United States environmental law: Wikis

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The environmental policy of the United States is federal governmental action to regulate activities that have an environmental impact in the United States. The goal of environmental policy is to protect the environment for future generations while interfering as little as possible with the efficiency of commerce or the liberty of the people and to limit inequity in who is burdened with environmental costs. This policy grew mainly out of the environmental movement in the United States in the 1960s and '70's during which several environmental laws were passed, regulating air and water pollution and forming the Environmental Protection Agency (EPA). Partially due to the high costs associated with these regulations, there has been a backlash from business and politically conservative interests, limiting increases to environmental regulatory budgets and slowing efforts to protect the environment. Since the 1970s, despite frequent legislative gridlock, there have been significant achievements in environmental regulation, including increases in air and water quality and to a lesser degree, control of hazardous waste. Due to increasing scientific consensus on global warming and political pressure from environmental groups, modifications to the United States energy policy and limits on greenhouse gas emission have been proposed, but such efforts have made limited progress.

Contents

Policy tools

The two major policy tools for protecting the environment are rules and inducements. The United States has chosen to use rules, primarily through regulation. Such regulation can come in the form of design standards and performance standards. Performance standards specify emission levels and let those covered by the rules decide how those levels will be met. Design standards specify exactly how performance standards will be met.

Alternatively, the government can use inducements, or market reform. Inducements are rewards and punishments used to influence people or groups. The two major types of market reforms are charge systems, such as emissions taxes, and tradable permit systems. One type of tradable permit system is an auction of pollution rights in which the amount of allowed pollution is set and divided into units, which are then auctioned, giving environmental organizations the opportunity to buy the units to create a cleaner environment than originally planned. Such a plan was implemented for SO2 emissions in the 1990 Acid Rain Program and has been undertaken for greenhouse gases on a regional scale as a way to mitigate global warming.

Power Delegation and Policy Jurisdiction

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Executive Branch

Governmental authority on environmental issues in the United States is highly fragmented. While the EPA is the most comprehensive environmental agency, its authority on these matters is not absolute. Virtually all of the executive branch's departments have some area of environmental authority. This contributes somewhat to the cost and questionable efficacy of the United States' environmental regulation.

Federal Agency Environmental Responsibilities
White House Office Overall policy, Agency coordination
Office of Management and Budget Budget, Agency coordination and management
Council on Environmental Quality Environmental policy, Agency coordination, Environmental impact statements
Department of Health and Human Services Health
Environmental Protection Agency Air and water pollution, Solid waste, Radiation, Pesticides, Noise, Toxic substances
Department of Justice Environmental litigation
Department of the Interior Public lands, Energy, Minerals, National parks
Department of Agriculture Forestry, Soil, Conservation
Department of Defense Civil works construction, Dredge and fill permits, Pollution control from defense facilities
Nuclear Regulatory Commission License and regulate nuclear power
Department of State International environment
Department of Commerce Oceanic and atmospheric monitoring and research
Department of Labor Occupational health
Department of Housing and Urban Development Housing, Urban parks, Urban planning
Department of Transportation Mass transit, Roads, Aircraft noise, Oil pollution
Department of Energy Energy policy coordination, Petroleum allocation research and development
Tennessee Valley Authority Electric power generation

Legislative Branch

Fragmentation within the executive branch is duplicated in Congress and within the states. The EPA is the concern of almost two-thirds of the House of Representatives' standing committees and subcommittees and a similar percentage in the Senate. Some seventy committees and subcommittees control water quality policy, for example. Such fragmentation creates both opportunities and problems. While such a variety of committees provide enormous access for environmentalist and industry groups to lobby, the division of tasks means that no one committee or agency looks at environmental problems as a whole.

