regulations issued under their authority in order to implement them. The ESA, however, is mostly self-executing, and the implementation regulations under it are succinct compared to the regulations promulgated under other statutes like the Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act. With its relative simplicity in legal language, the ESA attempts to accomplish an extremely complicated physical task: the preservation of the nation's (and the world's) biological diversity in the midst of unrelenting development and economic growth.
Although the nation has had a few statutes dealing with wildlife, such as the Migratory Bird Treaty Act of 1918, which provides for the protection of migratory birds regardless of their population numbers, the first true legislative attempt to help rare creatures on the brink of extinction was the Endangered Species Preservation Act of 1966. This act provided for the Secretary of the Interior to make a list of endangered species and to acquire land in order to protect those creatures. The first list came out within a year and contained 78 species. However, that act had many limitations, such as being limited to just wildlife in the United States, and the law quickly proved ineffective. Out of those original 78 species, the current list now records three of themas extinct.
In 1969, Congress already recognized that the 1966 statute was not sufficient. As a result, the Endangered Species Conservation Act of 1969 extended the listing process to include wildlife throughout the world. It also allowed the Secretary to list threatened species, and it expanded the coverage of the act to subspecies. This act also improved the listing process in order to make it more responsive to the needs of wildlife. Although this statute made it illegal to transport or sell species taken in violation of federal, state or foreign laws, this indirect approach to saving wildlife lacked any penalties for the destruction of the creatures involved. This effort too proved very quickly to be ineffective.
In 1973, Congress enacted the statute that still serves today. Although it has been modified slightly in a few sections since its inception, the Endangered Species Act of 1973 was, and still is, "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation."
The ESA has been amended several times. In response to the infamous Tellico Dam/Snail Darter case, Tennessee Valley Auth. v. Hill, Congress made a number of changes to the ESA, including changes to the critical habitat section to require designation of critical habitat at the listing of a species and to provide for consideration of economic impacts when designating critical habitat. Those amendments also added certain notice requirements to the listing process and created the Endangered Species Committee to serve as a process for obtaining an exemption from the takings prohibitions of the Act.
In 1979, Congress made some minor changes to the provisions on plants. They revised § 7 by changing the mandate that federal actions "do not" jeopardize a species' existence to a command that such actions are "not likely to" jeopardize a species'existence. This change was not a significant weakening of the ESA, because even under the new language, federal agencies are under a substantial mandate to do all they can to prevent the loss of any listed species. These amendments also required the Secretary to set up a system for prioritizing the listing process such that decisions to list could be made with knowledge of which species needed the Act's protection most.
The 1982 amendments responded to a number of Reagan Administration practices that had brought species listing and protection "to a virtual standstill." These amendments removed all economic considerations from the listing process, changed the critical habitat section again to separate it from the decision to list, and shortened the time for final action on a proposal to list a species to one year. Section 10 was changed to add an exemption process whereby the Secretary could grant "incidental take" permits that would allow the accidental taking of a listed species done in the course of regular business. Other less notable changes were also made.
In 1988, Congress made more minor changes and gave an extension of time for Gulf of Mexico shrimpers to come into compliance with a regulation requiring sea turtle excluder devices on their trawls. A monitoring system for candidate species was added to help prevent species form going extinct while they awaited protection, and the civil and criminal penalties for violating the Act were increased.
The year 1993 marked the 20th anniversary of the adoption of the Endangered Species Act. More than any other piece of legislation in the world, the ESA stands as an expression of humility, as a recognition that the Earth does not belong to mankind and our purposes alone. It is ironic that the most ecologically sensitive statute ever passed was, in large part, an accident. When Congress adopted the ESA, most of those who voted for the Act thought that it would be used to save big, popular, lovable animals like Grizzly Bears and Bald Eagles, but that it would have little other impact. Many commentators and attorneys knowledgeable in the ESA agree that Congress had no clearidea of what it was doing when it passed the Act. The language of the ESA goes far beyond protecting just a few fashionable and popular animals, but virtually none of the congressmen at the time realized that the language of the ESA would require the halting of a major federal project such as the building of a dam because of potential harm to a small fish with no apparent use to mankind.
What Congress said won out over what Congress may have meant in the famous Supreme Court decision in the case of Tennessee Valley Auth. v. Hill, the case of the Snail Darter and the Tellico Dam in Tennessee. Despite the Court's obvious disbelief that Congress, or anyone, would want to prevent the extinction of a tiny fish at any cost, the Court saw that the language of the ESA was unambiguous and definite, and so, the Court held that the $100,000,000 dam project must give way to the protection of the Snail Darter. Although the Snail Darter won in court, Congress later passed a rider onto an appropriations bill when no one was looking and exempted Tellico Dam from the ESA. That is why the dam and the lake were completed; luckily, the Snail Darter was found to exist elsewhere, and it still exists today.
Although Congress may not have meant to adopt such strong language in 1973, the fact that very little of the Act was amended later after the Tellico Dam case shows that most of Congress had decided that their "mistake" had turned out to be a good idea. Of the few amendments that were passed, most of these arguably reinforced the Act as originally written. Some of the amendments gave greater latitude to economic considerations in the processes of protecting listed species. One of the amendments that allowed an additional safety value for economic interests was added in 1978; Congressadded a provision to the ESA that created the Endangered Species Committee, also known as the "God Committee." This committee is made up of six high-level administration officials and one presidentially appointed representative from each state affected by the activity that is brought before the committee. The "God Committee" is given the power to grant an exemption to a project from the requirements of the ESA if the need for the project passes a demanding test. Despite the exception the "God Committee" amendment put into the Act, in application, this exemption has been difficult to obtain due to the rigid test that the project in question must pass.
Regardless of what its adopters had in mind and regardless of its effectiveness in application, the language in the Endangered Species Act is a clear statement that extinction is considered to be a tragedy of unimaginable proportions that must be stopped through any and all means necessary. It is statutory language without peer in the environmental laws of the United States or of any other country in the world.
The ESA's basic design is to provide means to identify species needing protection, means to identify the protection measures needed, methods to provide for consideration of listed species prior to any federal action that may affect them, and ways to punish those who harm listed species. The majority of the ESA is implemented by the Secretary of the Interior through the United States Fish and Wildlife Service for terrestrial species. For marine species, those are handled by the Secretary of Commerce acting through the National Marine Fisheries Service. The vast majority of species coming under the Act's protections have been land-based, and thus, the Fish and Wildlife Service has been the major government player in most ESA activities.
Three major sections provide the working structure to the ESA. The first is § 4, which contains the process for the initial listing of endangered and threatened species. A species, no matter how rare and close to extinction, receives virtually no protection under the ESA until it is placed upon the endangered and threatened specieslist by the Fish and Wildlife Service. Section 4 also provides for the listing of "critical habitat" for species placed on the list; critical habitat will be discussed below. This section also mandates that the Service prepare recovery plans for each listed species in order to identify and implement the measures needed to protect and recover each species.
The next vital section of the ESA is § 7, which mandates that all federal agencies do everything possible to protect listed species. Section 7 requires that all federal agencies consult with the Secretary before taking any action which may affect a listed species in order to ensure that that action is not likely to jeopardize the continued existence of that species. Anyone who is seeking a federal permit, federal funding, or some other federal action necessary to a private project must be aware of § 7, because that federal action cannot occur without consultation between the permitting agencies and the Fish and Wildlife Service if a listed species may be affected by the planned activity.
Section 7 also provides for a very narrow exemption process to allow a project to go ahead even if it will jeopardize an endangered or threatened species. This exemption can be granted by the fore-mentioned Endangered Species Committee. Since the God Committee subsection was added to the ESA in 1978, the committee has been called together very rarely; as of early 1994, it had convened only three times.
The last major operative section of the ESA is § 9 which contains the prohibitions against "takings" of listed species. A "taking" of a listed species is defined broadly to include everything from outright killing of individuals of the species to causing harm to the species habitat. Section 9 and all of the other provisions of the Act are enforced through the sanctions in § 11.
Section 10 of the ESA is of particular concern for businesses and those whohave development projects that come into conflict with the needs of a listed species. Section 10 provides for incidental take permits, which are a means to avoid § 9 liability for accidental takings of an endangered or threatened species during normal business activities. For a permit applicant who prepares an approved Habitat Conservation Plan for the species in question on the applicant's lands or in the area of operations, an incidental take permit will be granted.
The ESA's main sections of 4, 7, and 9 provide the basic structure for the Act's missions: (1) to identify species needing protection and the means to protect and recover those species, (2) to prevent harm to those species prior to federal action, and (3) to prevent and punish takings of those species and harm to their habitats. Throughout those sections and the other provisions of the Act, there are numerous ways to make the means to achieve those goals flexible on both the needs of the specific species and the human economic needs involved. For those involved in an ESA situation, knowledge of the true workings of the statute can improve one's likelihood of resolving the matter in a favorable and swift manner that will accommodate economic needs while still providing protection to the species involved.
Throughout the entire ESA, every section addresses the problem of extinction and the need for species preservation in the most mandatory terms possible for a statute. As expressed by the United States Supreme Court while commenting on § 7, "One would be hard pressed to find a statutory provision whose terms were any plainer that those in § 7 of the Endangered Species Act." All of the ESA reads in much the same manner. "[O]ther provisions indicated the seriousness with which Congress viewed this issue." The language, history and structure of the ESA indicate "beyond doubt that Congress intended endangered species to be afforded the highest of priorities." The Act goes on to say that, "The plain intent of Congress in enacting this statute was to halt andreverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute."
A failure to enforce any of the mandatory sections of the ESA would clearly be a violation of the Act, but, in application, the Departments of Interior and Commerce have proven to be adept at turning mandatory duties into discretionary performance. With inadequate funding for implementation of the ESA and with agency policies that generally favor economic concerns over biological ones, the ESA in action is not the tough creature that it appears to be on paper. Aptly living up to the saying that its "bark is worse than its bite," the ESA has proven to be neither a remedy for the problem of extinction nor a crippling disaster for economic interests.
B.Marine Mammal Protection Act
The Marine Mammal Protection Act of 1972 (MMPA) was a response to the public outcry over the deaths and decline of whales, dolphins, baby Harp Seals, Sea Otters and other species of marine mammals. The high visibility and aesthetic appeal of marine mammals and the ugliness of their destruction made the public demand legislation giving strong and specific protection to them. The MMPA has a goal of obtaining "the optimum sustainable population" for each species.
Under the MMPA, like under the ESA, enforcement authority is split between the Fish and Wildlife Service of the Department of Interior and the National Marine Fisheries Service of the Department of Commerce. Jurisdiction over all whales, dolphins and porpoises and all seals and seal lions (except for walrus) is in Marine Fisheries. Fish and Wildlife has authority over walrus, sea otters, polar bears, and manatees and their Sirenian relatives. The Marine Mammal Commission, created by the MMPA, provides oversight over both agencies' actions and makes recommendations on federalactions and policies regarding marine mammals.
The MMPA set up a moratorium on the taking and importation of marine mammals and marine mammal products. Like the ESA, the MMPA has a takings prohibition, but instead of having a regulatory list of protected species, the MMPA simply prohibits the taking of any marine mammal. Generally, importation of any marine mammal or any part thereof is also prohibited. "Take" is defined in the MMPA slightly differently than it is in the ESA. In a major difference with the ESA, since the MMPA protects all marine mammals, it recognizes that some species of marine mammal are not anywhere close to extinction and that incidental takings of marine mammals often occur in commercial fishing operations. Thus, the MMPA allows the Secretary to grant a waiver from the moratorium and issue regulations regarding the takings and importation of marine mammals if the proposed activity meets a rigorous test.
Before the Secretary can waive the requirements of the MMPA and allow the takings of marine mammals, he must first determine what is the optimum sustainable population of the species or of the population stock that will be impacted by the proposed taking. Using the best scientific evidence available, the Secretary's regulations regarding the taking of marine mammals must insure that such takings will not harm those species and population stocks. Thus, the MMPA basically sets up a quota system for determining how many individuals of a marine mammal species can be taken and still maintain the populations and stocks of the species. For commercial fishing operations that cause incidental takings of marine mammals, such as dolphins caught in tuna nets,this quota system allows the fishery to continue so long as the incidental takings do not go so high as to impact the sustainability of the mammal's stock. These waiver regulations are not self-executing; they do not, by themselves, allow anyone to take or import a marine mammal. After these waiver regulations are issued, permits must be still issued to each individual applicant. Permits may be granted for takings that are incidental to commercial fishing operations and also for takings and importation that enhance survival or recovery of the species, that are for scientific purposes or that are for public display purposes.
When any taking is proposed, the burden of proof is on the Secretary and on the applicant who wishes an incidental take permit to show that the affect is that populations of the marine mammal will not be disadvantaged. In a case where the Secretary allowed United States tuna fishermen to take dolphins, the court found that the government lacked the data necessary to estimate the takings' impact on the dolphins' "optimum sustainable population," and without that critical data, no permit could be granted. Concern over the U.S. tuna industry and the ramifications of that case led Congress to amend the MMPA in 1981 to give the tuna industry an exemption to the MMPA. In a case involving a Japanese fleet fishing for salmon in U.S. waters, the Secretary's permit for incidental takings of Dall's Porpoises was struck down because there was no data that the porpoises were at an "optimum sustainable population" and harm to the porpoises outweighed any economic harm to the fishermen.
Thus, for anyone with a project that may impact a marine mammal, the MMPA will definitely be implicated, and depending on the species impacted, the ESA may also come into play.
C.The Migratory Bird Treaty Act
The Migratory Bird Treaty Act (MBTA) was enacted in 1918 and has been amended a number of times since then. The MBTA was the United States' vehicle for implementing the 1916 Convention for the Protection of Migratory Birds between the U.S. and Great Britain, acting on behalf of Canada. Similar treaties were later made with Mexico, Japan and the Soviet Union, and these treaties were implemented through amendments to the MBTA. The MBTA is implemented by the Department of Interior, and the lists of bird species covered by the treaties and the MBTA is maintained by the U.S. Fish and Wildlife Service.
Although the treaties were designed mainly to deal with migratory game birds, they cover a variety of migratory bird species, and the MBTA provides protection to all species listed under the treaties. The actual migration of an individual bird in question is not a necessary requisite to the MBTA's protection; if the species is migratory, that is sufficient. Like the ESA and the MMPA, the MBTA has a prohibition against the taking of any protected bird; however, the MBTA's definition of a taking is somewhat different from the definitions in the ESA and the MMPA in that the MBTA does not define "take" by itself but includes in it a list of forbidden activities. The MBTA alsoprotects the nests and eggs of the birds covered by the statute and treaties.
The constitutionality of the MBTA was upheld by the U.S. Supreme Court in Missouri v. Holland. The extension of the MBTA's prohibitions to parts of birds was upheld in United States v. St. Pierre. Although the MBTA explicitly allows the captive breeding and sale of captive-bred migratory game birds for use as food, there has been a question of whether the other prohibitions of the MBTA apply to birds raised in captivity. The Tenth Circuit Court of Appeals has examined that question twice and has come up with two different answers, depending on the language of the Fish and Wildlife Service regulations that implement the MBTA. Reviewing a regulation covering American Kestrels, or sparrow hawks, the Tenth Circuit held that the MBTA's prohibitions did apply to the sale of captive-raised, non-game birds, because the regulation at issue defined "migratory bird" as including any bird "whether or not raised in captivity." The court reasoned that the captive-bred kestrels were included in that definition. In a later case, the Tenth Circuit held that the killing of captive-raised Mallard ducks was not included in the MBTA's prohibitions, because the regulationreferred only to "wild ducks."
Through the Secretary of the Interior, the Fish and Wildlife Service has authority to grant exceptions to the prohibitions in the MBTA. This authority has been used to establish hunting seasons for ducks, geese and other species and to allow certain sales of migratory birds. In addition to allowing hunting, this authority extends to proscribing how that hunting can occur. Thus, the banning of lead shot in duck hunting has been upheld as a valid exercise of authority under this statute.
Violations of the MBTA are divided into misdemeanor and felony levels. To show a misdemeanor violation, the government does not have to prove any intent on the part of the defendant to violate the statute, as the MBTA imposes strict liability for misdemeanor violations. Most federal courts that have examined the statute uphold this imposition of strict liability for misdemeanor offenses of the MBTA. However, a minority of federal courts refuse to apply strict liability in MBTA cases, requiring that the defendant have some minimal level of intent as the basis for the offense. This splitamong the circuit courts has not yet been resolved by the Supreme Court.
For felony convictions, the MBTA tried to make felonies also strict liability, but the courts refused to allow strict liability for felony offenses. Thus, in 1986, Congress amended the MBTA to require that the government must prove that the defendant acted "knowingly." This means that the defendant's action must be one prohibited by the statute and that the defendant know that the item involved was a bird or a part thereof. Knowing that one is violating the MBTA is not necessary for a conviction; it is enough that one knows that one is selling, buying, etc., a bird, and that bird happens to be one of the species protect by the MBTA. The MBTA also provides for seizure and forfeiture of things used in the violation of the statute.
