Environmental law

Legislation dealing with and often designed to protect the natural and physical surroundings the air, earth, and water in which humans, other animals, and plants exist, or with the plants and animals themselves.

Recognizing that technical expertise is necessary to implement environmental public policies, legislators have delegated considerable policy-making power to administrative agencies. Federal environmental legislation is often written in very general terms to provide considerable discretion to administrative agencies in the administration and enforcement of environmental law. The agencies’ use of this discretion is subject to challenge in the judicial system. Industry groups and environmental organizations often challenge the processes and rationale by which agency decisions are made and the agencies’ interpretation of the words and concepts in the legislation. Judicial interpretation of constitutional provisions and legislative acts permitted the federal government and federal regulatory agencies increased authority in regulation of environmental issues. Requests to the court system for judicial administrative oversight and for interpretation of legislation have allowed industry and environmental organizations to delay implementation of administrative decisions, to obtain specific policy goals within the context of environmental legislation, and to encourage legislative amendments and administrative alterations to environmental legislation.

Until the late 1960’s, control of land use, pollution, and environmental nuisances was limited to state and local laws implemented under the police powersPolice powers of the state. These powers were upheld by the Supreme Court in Euclid v. Ambler Realty Co.[case]Euclid v. Ambler Realty Co.[Euclid v. Ambler Realty Co.] (1926) and Georgia v. Tennessee Copper Co.[case]Georgia v. Tennessee Copper Co.[Georgia v. Tennessee Copper Co.] (1902). Federal government regulation of the environment was limited because the Constitution included no specific grant of authority to the federal government to act in this area. The Court upheld the federal government’s power to regulate treatment of migratory wildfowl by treaty in Missouri v. Holland[case]Missouri v. Holland[Missouri v. Holland] (1920) and to regulate pollution in navigable waters in United States v. Republic Steel Corp.[case]Republic Steel Corp., United States v.[Republic Steel Corp., United States v.] (1960). Federal environmental legislation was largely limited to conserving and protecting nationally owned park lands, forests, and prairies; to constructing harbor facilities; to constructing irrigation, power generation, and flood control structures on navigable waters; to promoting agricultural soil and water conservation issues; and to studying air and water quality conditions. In Hodel v. Indiana[case]Hodel v. Indiana[Hodel v. Indiana] (1981), the Court permitted the federal government to use its commerce power to establish environmental regulations, thereby increasing the range of federal government activity in environmental regulation.

Beginning with the enactment of the National Environmental Policy ActNational Environmental Policy Act (NEPA) of 1969, the federal government began taking responsibility for the quality of the natural environment and for setting standards for environmental quality. As each subsequent act was passed by the legislature, appeals were made to the courts to modify the impact of each of those acts. As a consequence of judicial decisions, agency administration and enforcement of the laws and the public policy impact of the laws were modified. Many of the acts were subsequently amended by the legislature to clarify the legislature’s intent and to remedy omissions in the original legislation.

The 1969 Act

The NEPA was intended to force nonenvironmental agencies to include environmental considerations in making agency decisions by requiring environmental impact statements (EIS) for government projects and by allowing citizens to sue in federal court when government agencies failed to fully assess environmental impact. Citizens used the judicial process to delay permitting for private and governmental projects affecting the environment. These delaying actions raised the costs of the proposed projects but also provided the time and the incentive for industry and government to review and modify their original proposals to lessen unfavorable effects on the environment.

Subsequent suits brought to the Court gradually eroded the effectiveness of environmental impact statements. For example, in Kleppe v. Sierra Club[case]Kleppe v. Sierra Club[Kleppe v. Sierra Club] (1976), involving the strip-mining industry, the Court postponed the need for an EIS until late in the proposed project’s planning and limited the EIS to impact on the local area rather than an entire geographic region. In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council[case]Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council[Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council] (1978), the Court held that the technical expertise of the Nuclear Regulatory Commission to manage nuclear power policy could not be challenged by the technical expertise of environmental experts, thus severely limiting the use of EIS by environmental cause organizations to ensure that environmental issues were considered in agency policy decisions. The Court also instructed lower courts that only arbitrary and capricious agency actions or actions clearly beyond agency statutory authority are to be invalidated.