Senate and House committee jurisdictions
Senate
Committee on Agriculture, Nutrition and Forestry Pesticides
Committee on Appropriations Appropriations
Committee on the Budget Budget
Committee on Commerce, Science, and Transportation Oceans, Research and Development, Radiation, Toxics
Committee on Energy and Natural Resources Synthetic fuels, Conservation oversight, Energy budget, Mines, Oil shale, Outer continental shelf, Strip mining
Committee on Environment and Public Works Air, Drinking water, Noise, Nuclear energy, Ocean dumping, Outer continental shelf, Research and development, Solid waste, Toxics, Water
Committee on Foreign Relations International environment
Committee on Homeland Security and Governmental Affairs Interagency subject area
Committee on Labor and Human Resources Public health
Committee on Small Business Impact of environmental regulations on small business
House
Committee on Agriculture Pesticides
Committee on Appropriations Appropriations
Committee on the Budget Budget
Committee on Oversight and Government Reform Interagency subject area
Committee on Interior and Insular Affairs Synthetic fuels, Conservation oversight, Energy budget, Mines, Oil shale, Outer continental shelf, Radiation (Nuclear Regulatory Commission oversight), Strip mining
Committee on Energy and Commerce Air, Drinking water, Noise, Radiation, Solid waste, Toxics
Committee on Natural Resources Ocean dumping
Committee on Transportation and Infrastructure Noise, Water pollution, Water resources
Committee on Science and Technology Research and Development
Committee on Small Business Impact of environmental regulations on small business

History

Major Environmental Legislation
Year Law Year Law
1899 Refuse Act 1974 Safe Drinking Water Act
1918 Migratory Bird Treaty Act of 1918 1975 Hazardous Materials Transportation Act
1948 Federal Water Pollution Control Act 1976 Resource Conservation and Recovery Act
1955 Air Pollution Control Act 1976 Solid Waste Disposal Act
1963 Clean Air Act (1963) 1976 Toxic Substances Control Act
1965 Solid Waste Disposal Act 1977 Clean Air Act Amendments
1965 Water Quality Act 1977 Clean Water Act Amendments
1967 Air Quality Act 1980 CERCLA (Superfund)
1969 National Environmental Policy Act 1984 Resource Conservation and Recovery Act Amendments
1970 Clean Air Act (1970) 1986 Safe Drinking Water Act Amendments
1970 Occupational Safety and Health Act 1986 Superfund Reauthorization
1972 Consumer Product Safety Act 1987 Clean Water Act Reauthorization
1972 Federal Insecticide, Fungicide, and Rodenticide Act 1990 Oil Pollution Act
1972 Clean Water Act 1990 Clean Air Act (1990)
1972 Noise Control Act 1993 North American Free Trade Agreement
1973 Endangered Species Act 2003 Healthy Forests Initiative

There are many more environmental laws in the United States, both at the federal and state levels. The common law of property and takings also play an important role in environmental issues. In addition, the law of standing, relating to who has a right to bring a lawsuit, is an important issue in environmental law in the United States.

Origins of the Environmental Movement

The history of environmental law in the United States can be traced back to early roots in common law doctrines, for example, the law of nuisance and the public trust doctrine. The first statutory environmental law was the Rivers and Harbors Act of 1899, which has been largely superseded by the Clean Water Act. However, most current major environmental statutes, such as the federal statutes listed above, were passed during the modern environmental movement spanning the late 1960s through the early 1980s. Prior to the passage of these statutes, most federal environmental laws were not nearly as comprehensive.

The precursor of the modern environmental movement in the United States was the early twentieth century conservation movement, associated with President Theodore Roosevelt and Gifford Pinchot. During this period, the U.S. Forest Service was formed and public concern for consumer protection began, epitomized by the publication of The Jungle by Upton Sinclair. The origins of the modern environmental movement were in the publication of Rachel Carson's controversial Silent Spring, which pointed out the perils of pesticide use and rallied concern for the environment in general. Along with critiques of the misuse of technology from figures such as William Ophuls, Barry Commoner and Garrett Hardin, the ineffectiveness and criticism of the 1960s Clean Air and Clean Water acts gave a burgeoning momentum to the environmental movement.

In addition to growing public support, structural changes such as Congressional reform and new access to the courts gave environmentalists new power to enact change. The movement that formed held three key values: ecology, health, and sustainability. These values- that we depend and are interconnected with the environment, that insults to the environment can affect our health, and that we should limit our dependence on non-renewable resources- along with a uniquely sympathetic president and Congress, led to great environmental policy change in the 1970s.

