How can you pollute just a little? I. Overview A large chemical company recently aired a TV commercial to announce that it plans to use double-lined tanker ships to transport its products. In the ad, this news is shown being greeted with jubilation by all sorts of wildlife, while Beethoven’s stirring Ninth Symphony swells in the background. The Twenty-First century ushered in a greater concern for environmental issues than ever before. One would hope this is not just the latest politically correct marketing fashion but rather a realization that our natural resources can no longer be taken for granted. Like it or not, our advances in technology have finally given us the power to permanently alter nature. This power has been used to feed millions and save lives. It has also been used to destroy endangered species, burn holes in the ozone, and uproot entire ecosystems.
The law of environmental protection attempts to balance the needs and desires for technological advancement with a realistic perspective of what natural limitations our environment places on these capacities. The age of growth per se as a good thing is changing to: "Is the growth worth it?" The environmental movement is not new. Conservationists have a long and proud history of protecting our natural resources. What is new are the threats raised by oil spills, hazardous wastes, nuclear accidents, and unmitigated depletion of irreplaceable resources. The emergence of environmental legislation which has a sense of urgency and response to these issues is only now in its third decade—a mere second on the ecological clock.
Because this legislation is so relatively new, the growing pains of new social engineering continue to be felt by business. These laws have especially impacted industries that have traditionally relied heavily on utilization of natural resources such as mining, oil, gas exploration, and timber. Consider also the auto industry. For years automakers outside the U.S. have complained about our pollution controls being too costly and cumbersome. It is no small point of pride that the world is catching up with us on this issue by finally adopting our standards for safety and emissions.
One thing, however, is abundantly clear—pollution exists. If we manufacture, we pollute. The key is how to balance this pollution with the damage to the environment. Pollution must go either into the air, into the water or into the land. What the law has tried to do, however, is to keep it at a minimum. We started with tort law which proved to be difficult to apply. In the 60’s and 70’s the statutory framework which we use today was therefore born. But again, even with this statutory help, how do we pollute just a little?
II. Hypothetical Multi-issue Essay Question Bailout Bank of Metropolis is seeking to extend its operations to every corner of the great state of Louisiark. The state legislature just passed a law allowing branch banking Bailout to now open branches outside of Metropolis. Bailout's Vice-President in charge of real estate is Mr. Mortimer M. Misque. Mortimer's cousin, Ms. Sallie S. Spillaway, is Vice President in charge of real estate for Dryhole Oil Company. Dryhole's business has been terrible ever since it converted all its self-service operations into combination gas stations and mini-refineries. Dryhole thought it could save a lot of money by not having to ship gasoline from its out-of-state refineries to retail outlets.
Mortimer and Sallie hit upon a great idea. Why not sell the Dryhole gasoline refinery outlets to Bailout and convert them to branch banks? The deal went through, and Bailout proceeded to renovate the gas stations. The old refinery and pump facilities were simply capped into mothballs in case the bank ever decided to go into the business.
Unfortunately, several years after these renovations, Bailout's money began to take on a funny odor. In addition, the residents of the neighborhoods adjoining Bailout branches began to have trouble with their drinking water. What can be done?
Legal Approaches to Environmental Protection
Citizen enforcement provisions of various statutes
Areas that are inundated or saturated by surface water or ground water that support vegetation typically adapted for life in such conditions. Filling or dredging without a permit is forbidden.
Safe Drinking Water Act
Establishes drinking water standards and prohibits dumping of waste into wells
used for drinking water
Ocean dumping—Marine Protection, Research, and Sanctuaries Act
Permits are required and marine sanctuaries are established. Extends environmental protection to the oceans.
Oil Pollution Act - requires the oil industry to take measures to prevent oil spills and to
readily respond to clean up.
Chemicals used for agricultural, industrial, and mining uses that cause injury to humans, birds,
animals, fish, and vegetation
Insecticide, Fungicide, and Rodenticide Act and amendments
Pesticides must be registered and labeled with instructions required for use.
Toxic Substances Control Act
Test required before use of new chemicals with EPA approval required.
Solid waste that may cause or significantly contribute to an increase in mortality or serious illness or pose a hazard to human health or the environment if improperly managed
Land pollution is pollution of the land that is generally caused by hazardous waste being disposed of in an improper manner
Statutes dealing with hazardous wastes
Resource Conservation and Recovery Act (RCRA)
Regulates facilities that generate, treat, store, transport, and dispose of
hazardous wastes. Permits are required.