Andrus v. Sierra Club[case]Andrus v. Sierra Club[Andrus v. Sierra Club] (1979) exempted budget processes from EIS review and Strycher Bay v. Karlen[case]Strycher Bay v. Karlen[Strycher Bay v. Karlen] (1980), Baltimore Gas and Electric v. Natural Resources Defense Council[case]Baltimore Gas and Electric v. Natural Resources Defense Council[Baltimore Gas and Electric v. Natural Resources Defense Council] (1983), and Metropolitan Edison Co. v. People Against Nuclear Energy[case]Metropolitan Edison Co. v. People Against Nuclear Energy[Metropolitan Edison Co. v. People Against Nuclear Energy] (1983) had the combined effect of reducing the substantive content requirements for environmental impact statements and limiting their effectiveness as vehicles for ensuring that environmental considerations would be included in government agency and private industry decision making.

Water and Air Pollution Cases

The Federal Water Pollution Control Act of 1972Federal Water Pollution Control Act of 1972 (also known as the Clean Water Act) gave the Environmental Protection AgencyEnvironmental Protection Agency (EPA) authority to control private and state activities to reduce water pollution in an effort to make the waterways “swimmable and fishable” and free of manmade pollutants. The EPA set industry standards for the effluent permitted to flow into streams and pollution reduction standards for each pollution source discharging effluent into the streams. The EPA also set standards for use of the “best practicable” or “best available” technology for achieving required pollution reductions. In subsequent litigation, the Court required the EPA to provide numerous variances from EPA requirements and challenged the expertise of the EPA to classify pollutants or to set standards for their discharge into streams.

The Court also interpreted the wording in the 1972 act to erode previous federal common-law remedies available to downstream citizens affected by upstream pollution. In Illinois v. Milwaukee[case]Illinois v. Milwaukee[Illinois v. Milwaukee] (1972) and Middlesex County Sewerage Authority v. National Sea Clammers[case]Middlesex County Sewerage Authority v. National Sea Clammers[Middlesex County Sewerage Authority v. National Sea Clammers] (1981), the Court held that industries or agencies with EPA permits for effluent discharge could not be sued for the environmental damage their effluent caused downstream water users.

Other Court decisions effectively reduced the authority of the EPA to limit water pollution, prevented citizens from suing for damages, limited citizen standing to sue in order to require agencies to implement environmental protections, and provided public policy gains for polluting industries and municipal governments at the expense of citizens living downstream.

The Clean Air Act Amendments of 1970Clean Air Act Amendments of 1970 gave the EPA authority to set national ambient air quality standards similar to the clean water standards authorized under the Clean Water Act. The EPA chose to enforce those standards only in areas with high levels of air pollution. The Court ruled in Sierra Club v. Ruckelshaus[case]Sierra Club v. Ruckelshaus[Sierra Club v. Ruckelshaus] (1972) and Fri v. Sierra Club[case]Fri v. Sierra Club[Fri v. Sierra Club] (1973) that standards must also be set and enforced for areas with low pollution levels, thus requiring the EPA to either expand the scope of its activities or cease enforcing its standards in areas with substantial air pollution. Congress subsequently required the expansion of EPA activity in the 1977 amendments to the Clean Air Act.

The Court made other decisions concerning Clean Air Act enforcement that reduced the impact of the act and provided considerable relief to industry. In Chevron, U.S.A. v. Natural Resources Defense Council[case]Chevron, U.S.A. v. Natural Resources Defense Council[Chevron, U.S.A. v. Natural Resources Defense Council] (1984) and Alabama Power v. Castle[case]Alabama Power v. Castle[Alabama Power v. Castle] (1979), the Court allowed industries to offset increases in air pollution in one area of their plants with reductions in other areas and permitted some increase in air pollution by individual industries in geographic areas where overall pollution was on the decline. In the 1990 Amendments to the Clean Air Act and other legislation, Congress began to micromanage air pollution public policy in response to the actions of the courts.

