Chapter 12: Environmental Law
Pat Miller, John Acker, Kara Fillman, David Lackie, David Lau, Bryce Jones,
edited by Daniel West, revised by Laura Carel, revised by Bill Elam, Nina Feng
Edited by Cody Campbell, Amanda Lovecamp, and Jessica McMichael
Introduction
Going as far back as medieval England, courts have entertained lawsuits regarding
people’s unreasonable interference with another property owner’s health or enjoyment of his
property. These “nuisance” suits, however, are not well-suited to handle widespread pollution.
Technology and entrepreneurialism have allowed businesses to grow rapidly across the United
States with industrial processes that are more of a potential hazard to the environment than they
have ever been. Common law lawsuits faced an issue of proving cause and effect between
pollution (particularly since there may be many sources) and a particular problem, such as a
disease.
Over the last half-century, both the federal government and state governments have
passed numerous laws in reaction to the spread of industrialism and pollution, two factors that
have proven to have debilitating effects on the environment. In today’s commercial environment,
businesses must be concerned with the impact of their actions on the natural environment and
must take into account many laws that have been enacted in order to curb the consequences of
pollution on the natural environment. The main purpose of environmental law is to protect the
environment. The reasons for the protection are to conserve the resources for future use, to
maintain human safety by decreasing the effects of issues such as global warming, to protect
animals from extinction, and to maintain aesthetics (the way things look, sound, and smell).
I.
The Environmental Protection Agency
Through the mid-1950s, the United States’ federal government had not given much
thought to the environment or passing laws to protect it. Then, in 1958, Rachel Carson began
working on her book, Silent Spring, which detailed the harm that certain pesticides (specifically
DDT) were causing to the environment. Within months of the book’s release in late 1962,
Carson had helped to raise public awareness of the dangers of these pesticides; the Kennedy
administration subsequently moved quickly to institute bans and restrictions on the use of
pesticides (including DDT).1
As public concern for the environment grew and demand increased for cleaner water, air
and land, the federal government decided they needed to form a regulatory body to govern the
treatment of the environment. Thus, in 1970, the government created the Environmental
Protection Agency, or EPA, to consolidate the government’s responsibilities concerning the
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environment under one organization, to repair damage already done to the environment and to
establish “new criteria to guide Americans in making a cleaner environment a reality.”2 .
The creation of the EPA indicated the government’s realization that pollution and
chemical-caused problems were interrelated and should be handled similarly. The government’s
four main concerns with these problems involved: human health, the conservation of natural
resources, the protection of wildlife, and the aesthetics of nature (such as the cleanliness of rivers
and the pure beauty of trees).
Because of public anxiety over pollution troubles, the first problems the EPA dealt with
were the tangible issues (those that could be seen or smelled). After handling (or creating plans
to handle) the observable pollution problems, the agency moved on to managing the less-visible
problems, such as chemical waste in the water and the invisible pollutants in the air. As time
progressed and technology improved, detection instruments have increased in power and can
perceive chemical agents in the water and the air in clusters as small as a few parts per billion.
Having instruments so adept at detecting pollution has some businesses struggling to limit
pollution output, and many currently argue that doing so is not cost-effective. The debate
between human health and cost of environmental compliance will continue with no end in sight.
The National Environmental Policy Act
The National Environmental Policy Act, or NEPA, was enacted in 1969, a year before the
formation of the EPA. NEPA created the Council on Environment Quality (CEQ), an agency
charged with developing procedures for other federal agencies to follow in fulfilling the goals of
the statute.3
The statute requires federal agencies to consider the environmental effects when a
proposed action is major, federal, or will significantly affect the quality of the human
environment. If the criteria are met, then costs and responsibility for completing the review are
usually passed to the party who will benefit from the action. However, the ultimate liability
belongs to the federal agency with the most accountability for the project. The process of review
includes an environmental assessment, followed by a report called an environmental impact
statement (which will be discussed later in the chapter), or a finding of no significant impact. The
CEQ developed regulations to guide most agencies through the evaluation, but it is not
uncommon for agencies to have their own rules on the process. NEPA requires a report that
details the effects of any federal action that has the potential to greatly affect the environment be
filed prior to enactment. These reports must contain five aspects: a broad description of the
impact on the environment; a list of the effects that are unavoidable; any potential alternatives to
the proposal; a timeline with both the short-term and long-term effects, and; a discussion on the
permanent allocation of resources. The purpose of this report is to allow other governmental
organizations, as well as the public, to comment on the proposal before it moves forward. If a
report is not filed, the public is allowed to sue the party responsible for not filing the report. An
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agency may choose to continue with the original proposal without changing after the procedure
is complete, regardless if the alternations would be beneficial to the environment.4 The purpose
of this process is so that the agencies cannot operate secretly and the public has a chance to voice
their opinion. Some states have also issued their own statements similar to NEPA, though on a
smaller scale. These statements, however, are not focused solely on the actions of state and local
governments. States can also require businesses to file these reports if a planned development
might interfere with a natural area that would otherwise be protected.
