History of Environmental Law in the U.S. - Part 2

1960s Legislation

 The newly formed environmental movement resulted in three federal laws designed to regulate various aspects of the environment being passed by Congress in the 1960s. In December 1963, the Clear Air Act[1] was passed. A predecessor to the Clean Air Act, it allocated $95 million for the study and cleanup of air and water pollution. The act gave the federal government authority to reduce interstate air pollution, regulate emission standards for stationary pollution sources, and invest in technologies that would remove sulfur from coal and oil.

 On October 2, 1965, the Water Quality Act[2] passed, enhancing Federal control over water quality initially set by the Federal Water Pollution Control Act of 1948. Those federal standards would become the baseline for statewide water quality levels.

 On October 15, 1966, the first legislation intended to protect endangered species, the Endangered Species Preservation Act, became law. To supplement it, the Endangered Species Conservation Act of 1969 [3], authorized the Secretary of the Interior to list endangered domestic fish and wildlife and allotted $15 million a year for the protection of such species. The first list of Endangered Species – released in 1967 – included the United States’ national symbol, the American Bald Eagle.

 On January 28, 1969, an oil well off the coast of Santa Barbara, California, spilled over 200,000 gallons of oil into the Pacific Ocean causing extreme pollution to parts of the California coastline. It took 11 days to get the leaking oil stopped. That was the first of a series of incidents where oil has polluted coastlines, and in hindsight we recognize it was a relatively small event, but at the time it caused considerable outrage throughout the country.

 Another event occurred in 1969 which caused Americans to consider the condition of our national waterways. The Cuyahoga River in Cleveland, Ohio, burst into flames when oil and chemicals floating on the surface were ignited, causing flames to soar over five stories high. A river catching fire was an inconceivable event before then and was a major factor in causing people to wonder what was being discharged into our rivers and streams.

 We often hear how the 1960s was a time of cultural revolution in the United States. Part of that revolution was a concern for the environment. It’s safe to say that from 1962, when Silent Spring was released, until 1970, Americans became both aware of and concerned about their environment.

 As a result, the 1970s were the decade when Congress got serious about environmental regulations.

 THE 1970s

1970 was a watershed year for environmental laws. On January 1, 1970, the National Environmental Policy Act ("NEPA")[4] took effect. NEPA is not a long or detailed statute. In short, it requires a federal agency to give consideration to the impact any federal project might have on the environment before taking action. It doesn’t prohibit the activity, even if the agency determines that the proposed activity would have a harmful effect on the environment.

 The most visible effect of NEPA is the use of Environmental Impact Statements and Environmental Assessments before beginning a federal project. EIAs run to more than 1,000 pages and take substantial time and investigation to prepare.

 There has been a lot of litigation over the ensuing years resulting from allegations that a government agency did not give proper consideration to a project’s impact on the environment before beginning construction of the project. Those kinds of law suits rarely accomplish anything more than to delay the project. Even if the federal agency is found to have not fulfilled its obligations under NEPA, all the agency has to do is correct its errors and it can then go ahead with the project.

 NEPA has an impact on the private sector, as well, because any federal funding or federal permitting of a private project requires the NEPA due diligence process to be followed.

 1970 saw the celebration of the first Earth Day. That first Earth Day was basically a protest against environmental ignorance. An estimated 20 million people participated in the demonstrations.

 In 1970 Congress passed the Occupational and Safety Health Act[5], better known as OSHA. The goal was to make sure employers provided their workers a place of employment free from recognized hazards to safety and health, such as exposure to toxic chemicals, excessive noise levels, mechanical dangers, extreme levels of heat or cold, or other unsanitary conditions.

To establish the standards to be applied under OSHA, the Act also created the National Institute for Occupational Safety and Health as the research institution for the Occupational Safety and Health Administration, a division of the Department of Labor.

 As environmental law has progressed over the years, an interesting tension has developed between OSHA and the EPA. One area EPA has a strong interest in regulating is vapor intrusion into buildings. EPA and OSHA have very different standards for indoor air contamination, EPA’s being much more stringent, and EPA has been trying to wrest control of that area of regulation from OSHA for several years, without much success.