Comprehensive Environmental Response, Compensation, and Liability Act
Hazardous waste sites are to be identified, ranked and cleaned up through
a special fund.
Strict Liability on generator of waste, transporter of waste, owner of site at
time of disposal and current owner. Liability is joint and several.
Right to know provision is included.
Emissions from radioactive wastes that can cause injury and death to humans and other life and can cause severe damage to the environment. Regulated by the NRC and EPA.
Endangered Species Act – protects “endangered” and “threatened” species of animals. Critical habitats can be designated. There is to be no “taking” of any endangered species.
IV. Objective Questions Terms: 1. In 1970, Congress created the _______________ _______________ _______________ that coordinates the implementation and enforcement of federal environmental protection laws.
2. The document that must be prepared for all proposed federal legislation that would significantly affect the quality of the human environment is called an _______________ _______________ _______________.
3. The major source of mobile air pollution is the _______________.
4. Under the Superfund strict liability is imposed on _______________ _____ _______________ , ________________ ____ __________, __________ ___ __________ and ______ ______.
5. Asbestos, mercury, vinyl chloride, and benzene are examples of _______________ _______________.
6. The EPA can establish water pollution control standards under the _______________ _______________ _______________.
7. Areas that are inundated or saturated by surface or groundwater that support vegetation typically adapted for life in saturated soil conditions are called ________________.
8. The act that extended environmental protection to the oceans is known as the _______________ _______________ ________________ _______________ _______________ Act.
9. The act that provides for the creation of a fund to finance the cleanup of hazardous wastes is popularly known as _______________.
10. Licenses for the construction and opening of commercial nuclear power plants are granted by the _______________ _______________ _______________.
True/False: 1. ____ Under common law, individuals could bring a private civil suit based on private nuisance to
recover damages from a polluting party.
2. ____ The Environmental Protection Agency has adjudicative powers to hold hearings, make
decisions, and order remedies for violations of federal environmental laws.
3. ____ It is not necessary to prepare an environmental impact statement for all proposed legislation
that may affect the environment.
4. ____ Indoor air quality is addressed by the Clean Air Act.
5. ____ States establish national ambient air quality standards for pollutants.
6. ____ The EPA can require automobile manufacturers to recall and repair or replace pollution control equipment that does not meet air quality control standards.
7. ____ Smog swapping is prohibited under the Environmental Protection Statutes.
8. ____ The Clean Water Act authorizes the U.S. government to clean up oil spills and spills of other
hazardous substances in ocean waters within six miles of the shore.
9. ____ The Resource Conservation and Recovery Act defines a hazardous waste as one that may
cause or significantly contribute to an increase in mortality or serious illness or pose a hazard
to human health or the environment if improperly managed.
10. ____ The EPA can order a responsible party to clean up a hazardous waste.
Multiple Choice: 1. Which of the following is contained in an environmental impact statement?
A. Description of the affected environment.
B. No description of alternatives to proposed action.
C. List of resources that will be committed to the action.
D. A and C, but not B.
2. Legal approaches to environmental protection include:
Citizen enforcement provisions of various statutes.
All of the above.
3. Pesticides must :
A. Be registered.
Have instructions for use.
D. All of the above.
4. Which of the following is not a point source of water pollution according to the Clean Water Act?
A. Toilets in homes.
C. Paper mills.
D. Municipal sewage plants.
5. The Superfund requires the EPA to:
A. Identify sites in the U.S. where hazardous wastes have been disposed.
B. Rank sites based of severity of risk.
C. Put the highest-ranking sites on a National Priority List.
D. All of the above.
6. The EPA cannot recover the cost of a cleanup from:
A. The generator who deposited the waste.
B. Workers who deposited the waste under the direction of their employer.
C. The owner of the site at the time of the disposal.
D. The current owner and operator of the site.
7. The Superfund imposes liability without fault; the name for this doctrine is:
A. Res ipsa loquitur.
B. Contributory negligence.
C. Strict liability.
D. Respondeat superior.
8. Under the Superfund's right-to-know provision, businesses are required to:
A. Disclose monthly the presence of certain listed chemicals to the community.
B. Disclose annually the emissions of chemical substances released into the environment.
Immediately notify the government of spills, accidents, and other emergencies involving hazardous substances.
D. None of the above.
9. Which of the following is not a federal statute that protects wildlife?
A. Resource Conservation and Recovery Act.
B. Bald Eagle Protection Act.
C. Fishery Conservation and Management Act.
D. Wild Free-Roaming Horses and Burros Act.
10. Pollution can be dealt with:
through the air.
in the water.
in the ground.
all of the above.
