Environmental Law—
Survey of Environmental
Statutes
Geraldine V. Cox, Ph.D.
June 2002
“Politics are almost as
exciting as war, and quite as
dangerous. In war you can
only be killed once, but in
politics many times”
Winston Churchill
Remarks (1920)
June 2002
Course Objectives —
Understanding The Process
•
•
•
•
•
Stimulus for Legislation
Process of Federal Law-Making
Committee Structure
How Laws Change
Which Laws effect Environmental
Practices
• What are Our Obligations as
Scientists and Engineers
June 2002
You will learn to use the law
• You will not become a lawyer in
this class
• You will be able to research and
understand the laws and the
processes that make the laws
June 2002
"Many forms of Government have
been tried, and will be tried in this
world of sin and woe. No one
pretends that democracy is perfect
or all-wise. Indeed, it has been
said that democracy is the 'worst'
form of Government except all
those others that have been tried
from time to time."
Sir Winston Churchill House of Commons, 11 Nov. 1947
June 2002
Environmental Law is a
Continual Evolution
• Law lives
• Laws change by:
–
–
–
–
–
Funding
Regulations
Judicial Mandates
Amendments
Public opinion
• Laws are reiterative.
June 2002
Types of Laws
•
•
•
•
•
•
Compliance
Conservation
Cleanup
Pollution Prevention
Health and Safety
Administrative
June 2002
Compliance
• Clean Air Act
• Clean Water Act
• Resource
Conservation and
Recovery Act
• Safe Drinking
Water Act
• Solid Waste
Disposal Act
June 2002
• Federal
Insecticide,
Fungicide and
Rodenticide Act
• The Oil Pollution
Act
• Ocean Dumping
Conservation
• National Environmental Policy Act of 1969
(NEPA)
• The Endangered Species Act (ESA)
• Marine Mammals Act
• Coastal Zone Management Act
• Marine Protection, Research and Sanctuaries
Act
• Endangered Species Act
• Migratory Bird Treaty Act
• National Historic Preservation Act
• Archaeological Resources Protection Act
June 2002
Cleanup
• Comprehensive Liability
Emergency Response and Liability
Act (CLERCLA or SUPERFUND)
• Resource Conservation and
Recovery Act
• Oil Pollution Act
June 2002
Pollution Prevention
• Emergency Planning and
Community Right to Know Act
• Pollution Prevention Act
• Toxic Substances Control Act
June 2002
Administrative Procedures
•
•
•
•
Administrative Procedures Act
Freedom of Information Act
The Privacy Act
Citizen Suits
June 2002
Branches of Federal
Government
• The United States system of
government, established by the
Constitution, provides for three
separate but equal branches of
government
– Legislative
– Executive
– Judicial
June 2002
Executive Branch
• The President
– May Suggest
Legislation to
Congress
– Appoints Cabinet &
Agency Executives
• Overseas Agencies
and Departments
– Issues Executive
Orders
– Promulgates
Regulations
– Enforces Regulations
– Appoints Judiciary
– Prepares and
Manages Budget
June 2002
Legislative
• Develops and Passes
Legislation
• Appropriates &
Authorizes Budgets
• Reauthorizes and
Amends Legislation
• Senate Confirms or
Denies Judicial, Key
Administration and
Ambassadorial
Appointments
June 2002
For More Information
http://thomas.loc.gov/
home/lawsmade.toc
.html
June 2002
House Committees
• The Committee on Energy and
Commerce
• The Committee on Science
• The Committee on Education and
Workforce
June 2002
Subcommittees
House Committee on Energy and Commerce
• Commerce, Trade and Consumer
Protection
• Energy and Air Quality
• Environmental and Hazardous
Materials
• Health
• Oversight and Investigations
• Telecommunications and the
Internet
June 2002
Subcommittee on Air Quality
• Jurisdiction
– National energy policy generally;
– Fossil energy, renewable energy resources
and synthetic fuels; energy conservation;
energy information; energy regulation and
utilization;
– Utility issues and regulation of nuclear
facilities;
– Interstate energy compacts;
– Nuclear energy and waste;
– The Clean Air Act; and,
– All laws, programs, and government
activities affecting such matters.
June 2002
Subcommittee on Environment and
Hazardous Materials
• Jurisdiction
– Environmental protection in general,
including the Safe Drinking Water Act
and risk assessment matters;
– Solid waste, hazardous waste and
toxic substances, including
Superfund and RCRA;
– Mining, oil, gas, and coal combustion
wastes; and,
– Noise pollution control.
