ENVIRONMENTAL LAW

ENVIRONMENTAL LAW

An amalgam of state and federal statutes, regulations,
and common-law principles covering AIR
POLLUTION, WATER POLLUTION, hazardous
waste, the wilderness, and endangered wildlife.
Almost every aspect of life in the United
States is touched by environmental law. Drinking
water must meet state and federal quality
standards before it may be consumed by the
public. Car manufacturers must comply with
emissions standards to protect air quality. State
and federal regulations govern the manufacture,
storage, transportation, and disposal of the hazardous
chemicals used to make deodorants, hair
sprays, perfumes, makeup, fertilizers, herbicides,
pesticides, detergents, cleansers, batteries, and
myriad other common goods and products.
Common Law
Under the COMMON LAW, environmental
litigation revolves around six doctrines: NUISANCE,
TRESPASS, NEGLIGENCE, STRICT LIABILITY,
prior appropriation, and riparian rights.
Nuisance Modern environmental law traces
its roots back to the common-law TORT of nuisance.
A nuisance is created when an owner or
occupier of land unreasonably uses that land in
a way that substantially interferes with the rights
of others in the area. A nuisance is sometimes
referred to as the right thing in the wrong place,
like a pig in a parlor instead of the barnyard.
Nuisances can be public or private. A public
nuisance interferes with a right or interest common
to the general public, such as the public’s
interest in healthful drinking water. A private nuisance interferes with a right or interest of a
private individual, such as a homeowner’s right
to the QUIET ENJOYMENT of her land.
The primary practical difference between
the two types of nuisance is that a government
department, such as a state or federal environmental
agency, traditionally brings suit to enjoin a
public nuisance, whereas only private citizens and
organizations may sue to stop a private nuisance.
The two concepts can also overlap. A nuisance
that interferes with a private use of property can
simultaneously interfere with a public interest. For
example, factory smoke that diminishes the value
of neighboring property is a private nuisance, and
it is at the same time a public nuisance if it also
endangers surrounding wildlife.
Courts engage in a BALANCING test to determine
whether a particular activity amounts to a
public or private nuisance. A particular activity
is declared a nuisance when its usefulness is outweighed
by its harmfulness. The harmfulness of
an activity is measured by the character and
severity of the harm imposed, the social value of
the jeopardized interest, the appropriateness of
protecting the interest in a particular locality,
and the burden to the community or individual
in avoiding the harm. An activity’s usefulness is
measured by the activity’s social utility, its suitability
to a particular community, and the practicality
or expense of preventing the harm it
inflicts. Because there is no exact or universally
agreed-upon value for each of the competing
interests, it is often difficult for judges to apply
the balancing test in a consistent fashion.
Gravity of the injury Although courts apply
the balancing test for nuisance actions on a caseby-
case basis, judges generally follow certain principles.
The injury in question must be real and
appreciable; the law does not concern itself with
trifles. An occasional whiff of smoke, a temporary
muddying of a well, a modest intrusion by roots
or branches, and intermittent odors of sauces and
stews will not rise to the level of a nuisance.
Courts also consider whether the alleged
nuisance is of a continuing nature or has produced
permanent or long-lasting effects. Nuisance
law may excuse an isolated invasion of
drifting pesticides, a single overflow of a sewer
outlet, or a debris-burning incident lasting only
a few days, and some courts have held that
recurrence is a necessary prerequisite to a nuisance
determination. For example, one court
denied a prison inmate’s nuisance claim that he
was poisoned by pesticide delousing, because it
occurred on only one occasion. In such cases,
plaintiffs may have a viable claim for trespass or
negligence (discussed later in this article) but
not for nuisance.
In suits over POLLUTION, courts also consider
which party arrived first in the particular community,
the polluter or the landowner alleging
harm. The law has permitted polluters to escape
liability by proving that a landowner alleging
harm moved next to a preexisting nuisance with
knowledge of its harmful activities. The rationale
for this defense is that the landowner who “comes
to the nuisance” generally pays less for the property
because the nuisance has reduced its value. If
such a landowner were then permitted to remove
the nuisance, a windfall would inure to her or his
benefit. Increasingly, however, courts place less
weight on priority of arrival when evaluating a
nuisance claim.
Nuisance claims have traditionally been evaluated
from an objective point of view. If an
“average” or “normal” person in the relevant
community would be offended or annoyed by a
certain intrusion, then the intrusion is considered
real and appreciable. The idiosyncracies of a
hypersensitive plaintiff are generally discounted.
Persons with extreme personal tastes and aesthetic
sensitivity are usually denied relief under
this objective standard. Persons with abnormal
physical vulnerabilities, such as those with heart
conditions, breathing problems, and tender
eardrums, are usually denied relief as well.
In recent years, however, nuisance law has
offered greater protection to society’s vulnerable
members. People are not necessarily abnormal,
courts have held, merely because they enjoy
spending time outdoors, sleeping with the windows
open, or cultivating crops near smoke-billowing
smelters. These activities are increasingly
viewed as normal activities deserving protection.
Many courts are also becoming more sympathetic
to plaintiffs with preexisting health
conditions or genetic frailties.
Two cases illustrate this trend. In the first,
Lunda v. Matthews, 46 Or. App. 701, 613 P.2d 63
(1980), a cement plant was held liable for emitting
debris, dust, and fumes that encompassed a
landowner’s house and aggravated his bronchitis
and emphysema. The court reached this
determination despite arguments that the
landowner’s illness made him more vulnerable
to debris and dust than would be persons of
ordinary health. The court also held that the
cement plant could not escape liability merely because it was complying with state pollution
standards.
In the second case, Kellogg v. Village of Viola,
67 Wis. 2d 345, 227 N. W. 2d 55 (1975), a
landowner was permitted to recover for the loss
of mink kittens who were eaten by their skittish
mother after being frightened by noises and
odors from a nearby dump. The court was not
persuaded that the mink were abnormally
squeamish or that the landowner was primarily
responsible for their death because he had chosen
to move next to the dump with full knowledge
of its activities.
