Federal Environmental Statutes

Since the early 1970's, Congress has enacted numerous environmental protection statutes. Most of these statutes are implemented through extensive administrative regulations at the federal level, the state level, or at both levels of government.

Among the major pieces of federal environmental legislation are the following:

National Environmental Policy Act (NEPA)

NEPA was enacted in 1970. The purpose of this legislation is to require the consideration of environmental factors by federal agencies in decision making.

• Federal agencies are required to prepare Environmental Impact Statements (EISs) when considering certain major actions that may affect the quality of the environment, including proposals for legislation. The EIS must include alternatives to any action and the environmental impact of those alternative actions.
• NEPA also established the Council on Environmental Quality, which advises the President concerning environmental issues.

Most states have enacted similar environmental policy acts that require an environmental study prior to major state action.

Clean Air Act

The Clean Air Act was first enacted in 1970 to regulate nationwide air quality through the establishment of National Ambient Air Quality Standards (NAAQSs). The Act establishes:

• health-based standards, which establish safe levels of pollutants in the environment
• technology-based standards, which measure the amount of pollution reduction that particular industries may be required to meet

The Clean Air Act imposes significant responsibilities on each state to implement the Act's standards by preparing a State Implementation Plan (SIP).

• Each state's SIP establishes air quality control regions in the state and designates whether they have achieved "attainment," "nonattainment" or are "unclassified" as to each pollutant for which the EPA has established standards.
• An SIP must include an enforcement program and specify measures for the achievement of the EPA standards.
• States not adopting an SIP within a certain period of time are subject to sanctions, including possible loss of federal highway funding.

Since 1990, the Act has required each state to have a permit program that requires major sources of air pollution to obtain a permit and adhere to emission limits and monitoring requirements.

The Clean Air Act also regulates motor vehicle emissions by establishing federal limits on emissions, which are applicable throughout the United States with the exception of California. Due to its severe air pollution problems, the Act permits the State of California to establish more stringent emission limitations on vehicles.

Federal Water Pollution Control Act (Clean Water Act)

The Federal Water Pollution Control Act (FWPCA) was originally enacted in 1948, then reenacted and amended as the Clean Water Act in 1982. The purpose of the Act is to establish national uniform, technology-based standards for water sources.

The Act establishes the National Pollutant Discharge Elimination System (NPDES) which grants permits controlling the amount and concentration of polluting substances that are discharged into water sources. Standards are established for:

• "point sources" specific sources from which pollutants are discharged such as a pipe or dumping site
• "nonpoint sources," pollution in runoff from a wider area

Following are some specifics about NPDES permits:

• NPDES permits set standards that industrial and municipal permit holders must meet for any discharges into the environment.
• NPDES permits are required for factories and other private industrial activities, as well as for municipal treatment works.
• NPDES permits are issued either by the EPA or by the appropriate state agency, if it has an EPA-approved permit program.

The FWCPA also contains provisions pertaining to spills of oil and other hazardous substances into navigable waterways.

Wetlands Protection under the FWCPA

A wetland is an area that is inundated or saturated by water. Wetlands have particular environmental value because they support unique plant and animal species.

Although the Federal Water Pollution Control Act doesn't expressly provide for the protection of wetlands, the EPA and the Army Corps of Engineers have utilized certain provisions to provide protection for sensitive wetlands areas.

In addition to the NPDES permit program under the FWCPA, section 404 of the Act requires a permit for any discharge of dredged or fill material into navigable waters including wetlands adjacent to "waters of the United States." The above permit is required for any activity in wetlands involving disturbance of the wetlands, including any construction, filling, excavation, or dredging.

EPA regulations contain stringent limitations on issuing permits for activities in wetlands, and require consideration of practicable alternatives to any such activity. Certain activities are exempt from the permit requirement including, for example, normal farming activities such as maintenance of farm ponds, irrigation, and drainage ditches. However, Congress has recently enacted "swampbuster" legislation to protect wetlands by penalizing farmers' receipt of federal farm benefits if they convert sensitive wetlands for agricultural use.

Safe Drinking Water Act

The Safe Drinking Water Act (SDWA) was enacted in 1972 to assure the safety of public drinking water. Under the SDWA:

• The EPA has adopted regulations setting national, health-based standards for drinking water. These regulations set acceptable levels of physical, chemical, biological, and radiological substances in public water systems.
• Public water supply systems are required to inform their customers of any failure to comply with certain EPA standards. This is a 1996 amendment to the SDWA.
• States are required to have programs protecting wellheads, aquifers, and underground wells from contamination.

Toxic Substances Control Act

The Toxic Substances Control Act (TSCA) was enacted in 1976. TSCA empowers the EPA to gather information regarding the toxicity of chemical substances to determine whether they are a risk to human health and the environment. Under TSCA:

• The EPA may require testing of substances by manufacturers and notification of the use of new chemical substances.
• Extensive reporting and record-keeping is required by industry users of toxic substances.

In addition to generally regulating toxic substances, the Act contains specific provisions concerning asbestos, PCBs (polychlorinated biphenyls), and radon gas.