One lawsuit that has been widely recognized as one of the earliest environmental cases is Scenic Hudson Preservation Conference v. Federal Power Commission, decided in 1965 by the Second Circuit Court of Appeals, prior to passage of the major federal environmental statutes.[1] The case helped halt the construction of a power plant on Storm King Mountain in New York State. The case has been described as giving birth to environmental litigation and helping create the legal doctrine of standing to bring environmental claims.[2] The Scenic Hudson case also is said to have helped inspire the passage of the National Environmental Policy Act, and the creation of such environmental advocacy groups as the Natural Resources Defense Council.

The Environmental Decade (1970-1980)

On January 1, 1970, President Nixon signed the National Environmental Policy Act (NEPA), beginning the 1970s as the environmental decade. NEPA created the Council on Environmental Quality which oversaw the environmental impact of federal actions. Later in the year, Nixon created the Environmental Protection Agency (EPA), which consolidated environmental programs from other agencies into a single entity. The legislation during this period concerned primarily first-generation pollutants in the air, surface water, groundwater, and solid waste disposal. Air pollutants such as particulates, sulfur dioxide, nitrogen dioxide, carbon monoxide, and ozone were put under regulation, and issues such as acid rain, visibility, and global warming were also concerns. In surface water, the contaminants of concern were dissolved oxygen, bacteria, suspended and dissolved solids, nutrients, and toxic substances such as metals. For groundwater, the pollutants included biological contaminants, inorganic and organic substances, and radionuclides. Finally, solid waste contaminants from agriculture, industry, mining, municipalities, and others were put under control.

The Clean Air Act amendments of 1970 and the Federal Water Pollution Control Act amendments of 1972 moved environmental concerns in a new direction. The standards that they put in place were unattainable with existing technology- they were technology forcing. The standards that the EPA put into place called mainly for state implementation. Each state prepared state implementation plans (SIPs), requiring EPA approval, and each state had to request permits from the EPA to emit pollution into any surface water. Congress also provided for a massive public works program to assist in the construction of water and waste treatment plants for municipalities. The 1970 Clean Air Act also enacted deadlines and penalties for automobile emission standards in new cars, resulting in the development and adoption of catalytic converters and greatly reducing automobile pollution.

The Reagan Administration (1980-1988)

Ronald Reagan entered office openly hostile to environmental protection and campaigned against harsh government regulation with the environmental arena in mind. As Reagan entered office, he was given two transition reports- one called "Mandate for Leadership" from the Heritage Foundation and one called "Avoiding a GOP Economic Dunkirk" from conservative Congressman David Stockman(R-MI)- that called for drastic changes in environmental regulation, primarily through administrative changes. In pursuit of this strategy, Reagan gradually reduced the EPA's budget by 30% through the Omnibus Budget Reconciliation Act of 1981, cut the number of EPA employees, and appointed people at key agency positions who would enthusiastically follow the administration line. Appointees such as Anne Burford at the EPA and James G. Watt at the Department of the Interior were overtly hostile to environmental protection. Through his appointments, Reagan changed the operations of environmental protection from stiff regulation to "cooperative regulation".

Under this administrative strategy of regulatory relief, environmental laws were written and interpreted more favorably for industry interests. The Office of Management and Budget(OMB) was also given new powers to write regulations. During the first Reagan administration, the OMB was given the power to require a favorable cost-benefit analysis of any regulation before it could be implemented. This was used to delay new regulations, and changes that resulted in regulatory relief often had this requirement waived. At the beginning of the second Reagan administration, the OMB was given more power- all regulatory agencies were required to submit proposals each year for all major environmental regulation- allowing it to reduce regulatory efforts before such proposed regulations became public.

The George H. W. Bush Administration (1988-1992)

Environmental policy during the first Bush administration contained a mixture of innovation and restriction. He appointed the first environmentalist, William Reilly, to head the EPA, along with others with strong environmental inclinations. In other departments with environmental responsibilities and in White House offices, however, he appointed people who were more developmentally-oriented, such as John H. Sununu, Richard Darman, and Dan Quayle. While considerable regulation was initially passed, during his last two years in office he severely restricted regulation, and in 1992, a total freeze was put on new regulations.

