United States environmental law

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Considered in terms of historical precedence and worldwide emulation, the United States has been a world leader in the development and implementation of environmental law. While subject to criticism at home and abroad on issues of protection, enforcement, over-regulation, and imposition of externalities, the country remains an important source of environmental legal expertise and experience.

History[edit]

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 The first statutory environmental law was the Rivers and Harbors Act of 1899, which has been largely superseded by the Clean Water Act.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.

Legal sources[edit]

Laws from every stratum of the laws of the United States pertain to environmental issues. The United States Congress has passed a number of landmark environmental regulatory regimes, but many other federal laws are equally important, if less comprehensive. Concurrently, the legislatures of the fifty states have passed innumerable comparable sets of laws.[3] These state and federal systems are foliated with layer upon layer of administrative regulation. Meanwhile, the U.S. judicial system reviews not only the legislative enactments, but also the administrative decisions of the many agencies dealing with environmental issues. Where the statutes and regulations end, the common law begins.[4]

Federal statutes[edit]

Federal regulation[edit]

Consistent with the federal statutes that they administer, U.S. federal agencies promulgate regulations in the Code of Federal Regulations that fill out the broad programs enacted by Congress. Primary among these is Title 40 of the Code of Federal Regulations, containing the regulations of the Environmental Protection Agency. Other import CFR sections include Title 10 (energy), Title 18 (Conservation of Power and Water Resources), Title 21 (Food and Drugs), Title 33 (Navigable Waters), Title 36 (Parks, Forests and Public Property), Title 43 (Public Lands: Interior) and Title 50 (Wildlife and Fisheries).

Judicial decisions =[edit]

The federal and state judiciaries have played an important role in the development of environmental law in the United States, in many cases resolving significant controversy regarding the application of federal environmental laws in favor of environmental interests. The decisions of the Supreme Court in cases such as Calvert Cliffs Coordinating Committee v. U.S. Atomic Energy Commission (broadly reading the procedural requirements of the National Environmental Policy Act), Tennessee Valley Authority v. Hill (broadly reading the Endangered Species Act), and, much more recently, Massachusetts v. EPA (requiring EPA to reconsider regulation of greenhouse gases under the Clean Air Act) have had policy impacts far beyond the facts of the particular case.

Common law[edit]

The common law of tort is an important tool for the resolution of environmental disputes that fall beyond the confines of regulated activity. Prior to the modern proliferation of environmental regulation, the doctrines of nuisance (public or private), trespass, negligence, and strict liability apportioned harm and assigned liability for activities that today would be considered pollution and likely governed by regulatory regimes.[5] These doctrines remain relevant, and most recently have been used by plaintiffs seeking to impose liability for the consequences of global climate change.[6]

The common law also continues to play a leading role in American water law, in the doctrines of riparian rights and prior appropriation.

Administration[edit]

In the United States, responsibilities for the administration of environmental laws are divided between numerous federal and state agencies with varying, overlapping and sometimes conflicting missions. The U.S. Environmental Protection Agency (EPA) is the most well-known federal agency, with jurisdiction over many of the country's national air, water and waste and hazardous substance programs.[7] Other federal agencies, such as the U.S. Fish and Wildlife Service and National Park Service pursue primarily conservation missions,[8] while still others, such as the United States Forest Service and the Bureau of Land Management, tend to focus more on beneficial use of natural resources.[9]

Federal agencies operate within the limits of federal jurisdiction. For example, EPA's jurisdiction under the Clean Water Act is limited to "waters of the United States". Furthermore in many cases federal laws allow for more stringent regulation by states, and of transfer of certain federally mandated responsibilities from federal to state control. U.S. state governments, therefore, administering state law adopted under state police powers or federal law by delegation, uniformly include environmental agencies.[10] The extent to which state environmental laws are based on or depart from federal law varies from jurisdiction to jurisdiction.

Thus, while a permit to fill non-federal wetlands might require a permit from a single state agency, larger and more complex endeavors—for example, the construction of a coal-fired power plant—might require approvals from numerous federal and state agencies.

Enforcement[edit]

In the United States, violations of environmental laws are generally civil offenses, resulting in monetary penalties and, perhaps, civil sanctions such as injunction. Many environmental laws also provide for criminal penalties for egregious violations. Environmental agencies often include separate enforcement offices, with duties including monitoring permitted activities, performing compliance inspections, issuing citations and prosecuting wrongdoing (civilly or criminally, depending on the violation). EPA's Office of Enforcement and Compliance Assurance is one such agency. Others, such as the United States Park Police, carry out more traditional law enforcement activities.

Adjudicatory proceedings for environmental violations are often handled by the agencies themselves under the structures of administrative law. In some cases, appeals are also handled internally (for example, EPA's Environmental Appeals Board). Generally, final agency determinations may subsequently be appealed to the appropriate court.

Other environmental law enforcement agencies include:

  • Força Verde, a branch of the Brazilian Armed Forces which was established decades ago to protect against environmental crimes.[11]
  • Green Police, an environmental task force in New Jersey.[12]
  • Veteran Environmental Patrol of Israel started fielding uniformed officers in 2001.[12]

Education and training[edit]

Environmental law courses are offered as elective courses in the second and third years of JD study at many American law schools. Curricula vary: an introductory course might focus on the "big five" federal statutes—NEPA, CAA, CWA, CERCLA and RCRA (or FIFRA)—and may be offered in conjunction with a natural resources law course. Smaller seminars may be offered on more focused topics. Some U.S. law schools also offer an LLM or JSD specialization in environmental law. Additionally, several law schools host legal clinics that focus on environmental law, providing students with an opportunity to learn about environmental law in the context of real world disputes involving actual clients.[13] U.S. News & World Report has consistently ranked Vermont Law School, Lewis & Clark Law School, and Pace University School of Law as the top three Environmental Law programs in the United States, with Lewis & Clark and Vermont frequently trading the top spot.[14]

Many American law schools host student-published law journals. The environmental law reviews at Yale, Harvard, Stanford, Columbia, NYU and Lewis & Clark Law School are regularly the most-cited such publications.[15]

International environmental lawyers often receive specialized training in the form of an LL.M. degree at U.S. institutions, after having a first law degree – often in another country from where they got their first law degree.

References[edit]

  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. ^ See, e.g., Pennsylvania
  4. ^ See, e.g., Second Circuit Clarifies Superfund Cost Recovery and Liability Issues (analyzing court application of statutory provisions of CERCLA, the Superfund statute.)
  5. ^ See West's Encyclopedia of American Law, Environmental Law.
  6. ^ Cases collected at Climatecasechart.com (Common Law Claims)
  7. ^ See EPA, Laws That We Administer; EPA, Alphabetical Listing of EPA programs.
  8. ^ See National Park Service, Our Mission; USFWS, National Policy Issuance #99-01
  9. ^ See USFS Mission Statement.
  10. ^ See EPA, State Environmental Agencies
  11. ^ The carbon hunters 
  12. ^ a b Agarwal (2005), "Green Police", Green Management, APH Publishing, ISBN 978-81-7648-822-8 
  13. ^ See, e.g., Adam Babich, The Apolitical Law School Clinic, 11 Clinical L. Rev. 447 (2005).
  14. ^ "US News & World Report". Grad-schools.usnews.rankingsandreviews.com. Retrieved 2012-11-08. 
  15. ^ See Washington and Lee University School of Law, Law Journal Rankings

External links[edit]