History of Environmental Law in the U.S. - Part 3

by Martin T Jones on Jul. 19, 2018

Environmental Law Environmental Law Other 

Summary: Continuing history of environmental law in the U.S., beginning with the Love Canal disaster.

One of the most famous environmental catastrophes in the United States was discovered in 1978. Love Canal was originally meant to be a dream community. That vision belonged to the man for whom the three-block tract of land on the eastern edge of Niagara Falls, New York, was named, William T. Love.

 Love felt that by digging a short canal between the upper and lower Niagara Rivers, power could be generated cheaply to fuel the industry and homes of his would-be model city. But despite considerable backing, Love's project was unable to endure the one-two punch of fluctuations in the economy and Nikola Tesla's discovery of how to economically transmit electricity over great distances by means of an alternating current. By 1910, the dream was shattered. All that was left to commemorate Love's hope was a partial ditch where construction of the canal had begun.

 In the 1920s the canal was turned into a municipal and industrial chemical dumpsite. In 1953, the Hooker Chemical Company, then the owners and operators of the property, covered the canal with earth and sold it to the city for one dollar.

 In the late 1950s, about 100 homes and a school were built at the site.

 In August 1978, a record amount of rainfall caused the buried drums to become uncovered. Corroding waste-disposal drums could be seen breaking up through the grounds of backyards. Trees and gardens were turning black and dying. Puddles of noxious substances were observed by the residents. Some of those puddles were in their yards, some were in their basements, others were on the school grounds. Everywhere the air had a faint, choking smell. Children returned from play with burns on their hands and faces. The New York State Health Department investigated a disturbingly high rate of miscarriages and birth-defect cases detected in the area. A large percentage of people in Love Canal had high white-blood-cell counts, a possible precursor of leukemia.

 On August 7, 1978, New York Governor Hugh Carey announced to the residents of Love Canal that the State Government would purchase the homes affected by chemicals. On that same day, President Carter approved emergency financial aid for the Love Canal area (the first emergency funds ever to be approved for something other than a "natural" disaster), and the U.S. Senate approved a "sense of Congress" amendment saying that federal aid should be forthcoming to relieve the serious environmental disaster which had occurred. By the month's end, 98 families had been evacuated and another 46 had found temporary housing. Soon after, all families would be gone from the most contaminated areas, a total of 221 families moved.

 The following year, another environmental disaster hit the United States. The Three Mile Island Unit 2 reactor, near Middletown, Pa., partially melted down on March 28, 1979. It was the most serious accident in United States commercial nuclear power plant operating history, although its small radioactive releases had no detectable health effects on plant workers or the public. Its aftermath brought about sweeping changes involving emergency response planning, reactor operator training, human factors engineering, radiation protection, and many other areas of nuclear power plant operations. It also caused the Nuclear Regulatory Commission to tighten and heighten its regulatory oversight. Today, the reactor is permanently shut down and all its fuel has been removed.

 As a direct result of Love Canal and other historically contaminated sites around the country, the Comprehensive Environmental Response, Compensation and Liability Act[1], better known as "CERCLA" or "Superfund," was adopted in 1980. "Superfund" was designed to clean up uncontrolled or abandoned hazardous waste sites as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment. Through CERCLA, EPA was given power to seek out those parties responsible for any release and assure their cooperation in the cleanup.

 Under CERCLA, EPA cleans up orphan sites when potentially responsible parties cannot be identified or located, or when they fail to act. Through various enforcement tools, EPA obtains private party cleanup through orders, consent decrees, and other small party settlements. EPA also recovers costs from financially viable individuals and companies once a response action has been completed.

 EPA is authorized to implement the Act in all 50 states and U.S. territories. Superfund site identification, monitoring, and response activities in states are coordinated through the state environmental protection or waste management agencies.