II.
Air Pollution
Air pollution first became a problem in the 19th century, when the Industrial Revolution
had spread from the Northeast across the country. The first problem dealt with was visible smog
in big cities that contained numerous, coal-burning, carbon dioxide-emitting factories. However,
people soon realized that the absence of visible smog did not mean the air was clean, and the
government thus began to focus on invisible, hazardous gases that were detrimental to both
human health and nature.
In 1970, the government enacted the Clean Air Act. Amended in both 1977 and 1990, the
Clean Air Act is the foundation for all laws dealing with air pollution. The act requires the EPA
to set national ambient air quality standards for all of the prominent pollutants; these standards
impose the maximum acceptable level for each pollutant in the air. There are two types of
standards: primary and secondary. Primary standards designate levels intended to protect public
health; secondary standards assign levels designed to protect nature, natural resources, the
climate, and the economy. In accordance with the aforementioned standards, each state must
create a plan detailing how it will meet the standards in the state. This plan may entail requiring
certain manufacturers or factories to reduce their emissions to a certain level deemed safe for the
surrounding community.
Clean Air programs traditionally fall into three categories. First, existing and new sources
of air pollution are prohibited from emitting pollution that exceeds the quality levels set to
protect health and welfare. This is implemented through analyzing the sources of emissions
contain in the state implementation plan. Second, new sources of pollution dare subject to stricter
rules that control technology and emission requirements. Third, the Act addresses specific
pollution problems, such as hazardous air pollution and visibility impairment. After the 1990
amendment, Congress added a fourth program which was a comprehensive programs to focus in
one place all of the Act’s requirements and to include pollutants such as acid rain and sources
and permits that apply to a given source of air pollution5
When the Act was amended in 1990 it also placed stricter demands on small business and
citizens. The intent of the amendment was to reduce emissions to the predetermined acceptable
level. As airborne pollutants became a concern to many communities, many factories built taller
smokestacks with the goal of spreading their pollutants over a wider area. This action, however,
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had a detrimental, unintended consequence: an increase in the incidence of acid rain in distant
areas. Certain chemical compounds found in acid rain, such as sulfur dioxide and nitrogen
dioxide, can have a harmful impact on both the environment (lakes, streams, fish, and trees) and
on human health. Sulfur dioxide comes from high sulfur coal and oil. Nitrogen dioxide mainly
comes from vehicles.
Once the EPA became aware of the increased acidity levels in rainwater, they included a
provision in the 1990 amendment to the Clean Air Act that limited overall emissions per factory
and required the use of coal with lower sulfur content. The amendment also required the
limitation of certain toxic air pollutants, such as asbestos and mercury; producers of these
chemicals were then required to install the best-available technology for restricting their
emissions.
The new requirements on
factories to install cutting-edge,
State Regulation Plans are state regulations to keep the air
pollution under control. State Regulations Plans include Air
emission-reducing technology
Quality Control Regions within the state. For example, St.
served two purposes. First, they
Louis is an Air Quality Control Region and all of the suburbs
provided a level playing field for
and municipalities in the area fall under the Metropolitan St.
new businesses wherever they
Louis Interstate Air Quality control Region. The Air Quality
decided to locate. Second, they
Control Regions have stricter policies regarding pollution. The
would eventually greatly improve
St. Louis area, for example, requires emissions testing on cars
the air quality by forcing factories
as part of the inspection, whereas the rural areas of Missouri
to reduce emissions to the lowestdo not have these requirements to reduce emissions in the
allowable levels. As part of the
air. Another example of the differences in the Air Quality
Control Regions would be the plastic covering on gasoline
1990 amendment, when factories
nozzles at the gas stations in the St. Louis area. This reduces
want to undergo a major physical
the release of pollutants in the air. Again, the rural areas of
change affecting the amount of
the state do not have these requirements.
emissions produced, they must
undergo a process of being reviewed, obtain a permit, and prove that they can meet the same
emissions standards with the new facilities. State agencies issue the permits for the new
operations, but only after a thorough review. State governments and their agencies are also
responsible for establishing new emission levels for the altered plants and for enforcing the
emissions standards, but the federal government can step in when necessary.
The Clean Air Act of 1970 also dealt with the problem of emissions from automobiles,
which emit hydrocarbons hazardous to the atmosphere. The Act required drastic decreases in the
amount of emissions from cars; consequently, this required manufacturers to develop new
technology because the current technology they were using failed to meet the new standards. In
1990, the Act’s amendment implemented further restrictions on emissions by requiring better gas
mileage and the development of more fuel-efficient automobiles. These stricter standards, while
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difficult to pass, have helped reduce the amount of harmful pollution created by automobiles.
Recently, there has been a push in states such as California, asking the federal government to
allow them to set their own, stricter standards for automobile emissions due to the increased
pollution in the area. President Obama issued a memorandum requesting the EPA to consider
allowing the states to set their own limits on emissions, and most experts expect the EPA to
consent, leading to tighter standards in automobile emissions.
