Laws and Regulations, United States
Although pollution control laws have been in use in the United States for a century, it was not until the 1970s, the "Environmental Decade," that modern pollution-control laws began to take shape. The American public was awakened to the need for better pollution control through the 1967 publication of Rachel Carson's groundbreaking Silent Spring and environmental disasters such as Love Canal, New York; the Donora, Pennsylvania, inversion; and the Cuyahoga River fire in Ohio. In the late 1960s and early 1970s, citizens began to demand comprehensive environmental protection laws. In the thirty years since, those early environmental laws have been used as the broad framework on which national pollution control are based laws in the twenty-first century.
Overview of U.S. Pollution-Control Laws and Regulations
Pollution-control laws in the United States can take several different forms. Federal pollution-control statutes are enacted by Congress in response to domestic problems or needs, or to implement international treaties. They are complex laws that state a goal for lowering or eliminating the release of certain pollutants, generally within a specific medium. These laws assign a duty to an agency, typically the U.S. Environmental Protection Agency (EPA), to implement the law. The agency then creates rules and regulations to further establish and advance the statute's goals.
Virtually every federal pollution control law delegates authority to states, entrusting them to create their own programs for implementing the law. Usually states have some leeway in deciding how implementation of a federal statute is best achieved on the state level. However, as a general rule, state programs that are derived from a delegation of federal regulatory authority can be more, but cannot be less stringent than the federal law. This leads to state and local laws and regulations that mirror their federal counterparts and allow for enforcement on the local level. Although this cooperative effort may ensure that federal environmental statutes reach a larger share of violators, it can also lead to confusion for individuals who try to comply with the law, and may make it difficult for agencies to apply the law with uniformity.
Major U.S. Pollution-Control Statutes
One of the first modern environmental protection laws enacted in the United States was the National Environmental Policy Act of 1969 (NEPA), which requires the government to consider the impact of its actions or policies on the environment. NEPA remains one of the most commonly used environmental laws in the nation. In addition to NEPA, there are numerous pollution-control statutes that apply to such specific environmental media as air and water. The best known of these laws are the Clean Air Act (CAA), Clean Water Act (CWA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) commonly referred to as Superfund. Among the many other important pollution control laws are the Resource Conservation and Recovery Act (RCRA), Toxic Substances Control Act (TSCA), Oil Pollution Prevention Act (OPP), Emergency Planning and Community Right-to-Know Act (EPCRA), and the Pollution Prevention Act (PPA).
Pollution-control laws focus on the regulation of activities that utilize materials that are potentially harmful to human health and the environment. These laws frequently vary in terms of their expectations and potential penalties for violators, depending on the risks associated with the materials involved. For example, CERCLA and RCRA are similar in terms of the activities they address. Both statutes focus on the storage, transport, and disposal of waste. However, the penalties for violating CERCLA are much more serious because that statute covers activities surrounding accidental or negligent releases of hazardous wastes, after the fact. RCRA's penalties are less severe, because the threat of harm is lower.
U.S. pollution-control statutes are numerous and diverse. Although many of the environmental statutes passed by Congress are useful tools in pollution prevention, they often need to be expanded before their impact is fully realized. Pollution-control laws are generally too broad to be managed by existing legal bodies, so Congress must find or create an agency for each that will be able to implement the mandated mission effectively. The statute then serves as a framework for the agency in organizing its agenda. At each level, the law becomes more specific and targeted.