Some of the cases under the MBTA have extended far beyond just someone shooting a migratory bird. The courts have upheld convictions for bird deaths resulting from application of pesticides to a field and bird deaths resulting from exposure to a pesticide in a wastewater treatment pond. Thus, business activities that may have an incidental and unintentional side effect of killing migratory birds are potential criminal violations of the MBTA. However, several courts have held that bird habitat modification resulting from Forest Service timber sales was not a taking under the MBTA. Thus, adverse habitat modification alone is not enough to make a case underthe MBTA.
There is no private right of action under the statute nor citizen suit provision in the MBTA. Thus, violations of the MBTA that are not addressed by the federal government cannot be addressed by environmental groups or individuals.
D.The Lacey Act
The Lacey Act was enacted in 1900, and there were major amendments to it in 1981 that basically reformed the statute. The Lacey Act is designed to aid state laws in the protection of game animals and birds. The Lacey Act does not itself prohibit any taking of any species; it relies on other laws to form the basis for a violation under it. Under the Lacey Act, it is illegal to "import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce" any "fish or wildlife" taken, possessed, transported or sold in violation of any state law, any laws of a foreign nation, any law of the United States or any Native American tribal law. Plants are given protection in that any taking of a plant in violation of federal, state or Indian tribal law is illegal under the Lacey Act. The Lacey Act also prohibits the improper marking, labelling and tagging of any fish or wildlife imported, exported or transported in interstate commerce. Also, it is made illegal to provide or obtain guide services that violate theLacey Act.
Because it is often difficult to enforce state wildlife laws once the violator has left the state where the violation took place, the Lacey Act was passed to give a federal enforcement tool to state wildlife laws. A person who illegally shoots a bear in Wyoming can be in Montana quickly and thus avoid prosecution in Wyoming, but with the Lacey Act in place, the federal authorities can still reach this criminal. The Lacey Act also furthers foreign countries' attempts to conserve their wildlife by having an enforcement tool here for people who violate a law there; with the Lacey Act, a person who illegally kills a Jaguar in Mexico cannot escape punishment by swiftly secreting the dead animal into the United States.
The Lacey Act provides for both civil and criminal penalties, and often, these federal sanctions are stronger and stiffer than some state penalties for the underlying violation. The Lacey Act also has a forfeiture provision.
Like the controversy over the Snail Darter in TVA v. Hill, the Lacey Act spawned a case over a small fish that went all the way to the United States Supreme Court. In Maine v. Taylor, a bait business operator shipped 158,000 Golden Shiners from out-of-state into Maine, which had a law against the importation of bait fish from other states. As the Lacey Act prohibits the transportation of any fish in violation of state law, Taylor was prosecuted under federal law for the shipment of those fish. As his federal prosecution under the Lacey Act was built on an alleged violation of a state law, Taylor attacked the validity of the Maine law, claiming that it violated the U.S. Constitution in that only Congress is given the power to regulate interstate commerce. Under the Interstate Commerce Clause, states cannot discriminate against interstatecommerce in anything for economic reasons, but a state can ban interstate commerce if it has a valid public health or environmental reason for doing so. The Supreme Court upheld the Maine ban on the importation of live baitfish because the law protected Maine fish from harmful parasites and was not based upon economic isolation. In Maine v. Taylor, the Supreme Court relied upon City of Philadelphia v. New Jersey for the proposition that "[s]hielding in-state industries from out-of-state competition is almost never a legitimate local purpose, and state laws that amount to 'simple economic protectionism' consequently have been subject to a 'virtually per se rule of invalidity,'" while stating that, in contrast to City of Philadelphia v. New Jersey, "there is little reason in this case to believe that the legitimate justifications the State has put forward for its statute are merely a sham or a 'post hoc rationalization.'" Thus, the Court upheld the underlying state ban on baitfish importation and held that Taylor was properly convicted under the Lacey Act.
Although Taylor was unable to contest the underlying state law that makes a violation of the Lacey Act, some Native Americans have been able to claim that a state law infringed upon their tribal rights and thus avoided prosecution under the Lacey Act.
In an original provision of the Lacey Act that was not included in the 1981 amendments and that is now codified in Title 18, there is a prohibition against theimportation of "injurious wildlife." A list of prohibited animals and birds is maintained by the Department of Interior, and it includes such creatures as the Zebra Mussel, which is now infesting much of the Great Lakes and expanding throughout other parts of the country.
E.Fisheries Laws
In addition to the impact that the Marine Mammal Protection Act has on fisheries, there are other laws passed by Congress to regulate the commercial and sport harvesting of fish species. The main statute dealing with fisheries is the Magnuson Fisheries Management and Conservation Act. Enacted in 1976, this Act was designed to address overfishing of United States' waters by foreign fishing fleets and extended U.S. sovereign rights over marine resources out to 200 nautical miles. The area within 200 nautical miles from shore was created as an Exclusive Economic Zone within which the Act would try to establish a conservation program for all fishery resources. The Secretary of Commerce administers this national fishery management program through eight Regional Fishery Management Councils which have the authority to manage fishery resources in their local areas. Fishery Management Plans are adopted by these councils and approved by the Secretary of Commerce, and these plans are for those stocks of fish species that need conservation. The requirements in each plan will vary depending on the fish species involved, the technology used to catch it, the stock conditions in that area and other factors.
The various coastal states still retain jurisdiction to regulate fisheries within their territorial waters, which is three miles with the exception of Florida's and Texas' Gulf coasts which have a nine mile territorial limit. Beyond the state territorial waters, thefederal government exerts complete control over the fisheries out to the 200 mile limit, and both domestic and foreign fishermen come under the Magnuson Act. Foreign fishermen are allowed within the 200-mile zone only if the stock of the species they are after is of sufficient quantity that U.S. fishermen cannot harvest all of the allowable catch limit on those fish. Passage and implementation of the Magnuson Act has meant a boost to U.S. fishing fleets and a significant reduction in the amount of foreign fishing in American waters.
F.National Wildlife Refuges
Scattered throughout the country, the more than 495 National Wildlife Refuges (NWRs) provide protection for a wide array of wildlife species, and they often provide excellent public hunting as well. Refuges range from the small Blowing Wind Cave NWR in northeastern Alabama that protects a single cave with over 500,000 endangered Gray Bats in it to the Arctic NWR in Alaska, which covers over 19 million acres. In all, over 90 million acres are part of the NWR system, which is administered by the Fish and Wildlife Service of the Department of Interior.
The statutes covering NWRs state that protection of wildlife shall be the main purpose of the refuges. However, a 1988 report of the Wilderness Society showed that most of the refuges are "refuges in name only." Following that private report by a few months, the United States General Accounting Office issued its own study and found that more than 90 percent of the NWRs operated and allowed uses that were harmful to, or unrelated to, wildlife, such as military exercises, mining, commercial timber harvesting, cattle grazing, oil and gas drilling, commercial tourist development, and off-road vehicle joy-riding. Problems from outside the refuges often cause severe problems inside the refuge boundaries and prevent the accomplishment of the goal of wildlife protection.
One of the most famous of the NWRs with problems is the Kesterson NWR incentral California. This 6,000-acre refuge preserved important wetlands for migratory waterfowl and provided habitat for the endangered San Joaquin Kit Fox. Agricultural runoff tainted with selenium and other toxic materials has made the refuge a death trap for the birds that once depended upon it; the Fish and Wildlife Service has even had to use nets, noise-making devices and shotguns in an attempt to keep the birds away from the refuge. Since California has already lost more than 90 percent of its wetlands, the loss of this vital refuge was particularly tragic.
In Mississippi, the Yazoo NWR is another important refuge for migrating ducks and geese along the Mississippi Flyway, but it is threatened by another federal agency. The Army Corps of Engineers has been heavily involved in central Mississippi constructing one of the largest drainage projects in history. If fully completed, the Corps' drainage program will damage Yazoo and several smaller nearby NWRs and could destroy half of Mississippi's remaining four million acres of delta hardwood bottomlands. The laws provide very little means of resolving such a conflict between two federal agencies carrying out different agendas in the same area.
The National Wildlife Refuge System Administration Act provides for the administration of these diverse areas. The Secretary of Interior is authorized to permit uses of the refuges for any purpose that he determines is "compatible with the major purposes for which such areas were established." Thus, current law prevents activities in NWRs that are incompatible with protection of the wildlife in the refuges, but becausediscretion has been vested in the Secretary to determine what uses are and are not compatible, the refuges have been, and still are, open to various forms of misuse at the whim of whatever administration is in the White House at the time.
State Laws and Regulations
Environmental statutes and regulations certainly do not end with the federal government; indeed, the federal government is moving in the direction of allowing the states to perform more regulation of the environment. Most states have a set of statutes roughly analogous to the federal system of pollution control and regulation. The federal statutes allow a state to run the various programs set up under those statutes (such as the NPDES permit program, hazardous waste site permitting programs, etc.) if the state has statutes and regulations that are equivalent to the federal ones. In Alabama, for instance, if an industry wants to discharge pollution into water, it does not need to go to the EPA to get an NPDES permit, it goes to the Alabama Department of Environmental Management (ADEM), because ADEM's state NPDES permit program has been approved by the EPA. In states where the state program has not been approved, an industry must get two permits: one from the EPA and one from the state agency.
Like many states, Alabama does not have an equivalent to NEPA; thus, state agencies in Alabama are not required by state law to consider the environmental consequences of their proposed actions prior to implementing those projects. This lack of a state environmental policy act is a significant contributor to Alabama's low ranking in environmental protection.
Although environmental regulation is split between the federal and state governments, the federal laws have supremacy in most areas, and the state laws are usually complementary legislation designed to allow the state to operate a federally-approved program in a particular area. These environmental statutes and regulations are designed either to limit government action or to regulate pollution and the industries thatcause that pollution. Although the volume of the regulations is massive and the amount of litigation generated by these environmental statutes is tremendous, these vast statutory schemes still did not completely occupy the field of environmental law. There is still some room for local governments to regulate pollution, particularly in the area of garbage collection and disposal. Also, the area of personal injury law involving the environment has not been preempted; what are known as "toxic torts" are viable means of redress for the public even though a polluter may be in compliance with all applicable environmental laws and regulations. A facility in compliance with all federal and state environmental statutes and regulations can still be held liable under tort law if its pollution causes damage to a person or that person's property. See Chapter Eight for more on toxic torts.
A.Comparison to Federal Scheme
As a general rule, most state environmental regulatory programs are equivalent to the federal schemes that they come under. Thus, a Clean Water Act NPDES permit obtained from a state agency with an EPA-approved NPDES program will set forth the permittee's legal requirements under both state and federal law. Compliance with that one permit will generally mean compliance with all state and federal laws and regulations in that area at the same time.
Despite the primacy given to a state program by a federal agency, the federal government always retains full authority to enforce the federal statutes through both civil and criminal actions. Thus, a facility in compliance with an approved state program has little to worry about from the state or the federal governments or from anyone else, but a facility that has violations may find the state and the federal agencies both taking enforcement action against it, one or the other taking enforcement action, or neither taking any action. If a facility has violations and neither the state nor federal government takes action against those violations, then a citizen or environmental group would have the legal ability under the federal laws to bring a citizen suit against the facility.
Problems can arise when, for instance, the state agency says that the violationsare minor and deserve no penalties but the federal agency disagrees and assesses a fine. The operators of a facility caught in such a state-federal power struggle must tread carefully, both in terms of dealing with the agencies and in terms of the possible media picture painted by such a situation. In order to ensure no environmental law problems, one must be fully aware of both federal and state laws, regulations, procedures and requirements. Assuming that compliance with federal law is enough will cause problems with state authorities, and vise versa. Compliance with one set of laws and regulations may, and usually does, equate to compliance with the other, but such is not always true, and one must be familiar with the requirements under both.
B.Additional Requirements
Most federal environmental laws allow for state regulations over the same subject matter to be more stringent if the state so desires. Most federal environmental statutes are designed to be floors, not ceilings, meaning that they are supposed to set the minimum standards for pollution that will be tolerated. Thus, generally, states may not set more lenient standards than the federal government, but they can be more stringent if they determine that tougher standards are in the best interests of the public.
A major exception to this general rule that states can be more stringent if they desire is the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which is designed to set standards and labeling requirements for chemical pesticides. Under FIFRA, the courts have held that states may not set more stringent labeling standards for pesticides than the federal EPA has set. However, states can require more stringentwarning and safety standards than are required under FIFRA; it is the labeling requirements of FIFRA that must stay the same nation-wide and that thus cannot be changed one way or another by the various states. Congress has the power to occupy the entire field of a statute's subject; in most environmental laws, Congress has decided to allow the states some latitude to be more stringent when local circumstances are factored in. As for FIFRA, Congress had a strong interest in assuring that labeling requirements for pesticides are uniform throughout the country; therefore, Congress decided to occupy the field completely and leave no room for individual states to regulate over the labeling matters involved with FIFRA.
There are other exceptions to the idea that state regulations can be more stringent than federal ones. The U.S. Supreme Court has ruled in a number of cases that the Constitution limits how far states can go beyond the federal government in protecting the environment. Federalism, the idea that describes relations between the various states and the federal government, has been involved in a number of environmental cases. Basically, federalism means that states retain those rights not specifically taken from them by the Constitution and granted to the federal government.
The Supreme Court issued its ruling in Arkansas v. Oklahoma, under the Clean Water Act. The EPA issued a water pollution discharge permit to the City of Fayetteville, Arkansas; the pollution would go downstream into Oklahoma where the additional pollution from Fayetteville would cause Oklahoma's more-stringent water quality standards to be violated. The Tenth Circuit Court of Appeals had ruled that one state's efforts to protect high-quality waters could not be compromised by another state and that the EPA's allowing excessive pollution in that other state to go downstream and degrade the first state's water quality standards was illegal. The Supreme Court reversed the lower court and held that Oklahoma could be forced to go along with the federal regulatory scheme, even if that meant the degradation of its high-quality waterways. Thus, although Oklahoma had more stringent water quality standards than the federal government, as the Clean Water Act clearly allows, Oklahoma cannot enforce those standards if the federal government wants lower standards to prevail.
The Supreme Court issued rulings in two cases regarding hazardous waste and garbage that involved the question of the power of states to adopt regulations more stringent than federal ones. In Chemical Waste Management, Inc. v. Hunt, the State of Alabama had placed a two-tiered tax on waste disposed of at ChemWaste's Emelle, Alabama landfill, the largest hazardous waste landfill in the country. Waste generated in Alabama was taxed at $40 per ton, and waste generated outside Alabama and imported into the state for disposal was taxed at $112 per ton. In an opinion that spoke highly of the need to protect citizens from the dangers of hazardous waste transportation and disposal, the Supreme Court of Alabama had upheld the two-tiered tax as an environmental protection and public health measure and not as an economic measure.
The United States Constitution gives Congress the sole power to regulate interstate commerce; thus, states may not enact economic regulations that discriminate against interstate commerce. Therefore, a tax that is equal on in and out of state commerce is okay; one that discriminates does not. However, the federal courts have stated that a state may discriminate against interstate commerce if it has legitimate non-economic reasons for the discrimination. The United States Supreme Court has long held that states may discriminate against, and even ban, noxious articles from being imported into the state; contaminated fish, diseased rags and the like can be banned. However, big corporations now make billions of dollars transporting and disposing of garbage and toxic waste; therefore, the Supreme Court has now decided that those kinds of noxious articles cannot be discriminated against. The Court struck down Alabama's higher tax on out-of-state waste, and the majority dismissed the environmental and public health issues will little more than a few condescending remarks. The rationale for the holding was that Alabama was, according to the Court, trying to isolate itself from a national problem.
Using the same logic, the Court struck down a Michigan law that allowedcounties to ban the disposal of garbage waste imported from outside the county. Dissenting from both opinions, Chief Justice Rehnquist stated that it was the states that did not have any disposal facilities and were thus exporting their problems that were violating the commerce clause. Alabama was not trying to isolate itself from a national problem as Alabama was willing to dispose of its own wastes and was willing to take other states' waste if those states paid for the additional environmental and public health protection measures needed for dumping their problems on Alabama. As the Chief Justice noted, the states without disposal facilities were the ones that had effectively isolated themselves from the national problem.
These two rulings prevent local governments and states from doing anything significant to prevent or limit the amount of out-of-state waste that is dumped in them by other states. Such a ruling discourages reduction and recycling by making it a constitutional mandate that places like Alabama and Michigan be open as dumping grounds for the lazier and less-responsible states.