Aesthetic nuisances are another area where
courts have produced inconsistent results. On
June 25, 1927, a Pennsylvania court wrote that
“[i]n this age, persons living in a community or
neighborhood must subject their personal comfort
to the necessities of carrying on trade or
business,” and when an “individual is affected
only in his tastes, his personal comfort, or pleasure,
or preferences, these he must surrender for
the comfort and preferences of the many”
(Pennsylvania Co. for Insurance on Lives &
Granting Annuities v. Sun Co., 290 Pa. 404, 138 A.
909, 55 A.L.R. 873).
This attitude was expressed more recently
when a federal court denied the U.S. government’s
request that the court enjoin (prohibit)
the construction of high-rise office buildings on
the Virginia side of the Potomac River—even
though the buildings would blight the Washington
Monument, Lincoln Memorial, and other
national landmarks (United States v. County
Board, 487 F. Supp. 137 [E.D. Va. 1979]). These
cases reflect judges’ reluctance to hold themselves
out as standard-bearers for good taste.
Yet aesthetic nuisances are still recognized by
courts as viable claims when the extent of the
injury is more serious. Judges distinguish
between minor vibrations and bone-shaking
tremors, normal barnyard smells and sickening
stenches, and puffs of dust and blizzards of topsoil.
An activity that overcomes extreme defensive
measures taken by neighboring properties
will be declared a nuisance. Nocturnal noises
interfering with sleep can also sound the death
knell for a particular activity, especially when
there is evidence of widespread community dissatisfaction
and not just a single complaint.
Utility of the activity An environmental
injury will not be declared a nuisance unless it
outweighs the utility of the activity. Determining
the weight of a particular harm is often difficult
for courts. Judges are human, and humans disagree
on just about everything, including nuisance
law. The easiest type of case for a judge
involves an injury inflicted solely for the purpose
of causing harm. A fence constructed with the
intent to obstruct a neighbor’s view will always
be declared a nuisance. No socially redeemable
value is assigned to animus and hostility.
Most cases, however, do not involve a nuisance
created by adverse motivations. For
instance, polluters usually produce useful products
integral to a local economy, and the market
value of an injured property is rarely greater
than the business investments made by the polluter.
But dollar figures are not always of paramount
importance to judges.
Two leading cases illustrate the different
results reached by courts in weighting utility. In
the first,Madison v. Ducktown Sulfur, Copper, &
Iron Co., 113 Tenn. 331, 83 S.W. 658 (1904), the
court denied a landowner’s requested relief,
stating,
In order to protect by injunction several
small tracts of land, aggregating in value less
than $1,000, we are asked to destroy other
property worth nearly $2,000,000, and wreck
two great mining and manufacturing enterprises.
. . . The result would be practically a
confiscation of the [polluter’s] property . . .
for the benefit of the [landowner]—an
appropriation without compensation.
In the second case, Hulbert v. California, 161
Cal. 239, 118 P. 928 (1911), the court granted the
landowner’s request for an injunction, over the
polluter’s claim of greater hardship, saying, “If
the smaller interest must always yield to the
larger, all small property rights, and all small and
less important enterprises . . . would sooner or
later be absorbed by the large and more powerful
few.”
Some environmentalists maintain that the
law must protect the environment at any cost,
whereas extreme advocates of the free market
believe that business must be allowed to expand
unhindered by governmental regulation. Certain
results reached by particular judges may
appear unreasonable to both extremes, but
courts have attempted to strike a moderate balance
over the long run.
Technology has often provided the means to
moderation. Requiring businesses to shut down
and relocate, or homeowners to endure a nuisance
or move, are remedies not favored by the law. Courts avoid such remedies by exerting
pressure on companies to develop technologies
to make their operation safer for the environment.
For example, one court ordered a smelting
business to install specific arsenic control
measures to abate a nuisance, instead of closing
down the business as requested by the
landowner (American Smelting & Refining Co. v.
Godfrey, 158 F. 225 [8th Cir. 1907]).
Many nuisances can be remedied without
state-of-the-art technology. For example, airports
have been forbidden to authorize low-level
flights over certain residences, and farmers have
been ordered to confine foul odors to particular
buildings. Other nuisances can only be abated
by the best available technology. Sometimes,
however, it is economically impractical or prohibitively
expensive for a polluter to use such
technology.
Courts disagree about what should be done
when a polluter can do nothing short of ceasing
operations to lessen an injury.Many courts deny
injunctive relief if the polluter is already using
the most modern pollution control methods
available. Some courts grant an injunction
ordering the polluter to shut down when stateof-
the-art controls hold no further promise of
relief. Other courts award damages for a nuisance
that occurs despite the use of the best
available technology.
Trespass and Negligence Nuisance actions
deal primarily with continuing or repetitive
injuries. Trespass and negligence actions provide
relief even when an injury results from a single
event. A polluter who spills oil, dumps chemicals,
or otherwise contaminates neighboring
property on one occasion might avoid liability
under nuisance law but not under negligence or
trespass law.
Trespass involves an intentional interference
with the property interest of an owner or occupier
of land. Negligence occurs when a defendant
fails to exercise the amount of care that
would be exercised by a reasonably prudent person
under the circumstances. Whereas trespass
requires the injury to result from deliberate misconduct,
negligence results from the accidental
and inadvertent.
Under nuisance law, liability is based on an
unreasonable and substantial interference with
the legal interests of a landowner’s property.
Conversely, trespass is proved by evidence of any
tangible invasion of a landowner’s property,
however slight. Similarly, pollution resulting
from negligence need not produce a substantial
injury in order for a landowner to recover.However,
a landowner who suffers only minor
injuries from the negligence or trespass of a polluter
will receive only nominal damages.
