Environmental Law and Policy
Authors:
Salzman, James E. / Thompson Jr., Barton H.
Edition:
6th
Copyright Date:
2024
16 chapters
have results for environment
Chapter 3. The Practice of Environmental Protection 17 results (showing 5 best matches)
- The United States Constitution dictates what the federal and state governments can and cannot do in the environmental field. In this section, we explore the powers that the federal Congress can use to protect the environment, the states’ authority to regulate the environment on their own, the degree to which Congress and state legislatures can delegate decisions to expert administrative agencies like EPA, and the constitutional “takings” provisions that restrict the degree to which the federal and state governments can protect the environment by regulating private property.
- The National Environmental Policy Act, for example, requires the creation of an environmental impact statement for major federal actions significantly affecting the environment.
- Indian nations are also playing a growing role in managing the environment. The federal government currently recognizes over 570 U.S. Indian tribes, spread out over 35 of the continental states and Alaska. Many of these tribes govern “reservations” ranging in size from one acre to over 16 million acres. In total, reservations constitute some 56 million acres, an area slightly larger than the State of Minnesota. Politically, tribes are “domestic dependent nations” that exercise sovereign authority over their people, property, and activities subject to the power and responsibility of the United States. Increasingly, Indian nations want a significant role in protecting their environment.
- Do you agree that the proper level of environmental protection for air pollution and water pollution is fundamentally a political decision? If so, what does this mean about an ethical obligation to protect the environment?
- Can you think of some other P’s for environmental protection strategies? For starters, what about government Procurement or Public protest? What strategies might socially minded companies use to promote the environment?
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Chapter 2. Perspectives on Environmental Law and Policy 23 results (showing 5 best matches)
- Right to a Clean and Healthy Environment.
- Environmental law often reflects a strong, if not well elaborated, view that humans have a right to environmental protection. Even before the first Earth Day, Senator Gaylord Nelson of Wisconsin proposed an amendment to the United States Constitution in 1968 that would have recognized an “inalienable right to a decent environment” and required both the federal and state governments to “guarantee” that right. Nelson’s proposal and numerous other efforts to add an environmental right to the United States Constitution have failed. Yet both international law and the constitutions of a handful of states acknowledge rights to various environmental amenities. At the international level, the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment states the “common conviction” that people have a “fundamental right to freedom, equality, and adequate conditions of life, in an environment of a quality that permits a life of dignity and wellbeing,” as well as a “...
- To complicate matters further, people do not think about environmental options in the way that a classical economist would predict a “rational” person should. Everyone suffers from cognitive limitations and biases that affect our views about the environment and environmental policy. In some cases, these limitations and biases undercut efforts to reduce pollution and to protect the environment. In other cases, these limitations and biases lead us to overestimate environmental risks and to demand policy measures that may not be “rationally” justified.
- Rights arguments, moreover, do not always favor greater environmental protection. While environmental proponents argue that regulation is needed to protect people’s right to a healthy and livable environment or to protect biocentric or ecocentric rights, landowners often assert that regulations of their land use intrude on their property “rights.” Businesses, unions, and other economic interests argue that proposed regulations will interfere with “rights” of employment or the “rights” of a local community to determine for itself how to use local resources and determine its own future. Some of these “rights” have taken on international or constitutional dimensions. After announcing the fundamental environmental right quoted earlier in this section, the Stockholm Declaration of the United Nations Conference on the Human Environment also affirms the “sovereign right” of all nations to “exploit their own resources pursuant to their own environmental policies.”
- The earliest proposals for a constitutional guarantee of environmental rights typically stressed the rights of current humans to a healthy environment. But claims to environmental rights go considerably farther. For example, philosophers and ethicists have argued that future generations of humans also have rights to a livable environment and an equitable share of the Earth’s natural resources. Such rights would call for limiting the current exploitation of groundwater, petroleum, hard minerals, and other scarce resources and for regulating actions, like the emission of greenhouse gases or the storage of nuclear waste, that could have serious impacts in decades to come.
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Chapter 6. Global Air Pollution 5 results
- Lawsuits are also being brought in states with a constitutional provision for a healthy environment. In Montana, for example, youth plaintiffs successfully sued under the state’s guarantee of a “clean and healthful environment” to strike down a law limiting consideration of greenhouse gas emissions.