Contrary to Arkansas, Hunt and Fort Gratiot, the Supreme Court upheld a state's right to have more stringent environmental regulations in New York v. United States. The Court dealt with provisions of the federal law over low-level radioactive waste; that law provided financial incentives to states to build facilities for waste disposal or to agree with neighboring states to form a compact for those states to collectively dispose of their wastes. But the law also included a stick; any state that had not arranged for disposal of its waste by 1996 would automatically take title to all waste in the state and become liable for it. Most states made arrangements under the law, but New York decided to challenge it instead.
The Court upheld the financial incentives, but it struck down the "take title"provision as unconstitutional under the Tenth Amendment, which reserves to the states all powers not explicitly delegated to the federal government under the Constitution or prohibited to the states by the Constitution. The Court basically ruled that states could not be compelled to take part in the federal regulatory scheme. Even though it was issued in the same term, this ruling was a contradiction to the Arkansas v. Oklahoma ruling which clearly made Oklahoma take part in the EPA's regulatory scheme of allowing higher levels of water pollution than Oklahoma wanted.
C.The Public Trust Doctrine
In one of the few exceptions to the general rule that legislatures create environmental laws, the courts of various states have created a special doctrine used for protecting the water resources held in trust by the state for the public at large. Called "the public trust doctrine," this judge-crafted area of environmental law protects a "deeply inherent right of the citizenry," and protects water-related uses such as recreation, aesthetic enjoyment and preservation of flora and fauna. Under the doctrine, a state's obligation as trustee is to see that water resources are both open to the public use and protected from degradation, and state government is obligated to "protect and preserve those waters for fishing, recreation, and scenic beauty," and to "protect the people's common heritage of streams, lakes, marshlands and tidelands." As stated by one commentator:
"Since its law contains at least some provision for the public trust, Alabama is one of those states in which the requirement upon the state to maintain that trust 'is particularly emphatic ... [because the public trust doctrine] takes on the mantle of supreme law, where it complements andreinforces the other forms of constitutional provisions demanding environmental protection.'"
When a resource is held in trust and available for the free use of the public, "a court will look with considerable skepticism upon any government conduct which is calculated either to reallocate the resource to more restrictive uses or to subject public uses to the self-interest of private parties." As stated by Professor Rodgers, "The public trust doctrine demands fair procedures, decisions that are justified, and results that are consistent with protection and perpetuation of the resource." The substantive requirements of the doctrine have been summarized by Professor Rodgers as follows:
"Public uses must be preserved; limited encroachments that are tolerated must be justified as an enhancement of what remains. It is not enough that the invasion be conducted with care and damage kept to a minimum. The encroachment must be justified by necessity and perhaps only upon the proffer of an adequate substitute. If there is no substitute for an irreplaceable resource, the invasion is unacceptable. The pattern that emerges comes very close to a doctrine that can be described as no significant deterioration of public rights in public resources."
The public trust doctrine has proved to be quite limited in its use. Most states' courts have yet to recognize the doctrine as law in those states, most likely because the doctrine has never been an issue in any case yet brought in those states.
D.Local government regulation
Even though the federal and state governments control most of the field of regulation under environmental statutes, there is some room for local governments at the county and municipality levels to be involved in environmental law controls. These local governments have the power to zone, and zoning can limit, restrict and even ban certain activities that have an adverse environmental impact. Also, many state solid waste statutes still allow local governments to have some regulatory authority over garbage collection, transportation and disposal within their jurisdictions. However, as shown by the above Supreme Court cases decided in 1992, discussed above, local requirements cannot discriminate against interstate commerce without some compelling local need completely unrelated to economics.
One way that local governments have found to be environmentally effective is to form or assist local land trusts. Rather than regulating environmental protection, a fund is established that buys ecologically valuable lands for use as public parks, nature preserves and "greenways," which are corridors of natural habitat used to connect other natural areas and can be used as walking and biking paths. Sometimes, federal and state transportation grants that would normally be used for building roads can be used by local governments to acquire and preserve open space, parks and greenways.
Cities and counties can also be instrumental in establishing recycling programs and regulations. Since garbage collection is often handled by the local government, development of a comprehensive recycling collection program is naturally suited for those local governments.
Some states also give their larger municipalities the authority to regulate air pollution within those cities. Inspections of industrial and vehicle emissions can often be handled and regulated by the local municipality.
Also, if a city operates a publicly owned treatment work (POTW) for the collection, treatment and discharge of sewage, that municipality will have certain regulatory authority over what can be discharged into the sewer system by those people and facilities who connect to it. A POTW must have a NPDES permit just like any otherfacility that discharges into a waterway, and in order to make sure that it complies with its permit, a POTW can regulate what is discharged into its systems by its customers.
Another type of "local" government to keep in mind is the Indian reservation. Designated reservations and lands of Native American tribes have the authority under federal law to regulate their own environment just as if the reservation were a separate state. This is particularly so with the Clean Water Act, which was amended in 1987 to treat Indian tribes as states. Thus, much of the law regarding federal-state regulatory programs and approval also applies to Indian lands, and since states can adopt standards more stringent than the EPA's, so can Indian tribes. Water quality regulations adopted by the Isleta Pueblo downriver from Albuquerque, New Mexico, were approved by the EPA and upheld by a federal court; even though, the tribe's arsenic standard was 1000 times lower than the EPA' Safe Drinking Water Act criterion, was below what could be measured with current technology, and was even below the naturally occurring level of arsenic in the Rio Grande.
Enforcement
Enforcement of the various environmental laws generally comes under four basic methods: administrative investigations and penalties, civil enforcement suits, criminal enforcement, and civil enforcement by private individuals or organizations through citizen suits. Most federal environmental laws provide for all these forms of enforcement, but many state laws may allow for only some of them. As an example, none of Alabama's state environmental laws allow for citizen suits, and administrative enforcement by the state government is provided for in only certain statutes, and criminal enforcement is set at different levels in different laws.
The level of enforcement pursued by the government will depend on a number of factors such as the severity of the violations, the number of violations, the cause of the violations, the efforts to prevent future violations, the efforts to remedy and mitigate the past violations, the safeguards taken by the violator prior to the misconduct to prevent those kinds of violations, and the personal attitudes of those who make the decision over whether to prosecute and how severely to do so. Generally, a facility that works closely with government regulators and regularly keeps them apprised of any violations, the causes of the violations and the efforts to correct the problem will stand a much better chance of receiving a less severe penalty. A great number of unintentional environmental law violations can be redressed without any need to ever initiate official enforcement measures when the violator takes an open and cooperative attitude and works diligently to solve the problem with the full input of the regulators. A hard line stance from environmental agencies is rare and is usually the result of especially serious violations with severe adverse environmental impacts or of intentional wrongdoing by the violator.
A.Administrative Enforcement
Agencies that are given the power to implement and enforce environmentalstatutes such as the Clean Water Act, the Clean Air Act and the others are usually given the power to take limited enforcement actions on their own without ever going to court. Depending on the statute involved, an agency such as the EPA may have various enforcement powers like the power to investigate and inspect facilities, the power to issue subpoenas, the authority to request information and to inspect and copy company records, and the ability to issue administrative orders that may impose fines, assess penalties and set forth schedules for achieving compliance with the law. Many state environmental agencies may also have similar powers under the various state laws.
Many environmental agencies like the EPA have the administrative power to assess civil penalties against violators; although, such administratively assessed fines do not have the potential to be as high as fines assessed by a federal court. Indeed. studies have found that the vast majority of penalties assessed by the EPA do not even recover the benefits the company gained by failing to comply with the law.
With most violations, the company explains to the regulatory agency why the permit limits were exceeded; most times, the agency accepts the explanation at face value and does nothing further. In many instances, a singular or unusual violation is nothing more than a malfunction in the treatment system, and if the company acts swiftly to fix the problem, the regulatory agency has no need to inquire further. Sporadic violations can become repetitive, however, and with certain corporations even habitual; agencies rarely take the time to look behind the company's explanations to see if there is a definite trend of violations. When a permit holder finally racks up enough violations over a certain time to trigger government action, what usually occurs is a dialogue between the agency and the company that results in changes being made to the treatment system, and no penalties are assessed.
Since many pollution treatment systems and even upgrades to those systems can cost millions of dollars, a company can save a lot of money by putting off improvements to its discharge system for as long as possible. Once an environmental agency overseeing a company gets concerned enough finally to seek penalties against it, then the company can often resolve the issue by agreeing to upgrade its system and to pay a smallpenalty. The agency feels it has done its job and punished a polluter, and the company saves much money by delaying compliance with the law. A recent study by the General Accounting Office showed that the vast majority of fines imposed by the EPA did not even negate the economic advantage to the fined polluters of delaying compliance. According to the GAO report, two thirds of the cases in 1990 where penalties were assessed did not even recover the economic benefits gained by the companies due to their non-compliance. Often the EPA will reduce the amount of the penalty imposed for no reason whatsoever; the GAO found that the EPA will often "back down" if a polluter merely threatens to fight the proposed penalty in court. The threat of a lawsuit by a polluter scheduled to be punished is also an effective tactic against state environmental agencies to get them to reduce penalties or to back down completely.
There are a number of corporate defense lawyers who regularly advise their clients not to worry about complying with pollution laws; they advise their clients to save their money and let the lawyers talk the company's way out of any questions asked by the regulatory agencies, if there are ever any questions from the agency. Only when the EPA or a state agency gets fed up do these lawyers then tell their clients to go ahead and fix the problems with their pollution treatment systems, and the lawyers will then engage in threats of legal action against the agency to make it back off of any proposed penalties. The clients save significant sums of money. Of course, to behave this way is completely illegal, but the reality of lax government enforcement in certain areas and of certain laws makes it a not uncommon practice. Thus, unscrupulous companies that pollute illegally can avoid paying for their sins and can save money, while their honestcompetitors are put at a disadvantage, because they do spend the money to comply with environmental laws. Lax enforcement leads not only to environmental degradation but also to economic favoritism of dishonest polluters; both the environment and the economy are hurt.
B.Civil Enforcement
If administrative enforcement remedies are inadequate or do not produce a favorable result, then environmental agencies also have the authority to bring suit against alleged violators of environmental laws. Basically, federal environmental laws provide for just two remedies when a civil enforcement action is brought: an injunction against the violations and penalties for the violations. In almost every statute, penalties have a maximum level of $25,000 per day per violation. There is no stated minimum in these statutes, and a district court could conceivably assess no penalty against a violator; however, some courts have ruled that when assessing penalties under environmental laws, a court should start from the assumption that the maximum penalty should be assessed. According to those courts, that maximum should be lowered only if the defendant presents compelling reasons why it should be lowered.
The Eleventh Circuit Court of Appeals has ruled that a defendant's efforts to come into compliance with the Clean Water Act does not negate their liability for penalties. The Eleventh Circuit ruled that the calculation of penalties assessed in a Clean Water Act case must begin at the maximum penalty possible for the violations in question. Under the Clean Water Act, violators are subject "to a civil penalty not to exceed $25,000 per day for each violation." Furthermore, the Eleventh Circuit ruledthat once a violation has been proved, a court cannot set the penalty at zero.
Despite the strong commands of the Eleventh Circuit in regards to setting penalties under the Clean Water Act, other courts have been more tolerant and lenient under both the Clean Water Act and other environmental statutes. The vast majority of courts that have assessed environmental penalties have never even come close to charging a defendant with the maximum possible penalty.
Only on rare occasions do government agencies reach the point where they will fine a company for environmental permit violations, and it is a fairly unusual when a government environmental agency actually sues a company over permit violations. Once in court, most cases are quickly settled for an amount the company can easily live with, and even when no settlement is reached and the court must assess penalties against the polluter, no federal judge has ever assessed the maximum possible penalty against a violator.
A recent report by the U.S. Public Interest Research Group found that, for 1990, twenty percent of major industrial, municipal and federal facilities are out of compliance with the Clean Water Act; twelve percent of the biggest industrial facilities were found to be in significant noncompliance with their NPDES permits issued under the CWA. Despite more than two decades since enactment of the modern Clean Water Act, stateand federal government enforcement of the Act has been very ineffective, so ineffective that companies can violate the Act often and not worry about it. Violations of a NPDES permit under the Clean Water Act are some of the easiest infractions of the environmental laws to spot, investigate and punish; with only a little experience reviewing discharge monitoring reports, even a layperson can readily tell each and every time a company exceeds its permit limits. If this easiest of environmental laws to enforce goes so unenforced, then that tells one something about enforcement of the other environmental laws which are much more difficult to make a case under.
C.Criminal Enforcement
Most federal and many state environmental laws also have criminal enforcement provisions that allow the government to prosecute people and companies that intentionally violate environmental laws. Although criminal prosecution of environmental crimes is growing, it is still a very under-utilized method of protecting the environment and human health. Compared to other criminal enforcement areas, such as drug trafficking, tax evasion and racketeering, environmental crimes receive very little attention and funding.
As an example, the Endangered Species Act contains some of the most stringent criminal enforcement provisions of any environmental statute. Under the criminal enforcement portion of § 11 of the ESA, anyone who knowingly violates the ESA can be fined up to $50,000 and imprisoned for up to one year. Anyone convicted under the ESA can also have all import/export licenses, grazing permits, or hunting and fishing permits revoked or suspended.
Like the civil penalties provision in the ESA, the criminal provision makes an exemption for anyone who killed a listed species in the good faith belief that it was for self-defense or the defense of the life of another.
The requirement that the violation be done "knowingly" has been interpreted broadly by the courts. It is not a defense to say that it was dark and one thought one was shooting at a deer and in fact killed an endangered species; the courts look to only if one "knowingly" did what turned out to be an act that killed a listed species. Further, it is not required that one know that the species involved is a listed species; if one possesses an endangered Loggerhead Sea Turtle without knowing that it is a listed species, the intent to possess it is enough to prove a "knowing" violation of the ESA.
In addition to civil and criminal penalties, the ESA provides for forfeiture of all recovered wildlife and parts involved in violating the ESA. For criminal ESA cases that result in a conviction, the government can also seek forfeiture of all guns, traps, cars, aircraft and any other equipment used in commission of the crime. Like forfeiture cases involving proceeds and equipment used in drug cases, the government's burden of proof is very light. Only a prima facie case need be made showing that an ESA violation occurred and that the sought after items were involved in that violation; then the burden shifts to anyone claiming the items to rebut the government's case.
The ESA's grant of civil and criminal enforcement authority and forfeiture powersgives the Departments of Interior and Commerce authority to seize items containing parts of an endangered species. Although seizure and forfeiture can be drastic means that give the government the edge in proving their case, not all circumstances automatically lead to the seizure of parts of listed species. The Ninth Circuit Court of Appeals allowed the tax deduction of parts of endangered eagles and other birds that were donated as part of an Indian artifact collection to a museum; the court found that there was no evidence that allowing such a deduction would encourage the killing of endangered birds or other violations of the ESA. One court allowed the skin and skull of an endangered leopard species be returned to their owner, because the items had been accidentally shipped to the United States through the mistake of a shipping agent. However, another court upheld the forfeiture of skins of an endangered species that were being shipped directly from Bolivia to France but the flight was diverted to Miami; the unscheduled landing in Miami was held to be an illegal "importation" of the hides, and thus, those hides were subject to forfeiture.
Regardless of whether the penalties are civil or criminal, enforcement of these sections of the ESA is not very common. The Fish and Wildlife Service Division of Law Enforcement has only about 200 enforcement agents for enforcing the ESA and all other federal wildlife laws throughout the entire United States, and only about 150 of thoseagents ever get out into the field to investigate ESA violations. Meanwhile, illegal poaching and trade in endangered wildlife is at all-time highs. Bald Eagles are killed to make costumes with the feathers; rhino horns are used for knife handles; walruses are killed for ivory to buy drugs. Only three agents cover all of south Florida, Puerto Rico and the U.S. Virgin Islands; just two agents cover Tennessee and Kentucky together, and there is only one agent in all of Virginia. The trade in illegal wildlife is second only to illegal drug trafficking and grosses more than five billion dollars every year, and in the meantime, the budget for the Fish and Wildlife Service's law enforcement efforts has dropped from 6.5 percent to 5.1 percent of the agency's total budget, much of the decrease due to political pressure from large sportsmen organizations. The U.S. General Accounting Office and an independent commission have both found that funding for criminal enforcement work in the Fish and Wildlife Service is inadequate and that morale is low; nonetheless, the wildlife agents have managed to win 51,000 convictions between 1984 and 1989 with a 94 percent conviction rate. Like almost everything else with the ESA, lack of funding and a deficiency of political will seem to be the main reasons why the criminal enforcement of the Act is so inadequate to handle the threats posed to our wildlife.
For other environmental laws, federal enforcement of environmental crimes continues to grow. 1992 was a record year for indictments with 191 and for penalties imposed with $163,064,344 total, of which $125 million was for the Exxon Valdez oil spill, but the remaining $38 million would have still been a record. In 1991, 103 corporate officers were indicted. Federal criminal enforcement is primarily for hazardous waste and Clean Water Act violations. Nonetheless, 1992 saw sentences imposed for violations of the Clean Air Act and of the Migratory Bird Treaty Act.