Strict Liability The doctrine of strict liability
for abnormally dangerous activities provides
a fourth remedy for those suffering environmental
harm. To recover under this doctrine, the
landowner must demonstrate that a condition
or activity qualifies as abnormally dangerous
and was in fact the cause of the environmental
injury. Many common activities have been
decreed abnormally dangerous, including collecting
large quantities of water in hydraulic
power mains, storing gas in large amounts, and
transmitting high-powered electricity under city
streets.
Courts sometimes struggle in determining
when something rises to the level of abnormally
dangerous, and liability generally also attaches
for extraordinary, abnormal, exceptional, and
nonnatural activities or conditions. Examples of
such activities are oil well drilling, crop dusting,
pile driving, and blasting.
Prior Appropriation and Riparian Rights A
riparian proprietor is the owner of land abutting
a stream of water or river and, as such, has a
qualified right in the soil to divert the stream as
permitted by law. Generally, a riparian owner
has the right to all the useful purposes to which
a stream passing through the land may be put.
Specifically, the rights of riparian owners have
been divided into two discrete categories.
The first category is known as prior appropriation.
Under the principles of prior appropriation,
the law provides that whoever first
appropriates stream water for a beneficial purpose
acquires a vested right to the continued
diversion and use of that water against all
claimants who might later do the same. Courts
often describe prior appropriation as the principle
“first in time is first in right.”
Prior appropriation places downstream
owners at a distinct disadvantage because it permits
upstream owners to completely divert or
contaminate stream water so long as they do so
for a beneficial purpose. Early cases suggested
that no beneficial purpose was served when
water was diverted for reasons other than commerce
or profit, such as for mere personal pleasure.
Today, however, courts permit riparian owners to appropriate water for almost any aesthetic,
recreational, preservational, or pollution
control purpose.
Prior appropriation principles are followed
in many western states where water is scarce, and
efficient and economic uses for streams and
rivers are necessary. In the eastern states, the
doctrine of riparian rights is followed. This doctrine
has two strains. The first provides that each
riparian owner has an absolute right to the flow
of stream water uninterrupted by any unnatural
(i.e., human) causes. The second strain provides
that each riparian proprietor has a right to any
reasonable use of the stream water passing
through his or her land, and is protected from
unreasonable uses upstream. This doctrine does
not encourage the economically efficient use of
water, as does the doctrine of prior appropriation—
but water is not scarce in the eastern
states where riparian rights theory is applied.
Statutory Law
Much of the early environmental legislation
at the federal level was drafted in response to the
shortcomings of the common law, and the inadequate
and inconsistent protection of the environment
by the states. The common law was
slow to respond to changes in technology, and
often provided inadequate or antiquated remedies.
By nature, common-law doctrines were
developed only in response to lawsuits filed
between the disputing parties. The initial disagreements
were often protracted in nature, and
litigation was usually the last resort. As a result,
by the time a lawsuit was filed, a particular environmental
hazard may have become so pervasive
or problematic that no common-law
remedy could adequately address it.
Even when an appropriate common-law
remedy was available, many state courts refused
to enjoin larger businesses from polluting, out of
concern that the polluters might harm the local
economy by laying off employees or increasing
prices. Although some states enacted pollution
control statutes, many did not. The states that
did enact such statutes varied in the level of protection
provided and in the quality of enforcement.
Thus, an activity might be deemed
impermissible under the environmental legislation
of one state, but permissible under the legislation
of another. Federal air, water, and soil
pollution standards and national wilderness and
wildlife preservation regulations were drafted
largely in response to these problems.
The NATIONAL ENVIRONMENTAL POLICY
ACT (NEPA), 42 U.S.C.A. §§ 4321 et seq., is the
fulcrum for these federal pollution and preservation
regulations. NEPA, passed in 1969,
requires the federal government to give environmental
issues priority when planning major
projects. It was created to establish councils and
agencies that, in cooperation with state and local
governments and public and private interest
groups, would use all practicable means to monitor
and protect the environment.
The Council on Environmental Quality
(CEQ) and the ENVIRONMENTAL PROTECTION
AGENCY (EPA) were both created under the auspices
of NEPA. The CEQ prepares an ANNUAL
REPORT that discloses the quality and condition
of the country’s environment, evaluates federal
programs that may affect the environment, and
recommends specific policies to foster environmental
protection and improvement. The EPA
administers these policies and most federal environmental
statutes. Each of the fifty states has
drafted environmental regulations similar to
those written on the federal level, and the state
and federal regulations work together to address
the various environmental issues.
Air Pollution Air pollutants are divided
into five main classes: carbon monoxide, particulates,
sulfur oxide, nitrogen oxide, and hydrocarbons.
Carbon monoxide is a colorless,
odorless, and poisonous gas produced by the
burning of carbon in many fuels.Motor vehicles
are one source of this pollutant.
Particulates are solid or liquid particles produced
largely by stationary fuel combustion and
industrial processes.
Sulfur oxides are acrid, corrosive, and poisonous
gases produced by burning fuel containing
sulfur. Electrical utilities and industrial
plants are their principal sources.
Nitrogen oxides are produced when fuel is
burned at very high temperatures, as is the case
with stationary combustion plants and motor
vehicles. Once emitted into the air, nitrogen
oxides can be chemically converted into sulfates
and nitrates, which may return to earth as components
of precipitation, known as acid rain.
Hydrocarbons, which are produced by cars,
motorboats, and power plants, form smog when
combined with nitrogen oxides in the atmosphere
under the influence of sunlight.
Each of these pollutants is a threat to human
health. Acute cases of air pollution have caused marked increases in illness and death, especially
among older people and among those with respiratory
and cardiac conditions. Such pollutants
also contribute to the health problems of society’s
less vulnerable members, increasing the
incidence of emphysema and bronchitis among
the general population. For instance, smokers
living in polluted cities are more likely to contract
lung cancer than are smokers in rural areas.