- been over the proven warming potential of gases or whether the greenhouse effect is “real.” If you have any doubts, look at Mars (where, because there is little atmospheric greenhouse effect, the planet is a frozen block of ice) or Venus (where there is a runaway greenhouse gas effect, making surface temperatures so hot that liquids vaporize and permanently cover the planet in clouds). The real debate concerns how much, at what rate, and where our planet will warm, and how such warming will affect human health and the environment.
- From today’s perspective, gaining broad international support for the strict control of ozone depleting substances perhaps seems inevitable, but in the mid-1980s the likelihood of international controls on CFCs, much less on halons or other substances, appeared slim indeed. To make sense of the Protocol’s development, one must keep clearly in mind how little was known with certainty at the time. As noted above, it was not until 1974 that Rowland and Molina first raised the potential role of CFCs in ozone depletion. With the advent of national laws in America and Scandinavia banning CFCs in aerosols in the late 1970s, in 1981 the United Nations Environment Program’s Governing Council gave approval to develop an international agreement to protect the ozone layer. The initiative was strengthened by the creation of the Ozone Trends Panel, an international group of scientists providing counsel to the policy makers on the significance of ozone depletion research.
- Anticipating the critical role that scientific consensus would play in building the political will to respond to climate change, the United Nations Environment Program (
- had held that EPA has no discretion to opt against issuing NAAQS in the face of an endangerment finding. How to set a NAAQS for greenhouse gases, though, poses a real challenge. A moment’s reflection makes clear that the scale of the greenhouse gas problem and the scale of the NAAQS/SIP structure provide a poor fit. Greenhouse gases are a global pollutant. In terms of the net effect on the environment, it makes little difference whether an emission comes from Durham, North Carolina, Palo Alto, California, or Kathmandu. Yet the whole structure of the CAA assumes both that it makes sense for the nation to set national air quality standards (through NAAQS)
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Chapter 1. An Introduction to Environmental Law and Policy 10 results (showing 5 best matches)
- The simplest definition of “environmental law and policy” might read: “the use of public authority to protect the natural environment and human health from the impacts of pollution and development.” While accurate, this definition suffers from two fatal flaws—(1) it’s deadly boring and (2) it fails to capture why environmental law matters.
- Instead, legal responses to pollution relied on the common law doctrines of trespass and nuisance. As described in Chapter 3, however, these legal remedies were retrospective, compensated only property losses, and required proof of proximate causation, often difficult to come by in pollution cases. Despite the obvious weaknesses of relying on the common law to protect the environment, there was very little national political concern over pollution through the first half of the 20th century. Following World War II, though, the nature of pollution began to change. In particular, the field of organic chemistry took off, with mass distribution and use of synthetic compounds such as plastics and many modern pesticides. Viewed as technological wonders (which these new compounds truly were), there was little understanding of their impacts on the environment or human health. While worth a chuckle when viewed
- The same era witnessed the birth of international environmental law. The UN-sponsored Stockholm Conference on the Human Environment in 1972 was the first gathering of the world’s heads of state for environmental protection. Creating the United Nations Environment Program, the Stockholm Conference launched a two-decade wave of international agreements, including the Convention on International Trade in Endangered Species (1972), the moratorium on whaling (1982), The Montreal Protocol on Ozone Depleting Substances (1987), and the Basel Convention on the Transfrontier Movement of Hazardous Wastes (1989), to name just a few.
- makes clear, however, despite their differences in emphasis, both fields share fundamental similarities and can usefully be viewed as protecting different aspects of the environment, whether clean air and water or species and their habitat.
- Wilderness holds a special place in the American consciousness. The stillness of a remote forest lake or the imposing crags of a mountain peak provide for many both a sense of connection to a larger world and a sense of inner wonder. Wilderness is also big business. It primes our economy through eco-tourists paying top dollar for trips to Antarctica, backpackers buying high-tech gear for hiking the Appalachian Trail, families enjoying Disneyworld’s Jungle Cruise, and even kids having birthday parties in the Rainforest Café. The environment holds a strong grip on our collective imagination and, as the above examples make clear, the marketplace provides a dizzying number of ways for us to enjoy a range of “wilderness experiences.”