Hazardous Waste

Congress passed the Resource Conservation and Recovery ActResource Conservation and Recovery Act (RCRA) of 1976 and the Comprehensive Environmental Response, Compensation, and Liability ActComprehensive Environmental Response, Compensation, and Liability Act (also known as the Superfund Act) of 1980 to control the transportation and disposal of hazardous wastes and to identify and clean up abandoned hazardous waste dumps. The Superfund requirement that the costs of dump cleanup should be recovered from those who owned the site or profited from its operation brought numerous lawsuits. In United States v. Monsanto[case]Monsanto, United States v.[Monsanto, United States v.] (1988) and United States v. Northeastern Pharmaceutical and Chemical Co.[case]Northeastern Pharmaceutical and Chemical Co., United States v.[Northeastern Pharmaceutical and Chemical Co., United States v.] (1986), the Court established strict liability and joint liability of all concerned. The decision to assign joint liability for any entity that profited from the waste dump brought a flood of civil suits as industries, banks, insurance companies, and others argued as to how much of the costs of cleaning up abandoned dumps each should bear. The Court’s subsequent interpretation of strict and joint liability resulted in banks, lending institutions, and governments becoming liable for cleanup costs simply because of loans, defaults on loans, confiscation of property for nonpayment of property taxes, and other “innocent” acts. Congress amended the Superfund Act with the Superfund Amendments and Reauthorization Act of 1986 in an effort to relieve innocent parties of the liabilities assigned by the courts.

Other Judicial Limits

The Constitution’s Fifth Amendment mandate that private property may not be taken for public use without just compensation (the takings clause) was applied by the Court in Nollan v. California Coastal Commission[case]Nollan v. California Coastal Commission[Nollan v. California Coastal Commission] (1987) as a signal that government environmental regulations limiting an owner’s land use must be substantially in the state interest. The Court invalidated state and local laws that interfered with federal regulations in Burbank v. Lockheed Air Terminal[case]Burbank v. Lockheed Air Terminal[Burbank v. Lockheed Air Terminal] (1973) and that seek to regulate areas already regulated by the federal government in Exxon Corp. v. Hunt[case]Exxon Corp. v. Hunt[Exxon Corp. v. Hunt] (1986) and International Paper Co. v. Ouillette[case]International Paper Co. v. Ouillette[International Paper Co. v. Ouillette] (1987). In these and other cases, the Court held that federal law supplants and preempts state and local law on environmental issues on which the federal government chooses to act. In those cases in which federal laws contain nonpreemption provisions intended to allow states to enact complementary laws, the Court narrowly interpreted these nonpreemption provisions and restricted states from acting in areas in which comprehensive federal environmental laws and regulations already exist. The Court’s use of the doctrine of federal preemption to invalidate state and local environmental laws when national legislation is enacted serves to erode the power of state and local governments within the federal system.

During most of the late twentieth century, the Court permitted Congress and federal agencies to increase the number of environmental issues addressed through law and regulation and generally upheld agency discretion in interpreting and applying rules and regulations.

Further Reading

  • James P. Lester’s text Environmental Politics and Policy: Theories and Evidence (Durham, N.C.: Duke University Press, 1995) describes the role and interrelationships among branches of government in environmental law. Two general works on land-use law that touch on environmental issues are David J. Frizell’s Land Use Law (3d ed. Eagan, Minn.: Thomson/West Group, 2005) and Polly J. Price’s Property Rights: Rights and Liberties Under the Law (Santa Barbara, Calif.: ABC-Clio, 2003). Gregory McAvoy’s Controlling Technocracy: Citizen Rationality and the NIMBY Syndrome (Washington, D.C.: Georgetown University Press, 1999) examines the so-called not-in-my-backyard attitude that often complicates environmental planning. Nancy K. Kubasek describes the administrative law and judicial adversary processes for resolving a variety of environmental disputes in a basic text aimed at an audience with little legal or scientific training in Environmental Law (Paramus, N.J.: Prentice Hall, 1996). Stephen R. Chapman’s Environmental Law and Policy (Paramus, N.J.: Prentice Hall, 1998) describes the formulation, application, and interpretation of laws, rules, and regulations to resolve specific environmental problems. Better Environmental Decisions: Strategies for Governments, Businesses, and Communities (Washington, D.C.: Island Press, 1998), edited by Ken Sexton and others, reviews a variety of decision-making styles, discusses some legal issues related to each, and recommends improvements for more effective decisions. Other books describing environmental case law include Jeffrey Graba’s Environmental Law (St. Paul, Minn.: West Publishing, 1994), Rosemary O’Leary’s Environmental Change: Federal Courts and the EPA (Philadelphia: Temple University Press, 1995), Robert V. Percival’s Environmental Regulation: Law, Science, and Policy (New York: Little, Brown, 1996), and Benjamin Davy’s Essential Injustice: When Legal Institutions Cannot Resolve Environmental and Land Use Disputes (New York: Springer Verlag, 1997).

Commerce, regulation of

Euclid v. Ambler Realty Co.

Fifth Amendment

Missouri v. Holland

Nollan v. California Coastal Commission

Property rights

Public use doctrine

Takings clause