The private-sector Council on Competitiveness (distinct from the federal Competitiveness Policy Council) was formed in 1989 to play the same role as the previous Task Force on Regulatory Relief that Bush had served on in the Reagan administration, which was to negotiate on behalf of the president for regulatory relief with the heads of federal agencies [3]. This executive branch agency negotiated with EPA director Reilly, leading to industry-favorable rulings such as the redefinition of wetlands and the allowance of untreated toxic chemicals in local landfills (this was later reversed). While previous regulatory-relief efforts, such as Reagan's use of the Office of Budget Management, were subject to congressional oversight, the Council on Competitiveness was independent and wasn't required to keep records of its proceedings.

In 1992, Bush opposed international efforts at the Earth Summit in Rio de Janeiro, Brazil by refusing to sign the biodiversity treaty and lobbying to remove all binding targets from the proposal on limiting global carbon dioxide emissions.[4]

The Clinton Administration (1992-2000)

The Clinton administration promised a change in the direction of environmental policy. Al Gore, the vice president, and appointees such as Carol Browner in EPA and Bruce Babbitt were all encouraging from an environmental standpoint. Clinton eliminated the Council on Competitiveness, returning regulatory authority to agency heads, and Clinton and Gore argued that environmental protection and economic growth were not incompatible.

Clinton's record as the governor of Arkansas however, suggested that Clinton would be willing to make compromises. Through a number of middle-of-the-road positions, on issues such as grazing fees in the West and clean-up of the Everglades, and through his support of the North American Free Trade Agreement in 1993 and the General Agreement on Tariffs and Trade in 1994, Clinton dissatisfied some environmentalists. Specifically, the Green Party and its candidate Ralph Nader were outspoken in their criticism of Clinton's environmental record.

Despite criticism from environmental purists, the Clinton administration had several notable environmental accomplishments. Clinton created the President's Council on Sustainable Development, signed the Kyoto Protocol (although he did not submit the treaty to the Senate), and stood firm against Republican attempts after the 1994 elections to roll back environmental laws and regulations through the appropriations process. During the Clinton administration, the EPA's budget was increased, and much of the country's natural resources were put under greater protection, such as the restoration of the Everglades and the increase in size of the Everglades National Park.

The George W. Bush Administration (2000-2008)

The Obama Administration (2009-)

Issues

Since the environmental movement of the 1970s, the nature of environmental issues has changed. While the initial emphasis was on conventional air and water pollutants, which were the most obvious and easily measurable problems, newer issues are long-term problems that are not easily discernible and can be surrounded by controversy.

Acid Deposition

Acid deposition, in the form of acid rain and dry deposition, is the result of sulfur and nitrogen dioxide being emitted into the air, traveling and landing in a different place, and changing the acidity of the water or land on which the chemicals fall. Acid deposition in the Northeast United States from the burning of coal and in the West United States from utilities and motor vehicles caused a number of problems, and was partially exacerbated by the Clean Air Act, which forced coal power plants to use taller smoke stacks, resulting in farther transmission of sulfur dioxide in the air.

During the Carter administration, the United States undertook a risk-averse policy, acting through the EPA and Council on Environmental Quality (CEQ) to research and control the pollutants suspected to cause acid deposition even in the face of scientific uncertainty. The Reagan administration was more risk tolerant. It argued that, given the scientific uncertainties about harm and exposure levels, new expenditures should not be undertaken that would curtail energy security and economic growth. During George H. W. Bush's presidential campaign, he called for new Clean Air Act legislation to curtail sulfur- and nitrogen-dioxide emissions. In 1990, after he was elected, amendments to the Clean Air Act were finally passed that cut emissions by over 12 million tons per year, set up a market-like system of emissions trading, and set a cap on emissions for the year 2000. These goals were achieved to some degree by the installation of industrial scrubbers.

While the initial costs in cutting emissions levels were expected to be over $4.6 billion for utilities and a 40% rise in electricity costs, the impact ended up being only about $1 billion and a 2-4% rise in electricity costs. Part of the reason for the relatively-low costs is the availability of low-sulfur coal.

