History of environmental law in the U.S., beginning in the 1990s.
As is its
practice, Congress responded the next year with the Oil Pollution Act("OPA").
The Act streamlined and strengthened EPA's ability to prevent and respond to
catastrophic oil spills. A trust fund financed by a tax on oil is available to
clean up spills when the responsible party is incapable or unwilling to do so.
The OPA requires oil storage facilities and vessels to submit to the federal
government plans detailing how they will respond to large discharges. EPA has
published regulations for aboveground storage facilities; the Coast Guard has
done so for oil tankers. The OPA also requires the development of Area
Contingency Plans to prepare and plan for oil spill response on a regional
1990 saw some
other legislation, as well. The
Pollution Prevention Actattempted
to focus industry, government, and public attention on reducing the amount of
pollution through cost-effective changes in production, operation, and raw
materials use. Proponents of the Act believed that opportunities for source
reduction are often not realized because of existing regulations, and the
industrial resources required for compliance are usually focused on treatment
prevention includes practices that increase efficiency in the use of energy,
water, or other natural resources, and protect our resource base through
passed the Clean Air Act amendments requiring states to demonstrate progress in
air quality improvements and EPA’s Toxic Release Inventory told us which
pollutants were being released from specific facilities in communities.
Shi-Ling Hsu, from Florida State College of Law, summarized what happened on
the environmental law front after 1990. Professor Hsu said, "Over the past
24 years (with the 1990 Clean Air Act Amendments marking the last significant
environmental accomplishment by Congress), a number of other lawmaking
institutions have evolved to take Congress’s place, including a great deal of
reached this conclusion because from 1990 to today, with few exceptions,
virtually every law dealing with the environment is the result of either EPA
rule making, or Presidential decree.
The remainder of
this paper will touch on some of those rules and decrees. My intent is to give the
reader some idea of how environmental regulation has changed from a primarily
statute driven regulatory scheme to an administrative process.
In 1992, EPA
launched its Energy Star program to help consumers identify energy efficient
In 1993, EPA
reported that secondhand smoke contaminates indoor air, posing health risks for
Also in 1993
there was an outbreak of cryptosporidium in drinking water in Milwaukee, WI,
which sickened 400,000 people and killed more than 100.
Also in 1993,
President Bill Clinton directed the federal government to begin purchasing
recycled and environmentally preferable products when possible.
In 1994 EPA
launched its Brownfields Program to clean up abandoned, contaminated sites and
return them to productive use. That same year, EPA issued new standards for
chemical plants to reduce toxic air pollution by more than 500,000 tons per
response to the problem in Milwaukee, in 1996 EPA required public drinking water
suppliers to inform customers about chemicals and microbes in their water, and
began providing funding to upgrade water treatment plants. President Clinton
signed the Food Quality Protection Act to tighten standards for pesticides used
to grow food, including protections to ensure that foods are safe for children.
And in 1996, EPA began requiring that home buyers and renters be informed about
lead-based paint hazards.
In 1997, an
Executive Order was issued to protect children from environmental health risks,
including childhood asthma and lead poisoning. Also, EPA issued new air quality
standards for smog and soot.
President Clinton announced new emissions standards requiring cars, sport
utility vehicles, minivans and trucks to be 77% to 95% cleaner than in 1999,
and EPA announced new requirements to improve air quality in national parks and
THE 21st CENTURY
In 2000, EPA
established requirements that heavy duty highway diesel engines and fuel must
be 90% cleaner than they had been.
In 2002 Congress
passed the Small Business Liability
Relief and Brownfields Revitalization Act,
its one significant piece of legislation. Better known as The Brownfields Act,
it was an amendment to CERCLA that added some new defenses to owners of
CERCLA had had
an unintended consequence. Because its liability scheme is strict liability and
joint and several liability, real estate developers would not purchase a
property that might possibly be contaminated. The only real defense to
liability for property owners in CERCLA was the "innocent owner defense."
To qualify for the innocent owner defense, the prospective purchaser had to
undertake "all appropriate
inquiries." If that environmental due diligence finds that there is a "Recognized
Environmental Condition," in other words, that there is the possibility
that the property is contaminated, potential buyers would terminate the
transaction because they were unwilling to risk environmental liability at the
site. The result was thousands of properties being unsalable and hence
unusable. Those properties became blights on their communities.
Amendments added the Bona Fide Prospective Purchaser Defense.
