Environmental protection

Chapter 25

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?

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.

III. Outline

Legal Approaches to Environmental Protection

Tort Law

Trespass

Nuisance

Negligence

Strict Liability

Citizen enforcement provisions of various statutes

Statutory Laws

Air pollution

Water pollution

Clean Water Act and amendments

Toxic substances

Federal Insecticide, Fungicide, and Rodenticide Act

Toxic Substances Control Act

Hazardous waste

Resource Conservation and Recovery Act

Comprehensive Environmental Response, Compensation, and Liability Act

Nuclear waste

Nuclear Regulatory Commission

Preservation of wildlife

Endangered Species Act

Noise pollution

Environmental Protection Agency

An administrative agency created by Congress in 1970 to coordinate the implementation and enforcement of the federal environmental protection laws

National Environmental Policy Act

A federal statute enacted in 1969 that mandates that the federal government consider the adverse impact a federal government action would have on the environment before the action is implemented

Preparation of an environmental impact statement is required

Clean Air

Clean Air Act

A federal statute enacted in 1963 to assist states in dealing with air problems. The act has been amended a number of times.

National ambient air quality standards established by EPA

Standards for certain pollutants set by the EPA that protect human beings and vegetation, matter, climate visibility, and economic values

Toxic air pollutants

Air pollutants that cause serious illness or death to humans

Sources of Air Pollution

Mobile  cars  emissions standards set  equipment

Stationary  factories  clean up pollution

Nonattainment areas

Regions that do not meet air quality standards  states must submit compliance

plans to meet attainment level

Smog Swapping  trading pollution credits  potential ethical issue

Indoor air quality not addressed.

Clean Water

Clean Water Act

Pollution of lakes, rivers, oceans, and other navigable bodies of water is regulated

Point sources of water pollution such as paper mills, manufacturing plants,

Quality standards define which bodies of water can be used for public drinking water, recreation, fish and wildlife, and agriculture and industry

Thermal pollution

Heated water or material discharged into waterways that upsets the ecological balance and decreases the oxygen content is forbidden

Wetlands

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

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.

Toxic Substances

Chemicals used for agricultural, industrial, and mining uses that cause injury to humans, birds,

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.

Hazardous Waste

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

(CERCLA) (Superfund)

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.

Nuclear Waste

Radiation pollution

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.

3. The major source of mobile air pollution is the _______________.

recover damages from a polluting party.

decisions, and order remedies for violations of federal environmental laws.

that may affect the environment.

hazardous substances in ocean waters within six miles of the shore.

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:

1. 
   Tort law.
   
2. 
   Citizen enforcement provisions of various statutes.
   
3. 
   Statutory law.
   
4. 
   All of the above.
   

3. Pesticides must :

A. Be registered.

2. 
   Be labeled.
   
3. 
   Have instructions for use.
   

A. Toilets in homes.

B. Mines.

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.

3. 
   Immediately notify the government of spills, accidents, and other emergencies involving hazardous substances.
   

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:

1. 
   through the air.
   
2. 
   in the water.
   
3. 
   in the ground.
   
4. 
   all of the above.
   

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.

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.

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.

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.