June 2002
Subcommittee on
Workforce Protection
• Jurisdiction:
– occupational safety and
health
– mine health and safety
– youth camp safety, and
migrant and agricultural
labor health and safety
– Wages and Hours —
Davis-Bacon Act, WalshHealey Act, Fair Labor
Standards Act, including
child labor
– workers’ compensation
— Longshore and Harbor
Workers’ Compensation
Act,
June 2002
– Federal Employees’
Compensation Act,
Migrant and Seasonal
Agricultural Worker
Protection Act, Service
Contract Act, Family
and Medical Leave Act,
Worker Adjustment and
Retraining Notification
Act, Employee
Polygraph Protection
Act of 1988
– oversight of compulsory
union dues within the
jurisdiction of another
subcommittee.
Senate Committees
• Agriculture,
Nutrition and
Forestry
• Armed Services
• Banking, Housing
and Urban Affairs
• Budget
• Commerce, Science
and Transportation
• Small businees
• Veterans’ Affairs
June 2002
• Energy and National
Resources
• Environment and
Public Works
• Finance
• Foreign Relations
• Judiciary
• Health, Education,
Labor and Pensions
• Rules and
Administration
Health, Education and Labor
1. Measures relating to
education, labor, health, and
public welfare
2. Aging
3. Agricultural colleges
4. Arts and humanities
5. Biomedical research and
development
6. Child labor
7. 7.Convict labor and the entry
of goods made by convicts into
interstate commerce
8. Domestic activities of the
American National Red Cross
9. Equal employment opportunity
10.Gallaudet College, Howard
University, and Saint
Elizabeths Hospital
June 2002
11.Handicapped individuals
12.Labor standards and labor
statistics
13.Mediation and arbitration of
labor disputes
14.Occupational safety and
health, including the welfare of
miners
15.Private pension plans
16.Public health
17.Railway labor and retirement
18.Regulation of foreign laborers
19.Student loans
20.Wages and hours of labor
Public Works and
Environment
•
Department and Agency
Oversight
– Department of the
Interior's Fish and Wildlife
Service,
– Department of
Transportation's Federal
Highway Administration
and the Coast Guard,
– Department of Commerce's
Economic Development
Administration and National
Oceanic and Atmospheric
Administration,
– Department of Agriculture's
Natural Resources
Conservation Service,
– Environmental Protection
Agency,
June 2002
– GSA's Public Buildings
Service,
– Council on Environmental
Quality,
– Civil works program of the
U.S. Army Corps of
Engineers
– Tennessee Valley Authority,
– Appalachian Regional
Commission,
– Nuclear Regulatory
Commission,
– Federal Emergency
Management Agency,
– Mississippi River
Commission,
– Nonperforming functions of
the John F. Kennedy Center
for the Performing Arts.
Committee on Energy and
Natural Resources
• Jurisdiction :
– National Energy Policy, including international energy
affairs and emergency preparedness
– strategic petroleum reserves
– Outer Continental Shelf leasing
– nuclear waste policy
– privatization of federal assets
– territorial affairs, including Freely Associated States
– regulation of Trans-Alaska Pipeline System and other
oil or gas pipeline transportation systems within
Alaska
– National Petroleum Reserve-Alaska
– Alaska National Interest Lands Conservation Act
– Antarctica
– Arctic research and energy development
– Native Hawaiian matters
June 2002
Judicial
• Hear Appeals on
Contested
Regulations
• Interprets Text of
Law
• Determines
Constitutionality of
the Law
• Can Declare
Regulations Invalid
Based on Case Law
• Can Remand Rules
• Can Vacate Rules
June 2002
The Process — Overview
June 2002
Laws are like sausages.
It’s better not to see them
being made.
—Otto von Bismark
June 2002
Evolution of Laws
• Laws are the result of public
pressure based on perception.
• Events and perceptions prompt
introduction of legislation.
• Most legislation isn’t passed.
• Legislation is too often after the
fact, rather than anticipatory.
June 2002
All bad precedents began
As justifiable measures.
—Julius Caesar
(Quoted in Sallust’s
Conspiracy of Cataline 1St. Century BC)
June 2002
First Air Pollution Law
• Resulted from 20
fatalities from air
pollution event in
Donora,
Pennsylvania
• Similar events in
London, England
and Belgium
prompted first
modern pollution
laws
June 2002
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June 2002
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History of Environmental
Laws
1955 1960 1965 1970 1975 1980 1985 1990 1995
June 2002
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Ability to Control Outcome
It is the duty of the President to
Propose and it is the duty of
Congress to dispose.