V. Answers to Objective Questions Terms: 1. Environmental Protection Agency. The EPA is growing in both economic and political importance. President Clinton has recommended that the office of EPA Administrator be raised to cabinet rank.
2. Environmental impact statement. Many states have followed suit and now call for local versions of these statements.
3. Automobile. An interesting footnote on this issue is that most auto-related pollution is being generated by the minority of autos built prior to the issuance of pollution guidelines.
4. Generator of waste, transporter of waste, owner at the time of disposal, current owner. This liability extends to all jointly and severally.
5. Toxic pollutants. As thresholds of scientific discovery expand, this list gets longer every year.
6. Clean Water Act. This effort is coordinated with state and local water quality control authorities.
7. Wetlands. Arriving at a precise definition of land to qualify for this designation continues to be a political powder keg.
8. Marine Protection, Research and Sanctuaries. Much of the work done under this act is coordinated with state and local agencies.
9. Superfund. The actual title of this legislation is the Comprehensive Response Compensation and Liability Act.
10. Nuclear Regulatory Commission. As compared to other environmentally sensitive activities, the federal government exclusively controls this activity.
True/False: 1. True. These actions are traceable to old common law property rights.
2. True. This pattern of powers is typical under the rights of the executive branch.
3. False. An environmental impact statement must be prepared.
4. False. This problem has still not been addressed.
5. False. The EPA establishes NAAQS for pollutants.
6. True. Recalls can be very expensive for manufacturers who often fight over the scope and breadth of the recall.
7. False. This is permitted but controversial.
8. False. The distance is twelve miles off shore.
9. True. This definition has been fought over in the courts because of all the possible interpretations that may arise from it.
10. True. If the party refuses, the EPA may clean it up and sue for the cost of the cleanup.
Multiple Choice: 1. D. Alternatives to the proposed actions are also listed in the environmental impact statement.
2. D. The most recent and effective approach is through statutory law. Tort law is difficult to apply.
3. D. All are important for proper handling of pesticides.
4. A. These are assumed to be normal activities that are handled by local authorities.
5. D. All of these activities are required under the Act.
6. B. This is an example of the application of agency law to an environmental statute.
7. C. This is an example of the application of a tort law doctrine to an environmental statute.
8. C. Where the wrongdoer is the business itself, expecting total self-regulation appears unrealistic, which is why informants are often the source of this sort of information.
9. A. This Act is focused on natural resources other than wildlife, although it collaterally benefits wildlife living in protected areas.
10. D. This whole problem has resulted in our current comprehensive statutory scheme.
VI. Answers to Essay Question The jurisdiction over environmental issues is generally given to the Environmental Protection Agency (EPA). On a number of issues, the EPA shares this jurisdiction with other federal or state and local agencies. One of the primary regulatory aspects of the EPA function is to gather information on key environmental concerns. State and local agencies often have similar information gathering functions. One common method of gathering such information is through the use of environmental impact statements. Normally the EPA will not require such a statement on proposed projects not covered by the National Environmental Policy Act, but most state and local governments do require such disclosures. Here there appears to be no evidence of Bailout or Dryhole having provided such a statement to any government agency. They may be held liable for such a failure.
It appears that there may be some damage to the water table in the areas underneath the former gasoline outlets. This sort of problem has become relatively common around the country as older gasoline outlet facilities are closed or converted to other uses. The old tanks are often left in the ground and allowed to rust. As they rust out, toxic chemicals are released from them into the ground water table. These emissions are often in violation of the Clean Water Act. Various state and local agencies may seek both equitable injunctive relief and money damages for the cost of cleanup and possibly even criminal sanctions, where appropriate, for the violation of these statutes.
In addition to the violation of the Clean Water Act, this situation may involve imposition of the provisions of the Comprehensive Environmental Response Compensation and Liability Act (Superfund). Under this Act, the costs of cleaning up a designated site may generally be passed on to any owners of the property who had an active part in the management of the property. Bailout Bank became an active owner of the property when it decided to convert the stations to branch banks. As such, it is subject to joint and several liability with Dryhole Oil to pay for the cost of the cleanup. The EPA can order them to clean it up directly. If they fail to do the cleanup, the EPA can clean it up and seek recovery of the cost from Bailout, Dryhole, or both. Interestingly enough, both Mortimer and Sallie are now in other lines of work. They took jobs at nuclear power plants.