Radiation standards have always remained under the public eye because of several highprofile accidents involving nuclear reactors, such as the Three Mile Island disaster in
Pennsylvania in 1979. The Nuclear Regulatory Commission oversees the safety of nuclear
reactors, but the EPA determines the appropriate standards of radioactivity. The EPA is also
responsible for the removal of radioactive waste and is in charge of regulating thermal pollution
caused by the use of heated water to cool nuclear reactors.
A pollutant that most people, including lawmakers, are increasingly concerned with is
carbon dioxide. While carbon dioxide occurs naturally in the environment and is not technically
a pollutant, an excess of carbon dioxide in the atmosphere caused by industrial production and
automobile emissions has been thought to cause global warming. This may radically change our
weather and could increase ocean levels along coastlines. There is currently a debate in
Congress as to what to do about the increasing levels of carbon dioxide. An international treaty,
the Kyoto Treaty, which deals with carbon dioxide emission, was signed by the United States but
The main types of air pollutants vary in size and impact on the environment, including
particulates, carbon monoxide, acid rain, ozone, hydrocarbons, and carbon dioxide. Particulates
are tiny pieces of dirt in the air. These tiny pieces of dirt can irritate the eyes, nose and throat. The
next is carbon monoxide, a poisonous gas that can cause death if inhaled in large quantities. Acid
rain is also a major environmental concern that is caused by sulfur dioxide. Acid rain is corrosive
and caused by burning sulfuric coal. Today coal power plants must scrub their coal to lower the
sulfur content or burn lower sulfur coal. Nitrous Oxide is a poisonous red brown gas commonly
found in car emissions. Ozone can lead to bronchitis, asthma, heart attack and even death. When
lead is smelted or aerosolized it’s more easily absorbed by the body. Lead is another dangerous
chemical. The body mistakes lead for calcium and stores it in the bones until its needed. When
calcium is needed, lead can leech out of bones and enter the brain, causing mental disorders.
Hydrocarbons can also be detrimental to health. They are abundant in gasoline, kerosene and
motor oil. When inhaled they can lead to hydrocarbon pneumonia causing fever, shortness of
breath, vomiting and even coma. Finally there is carbon dioxide, which can cause global warming.
It is also a byproduct of combustion. Driving a car, watching TV, or even using your cell phone can
cause carbon dioxide to be released into the atmosphere.
never approved by Congress and thus the U.S. is not a party to the treaty. Opponents of carbon
dioxide caps fear that the economy, utility costs, and employment will be adversely affected.
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Ozone (three atoms of oxygen) is problematic. In the lower atmosphere, it is mildly
poisonous. But in the upper atmosphere, the “ozone layer” protects us from harmful ultraviolet
rays that can cause skin cancer. Ozone mainly comes from vehicles and industrial operations.
Certain chemicals (used in refrigeration and air conditioning) such as chlorofluorocarbons (CFC)
can break down the ozone layer with an increase in ultraviolet rays and skin cancer.
III.
Water pollution
Water pollution as an environmental issue was first addressed over a century ago. The
oldest federal environmental law is the Rivers and Arbors Act of 1899, which defined the
difference between a state and federal waterway. It gave authority to states to govern waterways
within their states. While this is the oldest federal environmental law, its main focus was on
commerce, not the environment. 6 Looking ahead more than a century, we see more regulations
passing regarding clean water.
Before the federal government began imposing rules restricting water pollution, many
bodies of water were so polluted that they were uninhabitable. Water pollution did not only
affect wildlife; it also affected agriculture and human recreation. Thus, in the 1970s, Congress
passed three major pieces of legislation to combat water pollution, the first of which was the
Clean Water Act.
The Clean Water Act “prohibits any person from discharging a pollutant from a point
source into navigable waters without a permit.” A person is defined as any individual, company,
municipality (or other government), partnership, or organization. Discharge is defined as any
type of release, accidental or purposeful. Pollutants cover any substance other than clean water,
including heat, chemicals, and dyes. Point source is any discernible manner of carrying the
discharge (see Text Box Page 7). Finally, navigable waters include streams, marshes, lakes or
virtually any surface water that eventually leads to a river or ocean; however, provides no
protection to groundwater and has limited applicability to ocean discharges. 7
As you can see the Act is very broad, but the Clean Water Act of 1972 had aims
comparable to the Clean Air Act, and it contained two main goals. First, the Act made possible
water clean enough for recreation and the proliferation of wildlife by July 1983. Second, the Act
aimed to have the disposal of pollutants into any United States body of water completely stopped
by 1985. The main water pollutants to be concerned with are: pesticides, lead, arsenic, and
polychlorinated biphenyls (PCBs).8 The Clean Water Act laid out numerous goals that all levels
of government were to help achieve. The Act designated that the states would be the main
enforcer of these laws and the meeting of their requirements, but, as with the Clean Air Act, the
EPA can step in where necessary.
