Environmental Law and Enforcement

Gregor I. McGregor

• Publisher: CRC Press
• Year: 2021
• ISBN:
  9781000448115
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Amid all the laws and regulations on environmental protection and worker safety, what is the responsible business or landowner to do? What should the responsible consultant advise? Environmental Law and Enforcement provides you with a practical guide that takes the mystery out of environmental law and related land use controls.
The author provides a synopsis of major environmental topics from A to Z and features citations to the major federal statutes in the United States Code (USC) and the Code of Federal Regulations (CFR) so you can easily find governing statutes and regulations. Special sections discuss the use of experts in case preparation and how to be an effective case witness. A checklist for compliance with the National Environmental Policy Act is included. The book covers strategies to cope with landowner liability for hazardous waste, consultant liability for mistakes in hazardous waste site assessments, and guidelines for emergency managers to minimize legal liability. The section on insurance liability provides practical approaches to dealing with insurance companies on hazardous waste claims.
The successful organization will manage for environmental protection as a corporate goal, and consequently stays ahead of new government requirements-away from lawyers and lawsuits-and ahead of the competition. Environmental Law and Enforcement gives you the tools you need to achieve this mission.

CHAPTER I:

INTRODUCTION

ENVIRONMENTAL LAW DEFINED

Environmental law is not found in just one book on the shelf of a law library. It is not found in one volume of federal or state statutes. It is not found in one set of published court decisions. It is not found in one compilation of local bylaws and ordinances.

Instead, environmental law takes many forms, some old and some new, and no one government agency or court has a monopoly. Essentially, environmental law is a body of federal, state, and local legislation, in the form of statutes, bylaws, ordinances, and regulations, plus court-made principles known as the common law. These laws and legal principles govern the behavior of persons, corporations, government agencies, and other public and private legal entities to minimize the impacts of their activities on people and natural resources. In this respect environmental law encompasses public health as well as conservation, pollution control, and land use control.

Environmental law has pervaded many areas of legal practice and fields of private and public decisionmaking. In a wide variety of court cases involving pollution control, real estate, planning law, eminent domain, administrative law, injunctions, money damages, and criminal prosecutions, it has been the subject of important litigation. Now environmental litigation is moving from the courtroom into the agency hearing room where trial skills, expert testimony, and command of substantive environmental law are very important.

Modern environmental law, mostly in the form of statutes and regulations enacted or promulgated after Earth Day 1970, takes the approach known as “command and control.” That is, it creates agencies given jurisdiction over types of pollution or other problems identified by Congress or state legislatures, requires permits to engage in pollution activities or restricted land uses, authorizes the agencies to promulgate regulations to flesh out the statutory skeletons, authorizes administrative and court enforcement actions, and imposes penalties for violations. More specifically, the statutes (and more usually, the regulations) impose performance standards (such as emission limitations or effluent limitations), ambient standards (such as the national air standards or state water quality standards), design specifications (detailing equipment and processes), information submittals (such as reporting of test results and chemical releases), and comprehensive planning and public participation (like the “study it first” requirements of the National Environmental Policy Act).

It is important to recognize environmental law in all its forms, including land use controls. Understanding the many forms of environmental laws, the legal foundations of environmental laws, and the nature and organization of the environmental agencies implementing environmental laws can make the mysteries understandable.

SOURCES OF ENVIRONMENTAL LAW

Environmental law is derived from several sources of government authority, including the federal power to regulate interstate commerce; the state “police power” to protect the public health, safety, welfare, and morals; sovereign authority to acquire and manage land or other resources; powers to tax and spend; and common law doctrines balancing the rights of parties about nuisance, negligence, trespass, and water rights. Environmental law in the modern context concerns not only pollution abatement, but also allocation of scarce or important resources. It works through regulations, penalties, and permits for activities which may harm the environment, as well as grants and tax incentives to foster beneficial activities like energy conservation and gifts of land.

Police Power or Commerce Clause

The federal government, using its “commerce power”, and state and local governments implementing their “police power”, have set up many regulatory programs. These have created new agencies, new policies, new politics, and new paperwork. These programs are implemented by regulations and administrative decisions on permits, licenses, and other approvals. Sometimes they incorporate detailed design specifications and performance standards. Quite often they require environmental impact reviews before government agencies can take action on public projects or agency permits and grants. These regulatory programs cover everything from A to Z, from “air pollution” to “zoning”, and subjects in between: billboards, chemical right-to-know, coastal zone management, dredging and filling, drinking water, earth removal, emergency management, energy facility siting, fish and game and shellfish, forests and shade trees, hazardous waste management, historic sites and structures, noise pollution, odor, pesticides and herbicides, radiation, recreation vehicles, scenic areas, sewage disposal, solid waste, subdivisions of land, water pollution, wetlands and floodplains, and of course the various forms of land use control.

Sovereign Authority

Long before Earth Day 1970, the federal and state governments exercised a sovereign interest in acquiring or managing land and resources. As a result, historically there have been agencies licensing the privilege of working in navigable waterways and tidelands; controlling the taking of fish, game, and shellfish; regulating work on, and access to, public beaches; and protecting rare or endangered species. The sovereign owes a special obligation to protect important resources, especially water areas, known as the “public trust”. Eminent domain as well as voluntary purchases are also expressions of this sovereign or “proprietary” authority over public resources.

Spending and Taxing Powers

Governmental power to tax and spend is expressed in environmental laws providing financial incentives or disincentives for activities society wishes to encourage or discourage. Grants were given for construction of pollution control facilities, such as sewage treatment, and research and development. Low interest loans, interest subsidies, mortgage guarantees, and various tax credits or deductions are typical.