Federal regulation of air pollution is controlled
primarily by the Clean Air Act (CAA)
and its amendments. Air pollution is broadly
defined by the act to mean any air pollution
agents or combination of agents. The act directs
the EPA to establish the National Ambient Air
Quality Standards (NAAQS) for air pollutants
that endanger public health or welfare. The EPA
may consider not the economic or technological
feasibility of attaining NAAQS, but only whether
the standards are set at levels necessary to protect
the public.
States are not divested of the authority to
regulate air pollution under the CAA. They
retain “primary responsibility for assuring air
quality” within their boundaries. Yet, following
the promulgation of NAAQS, each state must
submit for EPA approval a state implementation
plan (SIP) designed to develop and maintain the
air quality standards within its jurisdiction. SIPs
that are found lacking may be amended by the
EPA. States are also required to comply with the
minimum national thresholds created by the
CAA. These national thresholds permit state
governments and their subdivisions to enact
more stringent air pollution regulations than
those enacted by the federal government, but
not less stringent ones.
The CAA has three titles. Title I governs stationary
sources of air pollution, including all
buildings, structures, facilities, and installations
emitting air pollutants. Title II governs mobile
sources of air pollution, such as automobiles,
trucks, and aircraft. Both titles prescribe the
amount of pollution that may be emitted into
the air without violating the act.
Title III outlines procedures for the enforcement
of the act through legal or administrative
proceedings. State and federal governments may
enforce the act, as may private individuals in socalled
citizen suits. The CAA provides a variety
of administrative, equitable (nonmonetary),
civil, and criminal penalties, ranging from informal
measures such as violation notices to more
formal measures such as injunctive relief (a
court order to perform or refrain from performing
a particular act), money damages, and fines.
International attention has focused on three
particular forms of air pollution: acid rain, global
climate changes, and ozone depletion.Acid rain is
created when sulfur from fossil fuels is emitted
into the air and converted into a pollutant
through oxidation, later mixing with rain or snow
and returning to the earth as a component of precipitation.
Although the CAA has commissioned
a number of federally sponsored studies on the
subject, scientists still disagree on the severity of
the problems presented by acid rain.
Scientists also disagree about whether air
pollution can influence the global climate. Some
scientific studies conclude that air pollution has
caused the average temperature on earth to increase during the last twenty-five years or so,
resulting in a condition called global warming;
some conclude that the average temperature has
decreased, resulting in global cooling. Other
studies indicate that the global climate remains
unaffected by air pollution and will continue to
do so. Because of the discord in the scientific
community, the CAA has commissioned federally
sponsored studies to investigate the relationship
between air pollution, acid rain, and the
global climate.
The CAA has also commissioned federally
sponsored studies regarding the relationship
between air pollution and the destruction of the
ozone layer. The ozone layer shields the earth
from the harmful effects of the sun’s radiation,
and may be depleted by the release of chlorofluorocarbons
(CFCs) into the atmosphere. CFCs
serve as a coolant for refrigerators and air conditioners,
as a foaming agent for insulation, as a
solvent for computer chips, and as a propellant
for aerosol products. The CAA bans nonessential
uses of CFCs, but leaves room for judicial
interpretation as to what the phrase nonessential
uses might mean.
Noise pollution is another form of air pollution
regulated by the federal government. The
rumbling sounds of eighteen-wheelers on the
highway, 747s in the air, and jackhammers in the
street are all familiar to the modern era. The
Noise Control Act of 1972 (NCA) (42 U.S.C.A. §
4901 et seq.) was created to eliminate or reduce
such noises when they pose problems to public
health and welfare. Under the NCA, the EPA
conducts studies on industrial areas with excessive
noise, and establishes noise emissions standards.
Airports, airplanes, railroads, trains, and
trucks have all been required to reduce noise levels
through the development of quieter motors,
engines, and equipment. Any citizen may bring
legal action to enforce the provisions of the
NCA, but the EPA retains the right to intervene.
Remedies include injunctive relief, fines, and
criminal penalties.
In the late 1980s and early 1990s, the regulation
of air pollution moved indoors. Studies
conducted during the late 1980s and early 1990s
have shown that people are exposed to higher
concentrations of air pollution for longer periods
of time inside buildings than outdoors. One
prevalent source of indoor air pollution is cigarettes.
Many states restrict or prohibit smoking
in a variety of public places, including indoor
stadiums, restaurants, theaters, grocery stores,
buses, trains, and airplanes. The federal government,
through the OCCUPATIONAL SAFETY AND
HEALTH ACT (OSHA), 29 U.S.C.A. § 651 et seq.,
protects employees from “occupational diseases
caused by breathing air contaminated with
harmful dusts, fogs, fumes, mists, gases, smokes,
sprays, or vapors.”
On February 27, 2001, the U.S. Supreme
Court issued its decision in Whitman, Administrator
of Environmental Protection Agency, et al. v.
American Trucking Associations, Inc., et al, a case
which challenged the EPA’s revised National
Ambient Air Quality Standards (NAAQS) for
ozone and particulate matter. The Court, in a
unanimous decision, held that Section 109(b) of
the Clean Air Act (CAA) prohibits the EPA from
considering implementation costs when the
agency sets NAAQS; that Section 109(b)(1) of
the CAA does not delegate legislative powers to
the EPA; therefore, the EPA did not violate the
non-delegation doctrine in issuing its revised
ozone and particulate matter standards pursuant
to this section; and that the EPA’s implementation
strategy was an unreasonable agency
interpretation of an ambiguous statutory
scheme, and is therefore unlawful. The issue was
therefore returned to the EPA so that it could
develop a reasonable implementation strategy.
Water Pollution Like clean air, healthy
water is indispensable to human existence.
Humans depend on water for drinking, cooking,
swimming, fishing, and farming. Discharges of
organic wastes, heated water, nutrients, sediments,
toxic chemicals, and other hazardous
substances can all make water unfit for human
use. Organic wastes, produced by animals and
humans, decompose through the use of oxygen.