• The provisions concerning asbestos require inspection of school buildings, development of asbestos management plans by schools, and training and accreditation of contractors who deal with asbestos.
• The provisions concerning PCBs phase out the use of these substances.
• The provisions concerning radon require providing the public with information concerning the hazards of radon gas accumulation in buildings.

Right-to-Know

The Emergency Planning and Community Right-to-Know Act (EPCRA) was enacted in 1986, in the wake of a tragedy which took place in Bhopal, India in 1984 when more than 2,000 people were killed by an accidental release of a toxic substance from a chemical plant. The Act requires state and local government officials, as well as industrial facilities, to:

• prepare emergency response plans in the event of chemical emergencies
• provide information to the public about activities involving hazardous chemicals

Under EPCRA, the federal Environmental Protection Agency (EPA) is required to:

• Publish lists of hazardous substances that, when accidentally released, might cause serious death or injury, or have an adverse effect on human health.
• Prepare and make available to the public a Toxics Release Inventory (TRI), detailing environmental releases and transfers of certain hazardous substances by industrial and other facilities covered by the Act.

Federal Insecticide, Fungicide and Rodenticide Act

The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) was enacted to control the use of toxic substances used for pest control. FIFRA requires that:

• All pesticides be registered with EPA. The registration process examines whether the pesticide, when used properly, presents unreasonable adverse risks to human health and the environment.
• Information is disseminated to the public regarding the testing of pesticides.

FIFRA allows experimental use permits to be issued to test new substances and new uses of already tested substances.

Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (RCRA) was enacted by Congress in 1976 to regulate the disposal of hazardous and non-hazardous waste. The Act includes four programs governing:

• hazardous wastes, includes ordinary garbage or refuse and sewage sludge, among other substances
• non-hazardous wastes
• underground storage tanks
• used oil

The hazardous waste program established by RCRA provides a "cradle-to-grave" approach to the handling and disposal of hazardous waste. A management system requires the use of manifests to describe the hazardous waste material from production through transportation, storage, and disposal. Hazardous wastes may only be disposed of in a federally approved facility. Handlers and disposers of hazardous wastes are subject to strict reporting and operational requirements.

CERCLA (Superfund)

The Comprehensive Environmental Response Compensation and Liability Act (CERCLA), amended in 1986 by the Superfund Amendments and Reauthorization Act (SARA), provides for the cleanup of sites polluted by toxic and hazardous wastes.

• CERCLA creates the environmental Superfund, which is used to finance governmental cleanup activities. Under CERCLA, federal and state governments, as well as private parties, may sue anyone responsible for the generation, transportation, or disposal of hazardous substances.
• CERCLA imposes strict liability for the costs of cleaning up hazardous substances, subject to very limited exceptions. CERCLA liability is also "joint and several" liabilitymeaning that a party who is only partly responsible for hazardous wastes may potentially be responsible for paying the entire cost of the cleanup.
• CERCLA gives the EPA the authority to determine which waste sites should have priority in cleanup efforts. Under this authority, the EPA publishes a National Priorities List, ranking the worst hazardous waste sites in the country according to their priority in need for cleanup efforts. Only hazardous waste sites included on the list may utilize federal Superfund monies for cleanup.

In recent years, environmental authorities have turned their attention to "brownfields." Brownfields are industrial and commercial sites that are abandoned or unused because of questions about their need for environmental cleanup under CERCLA or other environmental statutes. Recent Federal and State programs have provided special incentives to state and local governments and private parties to encourage the voluntary cleanup and reuse of these sites. Incentives include EPA grants, waiver of liability, and tax incentives.

The Endangered Species Act

The Endangered Species Act was enacted in 1973 to provide a means for protecting animal and plant species that are threatened with extinction.

Under the Endangered Species Act, the Secretary of the Interior has the authority to determine whether any species is either endangered or threatened. The Act sets out criteria for making this determination. If a species is included on the list of endangered or threatened species, the Act prohibits any federal agency from jeopardizing the continued existence of that species. A threat may by direct or indirect.

The "taking" provision of the Act significantly impacts land development. This provision makes it unlawful to "take" an endangered or threatened species. A "taking" may consist of any harassment or harm, including significant modification to the habitat of the species. Violations of the Act may result in civil penalties, criminal penalties for knowing violations, injunctions, and suits by private citizens.

Enforcement of Federal Environmental Laws

Each federal environmental enactment contains specific enforcement provisions usually giving the EPA, or state agencies implementing federal statutes, broad authority to enforce the environmental laws.

• Enforcement proceedings may be brought at the agency level, administrative level, or in court proceedings.
• Enforcement provisions may include imposing fines and penalties as well as instituting criminal proceedings.
• Actions for injunctive relief may also be brought. An action for injunctive relief is an administrative or court proceeding in which the defendant is ordered to cease an activity that violates an applicable statute or regulation, or to take action to comply with legal standards and requirements.
• Some environmental enactments imposing obligations on the states in the area of enforcement and regulation include provisions permitting the suspension of certain federal benefits, such as federal highway funding, if the state fails to comply with federal environment law enforcement requirements.

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