Advanced Introduction to U.S. Environmental Law

Providing a comprehensive overview of the current and developing state of environmental governance in the United States, this Advanced Introduction lays out the foundations of US environmental law.

E. Donald Elliott and Daniel C. Esty explore how federal environmental law is made and how it interacts with state law, highlighting the important role that administrative agencies play in the creation, implementation, and enforcement of US environmental law.

This Advanced Introduction will be a valuable resource for scholars and students of environmental law. It will also be beneficial for environmental lawyers, business executives, NGO leaders, policymakers, and think tank analysts who work on environmental issues.

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Chapter 1 – How U.S. Environmental Law is Really Made


U.S. environmental law developed in parallel with innovations in administrative law leading to the rise of the administrative state—in which the fundamental legal framework emerges from regulations made by agencies interpreting statutes rather than court decisions. Through a shared structure of authority called cooperative federalism, the national government often sets mandatory minimum standards but leaves implementation up to the states. As a result of the partisan logjam in Congress, new environmental legislation has been limited over the past 30 years, forcing administrative agencies to use their power to interpret existing legislation creatively. Under the Chevron deference doctrine, courts have given EPA and other agencies considerable leeway to address environmental problems that Congress did not address with sufficient specificity.

Chapter 2 – Recurrent Themes in U.S. Environmental Law


Environmental regulation must balance competing goals. The White House Office of Information and Regulatory Affairs (OIRA) reviews all draft rules with significant impact and plays a central role in rationalizing competing interests. As a result of Presidential Executive Orders, EPA and other agencies must produce regulatory impact analyses (RIAs), including benefit-cost studies and risk assessments, and examine the environmental justice implications of their proposed regulations. Redundancy is a key feature of environmental enforcement with statutes often providing for civil and criminal penalties as well as citizen suits. Two broad approaches to environmental regulation have emerged: (1) command and control mandates including various forms of Best Available Technology (BAT) requirements, and (2) market mechanisms that rely on economic incentives such as price signals that invoke the Polluter Pays Principle and induce regulated entities to think creatively about how to reduce their environmental impacts—often providing greater flexibility and efficiency.

Chapter 3 – The Clean Air Act: Successful but Slow


The Clean Air Act (CAA) employs cooperative federalism to regulate a range of air pollutants. EPA proposes National Ambient Air Quality Standards (NAAQS) pursuant to which states prepare state implementation plans (SIPs). EPA has developed prevention of significant deterioration (PSD) increments to limit the pollution permitted by new sources in attainment areas provided they use best available control technology (BACT). New sources in non-attainment areas are permitted only if they install control technology with the lowest achievable emission rate (LAER) and obtain offsets to account for remaining pollution. New sources must also comply with technology-based new source performance standards (NSPS) for hazardous pollutants. Technology-forcing regulations apply to mobile sources where reductions are set per vehicle mile even in absence of the required technology. Regional air pollution crossing state borders requires other approaches such as the emission trading (cap and trade) used in the Acid Rain Trading Program.

Chapter 4 – Climate Change: An “Existential Threat” Not Yet Addressed


Because greenhouse gas (GHG) emissions blanket the Earth, climate change poses a particularly difficult policy challenge requiring international collaboration to manage the atmosphere as a global commons. Although the global community adopted the 1992 UN Framework Convention on Climate Change (UNFCCC), supplemented in 1997 by the Kyoto Protocol, these accords did little to lower the world’s GHG emissions trajectory as they imposed obligations only on developed nations. In 2015, with the Intergovernmental Panel on Climate Change (IPCC) pressing for deep decarbonization with ever greater urgency, 195 nations concluded the Paris Agreement, establishing a broader global emissions control framework, which asks every country to develop its own nationally determined contribution (NDC) to climate action. With a divided Congress, the U.S. government has been unable to establish a coherent federal climate change strategy, but cities, states, and companies have advanced climate change mitigation and adaption agendas.

Chapter 5 – Clean Water Act: Major Progress but Persistent Challenges


The Clean Water Act (CWA) regulates discharges into rivers, streams, and other waterbodies through a structure of industry-specific, technology-based effluent limitations, although states also retain authority to set water quality standards. The CWA sets up a National Pollution Discharge Elimination System (NPDES) mandating permits for any point source emissions into surface waters. Pollution discharges must also comply with effluent limitations and state water quality standards. Once a discharger has reduced its pollution, it may not go back to releasing more pollution under an anti-backsliding provision. New sources must comply with best available technology (BAT) standards. Federal financial support to communities to build publicly owned sewage treatment plants (POTWs) is one of the success stories of the CWA. For non-point pollution, EPA created a watershed approach using total maximum daily loads (TMDLs) and NPDES permits. The CWA regulates discharge of dredged of fill materials in navigable waters and adjacent wetlands.