Regulations: Role of the Agency in U.S. Pollution Control
Federal agencies in the United States are established through enabling legislation known as organic acts. These acts create and empower agencies, as well as define and limit their roles. Congress delegates a certain amount of authority to each agency, allowing its officials to develop regulations to ensure that the agency's duties will be achieved. Congress grants this authority to agencies because the legislature cannot always foresee all the elements that will be
|Air||Clean Air Act (1970) 42 USC §§7401–7671q, 40 CFR Part 50||To prevent & control air pollution/Regulates air emissions through National Ambient Air Quality Standards (NAAQS)||EPA|
|Water||Clean Water Act (1977) 33 USC §121 et. seq. 40 CFR Parts 100–140; 400–470||To restore & maintain the integrity of U.S. waters/limits discharges to U.S. waters through National Pollutant Discharge System (NPDES)||EPA|
|Drinking Water||Safe Drinking Water Act (1974) 43 USC § 300f et. sec. 40 CFR Parts 140–149||To protect U.S. drinking water & supplies from contaminants/ Establishes safe standards for drinking water||EPA|
|Ocean||Oil Pollution Act of 1990 33 USC §6602 et. seq. 40 CFR Part||To prevent and clean up oil spills in U.S. waters/Establishes fund for response costs and requires vessels & facilities to make plans for responding to oil spills||EPA/Coast Guard|
|Ground/Toxics||Resource Conservation & Recovery Act (1976) 42 USC §321 et. seq. 40 CFR Parts 240–271||To promote protection of human health and the environment/Oversees the handling of solid & hazardous wastes from "cradle to grave"||EPA|
|Comprehensive Environmental Response, Compensation, & Liability Act (1980) 42 USC §§9601–9675 40 CFR Part 300||To oversee the clean up of the worst U.S. hazardous waste sites/Establishes a "Superfund" to aid in the costs that arise in remediating CERCLA sites.||EPA|
|Toxic Substances Control Act (1976) 15 USC §2601 et. seq. 40 CFR Parts 700–799||To understand the health risks of certain chemical substances/Promotes the development of scientific health risk data||EPA|
|Federal Insecticide, Fungicide, and Rodenticide Act (1972) 7 USC §§136–136y 40 CFR Parts 162–180||To prevent harm to human health and the environment from pesticide use/To register and classify all pesticides in use and analyze risks & benefits of use||EPA|
|Food Quality Protection Act (1996) Public Law 104–170||To protect human health from the risks associated with exposure to pesticides/Uses a "risk cup" test for all pesticides & establishes maximum exposure levels for each||EPA/FDA|
|General||Pollution Prevention Act of 1990 42 USC §13101 et. seq.||To reduce or eliminate pollution/To improve technology & manufacturing & products in order to lower pollution levels||EPA|
|Emergency Planning & Community Right-to-Know Act (1986) 42 USC §11011 et. seq.||To improve local solutions to pollution emergencies/Directs the creation of State Emergency Response Commissions (SERCs)||States|
|Occupational Safety & Health Act (1970) 29 USC §61 et. seq.||To ensure that workers will be safe from harmful activities & hazardous exposures in the workplace/Establishes maximum exposure limits for workplace hazards||OSHA|
|Noise Control Act (1972) 42 USC §4901 et. seq. 40 CFR Parts 204, 211||To prevent damage to human health from the effects of noise pollution/Establishes noise emissions standards and other noise-control measures; Congress has not funded the NCA since 1982, effectively gutting the law.||EPA|
|National Environmental Policy Act (1969) 42USC 4321–4347||Established Council on Environmental Quality (CEQ); requires environmental impact statements (EIS) for all "legislation and major federal actions"||All Federal Agencies|
necessary for pollution-control laws to be effective. Agencies can develop the expertise needed to execute their lawmaking and legally required oversight duties because they have a narrower focus than the legislature.
Agencies spend a great deal of time considering the effectiveness of their regulations. When an agency determines that its goals would be better achieved if its approach was changed or updated, the agency may propose that a new rule be created. The agency then must announce the proposed rule in the Federal Register, where the public is able to consider the change and return feedback on it to the agency. Federal law requires that agencies consider all public comments that are submitted regarding new rules before making their final decision. Any changes to the proposed rule must again be reported in the Federal Register, with new comments solicited from the public. When the final rule is complete, it is printed in the Federal Register as a new statute before it is codified, or entered into the Code of Federal Regulations (CFR).
Several federal agencies oversee pollution control in the United States. At the top of the regulatory pyramid of agencies focused on pollution control is the EPA, which is assigned the duty of coordinating and overseeing all environmental protection laws nationwide. EPA also monitors the implementation of a number of comprehensive pollution-control laws. In addition, there are numerous federal agencies that regulate more narrowly concentrated areas of pollution control law. These agencies include the U.S. Fish and Wildlife Service (FWS), U.S. Department of Agriculture (USDA), National Oceanographic and Atmospheric Administration (NOAA), Occupational Safety and Health Administration (OSHA), Food and Drug Administration (FDA), and Nuclear Safety Regulatory Board (NSRB).