 The 1970s brought us NEPA, The Clean Air Act, The Clean Water Act, The Endangered Species Act, The Safe Drinking Water Act, RCRA, TSCA, and CERCLA. The end of the 1970s decade also brought with it an end to major environmental legislation, for the most part. Unfortunately, it didn’t bring an end to environmental problems.

 The 1980s

In 1981 the National Research Council issued a report that found acid rain was becoming an ever greater problem in the northeastern United States and in Canada. But where the 1970s had witnessed almost universal support for environmental laws, the 1980s saw the rise of opposition to environmental regulation.

 In 1981, President Reagan issued an Executive Order that gave the Office of Management and Budget the power to regulate environmental proposals before they became public, in large part because of concerns about the cost of environmental regulations to businesses. Mr. Reagan also cut the budget of the EPA by 12% and the amount of staff by 11%. He had the solar water heating system that had been installed on the White House roof  by President Carter removed during his second term. Later in 1981 he cut the EPA’s budget to 44% of its 1978 level and the number of enforcement cases submitted to EPA during that fiscal year declined by 56%.

 In part as a result of the Three Mile Island problem, the Nuclear Waste Policy Act [2]was adopted in 1982. The Act supports the use of deep geologic repositories for the safe storage and/or disposal of radioactive waste. The Act establishes procedures to evaluate and select sites for geologic repositories and for the interaction of state and federal governments. It also provides a timetable of key milestones the federal agencies must meet in carrying out the program.

 The Nuclear Waste Policy Act required the Secretary of Energy to issue guidelines for selection of sites for construction of two permanent, underground nuclear waste repositories. The Department of Energy ("DOE") was to study five potential sites, and then recommend three to the President by January 1, 1985. Five additional sites were to be studied and three of them recommended to the president by July 1, 1989, as possible locations for a second repository.

 The Act required DOE to consult closely throughout the site selection process with states or Indian tribes that might be affected by the location of a waste facility, and allowed a state or Indian tribe to veto a federal decision to place within its borders a waste repository or temporary storage facility holding 300 tons or more of spent fuel, but provided that the veto could be overruled by a vote of both houses of Congress.

 In December 1987, Congress amended the Nuclear Waste Policy Act to designate Yucca Mountain, Nevada, as the only site to be characterized as a permanent repository for all of the nation's nuclear waste.

 Early in 2002 the Secretary of Energy recommended Yucca Mountain for the only repository and President Bush approved the recommendation. Nevada exercised its state veto in April 2002, but the veto was overridden by both houses of Congress by mid-July 2002.

 In 2004, the United States Court of Appeals for the District of Columbia Circuit upheld a challenge by Nevada, ruling that EPA’s 10,000-year compliance period for isolation of radioactive waste was not consistent with National Academy of Sciences ("NAS") recommendations because it was too short. The NAS report had recommended standards be set for the time of peak risk, which might approach a period of one million years. By limiting the compliance time to 10,000 years, EPA did not respect a statutory requirement that it develop standards consistent with NAS recommendations. The EPA subsequently revised the standards to extend to 1,000,000 years. A license application was submitted in the summer of 2008 and is presently under review by the Nuclear Regulatory Commission. To date, we still don’t have an approved disposal site under the Nuclear Waste Policy Act.

 In 1985, Nature magazine published an article providing evidence that confirmed an ozone hole over the Antarctic. The ozone layer is a belt of naturally occurring ozone gas that exists 9 to 18 miles above the Earth and serves as a shield from the harmful ultraviolet B radiation emitted by the sun.

 The ozone layer is deteriorating due to the release of pollution containing the chemicals chlorine and bromine. Such deterioration allows large amounts of ultraviolet B rays to reach Earth, which can cause skin cancer and cataracts in humans and harm animals as well. Extra ultraviolet B radiation reaching Earth also inhibits the reproductive cycle of phytoplankton, single-celled organisms such as algae that make up the bottom rung of the food chain. Biologists fear that reductions in phytoplankton populations will in turn lower the populations of other animals. Researchers also have documented changes in the reproductive rates of young fish, shrimp, and crabs as well as frogs and salamanders exposed to excess ultraviolet B.