Chapter 6 – Safe Drinking Water Act: Once Seen as a Problem Solved, But Now New Worries


The Safe Drinking Water Act (SDWA) requires EPA to develop health-based standards for a list of potentially toxic contaminants found in water supplies, including micro-organisms, inorganic chemicals (including lead), organic chemicals, radionuclides, disinfectants, and disinfection byproducts. EPA establishes National Primary Drinking Water Regulations (NPDWRs) based on Maximum Contaminant Level Goals (MCLGs) or public health-based goals. EPA also sets Maximum Contaminant Levels (MCLs) that define actual exposure levels using a risk balancing approach that considers technology limits, costs, and health risk reduction. SDWA requires information disclosure by drinking water systems of water quality and standard violations in an annual Consumer Confidence Report. It also regulates underground injection wells. The SDWA has its shortcomings. Notably, it does not apply to private wells or new unlisted contaminants (such as PFAS), and some states have been lax in enforcing the rules. Lead contamination of drinking water in Flint, Michigan exemplifies such failures.

Chapter 7 – Hazardous Waste: Extreme Measures in the Wake of a Crisis


The Comprehensive Environmental Response Compensation and Liability Act (CERCLA), also known as Superfund, establishes a legal regime to clean up sites where hazardous substances have been disposed and establishes liability provisions to cover clean-up costs. The National Contingency Plan (NCP) governs the clean-up process. Potentially responsible parties (PRPs)—current owners of the waste site, former owners, transporters of the waste, and those who arranged for the waste’s disposal—are liable for response costs to clean up the site as well as natural resource damages. The PRPs can be jointly and severally liable retroactively for clean-up costs. EPA ranks hazardous waste sites by potential human health effects and places the 150 highest ranking sites on the National Priority List (NPL). The Resource Conservation and Recovery Act (RCRA) creates a framework for appropriate waste handling, including hazardous wastes, and regulates both hazardous waste generators and treatment and disposal facilities (TSDFs).

Chapter 8 – Regulation of Chemicals: From Toxic Substance Control to Chemical Safety


The Toxic Substances Control Act (TSCA) regulates both new and existing chemicals. A TSCA inventory lists over 86,000 existing chemicals currently used in commerce. For chemicals not in the inventory, manufacturers are required to submit a premanufacture notice (PMN) to EPA prior to putting the chemical into commerce. The 2016 Frank R. Lautenberg Chemical Safety for the 21st Century Act amended TSCA to require EPA to make an affirmative finding that a new chemical is safe under the conditions of its intended use. The amendments strengthened regulation of existing chemicals by using a risk-based system to prioritize reviews and repealing the requirement that regulation must be least burdensome alternative. EPA can issue significant new use restrictions (SNURs) when necessary to prevent an unreasonable risk of injury to health or the environment from use of a chemical.

Chapter 9 – FIFRA: From Misbranding to Reasonable Certainty of No Harm


Until 1996, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) offers a classic example of a risk-balancing statute that only regulated unreasonable risks. In 1996, this changed when the Food Quality Protection Act (FQPA) shifted the burden of proof to manufacturers to show with reasonable certainty that the residues left on food will result in no harm. FIFRA is triggered when products make pesticidal claims, and the statute defines the term pesticide broadly. Pesticide manufacturers must obtain a registration and provide a label containing claims, cautions, and instructions for use. Restricted use pesticides may only be applied by specially trained applicators. EPA can grant conditional registrations and allow a registrant to begin selling a pesticide while continuing to fill data gaps. EPA may seek registration suspension when the pesticide represents an imminent hazard.

Chapter 10 – Occupational Safety and Health Act: Making Environments Safe on the Job


The Occupational Safety and Health Administration (OSHA) regulates exposures to hazardous substances and prescribes rules to prevent injuries in the workplace. OSHA regulates through a combination of inspections, recordkeeping, injury reporting requirements, and specific regulatory rules (called occupational safety and health standards) that generally apply to specific industries or industrial processes. OSHA promulgates substance-specific permissible exposure limits (PELs), which typically set a maximum concentration exposure limit for hazardous substances over an 8-hour workday. The OSH Act also contains a General Duty Clause requiring employers to furnish a workplace free from recognized hazards. Even where no specific standard applies, OSHA inspectors may issue citations for unsafe conditions as violations of the General Duty Clause. The OSH Act established an independent science agency, the National Institute of Occupational Safety and Health (NIOSH) to make non-binding, scientific findings and recommendations to OSHA.