If a body of water spends too much oxygen during
the decomposition of organic wastes within
it, certain types of fish will not survive. Aquatic
life can also be harmed by the discharge of
heated water into lakes and streams, because the
increased temperatures accelerate biological and
chemical processes that reduce the water’s ability
to retain oxygen.
The release of nutrients and sediments, such
as detergents and fertilizers, can also harm bodies
of water. Eutrophication, the natural process
by which lakes evolve into swamps and eventually
dry land over the course of thousands of
years, is accelerated by the discharge of nutrients
that make lakes more biologically productive.
Discharges of toxic chemicals, heavy metals, and
other hazardous material can render both the water and its aquatic life unsafe for human consumption.
The three major sources of these
types of water pollution are industry, municipal
activity, and agriculture.
Federal regulation of water pollution begins
with the Federal Water Pollution Control Act
(FWPCA) (Pub. L. 87-88, July 20, 1961, 75 Stat.
204, 33 U.S.C.A. §§ 1151 et seq.; 43 U.S.C.A. §
3906). The FWPCA was designed to make
waters “fishable and swimmable” and to eliminate
the discharge of pollutants into NAVIGABLE
WATERS. The act delineates water quality standards,
requiring many water polluters to implement
the best practicable control technology or
the best available technology economically
achievable. Pursuant to the FWPCA, the EPA is
required to maintain a list of toxic substances
and to establish separate limitations for each of
them based on public health rather than technological
or economic feasibility. Although the primary
responsibility for the enforcement of the
act was left with the states, the federal government
and private citizens are also authorized to
pursue remedies.
In 1977, the FWPCA was amended by the
Clean Water Act (CWA) (Pub. L. No. 95-217,
Dec. 27, 1977, 91 Stat. 1566, 33 U.S.C.A. §§ 1251
et seq.). Under the CWA, conventional water
pollutants, such as oil, grease, and fecal coliform
bacteria, are to be measured by the best conventional
pollutant control technology. The CWA
requires the EPA to weigh “the reasonableness of
the . . . costs of attaining a reduction in [pollution
and the] benefits derived.” No cost-benefit
analysis was permitted for toxic substances and
nonconventional pollutants such as ammonia,
chlorides, and nitrates. Civil and criminal penalties,
including fines of up to $25,000 a day, are
authorized under the CWA.
Oil spills and ocean dumping present two
troubling problems for clean-water advocates in
the international arena. Section 311 of the
FWPCA announces that “it is the policy of the
United States that there should be no discharges
of oil or hazardous substances into or upon the
navigable waters of the United States [or]
adjoining shorelines.” The same section later
prohibits the discharge of any harmful quantity
of a hazardous substance into any navigable
waters of the United States.
In accordance with this provision, the EPA,
on behalf of the president of the United States,
has determined that discharges of harmful
quantities of oil include, with some minor
exceptions, any discharge that discolors or leaves
a film on the water or adjoining shorelines. Since
the discharge of even a few gallons of oil can
leave a film, this provision is tantamount to a
no-discharge policy.
It also represents a strict liability standard.
There is no escape from liability for a harmful
discharge of oil that results from negligence,
even if the accident could not have been prevented.
By contrast, previous federal legislation
prohibited only oil spills that were knowingly
discharged. Courts have broadly interpreted the
CWA to cover oil discharged by trucks, pipelines,
vessels, drilling platforms, and both onshore and
offshore facilities. A civil penalty of not more
than $5,000 is prescribed for each offense, and
some penalty must be imposed for every violation
regardless of its severity.
Accompanying the civil penalty scheme are
cleanup provisions. These include (1) preparation
and publication of a national contingency
plan for the removal of hazardous substances
and the prevention of spills; (2) authorization
for the United States to take summary action
(including the removal or destruction of a vessel)
whenever a marine disaster creates a substantial
threat to the nation’s environment,
including threats to fish, wildlife, shorelines,
and beaches; (3) authorization for the U.S.
attorney general, under the direction of the
president, to abate any “imminent or substantial”
marine disaster through legal action; and
(4) imposition of costs for cleanup upon the
owner or operator.

The Marine Protection, Research, and Sanctuaries
Act of 1972 (MPRSA) (27 U.S.C.A. §
1401 et. seq.), popularly known as the Ocean
Dumping Act, is the second piece of federal legislation
drafted in response to these two international
water pollution problems. The MPRSA
has three titles. Title I establishes a permit program,
administered by the EPA, for dumping
materials into and transporting them through
ocean waters. Title II creates a research program,
under the auspices of the secretary of commerce,
to determine ways in which ocean dumping
can be reduced or eliminated. Under title III,
the secretary of commerce may designate certain
parts of ocean water as marine sanctuaries to
preserve and restore recreational, ecological, or
aesthetic interests.
The MPRSA flatly prohibits any dumping of
radiological, chemical, or biological warfare
agents into ocean waters. The Coast Guard is
responsible for surveillance under the act.Violators
face civil penalties of up to $50,000 for each
violation. Criminal penalties and injunctive
relief may also be pursued by the government.
Private citizens harmed by ocean dumping may
seek relief as well.
Permits for ocean dumping may be granted
in certain circumstances. Both the administrator
of the EPA and the secretary of the Army have
the power to dispense permits, but the administrator
may VETO permits issued by the secretary.
The considerations in evaluating permit
requests include the need for dumping material
into ocean waters, other possible methods of
disposal, and the appropriateness of the chosen
dumping location. Generally, permits are
granted when ocean dumping will not “unreasonably
degrade or endanger human health,
welfare, amenities or the marine environment,
ecological systems or economic potentialities.”