The Clean Water Act not only sets standards for all bodies of water, but it also designates
certain bodies of water for different purposes, including: recreation; public water use, and;
proliferation of wildlife. The punishment for violating the Act can include both civil and criminal
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penalties ranging from $2,500 for a first offense to $50,000 per day and multiple years in prison
for repeat offenders. Any public or private group of citizens may bring charges against an
offender who may be affecting their health or using water improperly.
The Clean Water Act also governs wetlands. Section 404 entails that any filling of a
wetland that is connected to United States waters or any waters within the country requires a
permit. The Army Corps of
The main sources of water pollution come from
sources known as point and non-point. Point is when a
Engineers, in conjunction with the
pipe dumps pollution directly into any water source (sewer,
EPA, issues this type of permit, and
pipe, ditch, or anything that bring the discharge to the
the permit can limit what a
water). Non point is when pollution enters a water source
landowner is able to discharge onto
through runoff, like fertilizer running off a field during a
his or her own land.
heavy rain and entering a stream.
There are two kinds of
There are three types of water pollutants. The first
permits that are available to those
type
is
called
conventional. Conventional pollution is
who wish to dispose of pollutants
sewage. The EPA limits the amount of sewage pollution
into any body of water. The first
that can be emitted. In addition this pollution must be
type of permit is the National
treated to remove contaminants and prevent ground water
Pollution Discharge Elimination
contamination. Untreated waste eventually breaks down
System permit; those applying for
with the help of bacteria. Bacteria use oxygen in the water
this permit wish to dispose of
to “eat” the sewage. This process is known as
industrial wastewater from a point
eutrophication and is harmful to lakes and rivers. The
second type of pollution is toxic and is not allowed by the
source (typically a pipe or ditch).
EPA. This can include any dangerous chemical that can
The second permit, simply called
cause injury or death if inhaled, ingested or absorbed
an industrial discharge permit,
through the skin. Lead, PCBs, and arsenic are examples.
allows its holder to dispose of any
The final kind of water pollutant is called non-conventional
wastewater that is not domestic
and includes fertilizers and anything else not covered in the
sewage. Both of these permits
above types of pollution. Non- conventional pollution is
restrict the amount of pollutant that
often responsible for eutrophication in lakes and rivers,
may be disposed of and require the
starving fish of oxygen.
holder of the permit to keep
records, use monitoring equipment,
and disclose the results to the environmental agency (state or federal) that is monitoring them.
The second water protection-related act Congress passed in the 1970s was the Marine
Protection, Research, and Sanctuaries Act (MPRSA) of 1972. This Act set up a permit system
regulating the dumping of all types of hazardous materials into ocean waters. The EPA has the
responsibility for designating disposal sites and establishing the rules governing ocean disposal.
The Ocean Dumping Ban Act of 1987 furthered the MPRSA by requiring that all ocean dumping
of municipal sewage sludge and industrial waste cease by December 31, 1991.
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In 1972, Congress passed its third major water protection-related act of the decade when
it released the Safe Drinking Water Act of 1972 (later amended in 1986 and 1996). The Act
protects the quality of drinking water by compelling the EPA to set primary water standards or
minimum quality-level standards, for drinking water. The Act affects also affects private and
public companies, as well as their lands. The main responsibility for enforcing the Act is actually
held by the states, but the federal government can step in when necessary.
IV.
Waste Disposal
Historically, most environmental laws have been concerned with air and water pollution
and how they affected human health, natural resources, and wildlife. Although most wastes do
not pose serious health threats, some can present serious issues and take years to cleanse. In the
1970s, the discovery of abandoned dump sites, such as Love Canal in New York, Times Beach
near St. Louis, and the Valley of the Drums in Kentucky increased public concern over the
disposal of toxic and hazardous wastes.
Since the discovery of those sites, Congress has passed numerous laws to help prevent
further damage to the environment. The Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) entitle the EPA to regulate and enforce the use of pesticides and poisons to kill rodents.
Such chemicals can leak into the soil and contaminate water supplies and the soil, so they are
regulated for both safety and effectiveness. When considering a new chemical product, the EPA
performs a cost-benefit analysis to determine if it should be regulated or banned altogether.
The Toxic Substance Control Act (TSCA) requires companies to perform testing before
they engage in any action involving chemicals (specifically PCBs, asbestos, radon, and lead9)
that may appear dangerous. Such testing is typically conducted by an independent company, and
the company often performs testing multiple times (whether or not an apparent danger is present)
to lessen the possibility of a lawsuit.
Another piece of regulation Congress enacted to combat improper waste disposal was the
Resource Conservation and Recovery Act (RCRA). The RCRA was originally passed in 1976,
but Congress significantly amended the Act in 1984. The Act allows the federal government to
regulate any organization that generates, treats, disposes of, or stores hazardous wastes.
Companies and other organizations who wish to do any of the above must obtain permits, meet
certain standards, follow set procedures for handling the waste, and keep records of their
activities in doing so. Each shipment waste is accompanied by a manifest, which lists what is
included in the shipment.