Now, even if a potential buyer discovers a property is contaminated before
purchase, s/he doesn’t automatically purchase the environmental liability.
There are many rules that have to be followed, but the defense is usable and
has helped get brownfields development moving again. The Brownfields Amendments
also added the Contiguous Property Owners’ Exemption,
the De Micromis Exemption,
and the Municipal Solid Waste Exemption.
In 2003, EPA
provided funds for more than 4,000 school busses to be retrofitted through the
Clean Bus USA program. EPA also proposed the first mercury emission regulations
for power plants, which resulted in the removal of 200,000 pounds of
particulate matter from the air over the next 10 years.
In 2004, new
8-hour ozone and fine particulate standards went into effect. These were the
result of EPA’s rule making. EPA also required cleaner fuels and engines for
off-road diesel machinery such as farm and construction equipment.
In 2005 EPA
established more rules, including the Clean Air Act Interstate Rule to reduce
air pollution by permanently capping emissions of certain harmful particles.
Policy Act of 2005 was also adopted. The Energy Policy Act addresses energy
production in the United States, including: (1) energy efficiency; (2)
renewable energy; (3) oil and gas; (4) coal; (5) Tribal energy; (6) nuclear
matters and security; (7) vehicles and motor fuels, including ethanol; (8)
hydrogen; (9) electricity; (10) energy tax incentives; (11) hydropower and
geothermal energy; and (12) climate change technology. For example, the Act
provides loan guarantees for entities that develop or use innovative
technologies that avoid the by-production of greenhouse gases. Another
provision of the Act increases the amount of biofuel that must be mixed with
gasoline sold in the United States. Describing the law sounds impressive, but
the Washington Post contended that the spending bill is nothing more than a broad collection of subsidies for United
States energy companies; in particular, the nuclear and oil industries.
Katrina, the biggest environmental event of 2005 was a natural disaster that
devastated New Orleans, LA.
In 2007, British
Petroleum agreed to pay the largest criminal fine to date for air violations as
a result of a refinery explosion in Texas and an oil spill in Alaska. The fine
was $62,000,000 and BP also agreed to make $400,000,000 in safety upgrades.
Also in 2007,
the Energy Independence and Security Act was adopted. The bill originally
sought to cut subsidies to the petroleum industry in order to promote petroleum
independence and different forms of alternative energy. Those tax changes were
ultimately dropped after opposition in the Senate, and the final bill focused
on automobile fuel economy, development of biofuels, and energy efficiency in
public buildings and lighting.
2008 saw a major
change in U.S. politics. Barrack Obama, a Democrat, was elected President. Mr.
Obama is concerned about climate change and a strong supporter of laws, rules
and regulations to limit the release of greenhouse gases. His efforts have been
adamantly opposed by the Republican-dominated Congress.
announced a program to reduce greenhouse gas emissions from private vehicles in
2009. He also issued an Executive Order recognizing the Chesapeake Bay as a
National Treasure and called on the federal government to make a renewed effort
to restore and protect it.
Reinvestment and Recovery Act, also known as the stimulus bill, was passed in
2009. Among the other features of that law, it provided $90 billion in funding
for green projects, which included grants and loans for clean energy.
In 2010 EPA
proposed stricter health standards for smog and finalized greenhouse gas
reporting requirements for facilities that use geologic sequestration. It also
took steps to reduce nitrogen, phosphorus and sediment from reaching the
environmental news of 2010 was the Deepwater Horizon oil rig explosion in the
Gulf of Mexico. 11 workers were killed and nearly 5,000,000 barrels of crude
oil were released into the Gulf causing a major environmental catastrophe.
Grunwald and Juliet Eilperin. "Energy Bill Raises Fears About Pollution,
Fraud Critics Point to Perks for Industry." Washington Post. July 30, 2005.
The Wall Street Journal, “The EPA
Permitorium,” editorial, November 22, 2010.
The Wall Street Journal, “An EPA
Moratorium,” editorial, August 29, 2011.
“The EPA’s Ambitious Regulatory Agenda,” Conference, November 8, 2010, at
Chamber of Commerce, “Regulatory Areas, Energy, and the Environment,”
North Dakota v. U.S. E.P.A., Civ. No.
EPA, Memorandum re use of Next Generation Compliance Tools in Civil Enforcement
Settlements (Jan. 7, 2105) at 1, available at:http://www2.epa.gov/compliance/next-generation-compliance-memorandum-next-gen-civil-enforcement-settlements
(OECA Next Gen Memo).
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