chapter 52 – environmental regulation

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Environmental Regulation

PA ET RHC 52

Every human has a fundamental right to an environment of quality that permits a life of dignity and well-being.

United Nations Conference on the Human Environment

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Learning Objectives

• Explain when an environmental impact statement must be prepared and the information it must include

• Discuss major provisions of the: Clean Air Act, Clean Water Act, and hazardous waste laws

• Describe the impact global climate change may have on business

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Overview

• U.S. Environmental Protection Agency (EPA) created in 1970 to protect human health and the environment

• Human health and our environment are protected by:– Regulatory law (stick)– Market incentives (carrot)– Voluntary Measures (carrot)

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The Subject of the Laws

Health & Safety

Sewage Treatment Plant ↑

Warning Sign →

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Environmental Damage

Strip Mine ↑

Clearcut →


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Conservation Efforts

Illegal Wildlife Products ↑ Protecting Ridley Turtle eggs

→


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Pollution

Industrial Air Pollution ↑ Seabird Killed in Oil Spill →


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Definition of Pollution

• The EPA defines pollution as any substance in the environment that endangers human welfare

• Toxic substances in pollutants linked to:

• Carcinogenesis• Mutagenesis• Teratogenesis• Behavior

disordersBald eagle faced extinction due

to mutagenic effect of DDT

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Sources of Environmental Law

• Principal sources of environmental law:– Civil (Common Law) Actions– Federal Regulation– State, Tribal, and Municipal Regulation– International Treaties and Conventions

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Agency Enforcement

• The EPA, Occupational Safety & Health Admin. (OSHA), and Dept. of Justice (DOJ) work together to implement & enforce law– Agencies issue regulations pursuant to

Administrative Procedure Act to support and implement federal laws

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State & Tribal Regulation

• States and Tribes may enact laws to regulate the environment within their jurisdiction– State laws implemented by state agencies– State law may not conflict with federal law

Muscogee Nation Tribal Police Officer

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Nature of Environmental Law

• Most environmental laws are implemented through permitting programs that establish pollution limits for air emissions or effluent discharge into waterways by businesses or governmental entities

• Environmental laws do not prevent pollution, but merely set pollution limits and establish a system to compensate for environmental harm

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OVERVIEW OF FEDERAL ENVIRONMENTAL LAWS

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National Environmental Policy Act (NEPA)

• The first modern environmental law, NEPA does not deal with pollution control– Applies only to government agencies– Created the Council on Environmental

Quality

• Requires federal agencies to prepare an environmental impact statement (EIS) for major Federal actions significantly affecting quality of human environment

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NEPA

• NEPA applies to states and private parties when actions are planned and subject to (at any point) federal approval of permits, loan guarantees, federal loans or insurance, or other federal involvement

• Eighteen states, Guam and Puerto Rico have enacted environmental planning laws similar to NEPA

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The EIS

• An Environmental Impact Statement must analyze the:– Impact of proposed action on the

environment– Any expected adverse effects of the action– Practical and feasible alternative methods– Any irreversible effects the action might

generate

• See: EISs With Open Comment/Wait Period

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MEDIA SPECIFIC LAWS

• Air Pollution• Water Pollution• Land Pollution

– Hazardous Wastes– Toxic Chemicals

Acid leachate pond near mining operation

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Air Pollution Programs

• Toxic air pollutants• Acid rain• Indoor air pollution • Ozone-depleting

substances• Greenhouse gases

and global warming

“End-of-pipe” air emissions at paper mill

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• Goal of the Clean Air Act is to improve National Ambient Air Quality through standards (NAAQS)

• Focus of the law is controlling pollution from mobile sources and stationary sources by issuing permits to polluters

• The Plain English Guide to the Clean Air Act

Primary Statute: Clean Air Act

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• Implemented by agency standards or rules– Air quality standards remain unchanged

since 1978 when standards established for six criteria pollutants: lead, CO, VOCs, SO2, particulates, and NO2

• Act enforced by agency action and citizen suits against polluters who fail to obtain a permit or violate their permit limitations

Primary Statute: Clean Air Act

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• Each state is required to develop a state implementation plan for meeting national ambient air quality standards

• Consequently, major emitters of pollutants within the state must reduce their emissions to a level that ensures that state overall air quality meets national standards

Clean Air Act Implementation

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• State environmental agencies issue permits to companies that emit pollutants– Permits specify type of pollutants allowed

and amount for each type– New sources treated more stringently than

older facilities

Mobile point sources

Clean Air Act Implementation

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• Facts:– The Sammis Plant, an Ohio Edison coal-

fired electric generating plant, required substantial renovation

– Ohio Edison intended to achieve a significant increase in operational output, but emissions of sulfur dioxide, nitrogen oxides, and particulate matter also increased

– Ohio Edison denied needing new permit

U.S. v. Ohio Edison Company

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• Procedural History and Ruling:– U.S. and some states brought suit

against several operators of coal-fired power plants to gain compliance with the Clean Air Act New Source Review provisions