On January 9, 2001, in a 5–4 decision, the
U.S. Supreme Court struck down the Migratory
Bird Rule, which was the basis of jurisdictional
authority for the U.S. Army Corps of Engineers
over a non-navigable, isolated, intrastate water
of the U.S. The Migratory Bird Rule stems from
a 1986 interpretation by the U.S. Army Corps of
Engineers of its regulatory definition for “navigable
waters,” the statutory limit to the Corps’
jurisdiction under the Clean Water Act (CWA).
The property at issue in the decision was a 553-
acre abandoned sand and gravel mine, which
contained water-filled excavation trenches that
were used by approximately 121 bird species.
The area did not qualify as “wetlands.” The U.S.
Army Corps of Engineers found the site jurisdictional
based on its use by migratory birds.
The Court of Appeals for the Seventh Circuit
upheld the U.S. Army Corps of Engineers’ jurisdiction
over the site. The petitioners, a consortium
of 23 suburban Chicago cities and villages
who intended to fill the site as a sanitary landfill,
appealed to the Supreme Court, claiming that:
(1) the Migratory Bird Rule exceeded the Corps’
authority under the CWA and (2) the exercise of
such jurisdiction was inconsistent with the COMMERCE
CLAUSE, U.S. Constitution, Art. 1 § 8, cl.
3. The Supreme Court reversed the Court of
Appeals decision by supporting petitioner’s first
assertion and declined to make a judicial determination
on the validity of the second assertion.
Specifically, the Court did not overturn its prior
decision in U.S. v Riverside Bayview Homes, 474
U.S. 121 (1985), which affirmed the Corps’
jurisdiction over wetlands adjacent to open
water bodies. The Court distinguished between
wetlands, which actually abut a navigable waterway,
and an isolated, abandoned sand and gravel
pit. The Court clarified that although the Riverside
Bayview Homes decision established that the
navigable requirement was of “limited import,”
the requirement has some meaning, particularly
when applied to water bodies that are decidedly
not wetlands.
Toxic and Hazardous Substances The federal
government uses various forms of legislation
to regulate the manufacture, storage,
disposal, sale, and discharge of hazardous substances,
which include toxic substances. States
have also enacted hazardous substance laws with
varying success results.
After the supertanker Torrey Canyon spilled
crude oil off the coast of England in 1967, both
Congress, in the Port and Waterways Safety Act
of 1972 (PWSA), and the State of Washington
enacted more stringent regulations for tankers
and provided for more comprehensive remedies
in the event of an oil spill. The ensuing question
of federal PREEMPTION of the State’s laws was
addressed in Ray v. Atlantic Richfield Co., 435
U.S. 151. In 1989, the supertanker Exxon Valdez
ran aground in Alaska, causing the largest oil
spill in U.S. history. Again, both Congress and
Washington responded. Congress enacted the
Oil Pollution Act of 1990 (OPA). The State created
a new agency and directed it to establish
standards to provide the “best achievable protection”
(BAP) from oil spill damages. That agency promulgated tanker design, equipment, reporting,
and operating requirements, giving the state
of Washington stricter standards than those
required by federal law. In United States v. Locke,
120 S.Ct. 1135 (2000), the United States
Supreme Court unanimously struck down a
Washington State oil tanker law and held that
the state’s safety and environmental standards
were preempted by the comprehensive federal
regulatory scheme governing oil tankers.
Pesticide regulation The sale and distribution
of pesticides in the United States are governed
by the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) (Pub. L. No. 100-532,
Oct. 25, 1988, 102 Stat. 2654, 7 U.S.C.A. §§ 136 et
seq.). Under the FIFRA, no pesticide may be
introduced into the stream of commerce without
approval by the administrator of the EPA. If the
administrator finds that a pesticide will “cause
unreasonable adverse effects on the environment,”
the pesticide will not receive approval. An
unreasonable adverse effect on the environment
is defined as “any unreasonable risk to [humans]
or the environment, taking into account the economic,
social, and environmental costs and benefits
of the use of any pesticide.”
Once a pesticide is approved by and registered
with the EPA, registration may be suspended
by the administrator upon proof that
continued use would “likely result in unreasonable
adverse effects on the environment.” Before
suspension, the registrant is entitled to an expedited
administrative hearing during which the
danger and usefulness of the pesticide are measured.
In emergency circumstances, the administrator
may suspend registration prior to a
hearing on the merits.
Chemical manufacturing regulation The
manufacture of chemicals is regulated on the
federal level by the Toxic Substance Control Act
(TSCA) (15 U.S.C.A. 2601 et seq.). The TSCA is
underpinned by three policy considerations.
First, industry has the primary responsibility for
ascertaining the environmental effects of the
chemicals it is manufacturing. Second, the government
should have the authority to prevent
unreasonable risks of injury to the environment,
especially imminent risks. Third, the government
should not exercise this authority in a
manner that places unreasonable economic barriers
to technological innovation. As with most
of the statutory law in the environmental arena,
the relative weights given to each value are balanced
against each other.
The central provisions of the TSCA are sections
4, 5, and 6. Section 4 empowers the EPA to
adopt rules requiring a manufacturer to test
each substance that may “present an unreasonable
risk” to the environment, “enter the environment
in substantial quantities,” or present a
likelihood of “substantial human exposure.” Section
5 requires manufacturers to give the EPA
notice before producing new chemical substances.
New chemicals covered by section 4
must then be tested. New chemicals not covered
by section 4 but listed by the EPA as potentially
hazardous are evaluated at a hearing provided
under section 6.
Resource Conservation and Recovery Act
The Resource Conservation and Recovery Act
(RCRA), Pub. L. No. 94-580, Oct. 21, 1976, 90
Stat. 2795, 42 U.S.C.A. § 6901 et seq., was passed
in 1976 as a response to a growing public awareness
of problems relating to the disposal of hazardous
waste. In 1981 the EPA estimated that 290
million tons of hazardous waste were produced in
the United States annually, 90 percent of which
would have been improperly disposed of before
the RCRA became law. The chemical, petroleum,
and metal industries were the nation’s leading
generators of hazardous waste during this period.