Nonetheless, Congressional studies show that Department of Justice prosecution of environmental crimes is much less than prosecution of conventional crimes. Plea agreements reduced the number of indictments against corporate officers allowing them to "buy out" of criminal accountability. Whether this will change under the Clinton Administration remains to be seen.
The federal sentencing guidelines for corporations state that compliance programs might mitigate any sentence imposed. The Department of Justice decided in 1992 that internal audits and compliance programs would be important factors in the prosecutorial discretion decision over whether to prosecute for particular violations. The EPA has recently released guidance on how it will select cases for criminal investigation. In this memorandum, the EPA states that an environmental law violation that is promptly revealed and corrected will not be subject to criminal investigation if the violation is detected as part of the facility's regular and comprehensive corporate audit program that is designed to detect such violations. Thus, the existence of a strong internal environmental audit program can save a company and its personnel from a criminal investigation and prosecution, or if prosecuted, a company's use of such a program could minimize any punishment. Basically, the environmental enforcement resources of the EPA and the Department of Justice are quite limited; thus, the federal government encourages self-auditing, reporting and corrective actions so that it may pass by such forthright companies to focus their limited resources on the truly bad actors.
State enforcement of environmental crimes depends heavily on what state is involved; some states are aggressive in pursuing environmental criminals while some do virtually nothing. Some state enforcement is hampered by poor laws that make environmental crimes misdemeanors or just violations like traffic tickets. Most federalenvironmental crimes are felonies. In states like Alabama where a number of environmental crimes are not felonies, small town and county prosecutors have no incentive to learn the complex area of environmental law just so they can get a misdemeanor conviction and the criminal will get a year's probation. One thing that is needed in the state law environmental area is to make criminal violations of these acts felonies. Only then will local district attorneys have adequate incentive to attempt prosecutions in these often difficult and complicated cases. Proof of these kinds of crimes often requires detailed and complex expert testimony in areas unfamiliar to most prosecutors. The possibility that the defendant will get only a small fine and little, or no, jail time makes the prosecution of these crimes unlikely in the face of the large backlog of other criminal cases, such as drug crimes and murders, in which significant punishment is much more likely.
Yet environmental crimes are extremely serious crimes with consequences that may last for generations and that may affect thousands of people. Often there is no one, identifiable victim of an environmental crime; usually, it is the environment and society at large that are the victims. Prosecution of crime is made easier by the availability of a distinct human victim; nonetheless, prosecution of "victimless" crimes such as insider trading and tax evasion are done regularly and are increasing. With the growing realization that everyone is a victim of environmental crimes, prosecutors want to learn how to prosecute environmental criminals, but it is unrealistic to expect vigorous prosecution when the penalties are so insubstantial. And it is equally quixotic to expect these light sanctions to be a deterrent to criminals.
D.Citizen Suits
Most federal environmental laws allow individuals and environmental groups to sue a person alleged to be in violation of those statutes. These citizen suit provisions aredesigned to allow a citizen or public-interest organization to enforce these laws when the state and federal agencies take no action.
With few exceptions, all citizen suits must be preceded by a 60-day notice letter. The idea behind this letter is to get the violator to rectify the problems voluntarily or to get the state and federal agencies to take action against the violator.
Under the Clean Water Act, a citizen cannot sue a violator for money for "wholly past" violations. Thus, if violations cease during the 60-day notice period before the citizen files suit, then the citizen cannot hold the violator financially accountable for the past violations; however, the state and federal agencies still can. Under other statutes, citizens may be able to sue for penalties for wholly past violations. It all depends on the language in each statute.
For a citizen to bring a suit under the federal environmental laws, he or she must meet a fairly stringent test for "standing." In Lujan v. Defenders of Wildlife, the Court examined standing under the Endangered Species Act, but the language appears to apply to all environmental statutes. "Standing" is a legal concept that essentially means that one bringing a lawsuit must have a sufficient stake in the controversy to obtain judicial resolution of that controversy. Ever since 1972, because of the landmark ruling of Sierra Club v. Morton, the rule for standing in citizen suits under the environmental laws had been fairly lenient; if the groups had members who had even a merely aesthetic interest in what the government was about to destroy, then the group had standing to sue to stop that destruction. Standing now means that the group's members must prove that the action complained of will produce imminent, actual harm unique to those members.
A number of federal courts have recently examined whether particular plaintiffshad standing and held that they did. Standing of citizens near ponds and wetlands that were to be drained was upheld in Save Our Community v. U.S. Environmental Protection Agency. Standing was granted for the decreasing ability to enjoy a river for swimming, boating, or fishing. Standing was also upheld for aesthetic injury resulting from an oily or greasy sheen on a river. A scientist who studied an endangered species and its habitat about to be impacted by a development was held to have standing under the ESA to bring a citizen suit. Industry interests that wanted to destroy a wetland had standing to challenge a Fish and Wildlife Service plan to protect it.
People who are directly and individually affected by some action affecting the environment will have standing to sue. All that has really changed since Lujan v. Defenders of Wildlife is that the "arm chair" environmentalists are taken out of the litigation game.
Under most of these citizen suit provisions, the plaintiffs can recover their reasonable attorney fees and costs from the defendant if the plaintiffs prevail on all or a significant portion of their claims. Without the possibility of recovering attorney fees and costs, the vast majority of citizen suits would never be filed; it is a fact of life that very few public interest environmental groups can muster the funds necessary to litigate regularly without being reimbursed for those expenditures. It is also possible, although rarer, that a prevailing defendant could receive an award of fees and costs from an unsuccessful plaintiff in a citizen suit. According to a Senate Report issued during theconsideration of the Clean Water Act by Congress, Congress was concerned with awarding fees and costs to plaintiffs who performed a public service through their litigation and to defendants who had been subjected to an obviously frivolous or harassing lawsuit. Although a number of courts have addressed the issue of whether to award fees and costs to a substantially prevailing plaintiffs, few have considered whether a prevailing defendant should received them, but of those that have, most have basically adopted the test set out in the Senate Report that the suit must be frivolous or harassing.
The award of attorney fees and costs is a matter for the discretion of the trial judge. However, that discretion is not so broad that a judge could award a successful plaintiff absolutely nothing. The Eleventh Circuit in Atlantic States Legal Foundation, Inc. v. Tyson Foods, Inc., noted that the award of attorney fees is within the discretion of the district court, but the Eleventh Circuit directed that such fees should not be denied absent some good cause. Since the plaintiffs in Atlantic States had succeeded on the merits, the Eleventh Circuit stated that it could not envision any grounds or cause that would justify a denial of fees in the case.
Toxic Torts
The area of tort law involving the environment has not been preempted by the many statutes and regulations; what are known as "toxic torts" are viable means of redress for the public even though a polluter may be in compliance with all applicable environmental laws and regulations. A facility in compliance with all federal and state environmental statutes and regulations can still be held liable under tort law if its pollution proximately causes damage. The proof of proximate cause can be extremely difficult in many toxic tort cases; also, where the damages are more speculative (such as fear of future disease), proof of those can be difficult as well. Nonetheless, despite all the possible difficulties involved in toxic tort cases, they are a growing phenomenon.
A question that arises more and more frequently is whether a corporation, municipality or other entity can be held liable for damages caused by pollution discharges that comply with all federal and state environmental laws and regulations. The quick answer is, in most instances, yes. The basic premise to keep in mind is that the numerous federal and state environmental laws and regulations are designed to allowgovernment to regulate pollution, not to displace or preempt the common law rights of private citizens. While environmental statutes could have been designed to occupy fully the field and to provide their own remedies for damages to private citizens, they were designed to give government a means of regulating pollution and of mitigating its effects. Regulation of pollution alone has proven to be a Herculean task.
Almost all of these laws, both federal and state, contain savings provisions that explicitly state that other laws and remedies are not limited or preempted. The Clean Water Act states:
"Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator [of EPA] or a State agency)."
As an example of state savings clauses, the Alabama Water Pollution Control Act states:
"Nothing contained or authorized in this chapter and no civil action by the commission, or the attorney general or any district attorney, as provided for in this section, shall be construed to impair, or abridge or abrogate any cause of action which any person or class of persons may have by any other statutory or case law for the alleviation, abatement, control or prevention of pollution or for the restitution for damages resulting therefrom."
There are similar savings provisions in the federal Clean Air Act and the Solid Waste Disposal Act (which covers both hazardous waste and garbage). For other statutes that make no explicit attempt to completely occupy all areas of the field, it cannot be presumed that such a statute preempts common law without an explicit statement of that intention. Statutes are presumed not to alter the common law in anyway not expressly declared.
These savings provisions make it clear that Congress never intended to occupy completely the field of environmental law remedies and left available to the public common law remedies for damage caused by pollution. Even though the environmental statutes do not preempt the common law, there remains the issue of whether compliance with those statutes and their attendant regulations immunizes a defendant from tort liability for damage due to permitted pollution. Environmental law often seems complicated to those not accustomed to it, but when it comes to environmental tort law, the basic rules of general tort law remain the same. Just as one who operates a lawfully licensed vehicle in full compliance with all rules of the road can be liable for trespass if he drives onto the land of another, one who discharges a pollutant in full compliance with environmental statutes and regulations can be held liable for trespass if that pollutant goes onto the property of another. Thus, the torts of trespass and nuisance remain viable actions for the private citizen whose land has been injured by pollutants lawfully discharged under the environmental statutes.
However, while the traditional tort theories remain available to one injured by pollution, they often remain inadequate to redress fully the extent of the damages, particularly for personal injury damages. While the tort theories often used in "toxic tort" cases are the same as those familiar to all attorneys, difficulty arises in making one's case because of the heavy burden of proving proximate cause when the instrumentality causing the damage is odorless, tasteless, colorless, and detectible only in quantities down to the parts per billion or trillion. If a case involves a large and obvious spill of dangerous materials such as a truck overturning and spilling thousands of gallons of benzene onto a person, then there is little doubt as to proximate cause. However, most toxic tort cases involve chemicals and wastes that are present only in small quantities, yet they still cause damage or may cause damage in the future. Proving proximate cause between the defendant's discharge and the plaintiff's injuries can be aformidable and expensive task involving a great deal of expert testimony.
A number of new tort theories or new applications of older tort theories have arisen in an attempt to provide the plaintiff a remedy despite the difficulty of proving proximate cause under traditional tort theories. Some of the tort theories being raised in toxic tort cases include: breach of implied warranty of safety, breach of duty to warn, negligent misrepresentation, strict liability, fraud (misleading or inadequate disclosures of hazards), suppression of material facts, invasion of privacy, infliction of emotional distress, and involuntary exposure to the risk of chemical injury. Being new, most states have not even had the opportunity to examine or to recognize these torts yet. Along with new tort cause of action theories and applications, new theories of damages are being raised: fear of future injury, cancerphobia, medical surveillance costs, loss of quality of life, and increased risk of future injury or illness.
Although compliance with federal and state statutory and regulatory requirements will not immunize a defendant from tort liability, a defendant can certainly raise the fact of its compliance before the jury in order to persuade them that it has not breached the standard of care recognized by society. Thus, compliance with environmental statutes may weaken a plaintiff's case, but it does not automatically defeat it. However, if a company is not in compliance with state and federal environmental regulations, proof of such a fact is fuel for the plaintiff's fire and will not play well with a jury.
In toxic tort litigation, the strategy and perspective of the plaintiff is the same as in any other tort case: to get money for a perceived wrong. The only main difference with toxic tort cases is that the perceived wrong can extend to thousands of people due to the nature of the problem and the perception that exposure to a dangerous substance can cause unknown and long-term problems to many people. Some plaintiff attorneys in toxic tort cases will play up the unknown and possibly dangerous consequences of exposure to a chemical in order to generate publicity, attract additional clients and influence settlement possibilities. With unknown, long-term impacts from a chemical, plaintiffs trust that a jury will resolve those unknowns by erring on the side of the exposed party rather than on the side of a corporation. Thus, even testimony by the bestexperts money can buy cannot forestall multi-million dollar verdicts if any substantial unknown affects of the chemical in question exist. The plaintiff need only prove that the chemical exposure probably will cause certain affects sometime in the future; whether those damages ever actually materialize is not the point. Faced with a prima facie case from the plaintiff, the defendant's practical burden is to prove to the jury's satisfaction that the exposure will never have any adverse affect, because unless such proof can be made, the jury, from a pragmatic standpoint, will usually resolve the uncertainty in the plaintiff's favor. With most chemical substances, it is impossible with society's current knowledge and technology to prove that absolutely no adverse affects will ever occur to an exposed person; thus, if the plaintiff makes his initial case of just showing probability of future injury, then the defendant faces a jury gamble that it will usually lose.
Still, making that initial showing is not easy for a toxic tort plaintiff; significant expert testimony is needed to show the necessary probability of future harm. Thus, the weakest part of the plaintiff's case is in making that proximate cause connection that future damage is more probable than not. A defendant had best concentrate on attacking the plaintiff's ability to show that proximate cause probability rather than rebutting such evidence in a vain attempt to prove a negative: that exposure will never have any future adverse affect. If one can convince a judge that the proximate cause probability has not been substantially proven, then one can keep the plaintiff's expert testimony out and win the case before it ever gets to the jury. Once that testimony is before the jury, the defendant's task becomes extremely difficult, although not impossible.
In toxic tort cases, a company can be sued and have a large judgment entered against it even if it is in compliance with all state and federal environmental laws. The rash of thousands of cases against bleached pulp paper mills over their discharges of the toxic chemical dioxin show how even companies in compliance with their permits can face billions of dollars in claims. Almost needless to say, noncompliance will only publicize the defendant's problems and make a plaintiff's case much better, so compliance with all laws and permits is a good strategy to prevent and to soften toxic tort cases. When sued despite compliance with all laws, the defendant should endeavor toshow that such compliance meets all industry and government norms for reasonable behavior.
Further help in preventing tort cases, and in winning them if they occur, is to go beyond what the federal and state governments require. Being open with the jury about how some pollution is unavoidable in the process involved is important, but going further and showing how the defendant has long been working on reducing that level of pollution even further is critical. A defendant who only barely meets government requirements and then claims that the public does not need any further protection is asking for a multi-million dollar shellacking; industrial self-righteousness, even if legally and scientifically justified, does not play well with jurors. Acknowledging that the defendant should do more than the government requires and showing how the defendant HAS done more since long before this suit came up will sound good to a jury; most people do not trust the government enough to believe that "meeting government standards" is good enough. If a company has a policy of always trying to do better than government standards and better than other members of that industry, then that company's odds of being hit with, and then losing, a toxic tort suit will be significantly reduced. Also, making such efforts public periodically will make it more likely that the general populace (from which the jury comes) will not be receptive to a suit against that good company that is trying to solve their pollution problems. That good reputation in the community can greatly reduce the odds of a suit ever being brought.
The lesson is a clear one: one does not get successfully sued over things one does not do. If there is a choice between a manufacturing process that produces a toxic pollutant and one that does not, choose the one that does not; the long-term savings and the protection from toxic tort suits may well be worth the additional expense. If eliminating toxic pollution is not currently possible, do significant research into making it possible. Even if one never finds a process to reduce the pollution, the efforts will work to prevent, and win, a toxic tort suit by showing the company's good-faith concern over trying to rectify the problem.
A strategy of just barely meeting government standards and doing nothing morewill not save a corporation in a toxic tort case, particularly if the industry had a big part in getting the regulatory agencies to set those standards. The first two multi-million dollar verdicts against paper mills over dioxin water pollution were, in part, the result of the plaintiffs having shown the jury that the state standard the defendant was complying with was much higher than the recommended federal standard and that the defendant had a big hand in lobbying the state agency to adopt that less-stringent standard and in lobbying the EPA to approve it. The jurors did not take kindly to the defendant's claim that it met the state standard when the defendant had operated behind closed doors to get that state standard weakened. Excessive industry influence on the environmental agencies that are supposed to be regulating pollution such that the public is protected adds lots of ammunition for a plaintiff in a toxic tort case and in a citizen suit, also. Most regular folks do not like having a regulated industry that discharges toxic substances have so much influence with their public servants that their public agencies set the standards at what industry asks for. Regardless of whether large industries' influence on the regulatory agencies and politicians is improper or not, most people see it as unsettling. It is a fact that industry has much better access to, and influence on, the political and regulatory system than any regular working person does, but a jury is made up of those regular folks to whom industry has no special access at all. Companies with foresight should remember that fact when their lobbyists prowl the halls of Congress, the EPA, and the state legislatures and agencies.
Hiding one's actions and one's pollution from the public may work for a while, but it will only make the inevitable citizen suit or toxic tort case much, much worse. Prudent companies actively find their environmental problems and aggressively pursue resolutions to those problems through cooperative efforts with the public, environmental groups and government. In the long-run, this route is not only good insurance against lawsuits but also good business as eliminating physical waste eliminates financial waste.