– By failing to obtain a permit for increased emissions related to renovations of the Sammis plant, Ohio Edison violated the Clean Air Act


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• Result:– March 2005, EPA agreed to a consent

decree by which Ohio Edison agreed to reduce emissions at an expected cost of approximately $1.1 billion, pay a $8.5 million civil penalty, and spend $25 million to perform environmentally beneficial projects related to air pollution within the affected states


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International Environmental Law

• The Clean Air Act specifically supports U.S. obligations under the Montreal Protocol, an international agreement to reduce air pollution and ozone-depleting substances

Pulp and paper mill

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• Facts: – 19 private organizations filed a rulemaking

petition in 1999 asking EPA to regulate “greenhouse gas emissions … under § 202 of the Clean Air Act”

– EPA requested and received public comment for years, yet denied petition in 2003 because:

1. Clean Air Act did not authorize EPA to issue mandatory regulations to address global climate change;

2. Even if EPA had authority to set greenhouse gas emission standards, it would be unwise to do so

Massachusetts v. Environmental Protection Agency

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• Facts: – Original 19 organizations, 12

states, and local governments sought review of EPA’s order denying the petition in the U.S. Court of Appeals, which deferred to the EPA’s decision

– U.S. Supreme Court granted the petitioners’ request for certiorari


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• Supreme Court’s Decision by Justice Stevens: – Court discussed standing of litigants, especially

sovereign status of states such as Massachusetts– “The harms associated with climate change are

serious and well recognized…EPA has refused to comply with [a] clear statutory command…EPA [cannot] avoid its statutory obligation by noting the uncertainty surrounding various features of climate change.”

– On remand, EPA must ground its reasons for action or inaction, but Court did not order EPA to make an endangerment finding and issue a rule


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Global Climate Change

• Following Massachusetts v. EPA, the EPA issued a formal finding that greenhouse gas emissions from mobile sources threaten public health and welfare

• U.S. signed the Kyoto Protocol (next step after the Montreal Protocol of the Convention on Global Warming ), but has not yet ratified

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Water Pollution Programs

• Wetlands, Ocean, and Coastal Zone Pollution

• Groundwater & Drinking Water Protection

• Wastewater

Holding a dead sea otter killed by oil from the Exxon Valdez

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Primary Statute: Clean Water Act

• Goals:– Ensure that navigable

water is safe for drinking, fish & wildlife protection, and recreational use

– Eliminate or limit discharge of pollutants into coastal and inland waterways

Point source pollution

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• For non-point and point sources, EPA sets CWA water quality criteria or standards based upon:– Designated Use of Water Body

• Fishable/Swimmable Qualitative Criteria

– Total Maximum Daily Loads (TMDLs) • Specific limits on pollution for particular

water body, included in pollution permits

Clean Water Act (CWA) Standards

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NPDES Permit Program

• Every industrial or municipal facility must apply for a National Pollutant Discharge Elimination System (NPDES) permit to discharge pollutants into inland waterways or oceans

• Pollution control is largely achieved through requirement that a polluter use specific technologies to reduce effluent

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State Implementation

• Most states have taken primacy (primary authority) for Clean Water Act enforcement for their jurisdiction

• A state environmental agency issues NPDES permits based on state determinations about the quality of specific water bodies

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Violating Water-Related Laws

• Federal and state environmental agencies may enforce the Clean Water Act and water-related programs with civil fines and/or criminal penalties, including prison for those who knowingly violate the laws

• Citizens also may file suits to remediate or compensate for environmental harm

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• Hopkins appealed his conviction for falsifying documents about his former employer’s compliance with an EPA consent decree, arguing that the U.S. had to prove Hopkins had specific knowledge of the permit requirements and an intent to violate law

• U.S. contended it was enough to prove that Hopkins acted voluntarily or intentionally to falsify, tamper with, or render inaccurate a monitoring method and Hopkins did not do so by mistake, accident, or other innocent reason

• Supreme Court affirmed, applying strict criminal liability

United States v. Hopkins

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Wetlands

• Section 404 of the Clean Water Act (CWA) protects wetlands by requiring a permit from the Army Corps of Engineers before dredged or fill material may be discharged into waters of the United States

Endangered green pitcher plant found in

some southern wetlands

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Definition of Wetlands

• Wetlands refers to "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas." See EPA wetlands page.