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Chapter 8. Regulating Toxic Substances 7 results (showing 5 best matches)
- Worried that many new chemicals were escaping effective testing, Congress amended TSCA in 2016 to require more comprehensive testing. EPA must now regulate new chemicals if it concludes that it does not have adequate information to determine whether or not the chemical presents an “unreasonable risk” to human health or the environment.
- , Congress in the Lautenberg Act chose to change the TSCA decision-making standard. While EPA must still determine whether the use of a chemical product presents an “unreasonable risk of injury to health or the environment” before regulating a substance, the Lautenberg Act prohibits EPA from considering cost or other non-risk factors in making that determination. Cost comes into play only in deciding how to regulate the product.
- “unreasonable risk of injury to health or the environment.” If EPA determines that the use presents an “unreasonable risk,” it must restrict or regulate the manufacture or use of the product to eliminate the risk. If EPA determines that there is inadequate information to make a determination, it also must issue an order regulating the product to the degree needed to avoid an unreasonable risk.
- TRI), which it posts on its public website. The TRI data is picked up and reported by journalists and advocates for a safer environment.
- economically valuable? It may be tempting to respond that we should not add any substance to the environment that increases the overall risk of cancer or other serious health injuries. The natural world, however, is replete with health risks, and people often voluntarily assume additional risks in return for varied benefits. The food we eat contains far more naturally occurring carcinogens than synthetic carcinogens in the form of pesticides and other farm chemicals.
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Chapter 11. Energy 5 results
- Imagine that you are the Secretary of the Environment for your state, and the legislature has told you to establish a policy regarding fracking. Would you allow fracking to take place? If so, what restrictions would you impose? Would you allow local communities to regulate fracking in their areas? Should the federal government regulate fracking?
- RPS programs illustrate the potential conflict among the various goals of reducing reliance on traditional fossil fuels—a cleaner environment, energy independence, and a healthy economy. States differ as to what counts as a renewable energy source for purposes of their RPS programs. All sources exclude traditional fossil fuels. Some states, however, include only those sources that are likely to reduce carbon emissions (e.g., solar and wind power, as well as certain hydroelectric facilities), while other states include a number of other sources that, while reducing reliance on fossil fuels and thus
- , and then store or sequester it someplace where it is unlikely to escape into the environment, such as in deep geological formations. CCS is discussed most frequently as a way to capture and sequester carbon from large fossil-fuel power plants, but it can theoretically be used to reduce the carbon emissions from any large point source. One study has estimated that there is enough storage capacity in North America to sequester carbon emissions at current rates for more than 900 years. Proponents of CCS are also researching whether the captured CO
- 11-1, the vast majority of the energy used in the United States today comes from fossil fuels. Although renewable energy has grown dramatically in recent years, it still constitutes only about 10 percent of total energy use. Approximately a quarter of the electricity generated from renewable energy in the United States, moreover, comes from hydropower, which has very limited opportunity for growth. See Figure 11-3. Even existing hydroelectric dams face significant political opposition because of their impact on fish and other aspects of the environment. Policy makers interested in increasing the percentage of electricity generated from renewable energy therefore have focused their attention on solar, wind, and geothermal.
- ...cost competitive. While solar power currently generates only about 4 percent of electricity in the U.S., it is our largest potential energy resource, and its energy contribution is expected to grow dramatically with the continued development of more efficient energy technologies—particularly in the Southwest and Southeast where available sunlight is greatest. Indeed, solar generation of electricity in the U.S. doubled in only three years from 2019 to 2022. Three factors, however, limit its ultimate potential. First, solar power is intermittent (varying by the time of day, season, and cloud cover); growth in solar therefore depends on the development of more effective battery technology that can store solar power when it can be generated for use later. Second, a large surface area is needed to generate enough energy to be useful at large scales. Finally, solar can affect the environment. Large-scale solar facilities can impact local land uses and water resources, and photovoltaic...
