Environmental Law

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Environmental Law

• Chapter 19

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Resource LawWater

• Surface Water Law
• Navigable streams are treated as community
  property
• Individual ownership not allowed
• Water rights are allowed
• Riparian Doctrine who ever owns land adjacent
  to a stream has a right to use that water more
  applicable to humid eastern U.S.
• Doctrine of Prior Appropriation first user of
  the water has top priority more applicable to
  arid western U.S.

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Distribution of underlying principles of
surface-water law
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Resource LawWater

• Groundwater Law
• More complex than surface water law
• Rule of Capture (English Rule)
• Property owners have the right to extract all the
  groundwater from under their property
• Lateral movement of ground water is ignored
• Rule of Reasonable Use (American Rule)
• Property owners are limited to extract ground
  water for beneficial use in connection with the
  land above. Extraction of ground water should
  not be so great that it deprives a neighbor of
  their ground water
• Issues have been argued about what constitutes
  beneficial use
• Problems with invisibility of ground water has
  created numerous legal conflicts

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Distribution of underlying principles of
groundwater law
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Resource LawMineral and Fuel

• In U.S. original laws were meant to encourage the
  exploitation of natural resources
• 1872 Mining Law
• Granted mineral rights, and often land title, to
  anyone locating a mineral deposit on federal land
  and would invest some time and a little money in
  the claim
• Mineral Leasing Act of 1920 and Mineral Leasing
  Act for Acquired Lands of 1947 restricted the
  previous land giveaway.
• Treatment for certain commodities such as oil,
  gas, coal, potash, and phosphate deposits became
  restricted
• Mine reclamation not seriously addressed until
  1977

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Federal land ownership
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Resource LawMineral and Fuel

• Mine Reclamation
• Surface Mining Control and Reclamation Act of
  1977 applied to coal only
• Intended to restore farmland and ground water
  flow once mining ceased
• Several states have enacted their own laws
  regulating mining within their boundaries
• No state has received financial returns form
  mineral extraction on federal lands
• However, states must contend with a variety of
  pollution problems that mining has produced

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International Resource Disputes

• Mineral claims at sea have often become issues of
  serious dispute
• Traditional 3 mile (5 km) territorial limits
  proved unsatisfactory as modern technology allows
  for deeper exploitation of many commodities
• 200 mile territorial limits were established but
  many small closely packed countries did not
  benefit

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International Resource Disputes

• Third United Nations Conference on the Law of the
  Sea (1982)
• Established a 12 mile territorial limit plus
  various navigational, fishing, and other rights
• Exclusive Economic Zones (EEZs)
• Established a 200 nautical mile exclusive mineral
  rights use zone
• A provision could allow a country to claim more
  continental shelf/ocean floor and extend their EEZ

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Exclusive Economic Zone of the United States
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Possible mineral and rock resources in EEZ of the
United States
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International Resource Disputes

• Antarctica has been claimed by many countries
  because of their respective exploration
  activities or geographic proximity
• Treaty of 1961 set aside all territorial claims
  by the signing countries other have signed on
  subsequently
• Convention for the Regulation of Antarctic
  Mineral Resources Activities (CRAMRA) in 1988
  established restrictive controls on Antarctica
  mineral exploration and extraction
• CRAMRA not fully accepted by U.S.
• U.S. passes Antarctic Protection Act of 1990 and
  encourages others to sign on
• U.S. EPA issues Environmental Impact Statement
  (EIS) rules on non-government activities such as
  scientific study and tourism in Antarctica

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Land Claims in Antarctica prior to the 1961 treaty
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Pollution and Its Control

• Do we have a right to a clean environment?
• Criminal Law requires legislation by Federal
  and State government
• Civil Law not so restrictive it has been the
  best route to seek justice in many cases

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Water Pollution

• Refuse Act of 1899 prohibited dumping or
  discharge of refuse in navigable water
• Federal Water Pollution Control Act of 1956
  focused on municipal waste treatment
• Water Quality Improvement Act of 1970 and Clean
  Water Act of 1977 addressed spills and chemical
  pollutants
• Subsequent legislative actions have modified many
  provisions of these laws but few major
  improvements, or overhauls, have occurred

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Air Pollution

• Clean Air Act of 1963 empowered federal
  agencies to undertake air pollution control
  efforts
• Amended in 1965 to allow national regulation of
  motor vehicle emissions
• Air Quality Act of 1965
• required air quality standards on known harmful
  effects of several air pollutants
• Goal was to protect and enhance the quality of
  the Nations air resources so as to promote the
  public health and welfare and the productive
  capacity of its population
• Clean Air Act Amendments (CAAA) of 1990 is more
  restrictive than previous act