Jurisdiction and Enforcement of U.S. Pollution-Control Laws
Agencies can achieve regulatory compliance through different approaches. One method is to enforce regulations through frequent inspections and stringent penalties. Another is to offer incentives to those who are out of compliance, in order to bring them in line with regulations. Several federal pollution-control statutes offer such alternatives to violators. For example, through the CAA, EPA offers emissions trading as an option to those whose emissions levels are above the agency's set limits. By making a deal with a neighboring industry whose emissions are similar in type, one plant can maintain its higher emissions levels in exchange for an agreement by the other to keep its emissions below the limit to a comparative degree. By allowing such agreements, EPA maintains acceptable emissions levels within corridors without drastically affecting the viability of individual industries.
EPA responds to all violations of pollution-control laws in one of four ways, depending on the severity of the violation. In the least extreme cases, EPA issues informal letters that advise violators to correct their behavior. The next level of violation leads to a formal agency response, a legal order that requires violators to come into compliance. For more severe violations, EPA initiates civil lawsuits, demands compliance, and imposes potential financial penalties. Finally, the agency may bring criminal charges against the most flagrant violators, leading to large fines and prison sentences. In all cases involving court actions, the U.S. Department of Justice takes over as attorney for the agency.
Although U.S. pollution control laws are very broad and complex, they are implemented in an organized system that focuses on the most effective strategies for approaching problems and bringing about compliance with the law's stated goals.
Because of the United States' comparatively long history of environmental regulation, it is ahead of many other nations of the world in certain aspects of pollution control. However, there are still many hurdles to overcome. Chemical corporations, pharmaceutical companies, the farm bureau, property-rights advocates, and other interested groups continually lobby Congress to weaken environmental laws. Such activities have had major impacts in some cases, including in 1982, when efforts by opponents of the Noise Control Act led to the effective gutting of that law. Organized lobbying groups also challenge existing laws when circumstances arise under which court cases can be won that will impact the application or effectiveness of a given law. Conversely, environmental and human health groups also lobby Congress in hopes of making pollution control laws even stricter. Such groups also bring a number of lawsuits each year to push for agency enforcement of existing laws. Ultimately, the effects of pollution control laws are usually visible, which suggests that they will stay in place for years to come.
SEE ALSO C ARSON , R ACHEL ; C OMPREHENSIVE E NVIRONMENTAL R ESPONSE , C OMPENSATION , AND L IABILITY A CT (CERCLA) ; D ONORA , P ENNSYLVANIA ; E NFORCEMENT ; E NVIRONMENTAL C RIME ; G OVERNMENT ; L AWS AND R EGULATIONS , I NTERNATIONAL ; L EGISLATIVE P ROCESS ; N ATIONAL E NVIRONMENTAL P OLICY A CT (NEPA) ; P OLITICS ; P UBLIC P OLICY D ECISION MAKING ; R EGULATORY N EGOTIATION ; R IGHT TO K NOW ; T OXIC S UBSTANCES C ONTROL A CT (TSCA) .
Arbuckle, J.G., et al. (1983). Environmental Law Handbook, 7th edition. Rockville, MD: Government Institutes.
Percival, Robert V. (1996). Environmental Regulation: Law, Science, and Policy, 2nd edition. Boston: Little, Brown.
U.S. Environmental Protection Agency. CFR Chapter 40, "Protection of the Environment." Available from http://www.epa.gov .
Mary Elliott Rollé
THE PERMITTEE EXPERIENCE
Owning a piece of land does not always mean having the freedom to do with it what you want. For example, if you want to build a boathouse on your lakefront property, you will have to follow a legal process before ensuring that such a project will be allowed under local, state, and/or federal law. Your property's proximity to the water may mean that it will be classified as wetlands. Under various wetlands protection laws, you will have to be granted permission from numerous government sources before going forward with your project.
Under the Clean Water Act, you will have to apply to the Army Corps of Engineers for a 404 permit. You will also need to provide an environmental assessment for NEPA purposes, certify that your project is consistent with your state's Coastal Zone Management Act program policies, and ensure that no other federal licenses will be required for your project. Then you will need to figure out which state and local regulations apply to your plan, and request any permits that may be required on the local level. While there will likely be some overlap in the state and federal requirements, it is often difficult to determine exactly what is needed before you can be assured that you are in compliance with all applicable laws. This complicated process can produce great frustration, and can lead applicants to avoid meeting legal requirements because complying with the rules is too difficult.