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Chapter 12. The National Environmental Policy Act 12 results (showing 5 best matches)
- Significantly Affecting the Human Environment
- All agencies, whether environmental or not, can avoid NEPA compliance if the action is “categorically excluded”—that is, if categories of actions are specifically excluded in the agency’s approved NEPA procedures. CEQ allows federal agencies to exclude “categories of actions that normally do not have a significant effect on the human environment, and therefore do not require preparation of an environmental assessment or environmental impact statement.” An agency thus can determine for itself whether particular types of activities do not need NEPA analysis (although it might still need to prepare an EIS for a specific action where “extraordinary circumstances” suggest that the action might still have a significant effect on the environment).
- Both the district and circuit courts, however, refused to imply a private right of action for Noe to sue under NEPA. As the circuit court explained, NEPA does not provide any protections or prohibitions regarding private conduct. “NEPA does not even require the protection of the environment. NEPA requires only that, prior to beginning construction of a project likely to affect the environment, an environmental impact statement be produced so that the individuals responsible for making the decision to go ahead with or stop the project do so on a well-informed basis.”
- EIS) on “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.”
- NEPA is arguably the most influential federal environmental statute ever passed. NEPA applies not only when the federal government engages directly in an action that could impact the environment, but also when it approves, permits, or funds a state, local, or private action with environmental implications. As a result, federal agencies annually assess the environmental impacts of tens of thousands of actions. NEPA has also generated thousands of lawsuits, more than any other legislation. What purposes does this requirement serve, and why are litigants so eager to enforce it?
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Chapter 4. Enforcement 2 results
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)
- for example, ranchers and irrigation districts, upset by the Department of Interior’ decision to reduce their water deliveries because of endangered species concerns, filed a citizen suit under the Endangered Species Act (ESA) claiming that the department had failed to perform nondiscretionary duties—using the “best scientific data available” and considering the economic impact of designating a particular area as “critical habitat” for a species. Although a lower court held that the ranchers and districts did not have standing because the purpose of the ESA is to protect the environment, the Supreme Court reversed. The Court emphasized that the citizen suit provision grants a right to file a citizen suit to “any person” and found that Congress contemplated that industry groups might use the provision to avoid “overenforcement” of the law. By contrast, courts have sometimes rejected industry efforts to challenge federal regulations designed to improve the environment on the ground...
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Chapter 5. The Clean Air Act 3 results
- HAPs) are airborne chemicals that can harm human health or the environment. Adverse impacts can include cancer, neurological, respiratory, and reproductive effects. As with other air pollutants, the likelihood of harm depends both on the type and amount of exposure.
- These are known as “primary air quality standards.” As noted below, “secondary air quality standards” must be set at levels that protect property and the environment.
- Assume you are a lawyer for the environmental justice organization, Communities for a Better Environment (CBE). Would you support or oppose Rule 1610? Can you think of ways that this program might harm poor communities of color? How might the trading program prove inefficient in reducing absolute levels of pollution in the South Coast District? What specific changes would you recommend to improve the program’s effectiveness and fairness?
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Chapter 7. Water Pollution 1 result
- Some economists have argued that the federal government should impose a tax on water pollution, equivalent to the cost that the pollution imposes on the environment. Do you agree? Would this be a good approach to nonpoint pollution? To hydrological modifications? Would it be a better approach to point pollution than the current system of effluent limitations?
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- This is not to say that the ESA is not sometimes abused. Sometimes, for example, local groups opposed to a project because they simply don’t want it “in their backyard” will use the ESA to try to kill the project, even though they have no interest in the environment at all.
- ...bordering Tomales Bay in Northern California. When Marks threatened to fill and develop the tidelands, a neighboring property owner who would have lost access to the bay sued. The California Supreme Court held that, except in limited situations, the private owner of tidelands holds title subject to the state’s public trust. Any member of the public, moreover, can bring a lawsuit to enforce the public trust and enjoin actions that would violate the trust. Most importantly, the purposes of the public trust “are sufficiently flexible to encompass changing public needs.” According to the court, one of the most important purposes of the public trust today is to preserve tidelands “in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.” Marks therefore could not fill or develop the tidelands on...