The RCRA also mandates that operators of land waste disposal facilities meet financial
responsibilities and monitor groundwater quality. In addition, the Act gives the EPA the power
to ban wastes from land disposal; because of this, many waste products must first be treated
before they can be disposed of. The Act allows the EPA to regulate underground storage tanks,
such as gasoline tanks at gas stations. Owners of these tanks must upgrade or replace tanks
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before they corrode and allow hazardous materials to leak into the soil. If companies or
organizations choose not to comply with the RCRA, they can be tried in a civil case, a criminal
case, or both. For an example of the EPA’s response to a hazardous situation, see the case at the
bottom of the page.
The EPA sets the minimum requirements for RCRA programs, but it then delegates the
responsibility for conducting programs to the states. However, if state government fails to take
this responsibility, then the federal government steps in and runs them. The current focus of the
government at all levels, as waste levels have increased and available land for waste storage has
decreased, has shifted to finding ways to ‘recycle’ waste and to reduce the amount of waste
created.
In 1980, Congress passed the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) to address the issue of uncontrolled or abandoned waste sites.
Better known as the Superfund law and amended in 1986, CERCLA allows the EPA to tax
companies that produced oil, petroleum, or gas products at sites that they no longer use. The tax
revenue gained is then used to help clean up the abandoned sites. Each abandoned site is ranked
in terms of danger level and addressed accordingly, meaning the most dangerous sites received
more prompt attention. While the amendment actually removed this section of the law (including
the right to tax), the issues regarding uncontrolled and abandoned sites still exist.
The second part of CERCLA allows the EPA to hold responsible those associated with a
waste site for cleaning it up. The guilty parties may include, but are not limited to the
owner/operator of the site, transporters of waste to the site, and the owner of wastes deposited at
the site. This section of the law also causes companies to test land for the presence of chemical
waste before they purchase it so they will not be held responsible for any clean-up costs.
V.
Environmental Impact Statements
Environmental impact statements (EIS) are required by the NEPA as previously
discussed. EISs mandate that anytime the federal government or a federal agency uses land, they
must first perform a study on the environmental impacts of the project. These same statements
The Arctic National Wildlife Refuge, or ANWR, is a section of Alaska covering nearly 19
million acres, an area larger than ten states. Though 17.5 million acres of ANWR are permanently
banned from development, a great debate has arisen over the other 1.5 million acres of land
because it is believed to contain significant petroleum reserves. There are some that believe the
government, who has already performed the necessary testing, should drill into ANWR to
provide the United States with a much-needed supply of petroleum, while others argue that
ANWR, which is home to numerous Arctic species, should be left alone for nature and that
drilling into it would be ‘wrong’. Moral and ethical issues aside, the environmental impact
statements cannot govern what the result should be; it can only describe the steps to be
taken
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only apply to businesses if they are going to use governmental property. Despite the good
intentions of the law, it only forces organizations to assess the potential damage to the
environment; it does not require the organization to do what’s ‘right’, or best for the
environment. The EIS is public so the company does not operate secretly.10The debate above
involving the Arctic National Wildlife Refuge illustrates this point well.
Like most regulation there are exemptions to the EIS requirement. If the president
proposes the legislation, no EIS is required since the executive office actions are not included in
the definition of federal action. Another exclusion is appropriation bills, which means that
cutting the budget of an agency with environmental responsibilities does not require an EIS.11
VI.
Gulf Oil Spill: Greatest Environmental Disaster in U.S. History
On the night of April 20, 2010, news broke that an explosion occurred at 11 p.m. EST on
the Deepwater Horizon oilrig killing eleven workers. Two days later the rig sank in the Gulf of
Mexico, 52 miles southeast of the Louisiana port of Venice. The rig was operated by British oil
giant BP, but owned by Transocean, the world’s largest offshore drilling company. The incident
ruptured the oil well and has caused what is
known as a blowout, or an uncontrollable
spill12.
The Deepwater Horizon rig contained an
estimated 700,000 gallons of fuel before it sank.
The government-assembled Flow Rate
Technical Group estimated that before the
well’s riser was cut on June 3, anywhere from
20,000 to 50,000 barrels of crude oil continued
to erupt from the sea floor in the Gulf of Mexico daily13.
Some observers say this oil leak easily has the potential to cause more environmental
damage than the 1989 Exxon Valdez spill, one of the largest ecological disasters ever recorded.
The oil could harm sea turtles that are approaching nesting season during summer; fin whales;
menhaden, a fish species harvested mostly for fishmeal and fish oil; bottom-feeding oysters; and
numerous species of birds.
Experts said the spill could also destroy the livelihood of commercial fishermen and
shrimp catchers and impact recreational
fishermen. According to the Louisiana
Department of Wildlife and Fisheries, the state’s
fishing industry is worth $265 million at dockside
and has a total economic impact of $2.3 million.
Tourism also could take a blow if beaches are
fouled. Coast Guard officials say the spill’s
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impact now stretches 150 miles as shown in the figure to the right14.