The Underlying Principles of Most Environmental Laws
There are more environmental laws that have not been touched on, but the ones discussed in this book are the most basic and most consequential. Now that we have looked at some of the more important statutes, we can examine the fundamental principles that underlie and control the workings of almost every environmental law in the country. Keep in mind these simple rules that apply to almost every environmental law and regulation; with them you can break away the thick hull of most environmental laws and get to an understanding of how they operate. Again, not all of these principles will apply to every statute and every situation, and there are always exceptions to every rule in environmental law. Nonetheless, these principles capture the vast majority of the practical workings of environmental law.
Principle Number One: Environmental laws are created by Congress and the state legislatures.
Almost all environmental laws are creatures of the legislative process; they are statutes. Only in the areas of toxic torts and a few unique specialties like the public trust doctrine have the environmental laws been crafted by the courts. Being created by Congress, federal environmental laws can be amended and abolished by Congress at its will, and courts will usually give deference to the way Congress wrote these statutes and will not "rewrite" them through judicial decree.
Each of our individual environmental laws is designed by Congress to address mostly a single subject matter: the Clean Water Act for water pollution, the Clean Air Act for air pollution, the Resource Conservation and Recovery Act for hazardous wastes, the Endangered Species Act for rare species, and so on. All of these statutes haveunderlying presumptions about how they will operate; some are based upon an environmental quality viewpoint, which means that they are designed to achieve a certain, desired level of cleanliness in the area of the environment that that law covers. Some of the statutes are based more on a technological achievability viewpoint; they seek to require pollution reduction to the point that the "best" technology can bring it, regardless of whether that technology is sufficient to achieve the goal of a desired level of pollution reduction. All of the statutes are designed to give an administrative agency some measure of regulatory control over the problem that Congress or the state legislature wishes to address.
It is important to remember that the federal courts do not recognize any constitutional right to a clean environment. A constitutionally recognized right to a clean environment would provide a more basic and fundamental legal foundation for the protection of the environment and public health than the current statutes and regulations do. If such a right were recognized, then a wide array of laws outside the traditional area of environmental law, such as the civil rights statutes, would be implicated. Without such a constitutional right, environmental protection normally extends no further than what the statutes and regulations provide.
Federal courts that were presented the opportunity to recognize the right to a clean and healthy environment in the early 1970's declined to do so because those judges felt that the newly enacted statutory and regulatory schemes should have a chance to do the job of protecting and cleaning up the environment. Some state constitutions haverecognized such a right, but those states are few, and their courts generally interpret that right in such a manner as to make it ineffective at limiting government permitting of industrial pollution.
Principle Number Two: Most environmental statutes deal with one major area of the environment.
Although environmental statutes will reach into several areas of environmental concern, most of them deal mainly with one issue or area, such as the Clean Water Act deals with water pollution, the Clean Air Act deals with air pollution, RCRA deals withhazardous waste and garbage, and the Endangered Species Act deals with rare species. As a general rule of thumb, this principle holds for most federal and state environmental laws. Congress, and subsequently the various state legislatures, have taken a route of generally dealing with one environmental problem at a time; there simply are no laws that try to deal with the wide range of interrelated problems in a holistic fashion.
This approach of one problem per one law makes some sense in terms of the legislative and regulatory processes, but in the environment, no problem can be isolated from all the others. A facility that produces a toxic waste product will often discharge that waste into the water and air and will have some left over that needs disposal in some kind of landfill or incinerator; also, any wildlife impacted by the release of that chemical may implicate a broad range of wildlife protection laws. However, that facility's legal obligations for that one chemical waste product will be very different depending on whether one is looking at the waste which goes into the water, that which goes up in the air, the waste which goes to the hazardous waste landfill or that which impacts on wildlife.
Only recently have government agencies been looking at pollution regulatory requirements in a fashion that addresses several statutes at once. The EPA's latest proposed technology requirements for the discharge of the toxic chemical dioxin deal with both water and air discharges at the same time. With such an approach, both the regulating agency and the industry get a better idea of what will be required, both legally and technologically.
Although most statutes deal with just one main area or problem, there are usually small parts of these laws that go beyond the strict parameters of that statute. The Clean Water Act mostly deals with pollution discharges into water, but it also deals with regulating the filling in of wetlands. CERCLA, or Superfund, deals with the cleaning up and paying for toxic chemical sites, but one provision in the law deals with providing a "discovery rule" for the commencement of the statute of limitations in state court toxictort cases. RCRA deals mainly with hazardous waste, but Subtitle D was added to deal with solid waste (garbage).
What must be remembered when looking into an environmental problem and what laws apply is that each environmental aspect of the problem, or even each problem, will likely have a statute addressed specifically to it, but a facility rarely has a problem that confines itself to just one environmental medium. Thus, be flexible in how one approaches a problem and the legal requirements involved; look at the statute that most fits the problem and then look to see if other laws also apply in other ways.
Principle Number Three: Most environmental statutes must be implemented by agency regulations.
The majority of environmental statutes are not fully self-executing; this means that they do not control pollution by themselves. In areas such as water pollution, air pollution and hazardous waste, the scientific questions are so complex that it would be impossible for Congress to legislate on every issue individually. Thus, Congress created the Environmental Protection Agency. The various environmental laws such as the Clean Water Act, the Clean Air Act and RCRA give the EPA the power to regulate pollution and wastes. Congress sets the broad goals and general guidelines in the statutes, and then, the EPA must use its scientific and regulatory expertise to create and implement specific regulations that will effectuate the goals and guidelines set out by Congress in the statute.
Once Congress has passed an environmental law and an agency like the EPA has promulgated and enforced regulations under that law, then the courts may get involved in individual disputes over the laws and those regulations. The courts will interpret what Congress meant and whether the agency has properly fulfilled its role under the law. Normally, because environmental matters require scientific expertise beyond the realm of the courts, the courts will give great deference to an environmental agency's decisions in how it implements what Congress told it to do. Still, the courts will not turn a blind eye to clearly illegal or improper agency actions.
As with the situation where a number of statutes may impact on a given situation, a number of state and federal agencies may also be involved. A facility needing air and water pollutant discharge permits will be involved with the EPA and any corresponding state environmental agency. If the air pollution from that facility travels into a national forest, the U.S. Forest Service may also become involved. If any endangered or threatened species listed under the ESA are impacted, the U.S. Fish and Wildlife Service will be involved. Impacted wildlife that is not listed under the ESA may still bring in a state wildlife agency. Any need for a permit to fill in a wetland on the facility site will involve the Army Corps of Engineers as well as the EPA. The effects of chemicals in the facility on the plant's workers will bring in the Occupational Health and Safety Administration. If the facility spills oil into a river, not only the EPA and the state environmental agency will be involved but also the U.S. Coast Guard.
The general rule is that each statute addresses one major area of environmental concern, but there are exceptions. Similarly, each statute authorizes one administrative agency to handle the regulatory duties under that statute, but there are again exceptions. Negotiating the maze of environmental laws and regulations often also requires one to negotiate a network of different administrative agencies, all with different agendas and priorities.
Therefore, most of what are called environmental laws result from an interaction of three things: statutes passed by Congress, regulations issued by agencies implementing those statutes, and decisions by courts regarding those statutes and regulations. Generally, things work the same way with state environmental laws; a state legislature passes a law, an agency implements that law through regulations, and the state courts review those prior two.
Principle Number Four: Anti-pollution laws are designed to regulate pollution, and alternatives to regulation have generally not been tried.
Although the Clean Water Act was designed to eliminate all discharges of pollution into water by 1985, it has not even come close; as of 1992, more than 362 million pounds of toxic substances were still being released into our nation's waters by industry. And that amount is just from the known and reported sources of toxic pollution; the actual amount is much higher. Also, that is just the amount of toxic pollutants being reported, it does not include the larger volume of conventional, non-toxic pollutants being discharged into the nation's waters.
Most environmental laws, both on the federal and state levels, state that their purpose is to protect the public health and enhance the quality of the environment through the elimination of whatever type of pollution the statute is aimed at addressing. That being said, the statutes immediately set up a system of pollution regulation that attempts to "control" pollution; the actual working parts of these laws do not even attempt to eliminate pollution, but in fact, they sometimes allow it to increase. The idea seems to be that pollution can be managed and contained much like a docile herd of cattle can be rounded up and headed down any trail desired. And technology is the equivalent of the skilled cowboys who can get the cows to do anything they want; then with the herd under control, you can add as many more cattle as you like to the herd and still maintain control.
From the industry perspective which has always historically been in terms of cost-benefit, it makes no sense to a businessman to spend large sums of money for benefits that appear small or that cannot be readily identified at all. Eliminating the smell and sights of raw sewage from rivers was a tangible benefit that everyone could readily perceive; however, once 90 percent or so of the obvious pollutants have been eliminated from a river, it is difficult to access the benefits of eliminating the remaining ten percent when there is no scientific proof that the remaining pollution is causing any significant immediate problems to people. Some advocates of environmental protection have even suggested that we should not try to eliminate pollution beyond a point of 95 percent, because the financial burden of eliminating the final five percent is often extremely high, and the money that would have been used on cleaning up the last five percent could be channeled elsewhere to other environmental causes. This is known as "economic realism in environmental decision-making." Even with obviously harmful pollution such as raw sewage, it is often difficult to make an economic justification for improving the treatment systems already there even when the treatment technology fails and the sewage system has a by-pass where the sewage goes untreated into the receiving river. Many managers of sewage treatment systems do not see any need to improve those systems so that the occasional by-passes that occur now are eliminated; the smell and sight of the sewage is soon washed away, and the residual impacts on the ecosystems are not easily observable. Businesses do not like to spend money on things for which there is no provable need, and governments do not like to spend money on pollution control either when they can spend that money on other, more apparently pressing needs such as fighting drugs and crime.
After more than twenty years of regulation of pollution from both state and federal agencies, it is clear that regulating environmental problems can only achieve a limited amount of success. Often, that limited success comes from excessive expenditures of money with very little to show for it. It may well be time that America tried other ways to eliminate the pollution that still remains and to solve the otherenvironmental problems. Government control and regulation of pollution that has already been created has failed to eradicate many of the problems caused by that pollution; other, more imaginative incentives to reducing the amount of pollution produced in the first place are necessary.
Economics is the overriding factor in limiting the effectiveness of pollution regulation; while the costs to industry to implement new controls get great attention, the costs to society of pollution are often overlooked or down-played. If the cost of every product and service was accurately priced to include all of the environmental costs associated with it, then the public could easily choose what was necessary in their lifestyles and what was not; further, the tax costs for pollution remediation and health care should drop significantly. Then, the ultimate decision for how much pollution is "acceptable" would be in the hands of those who have to live with pollution, the public, and not with the politicians and bureaucrats who have their own agendas in which the public gets little, or no, say.
Alternative approaches could encourage and then give real incentives for industry to stop producing the pollution to begin with; if a company produces no pollution, then there is no need to try to regulate it and control it with gizmos at the end of the pipe. Many companies that have tried new production processes that produce less or no pollution have found that they make more money in the long run. Pollution is not only literally waste, it is sign of wasteful practices in production. If a company will think beyond the next quarter's profit margin, they can see that eliminating physical waste (pollution) will eliminate economic waste (money). Quite simply, pollution is expensive; controlling pollution is more expensive. Eliminating the production of pollution during the production of products saves money and saves the environment.
However, our industrial systems evolved during a period when there were no pollution controls or laws whatsoever. It was easier for industries in 1900 to simply throw the waste out and let someone else deal with it. The present system of pollution regulation and control embodied in the laws is nothing more than a technological attempt to slap control devices on the end of the pipes and the top of the smokestacks of the old,inefficient, polluting processes. Only so much progress can be made with this approach. Industry simply has little incentive to make things any cleaner than they do right now.
What are needed are not more regulations but incentives to make industries change the very means by which they make their products. A comprehensive system of pollution taxes and tax credits would give industry incentives to change production processes and to improve technology. It is an axiom of tax law that whatever you tax, you get less of; thus, if society does not want pollution, we should tax pollution. Some states do tax certain kinds of pollution to varying degrees. Government regulatory mandates ordering the level of technology industry must use give no real incentive to spend money to develop new pollution control technologies, because if industry does not improve the technology, then government cannot tell it to spend the money necessary to implement that new technology industry-wide. Instead of telling industry what technology to use, government could simply say that industry can do whatever it wants, but pollution will be taxed at ever increasing rates.
Such a tax scheme would involve a set of tax rates that could be decided upon by Congress. Obviously, discharging an ounce of the highly toxic dioxin should cost industry much more than discharging an ounce of grease-contaminated water. The idea would be to make the creation and discharge of toxic pollutants expensive and to offer tax breaks for the development of technology or production techniques that reduce or eliminate that pollution. Instead of dictating what technology must be used, government would merely give powerful economic incentives for each industry to figure out how to solve their pollution problems by whatever means is suitable and to the extent that each company decided was prudent for them. Then, it would be up to industry to find solutions or to pay pollution taxes that could then be used to clean up old pollution and to prosecute criminal violators of the pollution laws.
One area of environmental law that is currently in place but has received very little use are the criminal sanctions in our environmental laws. Although some of the more heinous or less politically connected polluters have been prosecuted, overall, there is an appalling lack of enforcement. Some local areas such as cities like Los Angeleshave developed fairly effective pollution crime fighting forces. But for the majority of the nation, prosecutors act as if environmental criminal statutes do not even exist. Often, states do not even prosecute environmental crimes as severely as the federal government does; crimes that the federal laws treat as felonies are sometimes only misdemeanors at the state level.
What all this comes down to is that there is not a governmental commitment to treating environmental crimes with the same level of concern as society does drug crimes; even though, illegally dumped toxic chemicals can kill a child as easily as cocaine can. Things would be a lot different if the EPA prosecuted environmental criminals with the fervor and to the extent that the DEA prosecutes drug criminals. Even without any expansion of the criminal environmental statutes, society could make major improvements in the environment simply by enforcing the current laws to the same extent as drug laws are. Going further, criminal environmental laws could have sections that give the government the same property seizure powers as it has under the drug laws.
Principle Number Five: The polluter monitors itself.
The EPA and the states do only a very limited amount of monitoring regardless of what area of environmental pollution is involved. The burden for testing air emissions, water discharges, soil contamination and a host of other things is placed mainly on those industries that are involved in such releases. While this monitoring requirement of industry can be a burden on corporations, it also presents a negative public message that "the fox is guarding the henhouse." Although most corporations are honest and report their releases accurately, there is always the possibility that a company can lie on its reports. Quite simply, it is possible, and does happen occasionally, that the public and government agencies will never know of violations of environmental laws because the violator lied on its reports so that its violations are not apparent.
The best example of self-monitoring can be found in the Clean Water Act. Under the CWA, anyone that wants to discharge any pollutant from a "point source" (meaning,basically, a pipe) must first acquire a permit to do so. These permits are the NPDES permits discussed earlier. NPDES permits are issued by the EPA, or if the EPA has approved a state's water pollution permit program as equivalent of the federal one, then that state has the authority to issue NPDES permits. With permit in hand, the company can then begin discharging into a waterway the pollutants listed on the permit in such amounts as do not exceed the limits placed on each pollutant in the permit.
In order to assure that the permit holder does not violate its permit, the terms of the permit require the company to sample and test its discharge on a regular basis; depending on the size of the company, the amount of the discharge and the type of pollutants, this monitoring can be required as little as once every three months or up to as much as every day. Then, every month, the permit holder must submit a form to the EPA and the state that records the results from the monitoring; this form is called a Discharge Monitoring Report (DMR). Unless required under certain, special circumstances, the actual test results of the monitoring do not have to be included with the DMR; it is usually sufficient for someone at the company to fill out the DMR with the test results, sign the DMR and send it in to the government.
In the area of hazardous waste, the records kept by the producers, transporters and disposers of such waste are key to the government's ability to track and account for the waste. For underground storage tanks, the burden is put on the owner of such tanks to notify state and federal officials of the tanks' existence and to ensure compliance with all the required safety devices. The annual inventory of toxic substances released into the environment by industry is compiled by the EPA from reports prepared and submitted by those industries that release those chemicals.
Under the current scheme of our environmental laws, self monitoring and reporting are critical to government's ability to enforce the laws. Without this monitoring by industry, we would have no idea what substances were being discharged where and when and in what quantities. Although this reliance on the polluter monitoring itself provides opportunity for falsification of discharge data, studies and surveys show that the vast majority of facilities accurately and completely report theirdischarges.
Principle Number Six: Almost all federal environmental statutes have provisions for citizens to sue for enforcement if the government does not enforce the law.
Almost all of the major federal environmental laws contain what are known as citizen suit provisions; most of the federal laws allow a citizen to sue the government when it has not done a mandatory duty and to sue a polluter when it is in violation of the law.