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Liability for Oil Spills

• 1989 Exxon Valdez disaster prompted the Oil Pollution Prevention, Response, Liability and Compensation Act of 1990

• Spill-related lawsuits consolidated into Exxon Shipping Co. v. Baker, reaching U.S. Supreme Court in 2008– Issues: were compensatory damages

preempted by the Clean Water Act and was punitive damages award excessive as a matter of law

– Ruling: no preemption, but case remanded to remit the punitive damages award

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Liability for Oil Spills

• The 2010 BP Deepwater Horizon oil rig explosion prompted a new look at current oil pollution and offshore drilling regulations– The 1989 Exxon Valdez disaster still impacts the

Alaskan coast

Oil-soaked brown

pelicans and Kemp’s

Ridley Sea Turtle await cleanup and rehabilitation

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• Primary Laws: – RCRA– CERCLA

FIFRA– TSCA

Land Pollution Programs

Iron Mountain Superfund site (California) contaminated by acid

mine drainage

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• In a cradle to grave regulatory system, RCRA and CERCLA regulate storage, disposal, and remediation of toxic and hazardous substances on land

Waste Disposal Laws

Toxic waste, bankrupt company

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RCRA

• Resource Conservation and Recovery Act authorizes EPA to regulate transport, storage, monitoring, treatment, and disposal of solid and hazardous wastes – Tracking from creation of waste through

disposal or treatment (cradle to grave)

• Any person who fails to follow regulations strictly violates RCRA

• See United States v. Southern Union Co.

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CERCLA

• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, or Superfund, authorizes EPA to ensure the clean-up and remediation of hazardous waste sites

• Also authorizes EPA to assign liability for clean-up costs to any potentially responsible party (PRP) or all PRPs

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Potentially Responsible Party

• A PRP is defined as:– Current owners or operators of facility or

vessel;– Former owners or operators of facility or

vessel, if they owned the property at time of disposal;

– Those who arrange for treatment or disposal of hazardous substances at a facility (usually the generators); and

– Transporters of hazardous substances who selected the disposal site

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Retroactive Nature of CERCLA

• In general, a law may not be retroactive• However, CERCLA liability is retroactive,

meaning that parties may be held liable for releases that occurred prior to the enactment of the statute in 1980– Reason: entire purpose of law is to clean

up past mistakes and protect human health

– U.S. v. Domenic Lombardi Realty: defendant failed to prove innocent landowner defense

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Pesticide Regulation

• The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates use of pest control chemicals in process of food growth through food packaging, to minimize presence in consumable foods

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Toxic Substances Control Act

• The Toxic Substances Control Act (TSCA) requires anyone planning to sell or market chemicals to first determine effect on human health and the environment

• Gives EPA authority to track, investigate, or ban industrial chemicals currently produced or imported into U.S.

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Conservation Efforts

• Several laws, such as the Endangered Species Act, attempt to identify, list, and protect threatened or endangered species– See U.S. Fish & Wildlife Service webpage– 588 species of U.S. animals are listed and

794 species of U.S. plants are listed as of Jan. 2012

• The ESA provides for habitat recovery plans and species recovery plans

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Endangered Species Act

• ESA began and remains in controversy despite obvious need for and apparent success of the law

Bald eagle, California gnatcatcher, Florida panther

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International Wildlife Law

• The Convention on International Trade in Endangered Species (CITES) prohibits trade in threatened and endangered species, whether animal or plants, or parts of animals or plants

Illegal wildlife parts and products

confiscated by U.S. agents

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Environmental Management

• Partly because of the regulatory web and partly as corporate social responsibility, many companies implement an EMS or environmental management system

• Types of EMS systems include ISO 14001, Responsible Care, and Smart Wood

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Test Your Knowledge

• True=A, False = B– Pollution is any substance in the

environment endangering human welfare.– States and Indian tribes may enact and

enforce environmental laws that do not conflict with federal environmental laws.

– Environmental law prevents pollution.– Violating an environmental law may result

in a civil penalty, but cannot be a crime.

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• Multiple Choice– Sources of environmental law include:

a) Federal legislation enacted by Congressb) Federal agency regulationsc) State and tribal environmental law enacted

pursuant to state and tribal legislative bodies

d) All of the abovee) All of the above plus international treaties

Test Your Knowledge

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Test Your Knowledge

• True=A, False = B– The Clean Air Act applies to mobile and

stationary sources of pollution.– One goal of the Clean Water Act is to

eliminate or limit discharge of pollutants into navigable waterways.

– Section 404 of the Clean Water Act (CWA) protects wetlands.

– Retroactive laws are always unconstitutional.

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• True=A, False = B– Both RCRA and CERCLA establish a

cradle to grave regulatory system for hazardous waste.

– NEPA applies only to federal agencies.– Only the U.S. EPA may enforce the Clean

Air Act or Clean Water Act.– RCRA requires companies to track and

monitor hazardous waste from creation through disposal or treatment.

Test Your Knowledge

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• Multiple Choice: An environmental impact statement must analyze:

a) The impact of the proposed action on the environment

b) Any expected adverse effects of the action

c) Practical and feasible alternative methods

d) All of the above e) Both A and B only

Test Your Knowledge

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• Multiple Choice: A potentially responsible party may be:

a) A current owner of the facilityb) A former owner of the facilityc) The plant manager who arranged for

the disposal of hazardous substances from the facility

d) The company that operates the facilitye) All of the above

Test Your Knowledge

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Thought Question

• Given technological improvements in alternative energy (wind or solar power, biofuels), does a company have a responsibility to use the best available technology?

Anaerobic bioreactors for sludge digestion and methane production in

Kiel, Germany

chapter 52 – environmental regulation

Education