The Department of Interior's Minerals Management Service (MMS) was run by those
who hold the strings on America's natural treasures and is courted by those who, like the
Deepwater Horizon drillers, want to exploit those resources. Yet in the aftermath of the
Deepwater Horizon accident, it is becoming apparent that the firewall that should exist between
these two groups – the regulators and the regulated . Often the regulators are former members of
regulated businesses.15
According to an audit earlier this month by the Government Accountability Office, the
regulator has hardly been a straight shooter on offshore drilling and the risks involved. The GAO
found that MMS withheld data on offshore drilling in Alaska from regional staff members at the
agency involved in environmental analyses. The report also found that MMS lacked sufficient
guidelines to properly analyze the risks of drilling in the region.
One step in the process that oil companies must go through to get approval for drilling
involves submitting an exploration plan that lays out worst-case scenarios. The Huffington Post
points out that MMS did not require to file a plan for reacting to a "potential blowout," meaning
an uncontrollable spill. According to The Huffington Post's reporting, the more limited plan BP
filed with MMS predicted that if worse came to worst, a spill would release 162,000 gallons of
oil. The Deepwater Horizon spill has already exceeded that prediction16.
Due to the April 20 oil disaster, BP, Transocean, Anadarko Petroleum Corp, and Mitsui
& Co. are to receive multibillion-dollar criminal and civil penalties. With this in mind, it can be
seen that through one oil spill they, likely more specifically BP, could be liable to several federal
laws. The first of which is the Oil Pollution Act of 1990. Under this act companies are
responsible to pay up to $1 billion in cleanup costs and also cap the liability to $75 million to
victims. However the cap is only to be held if no gross negligence, misconduct or safety
violations are to be found. Considering BP’s relations with the former MMS and 11 workers
dying on the rig, finding that they are in violation is highly likely.
They could also be in violation of the Clean
Water Act due to the spill. Under this law there is a
liability of $1,100 per barrel and up to $4,300 per
barrel if gross negligence is proven. With the
estimated 700,000 gallons from the rig and more than
20,000 barrels flowing out every day it is easy to see
how the cost could quickly rise.
BP may also face liability over various laws
that protect wildlife. Among these violations are the
Endangered Species Act, the Migratory Bird Act, and
the Marine Mammal Protection Act covering dolphins and whales. Due to these Acts, fines of
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$15,000 to $25,000 per violation could be found. The numbers of violations are already likely
high, and with the bird migration season in the coming months it will rise even more.
In addition to federal law violations, BP will also face several civil lawsuits from not only
business and municipalities, but also their very investors. More than 250 lawsuits have been filed
thus far with 6 or more being from investors. Many communities, businesses, and local
fisherman have lost a considerable amount of revenue due to the spill. Depending on how far the
courts determine to go, liability for these parties’ losses will be substantial.
Financially speaking BP has already paid out $2.65 billion as of June 28 in response to
the spill and is nowhere near finished. BP has also started a $20 billion fund to deal with claims
by demand of the U.S. Analysts have estimated that cleanup and legal costs might range from
$33 to $37 billion on more conservative reports. Others have speculated that if things go badly in
court with the millions that live on the coastline they may be looking at $62.9 or even $90
billion. With BP being self-insured they would take the loss on the whole ordeal. Looking
beyond the oil spill, if convicted of the Clean Water Act or entering civil judgments may lead to
BP losing government contracts for a considerable period of time. In addition, talks on other
bans where they may have soon been able to operate have completely stopped. While BP has
denied Bankruptcy as an option, it may be too early to tell17.
In response to the Gulf oil spill, lawmakers have been litigating to amend the Oil
Pollution Act and change the current caps that are in place of $1 billion for cleanup costs and $75
million for civil liabilities if no foul play is found. The Democratic legislation has moved to raise
the $75 million cap to as much as $10 billion or more. The Obama White House has also given
its full support in the movement. However, the Republican Party has blocked similar moves in
the past and will likely continue to do so due to what they say would lead to larger companies
taking over the small who don’t have the resources18.
As for the troubled federal agency MMS receiving massive criticism for being too cozy
with the industry it was designed to oversee, it has lead to changes within. Interior Secretary Ken
Salazar announced that he will split the Minerals Management Service into three branches. The
reorganization, which has a 30-day timetable, will create the Bureau of Ocean Energy
Management to develop energy resources, including offshore renewable resources, and the
Bureau of Safety and Environmental Enforcement, which will police offshore operations and
protect the environment19. Most importantly the existing division of the agency that oversees $13
billion in annual revenue collection will evolve into the Office of Natural Resources Revenue,
move to the Interior Department's Budget and Management division and be entirely separate
from Interior's land and minerals division.
VII. Environmental Hotspot: Fracking
Cody Campbell, Amanda Lovekamp, Jessica McMichael
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In today’s society, natural gas has become one of the principal resources used for day-today activities (“NaturalGas.org”). Natural gas itself is odorless, colorless and shapeless in it’s
natural form, although if burned it provides an enormous amount of energy that can be harnessed
for many different uses. Unlike many fossil fuels used today, natural gas burns clean and emits
significantly lower levels of harmful byproducts into the air (NaturalGas.org). Natural Gas is
typically a combination of hydrocarbon gases including: methane, ethane, propane, butane and
pentane (‘NaturalGas.org”).