Ozone Depletion

Ozone depletion is the reduced concentration of ozone in the Earth's stratosphere (called the ozone layer), where it serves to block much of the ultraviolet radiation from the sun. Chlorofluorocarbons (CFCs), which were used beginning in the 1930s in a number of important areas, were determined in 1974 to be responsible for much of the depletion of the ozone layer. Four years later, the EPA and FDA to ban CFCs in aerosol cans. As research in the 1980s indicated that the problem was worse than before, and revealed a controversial massive hole in the ozone layer over Antarctica, three international agreements were made to reduce the ozone-damaging substances- the Vienna Convention, the 1987 Montreal Protocol, and a third agreement in 1990 in London. In the United States, the 1990 Clean Air Act Amendments phased out production of CFCs and required recycling of CFC products.

Although the phase-out of CFCs took almost two decades, the policy is generally seen as a success. While a crisis seems to be averted, due to the longevity of CFC particles in the atmosphere, the ozone layer is only expected to start showing sign of recovery by the year 2024.[5]

Hazardous Wastes

Hazardous waste regulations began in the United States in 1976 with the Resource Conservation and Recovery Act (RCRA) to govern hazardous waste from its initial generation to final disposition (cradle-to-grave regulation) and the Toxic Substances Control Act (TSCA) to anticipate possible hazards from chemicals. Following the events at Love Canal, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund) was enacted in 1980 to assist in the cleanup of abandoned hazardous waste disposal sites. In the mid-1980s, the Hazardous and Solid Waste Amendments (1984) and the Superfund Amendments and Reauthorization Act (1986) were passed.

The aim of hazardous waste regulation is to prevent harm from occurring due to hazardous waste and to pass the burdens of cleanup of hazardous waste on to the original producers of the waste. Some of the problems of hazardous waste regulation are that the negative effects of hazardous waste can be difficult to detect and controversial and that, due mainly to the large amount of hazardous waste that is generated (214 million tons in 1995), regulation can be difficult and costly.

Implementation has been difficult, with years sometimes passing between legislation passage and initial regulations. Superfund was passed in December 1980, just before Reagan took office. The first administrator of Superfund was Rita Lavelle who had worked for a major hazardous waste generator. The result was that her implementation of Superfund was designed mainly to delay regulation, and the subsequent controversy resulted in the resignation of Lavelle, EPA administrator Anne Burford, and several other top EPA personnel. In 1986, Congress passed the Superfund Amendments and Reauthorization Act, increasing funding to $9 billion and providing for studies and new technologies. By 1995, Superfund cleanup still took an average of twelve years per site, and costs for each site can range in the billions of dollars. Superfund, while showing improvements, has been probably the most criticized of environmental programs based on costs of remediation, implementation problems, and the questionable seriousness of the problems it addresses.

Risk Control Policy

Underlying the policy decisions made by the United States is the concept of risk control, consisting of two parts: risk assessment and risk management. The science behind risk assessment varies greatly in uncertainty and tends to be the focus of political controversy. For example, animal testing is often used to determine the toxicity of various substances for humans. But assumptions made about expected dosage and exposure to chemicals are often disputed, and the dosage given to animals is typically much larger than what humans normally consume. While industry groups tend to take a risk-tolerant position, environmentalists take a risk-averse position, following the precautionary principle.

Another issue is the effect that chemicals can have relative to lifestyle choices. Cancer, for example, typically surface decades after first exposure to a carcinogen, and lifestyle choices are frequently more important in causing cancer than exposure to chemicals. While the governmental role in mitigating lifestyle-choice risks can be very controversial (see Smoking in the United States), chemical exposure through lifestyle choices can also occur involuntarily if the public is not properly educated (see Endocrine disruptors).

Finally, the way that threats are presented to the public plays a large role in how those threats are addressed. The threat of nuclear power and the environmental effects of pesticides are overstated, some have claimed, while many high-priority threats go unpublicized. In order to combat this discrepancy, the EPA published a Relative Risk Report in 1987, and a follow-up report published by the Relative Risk Reduction Strategies Committee in 1990 suggested that the EPA should adopt a more pro-active posture, educating the public and assigning budgetary priorities for objectively-assessed high-risk threats.