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Waste Disposal

• Solid Waste Disposal Act of 1965 and Resource
  Conservation and Recovery Act (RCRA) of 1976
• Intended to help state and local governments deal
  with disposal of municipal solid wastes
• EPA monitors the compliance with these acts
• RCRA amended in 1984 - imposed new requirements
  on landfills and disposal sites banned disposal
  of toxic liquid waste at a landfill
• RCRA re-authorization of 1992 failed additional
  regulation for broader pollution controls and
  mining waste are needed
• Funding for identified toxic waste sites is
  needed to continue the work that the superfund
  program began

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U.S. Environmental Protection Agency

• Established in 1970 - responsible for
  establishment and enforcement of air and water
  quality standards requires testing and
  regulation of toxic chemical substances entering
  the environment
• Enforcement activities often limited by budgetary
  restrictions and political factors

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International Initiatives

• U.N. Convention to Combat Desertification of 1996
  addressed localized problems found around the
  world
• U.N. Framework Convention on Climate Change
  recognizes the role of CO2 and other greenhouse
  gases in global warming
• Encourages nations to report their CO2 emissions
• Encourages developed nations to assist developing
  nations to address increasing dumping of CO2 into
  the atmosphere

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International Initiatives

• Montreal Protocol on Substances that Deplete the
  Ozone Layer (of 1987)
• An attempt to have all nations recognize the need
  for international commitments to pollution
  control for everyone's benefit
• This effort represent a new movement, based on a
  precautionary principle, that international law
  and diplomacy must work to correct serious
  environmental problems
• Kyoto Protocol of 1997 an attempt to have
  industrialize nations agree to reduce
  greenhouse-gas emissions 5.2 below 1990 levels
  by 2008-2012
• U.S. expressed concerns over the economic impact
  of such a move and did not agree to these
  standards

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International Initiatives

• The U.N. has recognized, in the various protocols
  and attempts at creating international
  environmental law, that we all share the global
  environment
• Some nations contribute more to the various
  problems than do others
• The countries that create more of the harmful
  emissions can better afford to work to reduce
  their emissions and to assist the developing
  countries to reduce their emissions

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Cost-Benefit Analysis

• Our attempts to legislate economic treatments, or
  use of technology, resulted in more conflicts and
  enforcement problems
• Laws and legislation create a myriad of legal
  maneuver room so companies, countries, and
  individuals can escape their respective
  responsibility
• we lack the economic technology
• the science isnt clear
• It is too expensive
• there will be not benefit if we use this
  technology
• this clause will allow us to avoid our
  responsibility
• And other excuses
• In some cases it is cheaper to pay the fine than
  to correct the problem

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Components of EPAs risk-assessment process for
potential health hazards
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Cost-Benefit AnalysisFederal Government

• President Reagans Executive Order 12291 (in
  1981) allowed the following
• A (pollution control) regulation may be put forth
  only if the potential benefits to society
  outweigh the potential cost
• This in effect weakened such legislation as the
  Clean Air Act and the Clean Water Act

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Laws Relating to Geologic Hazards

• Laws, or zoning ordinances, restricting
  construction or establishing construction
  standards related to known geologic hazards have
  been opposed
• Investment concerns
• Development concerns
• Lack of understanding by the general public
• Construction controls and restrictive building
  standards in earthquake prone areas have
  experienced success
• Many California earthquakes, since the Long Beach
  earthquake of 1933 nearly destroyed that city,
  have not destroyed as much property as they could
  have
• San Fernando 1971
• Loma Prieta - 1989
• Northridge 1994

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Effects of improving building codes for
earthquake resistance
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Not All Hazard Responses Work

• Too many issues left to local officials to decide
  what is an acceptable risk for their
  communities
• Some laws apply only to new construction and
  allow schools to be built on flood plains or in
  seismically active areas
• Some legislation passes the fiscal risk on to all
  tax payers through federally funded insurance
  programs

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Hazard-mitigation legislation
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National Environmental Policy Act (NEPA)

• NEPA enacted in 1969 and established
  environmental protection - an important national
  priority
• Established the Council on Environmental Quality
  in the Executive Office of the President
• Established the requirements for Environmental
  Impact Statements (EIS)
• Applies only to federal projects
• many states have adopted EIS procedures and rules
  also

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Environmental Impact Statements

• NEPA specifies that an EIS should include
• A description of the proposed action, its
  purpose, and why it is needed
• A discussion of various alternatives (including
  the proposed action)
• An indication of the environment to be affected
  and the environmental consequences anticipated
• List of preparers of the statement and those
  agencies, organizations, or persons to whom
  copies of the statement are being sent

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Number of EISs
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Distribution of EIS filings with EPA in 1994
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Trans-Alaska pipeline
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Route of the Trans-Alaska pipeline and proposed
alternative means for transport of the oil