 During the Nixon administration, the United States Environmental Protection Agency was established. That also occurred in 1970. EPA is responsible for environmental policy and enforcement in the United States and conducts research and sponsors many environmental programs throughout the country. It is the agency that establishes the standards on which the enforcement of most of the environmental laws in the country is based.

 Also in 1970, Congress adopted the Clean Air Act[6]. It is the primary law that regulates air emissions from both stationary and mobile sources. It authorizes EPA to establish National Ambient Air Quality Standards to protect public health and to regulate the emissions of hazardous pollutants. Once EPA had established the standards, it was up to each individual state to develop its own implementation plan to regulate the industrial sources in that state.

 It is interesting to note that the Senate was unanimous in its approval of the Clean Air Act and only one member of the House of Representatives voted against the law.

 Like most of the environmental legislation that was enacted in the 70s, the Clean Air Act later underwent major revisions. In 1990, in order to achieve the maximum degree of reduction in emission of hazardous air pollutants from major sources, EPA adopted emission standards commonly referred to as "maximum achievable control technology" or "MACT" standards.

 In 1972, FIFRA was amended to shift responsibility for its enforcement to the Environmental Protection Agency. The 1972 law completely replaced the original 1947 law, and is the basis of current federal policy.

 Those amendments arose out of broader Congressional concerns about long- and short-term toxic effects of pesticide exposure on people who applied pesticides (applicators), wildlife, non-target insects and birds, and on food consumers. Substantial changes were made in 1988[7] to accelerate the reregistration process, and again in 1996.[8]

 Today, FIFRA provides for federal regulation of pesticide distribution, sale, and use. All pesticides distributed or sold in the United States must be registered (licensed) by EPA. Before EPA may register a pesticide under FIFRA, the applicant must show, among other things, that using the pesticide according to specifications "will not generally cause unreasonable adverse effects on the environment.''

 One of the most comprehensive environmental laws was adopted in 1972, the Clean Water Act[9] ("CWA"). It was a major reorganization of the Federal Water Pollution Control Act that had been adopted in 1948.

 The CWA regulates discharges of materials into "Waters of the United States." The definition of Waters of the United States has been a major topic of contention between EPA, the U.S. Army Corps of Engineers and private property owners and has resulted in much litigation over the years.

 The discharges regulated by the CWA do not have to be hazardous materials. Unlike many of the environmental laws, the CWA isn’t necessarily directed at hazardous substances, although those are regulated, but applies to things like soil run-off from construction sites and dredging and filling wetlands.

 While the CWA is the subject of much controversy, it has been effective. There can be no question that the rivers, lakes and streams in the United States are much cleaner today than they were in the 1950s and 1960s.

 Energy, particularly oil, became a major topic of concern in 1973 with the imposition of the Organization of Petroleum Exporting Countries ("OPEC") Oil Embargo. Those who were driving at that time likely remember the long lines at gas stations to fill up one’s gas tank. In order to drive up the price of oil, the members of OPEC reduced the amount of oil they were producing and selling to the rest of the world and the impact on the United States was dramatic as not only the price of oil soared, but the cost of other goods went up as well as a result of the goods either using oil in their production process or simply because transportation costs became much greater.

 Another controversial environmental law was adopted in 1973, the Endangered Species Act[10].

The intent of the Endangered Species Act was to protect certain well-known animals that were on the verge of extinction, at least in part because of manmade activities. America’s symbol, the bald eagle, was one of those species, as were other big, familiar animals like the grizzly bear.

However, the Act was soon to be a major thorn in the side of property owners and developers as environmental activists sought to have not only those big, impressive animals protected, but also sought to have insects and plants that some considered nothing more than pests or weeds protected as well.

 The Endangered Species Act sets out a process for EPA to determine if a species of plant or animal is threatened or endangered. Once a species is listed as endangered, there are severe penalties for killing a member of that species, without first obtaining a "take permit." It also regulates the destruction of habitat for endangered animals.

 Environmental activists have found the Endangered Species Act to be a great source for delaying development and have used it to stop projects on numerous occasions.

 Since 1973, over 2,100 species have been listed as either endangered or threatened. Only 56 species have come off the list; 28 came off because the populations sufficiently recovered, 10 came off because they became extinct, and the rest for a variety of other reason such as errors in the original listing.