Currently natural gas is abundant in the United States and can be used for a variety of
things. In the early uses of natural gas provided light to street lamps and the occasional house,
although now it can be account for 24 percent of the total energy consumed in the United States
(NaturalGas.org). This 24 percent of energy use can be divided up into five main categories:
electric generation, industrial energy, commercial energy, residential energy and other
(NaturalGas.org). Specific uses of natural gas include: heating, cooling, cooking, lighting and
providing ingredients for products such as plastic and anti-freeze (“NaturalGas.org”)
This use of natural gas has potential to provide a positive environmental impact, help
reduce pollution and maintain a clean and healthy environment (“NaturalGas.org”). With
natural gas being the cleanest of fossil fuels, replacing it with other fossil fuels offers the benefits
of reducing the greenhouse effect, reducing smog and acid rain improving air quality and
reducing pollution from cars (“NaturalGas.org”). Although there are many benefits of natural
gas, there is controversy over the way it is collected and produced for daily use.
Natural gas is collected by a process known as fracking, or Hydraulic Fracturing.
According to ExxonMobil, fracking has been used worldwide since the 1940s in more than
1,000,000 wells. Before fracking begins, a drilling rig is assembled. A well is then drilled to
below the level of groundwater and is lined with layers of cement and steel. As the well
approaches the shale zone, drilling turns horizontal. This section of the well is also lined with
cement and steel. A perforating device is then inserted into the horizontal well to create holes in
the casing and surrounding rock. Once perforated, a fluid is pumped into the well. This fluid
causes pressure to build up and creates fractures in the rock, which releases trapped natural gas
into the well (“youtube.com”).
The fluid mixture pumped into these wells is often composed of water, chemicals and
proppants. Proppants includes sand and ceramic beads, which remain in the fractures.
ExxonMobil claims that 99.5% of the fluid used is composed of water and sand
(“youtube.com”). Unfortunately, between 20-85% of the fracking fluid used remains
underground. What does return to the surface is stored in open pits or tanks, which has the
potential to cause other health and environmental problems (“earthworksaction.org”).
The EPA recognizes several risks associated with fracking. Fracking uses enormous
amounts of water, which puts stress on surface and ground water supplies (“epa.gov”). An
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estimated 70-140 billion gallons of water are used for fracking in the US each year, with each
horizontal well requiring 2-10 million gallons (“earthworksaction.org”).
Furthermore, the EPA recognizes the potential for contaminated drinking water and
surface waters. Although an estimated 99.5% of the fluids used for fracking are composed of
water or sand, chemicals make up that remaining percent. Fluids such as: gases, like propane or
nitrogen, or acids, like hydrocholoric acid, are used to create fractures or clean out the rock
(“earthworksaction.org”). If 2 million gallons of water minimum are being used for one well,
that would require an estimated 100,000 gallons of chemicals, many of which are toxic to
humans and animals. In addition, each horizontal well requires more than 4 million pounds of
proppants (“earthworksaction.org”). In sum, one well can require 2-10 million gallons of water, a
minimum of 100,000 gallons of chemicals based on 2 million gallons of water and 4 million
pounds of proppants.
Next, the EPA recognizes the impact that fracking fluid discharge can have on surface
waters or underground injection wells. Finally, the EPA also recognizes resulting air pollution
from chemicals used in fracking (“epa.gov”).One way that these chemicals enter the air is
through their storage in open air pits. A better disposal alternative would be to utilize hazardous
waste facilities (“earthworksaction.org”).
VIII. Environmental Law in Missouri
As previously mentioned, states are required by the Clean Air Act to develop and maintain a state
implementation plan (SIP) that provides the state’s air pollution control strategy for meeting the
requirements of the Clean Air Act. Each SIP is submitted to the EPA and includes the specific rules. The
states have their own agencies that are used to comply with national standards and set state requirements.
Missouri’s first conservation law, enacted in 1874, provided for a closed hunting season
on deer and some kind of game birds. In 1936, the state established a Conservation Commission
to protect the state’s wildlife and forest resources. Today, the principal state agencies for
environmental protection include the Department of Conservation and the Department of Natural
Resources. The Department of Conservation manages the state forests and fish hatcheries and
maintains wildlife refuges. The Department of Natural Resources is responsible for state parks,
energy conservation, and environmental quality programs, such as air pollution control, water
purification, land reclamation, soil and water conservation, and solid and hazardous waste
management. The Department of Natural Resources consists of subdivisions to help regulate
these environmental controls in the state. These subdivisions are the Division of Environmental
Quality, the Division of Geology and Land Survey, the Division of State Parks, the
Environmental Improvement and Energy Resources Authority, and the Field Services Division.
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The Division of Environmental Quality helps Missourians prevent pollution and protect
the public from harmful emissions, discharges and waste disposal. It also helps to improve the
quality of air, water, and soil for the sustainable use by businesses, tourism, and agriculture.