In 1983 government studies indicated that as
many as fifty thousand inactive disposal sites contained
hazardous waste, with as many as twentyfive
hundred posing a serious threat to
groundwater and to public drinking supplies.
Hazardous waste was traditionally disposed
of on the land of the generator. Occasionally, the
generator would transport the waste to an offsite
disposal area. During the twenty-year active
life of a disposal site, ownership and operation
frequently changed hands.Very few records were
kept at the disposal sites, leaving many subsequent
owners and operators without any indication
of their prior use.
The RCRA attempted to answer these problems
by providing “cradle-to-grave” regulation
of hazardous materials. The RCRA requires the
EPA to promulgate criteria for identifying hazardous
waste in light of a substance’s toxicity,
persistence, degradability, corrosiveness, flammability,
and potential for accumulation in
organic tissues. Standards are prescribed for the
generators and transporters of hazardous materials
as well as for storage and disposal sites.
Generators and transporters are subject to
record-keeping, reporting, and labeling requirements,
with transporters also being subject to the strictures of the Hazardous Materials Transportation
Act. Sites for underground storage
tanks containing petroleum products, pesticides,
and other hazardous products are governed
by RCRA provisions that enable the
detection, correction, and prevention of leaks.
Disposal sites are regulated by a permit system
in which the EPA is given broad powers to
inspect a site, issue compliance orders, institute
civil actions against violators, and seek injunctive
relief. Criminal penalties may also be
imposed for violation of the permit system.
In 1984, Congress amended the RCRA, shifting
the focus of hazardous waste management
from safe land disposal to treatment alternatives.
Under the 1984 amendments, land disposal is
now the last alternative, and is permitted only
when the waste is pretreated to meet standards
issued by the EPA, or when the EPA determines
“to a reasonable degree of certainty that there
will be no migration of hazardous constituents
from the disposal unit . . . for as long as the
wastes remain hazardous.”
When land disposal is deemed permissible,
new landfills must use double liners and
groundwater monitoring systems, unless the
EPA finds that an alternative design or operating
practice would be equally effective in preventing
the migration of hazardous waste. In addition to
providing for EPA regulation and enforcement
actions, the RCRA authorizes private citizens to
institute legal proceedings against violators of its
provisions.
Comprehensive Environmental Response,
Compensation, and Liability Act The Comprehensive
Environmental Response, Compensation,
and Liability Act (CERCLA), also known as
the Superfund, was passed in 1980 to clean up
hazardous waste disposal sites (42 U.S.C.A. §§
9601 et seq.). The act consists of four elements.
First, CERCLA establishes a system for gathering
information to enable federal and state governments
to characterize chemical dump sites and
develop priorities for response actions. The
administrator of the EPA is required to issue
regulations designating which chemicals would
be hazardous to the public if released into the
environment. The owners and operators of hazardous
waste storage, treatment, and disposal
sites are required to notify the EPA of the
amount and types of hazardous substances onsite,
and of any known, suspected, or likely
releases into the environment. Based on this
information, the EPA develops a national priorities
list (NPL), which ranks the nation’s hazardous
waste sites in order of importance.
Second, CERCLA establishes federal authority
to respond when hazardous waste has been
discharged into the environment. The president
is authorized to provide removal and remedial
actions consistent with a national contingency
plan (NCP), which establishes procedures for
cleaning up such discharges. Removal actions
are short-term responses to emergencies,
whereas remedial actions are intended to offer
long-term solutions. The federal government’s
response actions at sites appearing on the NPL
are limited to cases in which the responsible parties
cannot be found or fail to take the necessary
actions.
Third, CERCLA creates a class of persons
who are potentially responsible parties (PRPs),
who will be held liable for cleanup and restitution
costs. The act provides that all generators
and transporters of hazardous materials, and
every owner and operator of a disposal or treatment
facility, shall be liable for all removal and
remedial costs incurred by the state and federal
government not inconsistent with the NCP, as
well as any other necessary response costs such
as consulting fees or attorney fees in certain situations.
In each case, CERCLA imposes strict
liability upon the responsible party, independent
of traditional notions of culpability such as
intent and recklessness.
Fourth, the act creates the multi-billion-dollar
Hazardous Substance Trust Fund to pay for
removal and remedial actions. Money for the
fund is raised through federal appropriation and
through taxes paid by some disposal site owners
and operators. The fund cannot be used to remedy
environmental injuries from hazardous
waste that “occurred wholly before the enactment
of this Act.” Private claims may be made
against the fund only if the PRPs cannot be
found or are insolvent.
The stickiest legal questions arise when
courts assign liability for cleanup. For example,
lending institutions regularly foreclose, take
title, and resell property without any knowledge
or indication that the property was previously
used as a hazardous waste site. Such institutions
clearly fall within CERCLA’s definition of a
landowner, yet they assume no traditional
responsibilities of land ownership.
Early CERCLA cases imposed liability upon
lending institutions in these circumstances, even when the costs of cleanup exceeded the value of
the property (see United States v.Maryland Bank
& Trust Co., 632 F. Supp. 573 [D. Md. 1986]).
Although Congress later amended CERCLA to
protect such “innocent landowners,” courts still
impose liability if the lending institution “had
reason to know” of the hazardous waste disposal
or failed to make “all appropriate inquiry” into
the previous ownership before acquiring the
property.
Liability under CERCLA is joint and several
liability, which means that once it is established
among a group of defendants, any one of the
defendants can be held responsible for the entire
cost of cleanup. Although defendants are permitted
to offer evidence that they are responsible
for only part of an environmental injury, the
commingling of chemicals at dump sites makes
such a defense difficult to prove. Defendants
may also seek reimbursement from codefendants
who were primarily responsible for a hazardous
discharge, but this relief proves futile
when a responsible codefendant has disappeared
or filed BANKRUPTCY. Thus, wealthy landowners
are often left paying the costs of the CERCLA
cleanup.