 The Safe Drinking Water Act[11] was established in 1974 to protect the quality of drinking water in the U.S. That law focuses on all waters actually or potentially designed for drinking use, whether from above ground or underground sources. The Act authorizes EPA to establish minimum standards to protect tap water and requires all owners or operators of public water systems to comply with these primarily health-related standards.  Major amendments to the Act were adopted in 1996, primarily to require EPA to consider a detailed risk and cost assessment, and best available peer-reviewed science, when developing standards.

 In 1976 Congress adopted a very comprehensive law designed to establish a cradle-to-grave regulatory scheme for managing hazardous wastes, called the Resource Conservation and Recovery Act[12], today better known as RCRA. RCRA amended the Solid Waste Disposal Act, and addresses solid waste that is not considered hazardous under Subtitle D, and hazardous wastes under Subtitle C. The Hazardous and Solid Waste Amendments ("HSWA") of 1984 strengthened RCRA’s waste management provisions and added Subtitle I, which governs underground storage tanks (USTs).

 Regulations promulgated pursuant to Subtitle C of RCRA[13] establish a "cradle-to-grave" system governing hazardous waste from the point of generation to disposal. RCRA hazardous wastes include the specific materials listed in the regulations (commercial chemical products, designated with the code "P" or "U"; hazardous wastes from specific industries/sources, designated with the code "K"; hazardous wastes from nonspecific sources, designated with the code "F") and materials which exhibit a hazardous waste characteristic (ignitability, corrosivity, reactivity, or toxicity, designated with the code "D").

 Regulated entities that generate hazardous waste are subject to waste accumulation, manifesting, and record keeping standards. Facilities that treat, store, or dispose of hazardous waste must obtain a permit, either from EPA or from a state agency that EPA has authorized to implement the permitting program. Subtitle C permits contain general facility standards such as contingency plans, emergency procedures, record keeping and reporting requirements, financial assurance mechanisms, and unit-specific standards.

 RCRA also contains provisions for conducting corrective actions that govern the cleanup of releases of hazardous waste or constituents from solid waste management units at RCRA-regulated facilities.[14]

 Although RCRA is a federal statute, many states implement the RCRA program. Currently, EPA has delegated its authority to implement various provisions of RCRA to 46 of the 50 states.

Most RCRA requirements are not industry-specific but apply to any company that generates, transports, treats, stores, or disposes of hazardous waste.

 The Toxic Substances Control Act[15] ("TSCA") of 1976 provides EPA with authority to require reporting, record-keeping and testing requirements, and restrictions relating to chemical substances and/or mixtures. Certain substances are generally excluded from TSCA, including, among others, food, drugs, cosmetics and pesticides.

 TSCA addresses the production, importation, use, and disposal of specific chemicals including polychlorinated biphenyls ("PCBs"), asbestos, radon and lead-based paint.

 Various sections of TSCA provide authority to:

 

•     Require, under Section 5, pre-manufacture notification for "new chemical substances" before manufacture.

•     Require, under Section 4, testing of chemicals by manufacturers, importers, and processors where risks or exposures of concern are found.

•     Issue Significant New Use Rules ("SNURs"), under Section 5, when it identifies a "significant new use" that could result in exposures to, or releases of, a substance of concern.

•     Maintain the TSCA Inventory, under Section 8, which contains more than 83,000 chemicals. As new chemicals are commercially manufactured or imported, they are placed on the list.

•     Require those importing or exporting chemicals, under Sections 12(b) and 13, to comply with certification reporting and/or other requirements.

•     Require, under Section 8, reporting and record keeping by persons who manufacture, import, process, and/or distribute chemical substances in commerce.

•     Require, under Section 8(e), that any person who manufactures (including imports), processes, or distributes in commerce a chemical substance or mixture and who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment to immediately inform EPA, except where EPA has been adequately informed of such information.  EPA screens all TSCA b§8(e) submissions as well as voluntary "For Your Information" ("FYI") submissions. The latter are not required by law, but are submitted by industry and public interest groups for a variety of reasons.

[1] 42 U.S.C. §§ 1857-58(a) (1970), amending 42 U.S.C. §§ 1857-571 (Supp. V,