- .... Under section 404(e) of the CWA, the Corps can issue general permits only if it determines that the authorized activities “are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” But in an effort to reduce administrative burdens on both it and applicants, the Corps often has pushed the limits of its authority to avoid full permitting review by issuing general permits. The most controversial general permit for many years was Nationwide Permit 26, which authorized the filling of up to three acres of isolated wetlands for commercial or residential purposes. Faced by mounting criticism that Nationwide Permit 26 was leading to significant cumulative reductions in wetland acreage, the Corps allowed the permit to expire in 2000, replacing it partly with Nationwide Permit 39, which authorizes the filling of only half an acre or less subject to significant...
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Chapter 9. Waste Management 9 results (showing 5 best matches)
- The interesting question that Congress did not clearly answer, though, was how to determine the pre-treatment standards for hazardous waste. RCRA provides that pre-treatment standards must “substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized.” Does this mean that the standards should aim to minimize the chances that any waste will ever migrate from landfills, pushing EPA to require the maximum treatment technologically possible? Or should the standards require pre-treatment only to the degree deemed sufficient to ensure that the waste is no longer hazardous to human health and the environment, even if greater treatment is feasible?
- CERCLA kicks in whenever there has been a “release” or a “substantial threat” of a release of a “hazardous substance” into the environment from a “facility.” As with all CERCLA provisions, these terms have been broadly defined and interpreted. “Release,” for example, has been defined to include “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment”
- Because lead is an expensive commodity, an industry has developed over the years to reclaim the lead from spent batteries. The smelters themselves pose major environmental threats through their surface water run-off and discharged effluent, on-site and off-site storage, and air pollution. Roughly 55,000,000 of the available 70,000,000 batteries were reclaimed, the source for 60% of all lead used in the United States. But this left 15,000,000 un-reclaimed spent batteries, potentially endangering the health of people and the environment near the site of their disposal.
- The definition of “hazardous substance” is likewise very broad. Going beyond RCRA, it includes almost any substance considered hazardous under another pollution statute as well as substances that EPA determines “may present an imminent and substantial danger to the public health or environment.”
- Consider, too, the challenge posed by recycling. One of RCRA’s goals is to encourage recycling. This not only reduces the amount of waste destined for disposal, but also reduces the amount of raw materials needed for production, as well. By converting waste into an input for manufacturing, recycling lessens the environmental impacts of synthesis and production of virgin materials. Set against this, though, are the legislative goals of protecting the environment from hazardous substances and not interfering with the production process. While often held out as a wonderful and blessedly green activity, recycling can be a dirty business, creating significant waste itself. Indeed, several recycling facilities later transformed into contaminated Superfund sites.
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Preface 1 result
- The past five years have seen significant activity in the environmental field, with major changes made by the Trump administration countered by efforts of the Biden administration to roll these back and institute their own policy changes. The 2024 presidential campaign is underway as this book goes to press so we do not know which path the field will next take, what policy objectives will be pursued, or the ultimate shape of policy initiatives. The only certainty is that environmental protection will remain a highly contentious and dynamic field. The new edition of this book continues to focus on the issues that will be relevant whoever is president and however today’s highly partisan political environment challenges environmental decision making.
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- Publication Date: August 22nd, 2024
- ISBN: 9781685615727
- Subject: Environmental Law
- Series: Concepts and Insights
- Type: Hornbook Treatises
- Description: Environmental Law and Policy is a user-friendly, concise, affordable treatment of environmental law. Written to be highly readable and enjoyable rather than a dry reference source, the book provides a broad conceptual overview of environmental law while also explaining the major statutes and cases. The book includes multiple problem exercises, describing a legal or policy conflict in detail and asking students to identify and assess solutions. The new edition is fully updated to include policy initiatives of the Biden Administration, important recent Supreme Court decisions through the 2023-2024 term (Sackett, Loper Bright Enterprises, Jarkesy, Cedar Point Nursery), and the emerging role of Native American tribes in environmental law. The first part of the book provides an engaging discussion of the major themes and issues that cross-cut environmental law, including a new problem exercise on the Rights of Nature. The second part of the book examines the substance of environmental law, with separate sections on each of the major statutes. The third part of the book discusses important issues of natural resources law, including the public trust doctrine, endangered species conservation, wetlands protection, and energy issues. Part four addresses environmental impact statements and the National Environmental Policy Act. The book is one of the most widely adopted environmental texts not only in law schools but in both undergraduate and graduate classes.