Preservation of Wilderness and Wildlife
NEPA requires the government to “fulfill the
responsibilities of each generation as trustee for
succeeding generations” to ensure “safe, healthful,
productive and aesthetically pleasing surroundings”
and protect “important aspects” of
the “national heritage.”
The federal government has three land
preservation categories: the National Park System,
the National Wilderness Preservation System,
and the National Wildlife Refuge. National
parks include forested areas, recreational areas,
and places of historical importance. Wilderness
preserves are not intended for use, and are primarily
found in Alaska and the Florida Keys. A
wildlife refuge is a sanctuary for fish and game.
Federal legislation protects each of these three
areas from spoliation, degradation, and misuse.
In addition to establishing sanctuaries and
refuges for wilderness and wildlife, Congress has
passed the ENDANGERED SPECIES ACT, 16
U.S.C.A. §§ 1531 et seq., which charges the
DEPARTMENT OF THE INTERIOR with the protection
of animals teetering on the brink of extinction.
The U.S. Supreme Court has interpreted
this act very broadly, as reflected by the snail
darter case (Tennessee Valley Authority v. Hill,
437 U.S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d 117
[1978]).
The snail darter, a plain-looking, three-inchlong
fish, was an endangered species inhabiting
the rivers of Tennessee when the TENNESSEE
VALLEY AUTHORITY began the construction of a
$100 million dam that would have destroyed its
habitat. After noting that Congress deemed all
species to have incalculable value and finding
that the Endangered Species Act “admit[ted] of
no exception[s],” the Supreme Court held that
the dam could not be completed.
Environmental Justice
The field of Environmental Justice sprung
from grassroots organizations formed to combat
environmental racism. In the 1970s, groups
of minorities organized to protest the disproportionate
number of waste producing and polluting
industries located in areas where
minorities or poor people lived. These groups
included African Americans, Latinos and Native
Americans. This effort against environmental
racism was viewed as outside the broader Environmental
Movement, which had white middle
to upper class backing.
In the 1980s, the environmental racism
movement reorganized and became known as the
Environmental Justice movement, which focused
on the equitable distribution of environmental
health and risk.At that time their efforts began to
receive more mainstream attention and recognition.
Since that time, the topic of Environmental
Justice has been addressed by COLLEGES AND
UNIVERSITIES, as well as environmental and religious
groups. The field has begun to move
beyond issues of equitable distribution to include
concerns about reducing and stopping environmental
risk. This later aspect may be called ecological
justice and deems that the earth and the
environment have intrinsic value.
Environmental Racism Environmental
racism has been defined by environmentalists
as the deliberate targeting of communities of
color for discriminatory treatment in governmental
policy and corporate practices. Placement
of toxic waste facilities in low income
neighborhoods and nuclear waste dumps in
indigenous territory have been cited as examples
of this practice. Community activists have
challenged what they believe is inherent and
explicit racism in corporate strategies and discriminatory
treatment in enforcement of environmental
regulations.

Private Title VI Lawsuits and Environmental
Racism Title VI of the CIVIL RIGHTS ACT has
been one of the most commonly used statutes in
Environment Justice lawsuits in recent times.
Some of this is due to the failures from other
statutes and some of it is the uncertainty about
the viability of Title VI as a remedy for environmental
racism. Title VI has two main parts to it,
section 601 and section 602. One of the main
differences in the two sections is whether it gives
a private right of action to plaintiffs. A private
right of action determines whether ordinary citizens
have the right to bring the case based on
the statute before a court to determine the validity
of the claims. Section 601 has been determined
by the United States Supreme Court to
hold a private right of action for lawsuits. Section
602 however has not been interpreted as to
whether or not it holds a private right of action
within it. The issue of intent is defined differently
in the two sections. Section 601 has a
model of proving intent based on the EQUAL
PROTECTION CLAUSE of the FOURTEENTH
AMENDMENT. This model is that of proving purposeful
discriminatory intent by a government
agency or other group who is discriminating.
This very strict interpretation of the statute has
served to quell any Environmental Justice lawsuits
under section 601. For cases where discriminatory
intent is obvious, section 601 is a
good alternative since it allows for more punishment
than section 602, which can only terminate
funding. This allows corporate defendants
to use reasons such as economic impacts and
geographical situation to explain away unjust
allocation of environmental burdens. Section
602, however, allows for disparate impacts to be
used instead of intentional discrimination as a
means of implicating defendants in the violations.
In February of 1994, President BILL CLINTON
signed an EXECUTIVE ORDER which brought
together several federal agencies and offices in a
battle against discrimination. This order was an
outline of what each agency was required to do
to promote Environmental Justice in its policies
and practices and what each agency needed to do
to ensure the continued compliance with Title
VI. The EPA has used this order as a staging
point for their new wave of Environmental Justice
focuses. An Environmental Justice Strategy
has been formed by the EPA for the evaluation of
Environmental Justice concerns brought to the
EPA. The Executive Order is very limited in its
scope and enforceability and has been widely
criticized despite the fact that it facilitated the
creation of the EPA Title VI policy.
FURTHER READINGS
Gerrard,Michael B., ed. 1999. The Law of Environmental Justice:
Theories and Procedures to Address Disproportionate
Risks. Chicago: American Bar Association.
Rogers, William H., Jr. 1986. Environmental Law: Air and
Water Pollution. St. Paul,Minn.:West.
—. 1977. Environmental Law Hornbook. St. Paul,Minn.:
West.
Stern, Carole, John A. McKinney Jr., and David B. Graham,
eds. 1996. CERCLA Enforcement: A Practitioner’s Compendium
of Essential EPA Guidance and Policy Documents.
Chicago: American Bar Association.
CROSS-REFERENCES
Tobacco;Water Rights.