 Chlorofluorocarbons ("CFCs"), chemicals found mainly in spray aerosols heavily used by industrialized nations for much of the past 50 years, are said to be the primary culprits in ozone layer breakdown. When CFCs reach the upper atmosphere, they are exposed to ultraviolet rays, which cause them to break down into substances that include chlorine. The chlorine reacts with the oxygen atoms in ozone and rips apart the ozone molecule. One atom of chlorine can destroy more than a hundred thousand ozone molecules, according to the EPA.

 The ozone layer above the Antarctic has been particularly impacted by pollution since the mid-1980s. This region’s low temperatures speed up the conversion of CFCs to chlorine. In the southern spring and summer, when the sun shines for long periods of the day, chlorine reacts with ultraviolet rays, destroying ozone on a massive scale, up to 65 percent. This is what some people erroneously refer to as the "ozone hole." In other regions, the ozone layer has deteriorated by about 20 percent.

 About 90 percent of CFCs currently in the atmosphere were emitted by industrialized countries in the Northern Hemisphere, including the United States and Europe. Those countries banned CFCs by 1996, and the amount of chlorine in the atmosphere is falling now. But scientists estimate it will take another 50 years for chlorine levels to return to their natural levels.

 In 1986, Congress adopted amendments to CERCLA called SARA, which included the Emergency Planning and Community Right-to-Know Act[3] ("EPCRA"). The law is designed to help local communities protect public health, safety, and the environment from chemical hazards.

 To implement EPCRA, Congress requires each state to appoint a State Emergency Response Commission ("SERC"). The SERCs are required to divide their states into Emergency Planning Districts and to name a Local Emergency Planning Committee ("LEPC") for each district.

Broad representation by fire fighters, health officials, government and media representatives, community groups, industrial facilities, and emergency managers ensures that all necessary elements of the planning process are represented.

 In 1987 and 1988 there were environmental scares resulting from medical waste and sewage washing up on the New Jersey beaches, covering an area of 50 square miles. The events became known as Syringe Tides, and were the result of garbage being dumped in the ocean. In response, on November 18, 1988, President Reagan signed the Ocean Dumping Ban Act of 1988[4], a law that prohibits all waste dumping in the ocean beginning in 1992.

 On December 6, 1988, the World Meteorological Organization and the United Nations Environmental Program established the Intergovernmental Panel on Climate Change ("IPCC").

The IPCC describes itself as a scientific body under the auspices of the United Nations. It reviews and assesses the most recent scientific, technical and socio-economic information produced worldwide relevant to the understanding of climate change. It does not conduct any research nor does it monitor climate related data or parameters.

 The first IPCC Assessment Report of 1990 underlined the importance of climate change as a challenge requiring international cooperation to tackle its consequences. It therefore played a decisive role in leading to the creation of the United Nations Framework Convention on Climate Change ("UNFCCC"), the key international treaty to reduce global warming and cope with the consequences of climate change.

 Since then the IPCC has delivered on a regular basis comprehensive scientific reports about climate change.  The IPCC Second Assessment Report of 1995 provided important material drawn on by negotiators in the run-up to adoption of the Kyoto Protocol in 1997. The Third Assessment Report came out in 2001 and the Fourth in 2007.  At the end of 2007 the IPCC was awarded the Nobel Peace Prize. The Fifth Assessment Report was released in four parts between September 2013 and November 2014.

 On March 24, 1989, the Exxon Valdez tanker spilled 11,000,000 gallons of oil off the coast of Alaska, killing more than a quarter of a million birds and covering over 1,300 square miles of ocean with oil.


[1] 42 U.S.C. §9601, et seq.

[2] 42 U.S.C. §10101, et seq.

[3] 42 U.S.C. §§11001-11050

[4] P.L. 100-688, Title I

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