For example, like most environmental laws, the Clean Water Act has a provision allowing citizens to sue for NPDES permit violations. This citizen suit provision allows citizens to sue for other violations of the CWA and to sue the Administrator of the EPA for failure to perform a mandatory duty under the Act. When used against a polluter, the citizen suit provision serves two purposes: one, it is made to stimulate government action to end the violations, and two, it allows citizens to sue in federal court to enforce the requirements of the CWA when state and federal government agencies do not act to end the violations. In almost all the environmental statutes, the citizen suit provision requires that a citizen give 60 days notice stating the violations alleged and the citizen's intent to sue to the alleged violator before the citizen can file suit, and this notice is sent to the polluter and to the responsible state and federal agencies. This notice provision is designed to induce the EPA or the state to take action to address the violations; only if the federal and state governments fail to "diligently" prosecute can the citizen sue. According to the United States Supreme Court, another purpose of this notice provision is to give the alleged violator "an opportunity to bring itself into compliance with the Act and thus likewise render unnecessary a citizen suit."
Some courts have interpreted the 60-day notice provision under certain environmentallaws as not mandatory. Because the 60-day notice provision in the citizen suit section of the Resource Conservation and Recovery Act has been declared mandatory by the Supreme Court, the 60-day notice provision in the citizen suit section of all federal environmental laws should probably also be considered mandatory. There are certain exceptions to the requirement of 60-days notice, and they vary from statute to statute and are usually extremely narrow sets of emergency circumstances.
Use of the Freedom of Information Act in Environmental Law Matters
The Freedom of Information Act (FOIA), is a useful means of gaining access to a great deal of public material that the government normally does not make available to the public. With the ingenious use of FOIA, individuals and environmental groups have learned about forms of pollution that the government knew about and was permitting without following the proper laws and regulations. Industries can use FOIA to discover what input environmental groups and others have had in the formulation of regulations, to learn who has been involved in commenting on permits that an industry is seeking and to find out what information the government has on their competitors.
The first thing to do when you want to know about some government project, about some industry's permit request or about whatever information the federal government has on a certain thing is simply to write the agency and ask for the information. Sometimes you will be amazed and get what you want just by asking for it. As with any endeavor that may end up in court, keep a copy of everything that you write and of every response. However, when your informal requests to a federal agency for documents have come up empty, you must make an official request under this Act. Not matter how much they want to, agency personnel cannot ignore a FOIA request, and when they turn over documents after a FOIA request, they are covered in case someone gets angry about the release of the information.
Under FOIA, the agency must give you the documents you request within ten working days. Most agency regulations provide a means of expanding this deadline, but the agency has to inform you of any expansion, the reasons for it, and the date when they will get the documents to you. Under FOIA, you can pretty much request anything, but you do have to be reasonably specific. Asking the Army Corps of Engineers for "alldocuments you have on dams" will not do, but asking for "all documents submitted by Huge Power Company on the proposed dam for the Nearby River" is specific enough. If the government has difficulty understanding what you want, they normally will contact you for clarification.
While FOIA provides access to all sorts of documents, there are exceptions under the Act that can prevent access to certain papers. For instance, papers important to national security or protected by executive privilege are exempt from disclosure under FOIA. If the agency does deny you access to certain documents, they must tell you what those documents are and give their claimed exemption for each document. Any denial of a document request can be administratively appealed within the agency, and each agency has slightly different ways of doing such an appeal, but they must inform you of that right and of their particular procedure. If an administrative appeal fails, you can take the agency to federal district court to try to get the documents. Also, if the agency completely fails to respond to your request either with the information, a denial or an extension, you can sue them for the documents.
Normally, copying government documents can cost many dollars, but the FOIA provides for a waiver of any fees for collecting and copying the requested records "if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operation or activities of the government and is not primarily in the commercial interest of the requester." Normally, business requests under FOIA are for that company's use and therefore are not likely to contribute significantly to the public's understanding of the agency's activities; thus, payment for the copying of the documents will normally have to be made. Non-profit organizations, including industry groups that intend to disseminate the documents to the public, will have no problem meeting the second prong of the fee waiver test. As for the first prong, one should provide as much information as is possible as to why you want the information, what you will do with it and how you are going to disseminate it.
FOIA requests can be very simple. Find the right address for the agency and send the request to the "FOIA Officer" for that agency. For matters of a national scope,you will usually make your request to the national office in Washington, but for local things, such as information in the local Corps of Engineers' office on a wetlands fill proposal on your neighborhood river, the letter should go to that local office. If you send your request to the wrong place in the agency, it will eventually be sent to the right office, but that will delay your getting the information. As for the requested documents themselves, just state in as clear and concise a fashion as possible exactly what it is you want. Then give all your reasons for the information and why you should be granted a fee waiver. A lawyer could handle a FOIA request for you, and a FOIA request on an attorney's letterhead may look more intimidating, but essentially, there is nothing about making a FOIA request that you cannot handle. However, if you have to appeal a denial of a request or have to take the agency to court, you will need a lawyer then. Such a case will be handled right in the federal district where you live, but it is still litigation with many of the perils that lawsuits always entail. There is a provision for getting your attorney fees and costs if you win.
Important note: mark conspicuously at the top of your FOIA request and on the envelope that your letter is a "Freedom of Information Act Request." For an example of a FOIA request, see the letter below.
As for getting access to state government documents, each state has a different law. Check your state statutes. As an example, in Alabama, all state records are available to the public, with minor excepts such as trade secrets, and people are allowed to get copies of any record. There is no fee waiver provision, however, and some state agencies charge out excessive amounts for copying -- up to a dollar per page. Also, you might have to wait a long time, from a few weeks to a few months, before the agency will bother copying what you requested and mailing it to you. Then, you may discover that they did not copy everything you requested or that they copied other things that you did not want. You have already paid your money up front for the copies (or they will not send you the documents), and it is nearly impossible to prove that they made the mistake instead of you.
Bad state agency people have many ways of preventing your access to your publicdocuments. One of the most simple is that they remove things from the file before you arrive. An agency can claim that a certain file is "out" or being used by someone else in the agency who cannot be located. Also, many state agencies will not give you anything that you do not specifically ask for; unless you already know the contents of a file such that you can ask for it explicitly, you will not get to see it. Here is a "Catch-22"; you cannot identify the contents of an agency file until you see it, but you cannot see the file until you adequately identify its contents. If you are denied access to state documents, you may have to take the agency to state court.
Here is an example of a FOIA request:
December 26, 1991
Freedom of Information Act Officer
United States Fish and Wildlife Service
Department of the Interior
18th & C Streets, NW
Washington, D.C. 20240
Re:Freedom of Information Act Request
To Whom It May Concern:
On behalf of [name of petitioner], a taxpayer and resident of Monroe County, Alabama, and an owner of over 2,500 acres of timber land, I am submitting this request under the Freedom of Information Act, 5 U.S.C. § 552. Please provide, within the ten working days required by law, the following records:
(1) Any and all papers, documents, maps, studies, reports, information, data or other materials that the Fish and Wildlife Service has on or regarding the location of the listed threatened species the Red Hills Salamander on or within one mile of the following location: [legal and specific descriptions of the petitioner's land];
(2) Any and all papers, documents, letters, maps, reports, studies, information, data or other materials sent to or submitted to the Fish and Wildlife Service by anyone on or regarding the location of the listed threatened species the Red Hills Salamander on or within one mile of the following location: [legal and specific descriptions of the petitioner's land];
(3) Any and all papers, documents, letters, maps, reports, studies, information, data or other materials sent or submitted by the Fish and Wildlife Service or by any official, employee or agent of the Fish and Wildlife Service, to anyone on or regarding the location of the listed threatened species the Red Hills Salamander on or within one mile of the following location: [legal and specific descriptions of the petitioner's land];
(4) Any and all papers, documents, letters, maps, reports, studies, information, data or other materials sent or submitted to, sent or submitted by, or in the possession of the Fish and Wildlife Service or any official, employee or agent of the Fish and Wildlife Service, regarding the listed threatened species the Red Hills Salamander and the Habitat Conservation Plan and section 10 incidental take permit involving [name of nearby timber land owner in competition with the petitioner].
If you anticipate any delay in processing this request, please notify me as soon as possible.
Sincerely,
How to Identify Potential
Environmental Law Problems
A.Where and How Most Problems Arise
Most environmental law problems arise from either ignorance of what is required or a willful failure to meet those requirements. As the saying goes, knowledge is power, and one who is familiar with the law and regulations that might impact their business has made a major step toward avoiding any problems. Once one knows what is required, meeting those requirements is imperative, because a willful, knowing failure to comply with most federal environmental laws, and many state ones, is a criminal offense, often a felony.
Nonetheless, there is some evidence that many corporations do indeed knowingly violate environmental laws, sometimes routinely, but many of those violations should not be considered criminal. In a 1993 survey by The National Law Journal of more than 200 corporate general counsels, 66.8 percent admitted that their corporations had operated in violation of state or federal environmental laws at least part of the previous year. In that survey, 70 percent of those lawyers felt that full compliance with all of the current environmental laws and regulations was simply not possible. The survey did not get detailed enough to reveal whether those violations were accidental excursions beyond permit limits or were situations that the companies knew about ahead of time and could have prevented.
It is a fact of life that machinery and the other devices of mankind will not operate properly 100 percent of the time, and so, it is virtually inevitable that the pollution control technology on every facility in the country will malfunction to somedegree at some time. For minor accidental excursions from permitting discharge limits, state and federal agencies very rarely impose any kind of sanction or punishment, and most environmental groups also understand when this eventuality occurs. However, some violations that companies want to characterize as "accidental" are not, because they could have been prevented with reasonable care. If a facility is about to start a new production line and add it to the facility's pollution control system, then it is foreseeable that until the new line has been broken in and achieved stable operations, that line may cause problems for the pollution control system, particularly if that system will be operating at or near capacity with the new influx. Any violation of discharge permits due to an unexpected surge of waste from the new line is the legitimate subject of possible civil enforcement action. Clearly, though, such a violation would not be the proper subject of criminal enforcement, because although it was a foreseeable possibility, the violation was certainly not intended.
Of course, there are some accidental violations of environmental laws that are so catastrophic and that could have been avoided with reasonable diligence that no leeway is given to the violator. The Exxon Valdez oil spill in Prince William Sound is the quintessential example of an accidental legal violation that must be punished and punished on an appropriately large scale. There, the corporation let too many known possible malfunctions go unaddressed in a situation were those malfunctions would clearly create a disastrous result.
Finally, there are those situations where a facility and its operators are clearly intending to violate the law and are thus guilty of criminal intent. Because American environmental laws and regulations are heavily dependent on self-monitoring, there is amble opportunity for a facility knowingly to violate the law. A good example is a production plant of a Fortune 500 company that the Author investigated. There, the plant was required to sample its waste water discharge once a month. Every day, the operators of that facility knowingly released their wastes raw into the river, completely by-passing the treatment system and thus saving thousands of dollars per day in operating costs. On the appointed day of the month when sampling was to occur, they turned thetreatment system on, which worked just fine, and testing the effluent in-house until the waste was within permit limits; then they collected the official sample, sent it off to an independent laboratory which tested it and verified that the pollutant levels were indeed within permit limits. The state agency that oversaw this company accepted these reports at face value and assumed that the plant was in compliance with the law. Inspections of the plant were conducted only once a year and then only with a two-weeks notification that the state inspector was coming; thus, the facility passed all state inspections easily. A key employee involved in this gross violation of the Clean Water Act felt bad about it and so told the Author about the situation. Because he feared for his job and because there had been thinly-veiled threats of physical violence against anyone who reported what was going on, he was not willing to testify or to report to the authorities what he knew. The discharge pipe was located at the bottom of a large river, so there was no way for someone outside the company to test the discharge directly. Thus, lacking any substantiating evidence that could be used, the Author was powerless to do anything under the law to address the problem.
Another case the Author was involved in was a tanker truck full of a toxic waste left on the side of the road. Someone had collected the waste and a fee to dispose of it, drove the unmarked tanker to a remote location and just left it there. Since they never returned to the scene and the waste involved was not so rare or unique as to be traceable to its origin, the culprit was never caught. A case where the criminal was caught was one where he dumped 55-gallon drums of hazardous waste in a old field. This criminal was stupid enough to dump the waste in a field owned by a relative, to be seen driving the waste to the spot and to leave his waste identification labels on the barrels. Such an easy case to prove is rare.
These situations show that some criminal violations of environmental laws can be accomplished with great ease and, if done with any amount of foresight, an extremely low chance of ever being caught. Short of being caught in the act, most environmental criminals can accomplish their misdeeds untouched.
However, it is clear that the vast majority of companies do report their record ofnoncompliance accurately. Most plants readily admit known violations. The reasons for the honest reporting of environmental violations are many: many violations are accidental or temporary and are readily addressed and corrected; often, no detectible environmental harm results; federal and state agencies rarely ever punish facilities for environmental violations; failure to report the violations, if discovered, could result in worse punishment; and most corporate officials are honest people.
Violations of environmental laws that regulate a facility can come from many causes; it would be wise for a compliance officer and staff to anticipate problems and how to respond to them in the fastest, most efficient manner. Pollution control systems can malfunction for many reasons. A sudden change in production, either in quantity or in the types of materials and chemicals used, can cause a surge that may prevent the system from operating within limits. It is important for the compliance staff to maintain good contacts with the production personnel; in a number of plants, a change in chemicals used caused a crash of the pollution control system that was not designed to handle the new chemical without adequate preparation. As pollution control systems often involve ponds, aeration lagoons and other large outdoor facilities, weather can cause problems. A drastic drop in temperature over a Christmas holiday caused an Alabama paper mill's state-of-the-art water pollution system to fail completely for a month, because no one was at the facility to address the problem at the time it arose, and the staff failed to anticipate this occurrence. Something as simple as the power going out for a few hours and there being no power back-up caused another paper mill's system to malfunction and thus caused 63 permit violations.
It is not possible here to go into the myriad ways that physical systems canmalfunction and cause a facility a legal problem under the environmental laws and regulations. The above examples show that regular dialogue between those responsible for environmental compliance and those who run production operations is vital to maintaining a good environmental record. Basically, most of the environmental laws that impact businesses deal in mandating a certain level of technology and in monitoring that technology's performance. Thorough knowledge of a facility's physical systems, the local environment where that facility's discharges go and how the two interact is critical to maintaining compliance. If the technology is designed to meet environmental law limits, prevention of physical malfunctions will also prevent legal noncompliance. Have contingency plans worked out and rehearsed for solving as quickly as possible all identified possible problems. In the realm of environmental law, ignorance is not bliss, and an attitude of "see no evil" is the best way to get evil. Agencies, the public and environmental groups will be much more forgiving of a toxic spill if you had done everything reasonably foreseeable to prevent the spill and if you quickly responded to it and resolved it effectively. Only thorough preparation can mitigate the environmental accidents that occur and forestall both environmental and public relations damage.
B.How to Avoid Problems
The main thrust of most environmental laws that impact business is to regulate and control the environmental impacts of doing business. Thus, water pollution and air pollution are regulated through "end of the pipe" techniques and technologies. The best way to avoid legal problems with water pollution discharges is simply not to discharge water pollution. One will never have a RCRA or CERCLA issue come up if one does not produce hazardous by-products along with the products that one sells.
If it is possible to change production processes such that waste water is never created in the first place, then problems under the Clean Water Air will simply never arise. Many corporations like 3M and others have examined their production processes for the long-term impacts from those processes and what the total cost really is. A new process for widgets that costs more initially to build than the old process may cost lessin the long run when pollution control costs are factored in if the new widget process produces no water or air waste by-products; thus, the pollution control devices that had to be added to the old widget process would no longer be necessary. Although many products in modern society cannot be produced without also producing pollution and waste, a re-examination of production processes can find those that can be produced pollution-free. Often, a change to a low-pollution or no-pollution process makes financial sense as well as environmental sense, because pollution costs you twice: it represents waste of resources that cost money to acquire, and it costs additional money to treat and dispose of properly. For older facilities that still have many years of useful life to them, redesigning the production process may not be feasible yet. However, for new facilities, elimination of physical waste will result in elimination of corresponding environmental law problems.
Conducting regular internal audits of a facility's environmental compliance is a good way to know what is going on and how much progress is being made toward resolving problems and toward preventing them. A number of lawyers counsel against the use of environmental audits, because if a problem exists, the audit can be used by an adversary in court as evidence of the problem and of the corporation's knowledge of the problem. This concern is only valid if the company does nothing about a problem after an audit turns it up. Yes, an audit showing a problem can be used as evidence against a company, but the company's documented rapid response and resolution of that problem can convince a judge and jury to side with the company. Many environmental problems are unforeseen, or if foreseeable, there is only so much that can be done to prevent them; life is uncertain. But good preparation and swift, positive reaction show that one has done all that is reasonably possible regarding a problem. Judges, juries, government regulators and environmental groups understand and will forgive an environmental accident if the company involved did all it could to prevent it and all it could to rectify it afterwards. Internal audits that lead to prompt reporting of vioaltions and swift corrective action reduce the likelihood that a company will be prosecuted by the Department of Justice and punished in federal court. Also, the EPA has recently decidedto forgo criminal investigation into most violations that are promptly revealed and corrected as part of a comprehensive corporate environmental audit program.