Common Law Concepts

Common law legal principles enunciated by the courts, before the rise of regulatory programs, are still very important. The new pollution statutes do not supplant but rather supplement them. They exist independent of agency requirements. They are enforced through lawsuits to regulate unacceptable impacts such as nuisances or to allocate resources such as surface waters and groundwater.

Examples include principles of nuisance, negligence, trespass, strict liability for ultrahazardous activities, groundwater rights, surface drainage rights, and riparian rights of owners of property abutting bodies of water. They provide access to court for private citizens, communities, and corporations to seek injunctions against environmental harms or money compensation for damages. Indeed, common law litigation is almost the only access for private parties to seek compensation, since few if any of the agency programs are designed to secure reimbursement for personal injuries or harm to private property.

Contract Rights

To all these sources of environmental law we should add the field of contract law, since it allows landowners and others to create restrictions on polluting activities or land use through covenants, equitable servitudes, easements, and other contracts and real estate deeds. In a very real way, the public pollution programs are supplemented by this field of “private environmental law”.

International Law

It is worth noting in passing that international contracts, in the forms of treaties and conventions, make up a field of “international environmental law”. The United States has entered into international arrangements on air and water pollution; transportation of oil and gas at sea; using Antarctica; mining ocean minerals; fishing and whaling rights; protecting the ozone layer; migratory birds and their flyways; maintaining biological diversity; and rare and endangered species of plants and animals.

ENVIRONMENTAL AGENCIES

Federal Government

Federal agencies most involved with the administration of environmental law are the United States Environmental Protection Agency (EPA), the Department of the Interior (with its Park Service and Fish and Wildlife Service), the Department of Agriculture (with its Forest Service), the Nuclear Regulatory Commission (NRC), the Army Corps of Engineers, and the Federal Energy Regulatory Commission (FERC).

State Government

At the state level there are environmental agencies of various names but similar functions. These departments of environmental protection or natural resources, however they are known, implement state statutory programs. Sometimes they are consolidated under a single agency, often at the cabinet level. By whatever names, each state has agencies responsible for air pollution control, water pollution control, hazardous waste management, sanitary landfills and septic systems, state parks and forests, fish and game, dredging and filling in navigable waters, public drinking water, and coordinated review of public projects like highways. Optional with the states, and not on the books in every state, are laws about billboards and signs, coastal zone management, earth removal and erosion, energy facility siting, historic and archaeological structures and sites, noise and odor control, radioactive materials, recreational vehicles, work in wetlands and floodplains, and environmental impact reports. Every state, however, has enacted a zoning statute and a subdivision control law.

Local Government

Bylaws and ordinances, administered by regional or local boards and officials, implement the police power at the county or municipal level.

The county commissioners, city council, and (especially in New England) town meeting are the legislative bodies that create local environmental law and land use controls. Generally, state statutes authorizing zoning, subdivision control, and local regulations create the framework for the central limitations with which developers, industries, and landowners must deal. Furthermore, about a half-dozen states, like Massachusetts, are Home Rule jurisdictions. This means that by virtue of a Home Rule Amendment to the state constitution, cities and towns have the power to enact legislation on many subjects (if they do not conflict with state law) without the need to wait for advance approval from the state legislature.

Zoning is the classic approach to land use control, administered by a building inspector or zoning enforcement officer, or other municipal or county official. Requests for variances from the zoning code, and special permits under it, are reviewed by the board of appeals, sometimes called the board of adjustment or zoning board. This same body hears appeals from building inspector decisions. The planning board, or some other body, implements the subdivision control statute by adopting regulations governing division of real estate into new parcels not already fronting on existing public ways. The board of health, or the health department, enforces laws about public nuisances, communicable diseases, and in some states approves permits for septic systems. A site plan review board, sometimes the board of selectmen in a town, may exist to regulate large scale development. Also on this legal landscape might be an earth removal or erosion control board, a conservation commission controlling work in and near wetlands and flood prone areas, an architectural review board, and an historic district commission.

CHAPTER II:

REGULATORY ENVIRONMENTAL LAW AND THE COMMON LAW

ENVIRONMENTAL IMPACT STATEMENTS

National Environmental Policy Act

42 U.S.C. §§6901 to 6992k

40 C.F.R. Parts 1500 to 1517

The National Environmental Policy Act (NEPA) unites a poetically worded national policy with a statutory plan of action to implement that policy. One provision does most of the work: an action-forcing requirement that each federal agency prepare a detailed statement of environmental impact for each major federal action which may significantly affect the quality of the human environment. This Environmental Impact Statement (EIS) requirement in Section 102(2)(c) of NEPA is the cornerstone of the statute.

Beyond the EIS requirement, Congress showed sensitivity to the impact of society on natural relationships, especially through population growth, high density urbanization, industrial expansion, resource exploitation, and technological advance. For this reason, Congress declared in NEPA that “it is the continuing policy of the Federal Government, in cooperation with state and local governments, and other concerned public and private organizations, to use all practicable means and other measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”

In addition, Congress declared categorically that it is the continuing responsibility of the federal government “to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs and resources” to certain specified ends. These are “to serve as trustee of the government for future generations; to assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings; to attain the widest range of beneficial uses of the environment without undue consequences; to preserve important historic, cultural, and natural aspects of our national heritage and maintain, wherever possible, an environment which supports diversity and variety of individua...