Impact

Since the major environmental legislation of the 1970s was enacted, great progress has been made in some areas, but the environmental protection has come at a high price. Between 1970 and 1996, air pollutants dropped 32% while the population grew by 29%. While air and water standards have been slowly improving, in 1996 70 million people still lived in counties that didn't meet EPA ozone standards. 36% of rivers and 39% of lakes didn't meet minimum standards for all uses (swimming, fishing, drinking, supporting aquatic life). In the same period, the size of the National Park Service grew from 26,000,000 acres (110,000 km2) to 83,000,000 acres (340,000 km2), and the U.S. Fish and Wildlife Service expanded by over three times to manage over 92,000,000 acres (370,000 km2). In 1995, 41% of the 960 endangered species were stable or improving.

The overall cost of environmental regulation in the United States is estimated to be about 2% of the gross domestic product-similar to many other countries, but calculating the cost is challenging both conceptually (deciding what costs are included) and practically (with data from a broad range of sources).[6] In 1994, almost $122 billion was spent on pollution abatement and control. $35 billion of that has been in direct government spending, $65 billion was spent by business, and $22 billion was spent by individuals. Critics of environmental legislation argue that the gains made in environmental protection come at too great a cost. The cost of meeting OSHA workplace exposure standards, for example, can be as high as $3 million per life-year for benzene protection in coke and coal factories or $51 million per life-year for arsenic protection in glass manufacturing plants. Due to these large costs, non-compliance with environmental rules is rampant in some areas, such as water pollution.

See also

References

Rushefsky, Mark E. (2002). Public Policy in the United States at the Dawn of the Twenty-first Century (3rd ed.). New York: M.E. Sharpe, Inc.. pp. 253–254. ISBN 978-0765616630. 

  1. ^ Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608, December 29, 1965.
  2. ^ Scenic Hudson, Inc. "Scenic Hudson Collection: Records Relating to the Storm King Case, 1963-1981." Archives and Special Collections, Marist College, Poughkeepsie, NY.
  3. ^ Center for Regulatory Effectiveness
  4. ^ A CLOSER LOOK; Ecology, the Economy, and Bush
  5. ^ Newman, P. A., Nash, E. R., Kawa, S. R., Montzka, S. A. and Schauffler, S. M (2006). "When will the Antarctic ozone hole recover?". Geophysical Research Letters 33: L12814. doi:10.1029/2005GL025232. 
  6. ^ Calculating the Cost of Environmental Regulation

External links


In the United States, there are numerous environmental laws. Although they have diverse purposes, they all relate to the protection of the natural environment and other environments, which include the control of pollution and the protection of natural resources, and which result in the protection of both human and other life forms' health and well-being.

Contents

Major federal environmental laws

As an introduction, a few examples of federal statutory environmental laws are provided here.

There are many more environmental laws in the United States, both at the federal and state levels. The common law of property and takings also play an important role in environmental issues. In addition, the law of standing, relating to who has a right to bring a lawsuit, is an important issue in environmental law in the United States.

History

The history of environmental law in the United States can be traced back to early roots in common law doctrines, for example, the law of nuisance and the public trust doctrine. The first statutory environmental law was the Rivers and Harbors Act of 1899, which has been largely superseded by the Clean Water Act. However, most current major environmental statutes, such as the federal statutes listed above, were passed in the time spanning the late 1960s through the early 1980s. Prior to the passage of these statutes, most federal environmental laws were not nearly as comprehensive.

Silent Spring, a 1962 book by Rachel Carson, is frequently credited as launching the environmental movement in the United States. The book documented the effects of pesticides, especially DDT, on birds and other wildlife. (See Environmental movement in the United States.)

One lawsuit that has been widely recognized as one of the earliest environmental cases is Scenic Hudson Preservation Conference v. Federal Power Commission, decided in 1965 by the Second Circuit Court of Appeals, prior to passage of the major federal environmental statutes.[1] The case helped halt the construction of a power plant on Storm King Mountain in New York State. The case has been described as giving birth to environmental litigation and helping create the legal doctrine of standing to bring environmental claims.[2] The Scenic Hudson case also is said to have helped inspire the passage of the National Environmental Policy Act, and the creation of such environmental advocacy groups as the Natural Resources Defense Council.

See also

References

  1. Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608, December 29, 1965.
  2. Scenic Hudson, Inc. "Scenic Hudson Collection: Records Relating to the Storm King Case, 1963-1981." Archives and Special Collections, Marist College, Poughkeepsie, NY.

External links


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