On the other hand, a sure way to meet defeat in a citizen suit or a toxic tort case is to show the judge and jury that the corporation took a "see no evil" approach to its environmental responsibilities and never bothered to check to see if its operations were in full compliance with the law. In the area of environmental law, ignorance is not bliss. Rapid discovery and resolution of environmental problems is the best way to prevent unwanted enforcement action by the government and potential tort liability. All the old adages about human health apply to the environmental health of a facility: an ounce of prevention is worth a pound of cure and early detection leads to the easiest and most likely cure. The honest company need not fear that the audits it conducts and adequately responds to will have a detrimental effect later in court. However, any corporation that conducts an environmental audit, finds a problem and then does nothing about it deserves everything it gets in court later.
For those wanting to know more about how to prepare specifically for environmental compliance under a certain law and on how to conduct environmental audits, Government Institutes has a wide range of books on compliance under all of the major federal regulatory statutes. There are also available from Government Institutes the very inspection manuals that the EPA and other agencies use when they conduct inspections of facilities under certain laws. Of particular interest for a thorough introduction to conducting environmental audits, get Cahill & Kane, Environmental Audits (Government Institutes, 6th ed. 1989).
For real estate purchases, the rule is to always look before you leap. There is a high amount of potential liability that can attach to even an innocent purchaser of contaminated land under RCRA, CERCLA, TSCA and toxic torts. One should never buy industrial property without first having a full audit done to determine if any unpleasant environmental problems may exist. It would also be helpful as part of anaudit not to overlook environmental problems that do not involve contamination with a chemical. Determine if the land has wetlands that will require a permit under the Clean Water Act before one can do one's business; check to see if any rare or unique species inhabit the land or neighboring lands in order to know if there is a possible Endangered Species Act problem. Knowing these things before purchase can steer one away from problem real estate and toward property that can be developed without incident.
C.Checklist of Factors to Look For and Things to Do
Although not intended to be a complete and exhaustive resource for maintaining compliance with environmental laws and regulations, the following checklist can provide ideas of what to look for in order to recognize and prevent many environmental legal problems. Due to the vast range of facilities, their purposes, their construction, their age and their financial resources, one must be sure to take into account the individual needs and realities of their situation.
·Know the physical facility. Interaction between pollution control devices and systems with production systems should be thoroughly examined at regular intervals.
·Maintain regular communication between pollution control staff and production staff.
·Maintain regular communication between pollution compliance officer and corporate counsel. Counsel should know and have available all laws, regulations and permits which the facility must comply with and should keep informed on all changes to the law and all possible changes.
·Have a system of identifying possible problems with the pollution control system, and have planned actions designed to rectify those problems if they occur.
·Practice response drills often.
·Regularly examine possible problems and the planned solutions. Perfection is not possible, so you can always do better.
·Maintain regular contact with the agency personnel responsible for overseeing your facility. A good rapport with the people who regulate you can go a long way toward making it easier to understand what they think your facility should do to comply with the laws they enforce and toward making them understand how your facility operates and what it can, and cannot, do.
·Keep all personnel responsible for environmental compliance trained and updated in the latest legal requirements and industry standards and technology.
·Conduct regular audits of the facility's environmental systems, impacts and compliance.
·When purchasing industrial or development real estate, first have a full environmental audit of the property done to know what environmental problems may be there.
How to Resolve Environmental
Problems Once They Arise
A.Statutory and Regulatory Exceptions
Very few requirements of environmental laws and regulations are "written in stone." Both the statutes and the regulations give a great deal of discretion to the agencies that implement them, and when problems arise, under most of the laws, the agencies can be flexible in how they order the problem be rectified. One example under the Clean Water Act is when a facility that has had problems complying with a permit limit, the state agency ordering compliance can set a schedule for solving the problem and achieving full compliance. When the agency sets this schedule, it can consider the size of the facility and company involved, the financial resources available, the difficulty of installing the necessary equipment and how serious the permit violations are. Often, compliance schedules can be from six months to two years or more. During the time that the compliance order is in effect, further violations of the permit limits involved are shielded from liability.
As another example, under the Endangered Species Act, a project that puts a threatened or Endangered species in jeopardy of extinction may have to be blocked if no reasonable and prudent alternatives can be found. Even in such an apparently irreconcilable situation, the statute provides two possible exceptions to allow the project to go forward. Under § 10(a)(1)(B) of the ESA, the Secretary of Interior may authorize any act otherwise prohibited in the Act. This section allows the Secretary to grant a permit for the taking of an endangered species if (a) the taking of the species is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity, and (b) the permit applicant submits a conservation plan that specifies a number of things designed to enhance the welfare of the species. A prerequisite for a § 10 permit is that the incidental takings allowed under it will not appreciably reduce the likelihood of the survival of the species in question.
A HCP allows a business to conduct its normal operations in the habitat of an endangered species without incurring any potential liability. This exception to the prohibition against taking an endangered species has been useful to timber companies in the Deep South that have groups of the endangered Red-cockaded Woodpecker on their lands. In March 1993, Secretary of the Interior Bruce Babbitt and Georgia Pacific reached an HCP agreement that will allow Georgia Pacific to log on over 4.2 millions acres of its land in the South while protecting the 110 clusters of woodpeckers known to live on Georgia Pacific land. Without an HCP and a permit, Georgia Pacific would be liable under for any accidental taking of a Red-cockaded Woodpecker during its timber operations. Now, Georgia Pacific is shielded from such possible liability and an approved plan for helping the woodpeckers there is in place, and it received a great dealof favorable media attention, particularly in the environmental press. Georgia Pacific also launched a successful television commercial campaign that highlighted its efforts under this plan. The success of Georgia Pacific's HCP quickly led to another timber company reaching a similar agreement with the Department of Interior; Hancock Timber Resource Group developed a similar plan that would protect the woodpecker and give it immunity from incidental takes of the birds over its more than 1,000,000 acres in the Southeast.
The other exception in the ESA is the Endangered Species Committee, also known as the "God Committee." This committee is made up of six high-level administration officials and one presidentially-appointed representative from each state affected by the activity that is brought before the committee. The "God Committee" is given the power to grant an exemption to a project from the requirements of both § 7 and § 9 of the ESA if, among other things, the need for the project passes a rigorous test demonstrating that the project has regional or national importance, that it lacks any reasonable or prudent alternative, and that the net benefits clearly outweigh the benefits of any alternative that avoids injury to the species in question. In application, this exemption has been difficult to obtain due to the rigid test that the project in question must pass. It has been granted only twice since 1978.
The "God Committee" was most recently called together in 1992 to examine whether certain Bureau of Land Management lands in Oregon should be logged despite the presence of the Northern Spotted Owl. In that instance, members of the BushAdministration did find that a few additional logging sales were worth the risk to the species, and they exempted those 13 owl-inhabited areas from the Act. It is clear that politics played a big part in the committee's decision, as a key economic study that showed that the logging would provide little economic benefit was hidden from most of the committee by the Administration.
B.Considerations and Strategy of Private Plaintiffs
The vast majority of environmental citizen suit plaintiffs simply want the defendant to comply with the law. A defendant who cooperates with the plaintiff and corrects the problems with its systems that have caused the noncompliance will find environmental plaintiffs quite reasonable and willing to reach a fair settlement. Many times, such plaintiffs are willing to forego penalties altogether or to allow the defendant to donate money to other organizations in lieu of a penalty. The strategy is quite simply to fix the problem, and punishing the defendant is usually not on the agenda.
However, a defense strategy of resistance and failure to address the problems will engender a desire in the plaintiff to make the defendant pay. Any defendant who tries to avoid complying with the law because it disagrees with the law will find the plaintiff willing to seek severe penalties. Environmental groups are experienced at both litigation and legislation, and they know that the place to fight for relief from laws one considers onerous is Congress, not the courts, and they will hold a defendant to that separation of powers.
Despite the claims of irresponsible agitators who wish to polarize business and environmental interests, the overwhelming majority of environmental groups never use litigation to further some "personal agenda" or "anti-business" strategy. Most environmentalists really believe that improving environmental protection is compatible with business. If a group sues a company over violations of a statute, it is because they want those violations to cease. If a group sues to stop a project, particularly such federal activities as clearcutting in a National Forest or building more unneeded dams, it does so because its members believe that the environmental costs outweigh the economicbenefits. Most projects are never challenged. Why? No group sees the environmental impact as too detrimental. If environmental groups were simply contrarians who opposed all business interests and wanted to crush our economy (as many falsely claim these days), then they would oppose everything; as it is, they oppose only an infinitesimal percentage of business projects.
One must remember that a pure economic cost-benefit analysis is meaningless when discussing environmental protection versus development. Environmental benefits like clean air, clean water, solitude, beauty, healthy biodiversity, and non-consumptive recreation are not capable of being reduced to definite dollar terms. Also, long-term environmental costs cannot be adequately described; at the time DDT was invented, no one foresaw the extreme adverse impacts and costs it would have, and even today, we cannot put a dollar figure on what DDT has cost us. The United States still has fish in major recreation lakes and streams contaminated with unsafe levels of DDT. Acknowledging this inability of economics to inventory adequately environmental benefits and costs will help create an atmosphere of cooperation that will make a favorable resolution to any case more likely.
C.Defense Considerations and Strategy
The main way to avoid a citizen suit is simply to stay in compliance with the laws. Most environmental groups are not radicals that want industry shut down or the economy crippled; although, such an allegation is the vogue claim to make today by "wise use" groups and others who try to subvert progress through false and inflammatory rhetoric.
If one feels that a certain law is too restrictive on business interests, then the best way to handle it is not to become confrontational and make unsupported "the sky is falling" claims. As an example, many times in Alabama, various industry groups have claimed that the enforcement of a certain environmental law will mean the end of that industry in the state. The coal mining industry claimed impending doom if the Flattened Musk Turtle were listed as threatened under the Endangered Species Act; the timberindustry predicted the end of logging in northeast Alabama if the Green Pitcherplant were listed as endangered; developers professed the end of building and tourism on the coast if the Alabama and Perdido Key Beach Mice were listed under the ESA. In each case, the species was listed, and none of the claims of gloom and doom materialized.
All research into the impact of environmental laws has shown that these laws have no detectible adverse impact on the national economy or on the economy of any state. These laws do have some real impacts on the local scale, but in the vast majority of instances, these laws amount to nothing more than an additional cost of business such as compliance with labor laws, zoning requirements, engineering requirements, etc. Just as people do not want ten-year-old children working 16-hour days in factories, they do not want their children breathing unclean air. Environmental laws in general are not "unnecessary and excessive" regulations and limitations on the free market and private property; society has legitimate interests in limiting anything that conflicts with the values of society, whether it be child labor or toxic pollution.
Of course, society's interests can go only so far before they weigh too heavily on individual rights, including the right to participate in a capitalistic market. Instead of general and unfounded rhetoric about how environmental laws are excessive, presentation of concrete facts that prove that a certain law in a certain situation goes too far is the only prudent way to change things for the better. If a business can show that it cannot afford to comply with certain environmental law requirements, then it should work to change the law through the legislative process.
In an individual case, most environmental groups are willing to work out a settlement that will accommodate the defendant as much as possible, if the defendant has shown with facts, not just claims, that its survival depends upon some compromise situation. Few groups will go so far as to make a company go out of business in order to assure immediate compliance with the law; however, environmental group plaintiffs will not allow indefinite noncompliance either; they will accept reasonable progress. Only in an extreme case, such as when noncompliance threatens to make a species extinct, is it conceivable that environmental groups will insist upon immediate compliance such that the defendant goes out of business entirely. Such a case is exceptionally rare. Quite simply, the environmental laws allow enough latitude for business that an unresolvable situation can almost never result.
Waiting to address any problems one has with compliance is a sure way to get a citizen suit. A good way to avoid a suit is to bring the environmental groups in at the first sign of trouble. Being open about a problem and about how one plans to rectify that problem will do much to dispel distrust. Environmental groups want to feel needed and desire to contribute to a better situation through cooperative efforts. Having the major local groups involved in your solving of your environmental compliance problems will build trust and will alleviate the need for those groups to file a citizen suit. After all, they want the laws complied with and the environment protected; if they can do that through immediate industry cooperation rather than through confrontation and litigation, they will gladly do so.
D.How to Deal with Public Issues and Environmental Organizations
One often hears that the public does not always approve of how corporations affect the environment. Quite simply, people do not like pollution, even at "safe" levels. Many people do not trust the government, and many do not trust corporations. When facing an environmental problem, one can play into the stereotypes that feed those fears, or one address the situation honestly.
A recent poll showed that people in Alabama thought that the forest products industry was not doing a very good job in protecting the environment. The industry's response was not to work harder on those problems but to "improve their image" through a better public relations campaign. This approach is not the best way to handle such a situation. Instead of spending money to make the public think that you have solved certain problems, one should spend that money actually solving those problems.
Perception is a function of reality; although a slick advertising campaign cantemporarily mislead the public into believing that a problem is not really a problem, such an approach is ultimately doomed to failure once the full truth gets out. A good example is the controversy over the toxic chemical dioxin, which the EPA has called the most toxic chemical ever tested in a laboratory. The paper mills in the country engaged in a massive publicity campaign complete with numerous hired-gun experts who testified that dioxin was not really very harmful, and the mills succeeded in getting the EPA to re-examine its work and position on dioxin. As a result of that re-examination, the EPA discovered that dioxin was even more harmful than they had first thought. Therefore, rather than spending its advertising and litigation money in an effort to eliminate dioxin from its waste streams, the paper mills effectively shot themselves in the foot, as their public relations campaign to make people ignore the dangers of dioxin actually lead to a finding that the danger was real and worse than anyone had originally suspected.
Actually rectifying a problem is money well spent as it is the best form of publicity. It can never backfire later. To paraphrase the movie "Field of Dreams," if one builds a better, more efficient, less wasteful facility, the accolades will come. As an example, look to companies like Tencel, a subsidiary of Courtaulds Fibers Inc., which developed a new type of clothing fabric made from wood fiber. To manufacture the fabric, Tencel built a state-of-the-art facility in Mobile County, Alabama, and that facility was designed to recycle 98 to 99 percent of all solvents used in the process. Not only did this recycling make environmental sense, it saved the company money as the solvents used were costly. The plant opened in December of 1992, and by early 1994, it already had so much business that a major expansion to double capacity was begun. Press reports of Tencel's financial success and its environmental responsibility cast the company in a good light that was earned, not bought through a public relations ploy. Such "closed loop" manufacturing processes as Tencel's cannot usually be merely added onto an existing facility but must be designed into a plant with the foresight of people who look years into the future at the economic prospects and environmental impacts of their business. Companies that work toward such efficient and environmentally responsible systems of production justly receive the praise given to them and the financialsuccess that follows smart, long-term business planning. This kind of planning, responsible manufacturing and the resulting publicity give a company community support and shelter from unwarranted citizen suits and frivolous tort cases that no amount of advertising money can buy.
Although there are a few small fringe groups that do take contrarian positions as a rule, the vast majority of major national and state environmental groups are not opposed to development; any claims to the contrary are issued by those without any knowledge of how environmental organizations work. Most active environmentalists do not oppose economic activities that are well-planned and that provide a positive addition to society. Further, most environmental groups take reasonable stands on development issues, and if they can be shown that a project or a facility does not have significant adverse environmental impacts, most will not oppose it. Knowing this, those who face potential environmental problems should engage in as much active cooperation with the environmental community as is possible rather than in reactive confrontation.
Keeping the public and the environmental community fully informed of an environmental problem is a better way of dealing with it than ignoring it. If one has nothing to hide, then there is no need to act like one is hiding something. Such logic is true with environmental law situations. Active communication with the environmental groups in an area may help one spot a potential problem earlier, thus leading to an earlier, and cheaper, resolution.
The hiring of unbiased and widely-respected experts is another way to handle an environmental law problem successfully. Many environmental legal problems are also scientific problems as well; with issues of toxicity, health effects, environmental impacts and many other issues, environmental law problems usually involve intensive expert advice and testimony. If industry peers, the involved state and federal agencies, and the environmentalists all agree that the expert you hired is a good one, then the problem is half solved right there. Hired-gun experts who are not familiar with the issue and the specific facts and who tend to say what is wanted by their employers rather than what is true may seem like a quick resolution of the problem, but they are not. It is aregrettable but all-too-common a tactic to try to "win" the conflict by having more "experts" than the other side. This rarely works in a conflict with an agency, as any court that will rule in such a conflict will usually give deference to their expertise, and with problems involving environmental groups, they are perfectly capable of finding experts who will not have the tainted air of bias around them. Using bought experts to make one's environmental problem "go away" is the best way to insure that the true world's expert on the issue in question will appear and testify to all kinds of things that will hurt one's chances. The best way to infuriate the experts who really know the most about an issue is to bring in a consultant who will criticize what he does not understand; then, the real experts will be motivated to place their research in the best light they can.