The Geology and Land Survey Division of the Missouri Department of Natural
Resources aims to provide technical assistance, education, and guidance in the use and protection
of Missouri’s natural resources. It also interprets the state’s geological setting and assesses the
availability of the state’s energy and mineral resources. Finally, it evaluates and interprets
geological hazards and determines land boundaries.
The Department of the Division of State Parks manages the parks and historic sites
throughout the state and the Environmental Improvement and Energy Resources Authority
(EIERA) has the primary purpose of providing financial assistance for energy and environmental
projects and to protect the environment. The agency conducts research, supports energy
efficiency and energy alternatives. It promotes economic developments, but it is not a regulatory
agency for environmental law.
Finally, the Field Services Department performs emergency response duties, provides
field support to services for client programs within the department and other state agencies. It
provides technical document reviews, environmental assessment services, equipment, and
extensive field sampling support services at a variety of abandoned hazardous waste sites,
regulated facilities, and petroleum tank sites.
IX.
Conclusion
We have seen that environmental law has come a long way in the past 40 years. The
Environmental Protection Agency (EPA) formatting began the change and environmental focus
and gave the government power to regulate environmental law. At the same time, the National
Environmental Policy Act (NEPA) was passed requiring an environmental analysis of federal
actions. Shortly following was regulation regarding air pollution (Clean Air Act), water pollution
(Clean Water Act), and waste disposal (including Federal Insecticide, Fungicide, and
Redenticide Act, FIFRA). There is still debate over the cost-benefits of the environmental
compliance for companies, and this debate does not appear as though it will die down any time
soon.
Endnotes
1
Natural Resources Defense Council “The Story of Silent Spring” 4/16/1997
http://www.nrdc.org/health/pesticides/hcarson.asp
2
Environmental Protection Agency “Our History” http://www.epa.gov/epahome/aboutepa. 3/20/10
3
Patton-Hulce, Nicki “Environment and the Law” 3/24/2010
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4
Ibid
Sullivan, Thomas F.P “Environmental Law Handbook: Fourteenth Edition” 3/21/2010
6
Ufner, Jule “Waters of the United States” 3/32/2010
7
Patton-Hulce, Nicki “Environment and the Law” 3/24/2010
8
Environmental Protection Agency “Water: Water Pollutants” 3/23/2009
http://www.epa.gov/ebtpages/watewaterpollutants.html
9
Environmental Protection Agency “Summary of the Toxic Substances Control Act” 4/14/2009
http://www.epa.gov/lawsregs/laws/tsca.html
10
Patton-Hulce, Nicki “Environment and the Law” 3/24/2010
11
Ibid
12
"Deepwater Horizon Oil Spill in the Gulf of Mexico." USA.gov FAQ Knowledge Base (Page 1 of 134). Web. 19 July
2010. <http://answers.usa.gov/cgi-bin/gsa_ict.cfg/php/enduser/std_adp.php?p_faqid=8738>.
13
"Latest Gulf Oil Spill FAQ: The Government’s Power to Punish BP, and More…." ProPublica. Web. 19 July 2010.
<http://www.propublica.org/blog/item/gulf-oil-spill-faq-what-happened-what-may-have-caused-it-and-whosresponsib>.
14
Eng, By James. "Gulf Spill: Worse than Exxon Valdez? - U.S. News - Environment - Msnbc.com." Breaking News,
Weather, Business, Health, Entertainment, Sports, Politics, Travel, Science, Technology, Local, US & World NewsMsnbc.com. Web. 19 July 2010. <http://www.msnbc.msn.com/id/36850248/>.
15
"Gulf Oil Spill: Is MMS so Corrupt It Must Be Abolished? - CSMonitor.com." The Christian Science Monitor CSMonitor.com. Web. 19 July 2010. <http://www.csmonitor.com/USA/2010/0526/Gulf-oil-spill-Is-MMS-socorrupt-it-must-be-abolished>.
16
"Gulf Oil Spill Puts Spotlight on Regulator With Mixed Record." ProPublica. Web. 19 July 2010.
<http://www.propublica.org/blog/item/Gulf-Oil-Spill-Puts-Spotlight-on-Regulator-With-Mixed-Record->.
17
Stempel, Jonathan. "Special Report: BP Oil Spill a Gusher for Lawyers | Reuters." Business & Financial News,
Breaking US & International News | Reuters.com. 30 June 2010. Web. 19 July 2010.
<http://www.reuters.com/article/idUSTRE65T2MZ20100630?type=domesticNews>.
18
"Extent Of BP's Liability Still Murky : NPR." NPR : National Public Radio : News & Analysis, World, US, Music &
Arts : NPR. Web. 19 July 2010. <http://www.npr.org/templates/story/story.php?storyId=127561028>.
19
Bolstad, Erika. "Gulf Oil Spill Fallout: MMS to Be Divided into 3 New Branches | McClatchy." McClatchy |
Homepage. Web. 19 July 2010. <http://www.mcclatchydc.com/2010/05/19/94465/agency-that-regulatesoffshore.html>.
5
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