—Franklin D. Roosevelt
(Press Conference July 23, 1937)
June 2002
The Legislative Process
• Issues Emerge
• Congress Decides to Hold Fact-Finding
Hearing
• Studies and Testimony Shape the issue
• Policy Issues Emerge
• Public Interest, Media and the
Administration Pressure for Legislation
• Bills Develop and get Introduced
June 2002
"Suppose you were an idiot. And
suppose you were a member of
Congress. But I repeat myself."
-- quoted in A.B. Paine's Mark Twain: A Biography (Harper, 1912, Vol. 2, page
724).
June 2002
The General Accounting
Office is the investigative
arm of Congress . . .
June 2002
Congressional Research Service
Congressional Research Service
(CRS), part of the Library of
Congress, prepares its reports for
the U.S. Congress.
June 2002
Facts, or what a man believes to
be facts, are delightful... Get your
facts first, and then you can
distort them as much as you
please. — Samuel Clements
June 2002
National Academies
"... the Academy shall, whenever
called upon by any department of
the Government, investigate,
examine, experiment, and report
upon any subject of science or art
...." With these words, Congress
established the National Academy
of Sciences in 1863, at the height
of the Civil War.
June 2002
National Academies (Cont.)
To keep pace with the growing importance
of science and technology, the institution
that was founded in 1863 eventually
expanded to include the National Research
Council in 1916, the National Academy of
Engineering in 1964, and the Institute of
Medicine in 1970. Collectively, these
organizations are called the National
Academies.
June 2002
"I gather, young man, that you wish to
be a Member of Parliament. The first
lesson that you must learn is, when I
call for statistics about the rate of
infant mortality, what I want is proof
that fewer babies died when I was
Prime Minister than when anyone else
was Prime Minister. That is a political
statistic." —Sir Winston Churchill
collection Copyright: Kevin Harris 1995
June 2002
The Initial Bill Draft
• House introduces
financial bills first,
H.R. Number
• Senate introduces
other bills, S.
Number
• Bills are not carried
from one session to
another
• Laws are numbered
by Session and
sequence, P.L. #-#
and by United States
Code (USC)
June 2002
Simplified Process
No
No
Yes
Yes
Sign
No
Dies
No
June 2002
Veto
Yes
Executive Branch
• Signs or Vetoes Bill
• Begins Administrative
Promulgation Process with study
of Law and Legislative History
• ANPR (optional)
• PR
• Rule
• Published in Code of Federal
Register (CFR)
June 2002
Simplified Regulatory
Process
June 2002
It usually takes a hundred
years to make a law, and
then after it has done its
work, it usually takes a
hundred years to get rid of
it.
—Henry Ward Becker PROVERBS
FROM PLYMOUTH PULPIT (1887)
June 2002
Amendments
• Reauthorization
– Many statutes have a limited lifespan
and require reauthorization to
continue.
• Superfund (CERCLA)
• RCRA
• CAA
– Others are updated as needed
• Technical
– Judicial mandate
June 2002
Programmatic Controls
• Congress authorizes budgets for
programs
• Congress appropriates budgets
for programs
• The Executive Branch may delay:
– Regulation development
– Implementation of new programs
– By not requesting funding
June 2002
"That government is best
which governs the least,
because its people
discipline themselves."
— Thomas Jefferson
June 2002
No Law is appropriate for
All.
—Livy, AB Urbe Condita c. 29 B.C.
June 2002
Sources of Environmental
Law
• Common Law Roots
– Private Nuisance
• Copper Smelters
– Public Nuisance
• Typhoid from sewage
June 2002
Ducktown Sulphur
• Madison vs.
Ducktown
Sulphur
– Plaintiffs are
small farmers
– Little agricultural
value to land
– Ducktown Sulphur
purchased timber
from land in early
settlement
attempt
June 2002
Typhoid Fever Deaths in St.
Louis, MO, by Year, 18901903
500
450
400
350
Deaths
300
250
200
150
100
50
0
1890
1891
1892
1893
1894
1895
1896
1897
Year
June 2002
1898
1899
1900
1901
1902
1903
The Course Outline
• Week One
– Overview
• Week Two
– Waste
Management
(RCRA)
• Week Three
– Pollution
Prevention
• Week Four
– CERCLA
June 2002
• Week Five
– Control of Toxics
• Week Six
– Air Pollution
Control
• Week Seven
– Water Pollution
Control
• Week Eight
– Land Use
Regulation
The Course Outline (Cont.)
• Week Nine
– Environmental
Assessment and
Biodiversity
Protection
– Environmental
Enforcement
June 2002
• Week Ten
– Protection of the
Global
Environment
– International
Trade and the
Environment
– Standards as NonGovernmental
Controls