Again, confrontation leads to difficulties, and perhaps results, that can be avoided. Giving all parties full access to one's experts and to their research will also foster a sense of credibility and help lead to a mutually-beneficial result.
Be candid and open with the media and with all members of the public who are concerned about the environmental impacts of a project or a facility's discharges. Obfuscation and deception only hurt once they are discovered. If a project will have impacts on the environment, one needs to know that ahead of time when those impacts can be avoided or mitigated.
Be open and forthright about the economics involved. No one in the state and federal environmental agencies and in the mainstream environmental community wants to cause any sensible project to go under or to impose unreasonable costs for modifying the project. Discuss the limits of what can, and cannot, be done in regards to possible modifications and mitigation measures. Help the agencies find reasonable alternatives and modifications that will accommodate both the environment and the business interest involved, including letting them know what the project cannot do. Only a tiny percentage of projects are ever terminated because of environmental problems, thus,it is possible, indeed highly likely, that one can find a reasonable compromise that will fit the economic expectations of the project while still offering protection for the environment.
If all the cooperation in the world does not prevent a direct and irreconcilable conflict, then one must marshall their scientific and economic data and prepare to defend their business activity before the agency and perhaps in court. Normally, the courts will give a great deal of deference to the expertise and jeopardy opinion of environmental agencies, judging most agency decisions by the arbitrary and capricious standard; this is particularly true when the agency is basing its decision on environmental science. However, one can win in such a situation.
Of course, if providing for the needs of the environment restricts use of property completely such that it amounts to a taking under the Fifth Amendment of the U.S. Constitution, then one should proceed with legal action to get just compensation for that taking. Federal courts readily compensate businesses and land owners when environmental regulations take away the use and value of land. In Lucas v. South Carolina Coastal Council, the U.S. Supreme Court examined coastal zone protection measures that were keeping a developer from building beach houses on two lots that he had bought. The Court held that environmental regulations might require justcompensation if the regulations denied the landowner all of the economically viable use of the land. However, the record in Lucas did not reveal if Lucas had lost all economic viability in his land, and the Court sent the case back to South Carolina for such a determination. That case did not substantially change existing "takings" law; it merely established that environmental regulations were indeed subject to that law. Further, all economic viability in land could be taken by a government regulation if use of the land would amount to a nuisance under existing state nuisance law.
To recap generally the actions that help solve environmental law problems, the following checklist may to helpful:
·Anticipate potential problems by being aware of the laws, regulations, and their requirements, and the possible environmental conflicts that might arise from one's operations; ignorance of possible environmental complications is no different than ignorance of possible hurricane problems in development plans on Florida's coast;
·Inform the appropriate environmental agencies of an environmental problem immediately after it is discovered and put forward plans to address the problem. If the problem is a significant one, one that might have serious impacts or controversial aspects or one that might be misconstrued by the public if not properly informed about it, inform the media and the public about the problem;
·Cooperate with the agencies, the media and all interested parties;
·Share all information and data on possible environmental impacts;
·Employ only the best, unbiased experts who have a good reputation with the agencies involved and with the environmental community;
·Incorporate as many of the suggestions of those experts as one can reasonably handle;
·Explore all possible options openly and candidly, including modifications to the project, mitigation efforts for the environmental impacts, and possible financial incentives for the project if it is modified to help theenvironment and the public health;
·Be Honest about the facility, the problem and about the limits of the modifications the facility can undergo and still be economically viable;
·Litigate only as a final resort if the determination of the agency is not scientifically sound or if the protection of the environment amounts to a taking of the property;
·Lobby Congress and the President for a legislative exemption for the project from the relevant statute's requirements. Due to its extreme expense and to difficult of having Congress legislate on individual projects, use of this option should be considered only if statutory exemptions are not possible and litigation is not successful.
How to Look up Laws and Cases Yourself
Not only is the law complicated, it is also arranged on paper in a complicated way. Often confusing even to many lawyers, the ways that statutes, regulations and cases are codified for research purposes can be quite a puzzle. Law students spend much of their entire first year in law school just learning how to look things up. Indeed, the essence of being a lawyer is not knowing the laws but is knowing where and how to look up the laws and then how to apply them once one finds them.
Go to a law library sometime, such as one at a major law school, at the state's supreme court or at the local county courthouse; you will see almost endless rows of thick books that all look the same. This chapter will give the basic information for navigating through many of those thick books.
The most basic principle to remember in legal research is that everything is codified in groups. The key is to knowing what statutes and cases go into what groups. It is also important to remember that all those law books are published by privately-owned legal publishing companies. Some companies have monopolies on the publication of certain things, which is why all the cases from the federal courts below the U.S. Supreme Court are published by West Publishing Company. However, many areas of law are not monopolized by one company; thus, there are three different companies that put out bound volummes of the cases from the U.S. Supreme Court. At the end of this chapter will be a list of all the major codifications of laws that the average layperson may normally need to know.
Throughout any search one may make in a law library, do not be afraid to ask for help from the library staff. That is what they are there for, and most will be happy to explain where to look up certain types of information.
Whenever one looks up statutes and regulations, you will notice a newsprint pamphlet inserted in a flap at the back of almost every book you open. This is knownas the "pocket part," and it is a supplement to what is in the main part of the book. Law books are big and expensive, and they cannot be replaced every time a law is amended or a new case comes out. What is done is that pocket parts are issued every year (or sometimes even more often), and they update what is in the bound volume. If a statute is amended, the new text of the statute will be in the pocket part.
Many codes of statutes also have what are called "annotations" which are lists and short synopses of cases that have interpreted that statute; these annotations will be found in the text after the statute. Thus, if you look up a statute like the Clean Air Act in the bound book, make sure you check in the pocket part under the same title and number of the section you are researching to see if that statute has been amended since the date of when the bound volume was published. Even if a statute has not been changed, there may be in the annotations additional cases that interpret it, and those will be listed in the pocket part.
Statutes, the actual laws passed by Congress and the state legislatures, go in "codes." All of the federal statutes passed by Congress are in what is called the "United States Code" (U.S.C.). Every law library will have the U.S.C. or what is called the "United States Code Annotated" (U.S.C.A.), which is West Publishing Company's version of the U.S.C. The statutes in both are exactly the same, but West adds a good set of case annotations in the U.S.C.A. The U.S.C. is arranged by titles and sections; the Endangered Species Act, for instance, is cited as 16 U.S.C. §§ 1531 to 1544, because the ESA is codified in Title 16 of the United States Code at sections 1531 through 1544. The titles are arranged by subject matter. Many conservation statutes are in Title 16; water pollution statutes are in Title 33; public health and welfare statutes such as those involving hazardous waste are in Title 42, and public lands statutes are in Title 43.
Only federal statutes will be in the U.S.C. State statutes will be in separate codes for each separate state, and every state arranges its code in a different manner. Luckily, state codes are much shorter than the U.S.C., and you should have less trouble learning your way around your own state's code of laws.
Cases are set out in other sets of books called "reporters," because those sets of books were once named after the person who was the reporter of decisions for each court way back in the early 1800s before there was any standardization. Cases in reporters are the published opinions of the courts, and they provide the recorded version of legal case precedent. Most state trial courts never publish their opinions or decisions; in most states, only the opinions of their higher appellate courts are published. In the federal courts, most opinions from every level are published, but there are some opinions that are never published. Unpublished opinions hold little, if any, value as precedent.
For federal court cases, there are three basic levels of courts, and each level has its own reporter. The federal trial courts are called "district courts," and their reporter is called "Federal Supplement" (abbreviated as "F.Supp."). Like all reporters, the Federal Supplement is arranged in a generally chronological order; as not all courts get their opinions finalized at the same speed, they do not get published in the reporter in exact chronological order, but they are roughly in such order. Thus, a case in volume 300 of the Federal Supplement will have occurred years before a case in volume 600.
The next level of federal courts are the "circuit courts of appeal," and the circuit courts have appellate jurisdiction over the district courts. They are the next higher court to which appeals from the decisions of district courts are taken. The reporter for the circuit courts is the "Federal" ("F.") reporter.
The last level of federal courts is the Supreme Court of the United States, which, of course, has authority over all of the other lower federal courts. There are three reporters for Supreme Court cases; they are, in order of general usage and acceptance, the "United States" reporter ("U.S."), the "Supreme Court" reporter ("S.Ct."), and the "Lawyer's Edition" reporter ("L.Ed.").
Reporters are bound in numbered volummes and are cited by their volume number. Cases are cited by a complicated set of rules that are basically dictated by the law reviews from the law schools at Harvard, Columbia, Yale and Pennsylvania, but here is the quick explanation of a case citation such that you should be able to find the cases you need. A case will be cited by: (1) its name in a standard format, (2) thevolume number and name of the reporter it is in, (3) the page number in that volume of the reporter where the case begins, (4) the standard abbreviation for the court involved (not always used for certain courts), and (5) the year that the opinion was decided and released. The name of the case is usually made up of the first named plaintiff versus the first named defendant. Thus, the United States Supreme Court's biggest case on garbage is cited as City of Philadelphia v. New Jersey, 437 U.S. 617 (1978). This means that the City of Philadelphia's big case against the State of New Jersey over New Jersey's ban against out-of-state garbage is found in volume 437 of the United States reporter, at page 617, and the opinion was released in 1978. As only U.S. Supreme Court cases are found in this reporter, there is no need to tell you in the citation what court the case was decided by.
Now, let's look at a federal circuit court case, State of Alabama v. United States Environmental Protection Agency, 871 F.2d 1548 (11th Cir. 1989). This is a case over hazardous waste that Alabama filed against the EPA, and it is found in volume 871 of the Federal Reporter, Second Series. Reporters are often divided into series as well; all this means is that the volume numbers got too high, and the publisher of the reporter started a new series so that they could start the volume numbers back at 1. Thus, volume 100 of the F.2d came many years after volume 100 F. of the same reporter. After all, only so many numbers can fit on the spine of a book. The case here starts at page 1548, and it was decided by the Eleventh Circuit Court of Appeals in 1989. There are 12 circuits, plus a special federal circuit, that oversee the various local district courts. As an example, the Eleventh Circuit consists of Alabama, Georgia and Florida.
Now, as an example of a federal district court opinion, look at Northern Spotted Owl v. Hodel, 716 F. Supp. 479 (W.D. Wash. 1988), which was the case that ordered that the Northern Spotted Owl be listed under the Endangered Species Act. This citation tells you that the plaintiff environmental groups brought the case in the name of the species they were trying to protect against Donald Hodel, the then-Secretary of Interior. The case is found in volume 716 of the Federal Supplement reporter at page 479. The parenthetical information tells you that the case was decided in 1988 by one of the judge's in the Western District of Washington state.
State cases can be published in regional reporters which group together the cases from several states and in separate state reporters. This varies from state to state, as some states do not want to have a state reporter, some want to have both, and some big states like California and New York have both and a third local reporter as well. As an example, the first big case from the Supreme Court of Alabama on garbage was Ex parte Lauderdale County, 565 So. 2d 623 (Ala. 1990). This citation means that Lauderdale County was the petitioning party. The case is found in volume 565 of the Southern Reporter, Second Series at page 623, and the "Ala." citation identifies the court as the Supreme Court of Alabama, and the year was 1990.
There are also things called "advance sheets." These are either loose leaf or notebook-type copies of recently released case opinions. It takes time, some months or even a year, before a case gets put into a bound volume of a reporter. If you need that case during that time, it will be in the advance sheets or in newsprint supplements for federal cases. Most law libraries will have copies of U.S. Supreme Court opinions within a week or two of when they were issued; it sometimes takes longer to get advance sheets of the other various state and federal case opinions. Advance sheets are usuallyfiled right at the end of the bound volummes of a reporter so that they are easy to find.
A quick explanation like this is not enough, and only hands-on experience will allow one to get familiar enough with these systems of codification so that you can find what you need. Beyond the codes and reporters are many other types of books that attempt to aid in legal research by grouping certain types of cases together or by collecting scholarly articles about certain types of cases together. These are beyond what most people will need to know about, but you should know that the sources of research are nearly boundless. There are also expensive computer databases that one can subscribe to in order to do research and look up cases through computer searches.
Essentially, for most people, the codes and reporters will be all that you need to look up the general law on a particular environmental subject. However, there is one last set of books that one dealing with the environment needs to know about. This is the "Code of Federal Regulations" ("C.F.R."), which is the codification of all regulations from federal agencies. Most law libraries should have the C.F.R. as well. Most states do not have a set code of regulations, but each agency does keep sets of its own regulations and should be able to provide you with a copy of their regulations on demand. There is also something known as the "Federal Register" ("F.R.") which is the federal government's big announcement medium to give notice about upcoming actions; basically, things that the federal government is thinking about doing or regulations that it is planning to adopt are announced in the Federal Register. The F.R. is massive, and most libraries do not have it, because it is quite considerable in size, and unless there is a big local need for continual updating on what the federal government is doing, there is no need to have it.
Below is a quick list for where to find certain things:
ThingWhat it is in
federal district court cases Federal Supplement reporter
federal circuit court cases Federal reporter
U.S. Supreme Court cases United States reporter, Supreme Court reporter, Lawyers Edition reporter
federal statutes United States Code
federal regulations Code of Federal Regulations
state casesregional reporters and/or state reporters
state statutes individual state codes
For those wishing to learn the subject of legal research in more depth, the book Finding the Law: A Workbook on Legal Research for Laypersons, by Professor Al Coco and published by Government Institutes, Inc., is highly recommended. This book gives much more detail than can be given here, and if you need to do a great deal of legal research, it is worth getting.
If you would like to have your own copy of the full text of many of the more important and most-often used federal environmental laws, Government Institutes also publishes Environmental Statutes in both softcover and hardcover editions. This book contains the text of such statutes as the Clean Water Act, the Clean Air Act, the National Environmental Policy Act, the Solid Waste Disposal Act, and many others. This book is reissued every year with any changes in the laws. It will save you lots of research time in a library if all you need are the basic texts of the federal laws. Although that book has most of the health and pollution laws regarding the environment, it lacks many major land and natural resource laws such as the Wilderness Act and the Marine Mammal Protection Act. If you want your own copy of natural resource and land statutes such as those, Natural Resources Statutes, also put out by Government Institutes, is available. For a total investment of less than $100 for these two books, you can equip yourself with the vast majority of federal laws that you should ever run into in handling environmental situations and problems.
Appendix
Acronyms
ADEMAlabama Department of Environmental Management
APA Administrative Procedures Act
CAAClean Air Act
CEQCouncil on Environmental Quality
CERCLAComprehensive Environmental Response, Compensation, and Liability Act
CITESConvention on International Trade in Endangered Species of Wild Fauna and Flora
CWAClean Water Act
CZMACoastal Zone Management Act
DMRDischarge Monitoring Report
EAEnvironmental Assessment
EISEnvironmental Impact Statement
EPCRTKAEmergency Planning and Community Right-To-Know Act (also abbreviated as EPCRA)
EPAEnvironmental Protection Agency
ESAEndangered Species Act
FIFRAFederal Insecticide, Fungicide, and Rodenticide Act
FFCAFederal FacilityCompliance Act
FLPMAFederal Land Policy and Management Act
FOIAFreedom of Information Act
FONSIFinding of No Significant Impact
FRRRPAForest and Rangeland Renewable Resources Planning Act
FWPCAFederal Water Pollution Control Act (another name for the Clean Water Act)
FWSFish and Wildlife Service
GAOGeneral Accounting Office
HCP Habitat Conservation Plan
MBTAMigratory Bird Treaty Act
MMPAMarine Mammal Protection Act
MSDSMaterial Safety Data Sheet
MUSYAMultiple-Use, Sustained-Yield Act
NCCPNatural Communities Conservation Planning
NCPNational Contingency Plan
NPLNational Priorities List
NEPANational Environmental Policy Act
NFMANational Forest Management Act
NMFSNational Marine Fisheries Service
NOAANational Oceanic and Atmospheric Administration
NPDESNational Pollution Discharge Elimination System
NWRNational Wildlife Refuge
OCSOuter Continental Shelf
OSHAOccupational Safety and Health Act; also the Occupational Safety and Health Administration
OSMOffice of Surface Mining
POTWPublicly Owned Treatment Work
RCRAResource Conservation and Recovery Act
RCWRed-cockaded Woodpecker
SARASuperfund Amendments and Reauthorization Act
SDWASafe Drinking Water Act
SMCRASurface Mining Control and Reclamation Act
SWDASolid Waste Disposal Act
TRIToxics Release Inventory
TSCAToxic Substances Control Act
USFSUnited States Forest Service