Chapter 11 – OPA90: Why Economic Incentives Only Work Sometimes


The Oil Pollution Act of 1990 (OPA90) incorporates principles of the law and economics movement championed by Guido Calabresi and Richard Posner. In addition to more traditional regulatory approaches (including drilling bans in sensitive areas and detailed safety rules), OPA90 created economic incentives including strict liability rules and the threat of massive fines to spur care and other desired behavior by industry. OPA90 also requires responsible parties to clean up the spills, compensate victims, and pay for natural resource damages. While OPA90 significantly reduced the number and severity of oil spills since the 1989 Exxon Valdez disaster, the law did not prevent the Deepwater Horizon spill which has been attributed to multiple human failures to anticipate a complex combination of events.

Chapter 12 – From Protecting Endangered Species to Promoting Biodiversity and Healthy Ecosystems


The 1973 Endangered Species Act (ESA) seeks to protects species from extinction due to human actions. When a species is listed as either endangered or threatened, the two agencies responsible for administering ESA—the Fish and Wildlife Service and the National Marine Fisheries Service—may designate critical habitat (essential places for species survival) and require recovery plans. ESA mandates that federal agencies ensure their actions create no jeopardy for listed species. Endangered (and some threatened) species are protected from being taken, a term ESA defines very broadly. While ESA has helped to preserve a number of species, few species fully recover and the law is seen as inadequate for protecting biodiversity. As concern about loss of biodiversity has reached new levels, pressure has mounted for new policies focused on habitat conservation both nationally and globally.

Chapter 13 – National Parks and Wilderness: America’s Best Idea


Setting aside lands as a natural area for the enjoyment of the public and future generations is an American idea that has been emulated around the world. The National Park Service (NPS) manages the parks to preserve these special places as well as to provide for recreational uses. The degree to which commercial operations and recreational facilities are permitted in the parks is an ongoing source of controversy. The NPS also administers national monuments. The Wilderness Act created a National Wilderness Preserve System managed as undeveloped land where commercial enterprise, permanent roads and mechanized transportation, are prohibited. The degree to which commercial activities are permitted in candidate wilderness area is controversial as shown by recent litigation over the Forest Service’s Roadless Rule. Private organizations, called land trusts, also promote conservation goals by establishing conservation easements which permanently limit use of the land to protect its conservation value.

Chapter 14 – NEPA and Information Disclosure: Techniques Copied Around the World


The National Environmental Policy Act (NEPA) established a national policy that all government agencies should take the environment into account to the fullest extent possible in their decisionmaking and regulations. NEPA’s most enduring and revolutionary provision is the requirement that government agencies produce an environmental impact statement (EIS) before undertaking major federal actions significantly affecting the environment. Where a finding of no significant impact (FONSI) can be established, the law permits a shorter environmental assessment (EA) to be done instead. Categorical exclusions (CE) provide a generic finding for certain activities that do not typically result in significant impacts and are exempt from requiring an EIS. Laws mandating information disclosure have become core elements of environmental protection. Notably, the Toxic Release Inventory (TRI)—a 1986 Superfund Amendments and Reauthorization Act (SARA) provision—requires companies to disclose emissions of listed toxic chemicals to the public creating an incentive for minimizing emissions.

Chapter 15 – Beyond Traditional Environmental Governance: Corporate Sustainability, Performance Benchmarking, Private Standard Setting, and Public-Private Partnerships


As the partisan divide in Congress has brought environmental legislation nearly to a halt in recent decades, much of the innovation in U.S. environmental protection now derives from initiatives by state governments and private actors. Driven by a desire to cut environmental costs or risks and to meet green consumer demand for environmentally less-damaging products, companies compete to develop sustainability strategies and to eco-label their market offerings. The growth of sustainability benchmarking and scorecards—with laggards at risk of losing their social license to operate—has emerged as another vector of private governance. Sustainability-minded investors have become a particular force in this regard with demands for more extensive corporate reporting on environmental, social, and governance (ESG) performance. NGOs provide yet another motivation for corporate sustainability both by threatening to expose environmental misdeeds and through partnerships that guide businesses toward best practices.

Chapter 16 – Conclusion: The Best and the Worst


America’s environmental rules and programs have helped to clean up the air, water, and land, as well as to manage waste and limit exposures to unsafe chemicals. But progress has been slow and expensive. Environmental law and policy have not kept pace with scientific advances, information technology breakthroughs, and the emergence of new environmental threats. EPA also faces criticism for not using economic incentives as fully as it could to create a more flexible, effective, efficient, and innovation-oriented regulatory framework. And the existing media-by-media statutory framework prevents a more integrated, systems-oriented approach to environmental protection. The inability to address climate changes stands out as one of greatest failings of U.S. environmental law. The future challenges us to equitably develop new strategies and techniques to fulfill the promise of our first modern environmental statute, the National Environmental Policy Act, to guarantee everyone the right to a healthy environment.