Environmental Law

Environmental LawEnvironmental Law

Chapter 19Chapter 19

Resource LawResource LawWaterWater

Surface Water LawSurface Water Law Navigable streams are treated as Navigable streams are treated as

community propertycommunity property Individual ownership not allowedIndividual ownership not allowed Water rights are allowedWater rights are allowed

Riparian Doctrine Riparian Doctrine – – who ever owns land who ever owns land adjacent to a streaadjacent to a stream has a right to use that m has a right to use that waterwater; ; more applicable to humid eastern more applicable to humid eastern U.S.U.S.

Doctrine of Prior Appropriation Doctrine of Prior Appropriation –– first first user of the water has top priorityuser of the water has top priority; more ; more applicable to arid western U.S.applicable to arid western U.S.

Distribution of underlying principles of Distribution of underlying principles of surface-water lawsurface-water law

Resource Law Resource Law WaterWater

Groundwater LawGroundwater Law More complex than surface water lawMore complex than surface water law

Rule of Capture Rule of Capture ((English RuleEnglish Rule)) Property owners have the right to extract all Property owners have the right to extract all

the groundwater from under their propertythe groundwater from under their property Lateral movement of ground water is ignoredLateral movement of ground water is ignored

Rule of Reasonable Use Rule of Reasonable Use ((American RuleAmerican Rule))

Property owners are limited to extract ground Property owners are limited to extract ground water for beneficial use in connection with the water for beneficial use in connection with the land above. Extraction of ground water should not land above. Extraction of ground water should not be so great that it deprives a neighbor of their be so great that it deprives a neighbor of their ground water.ground water.

Issues have been argued about what constitutes Issues have been argued about what constitutes ‘‘beneficial usebeneficial use’’

Problems with invisibility of ground water has Problems with invisibility of ground water has created numerous legal conflictscreated numerous legal conflicts

Distribution of underlying principles Distribution of underlying principles of groundwater lawof groundwater law

Resource LawResource LawMineral and FuelMineral and Fuel

In U.S. original laws were meant to encourage In U.S. original laws were meant to encourage the exploitation of natural resourcesthe exploitation of natural resources 1872 Mining Law1872 Mining Law

Granted mineral rights, and often land title, to anyone Granted mineral rights, and often land title, to anyone locating a mineral deposit on federal land and would locating a mineral deposit on federal land and would invest some time and a little money in the ‘invest some time and a little money in the ‘claim’claim’

Mineral Leasing Act of 1920 and Mineral Leasing Mineral Leasing Act of 1920 and Mineral Leasing Act for Acquired Lands of 1947Act for Acquired Lands of 1947 – restricted the – restricted the previous land giveaway.previous land giveaway.

Treatment for certain commodities such as oil, gas, coal, Treatment for certain commodities such as oil, gas, coal, potash, and phosphate deposits became restrictedpotash, and phosphate deposits became restricted

Mine reclamation not seriously addressed until Mine reclamation not seriously addressed until 19771977

Federal land ownershipFederal land ownership

Resource LawResource LawMineral and Fuel Con’t.Mineral and Fuel Con’t.

Mine ReclamationMine Reclamation Surface Mining Control and Reclamation Surface Mining Control and Reclamation

Act of 1977 – applied to coal onlyAct of 1977 – applied to coal only Intended to restore farmland and ground water Intended to restore farmland and ground water

flow once mining ceasedflow once mining ceased Several states have enacted their own laws Several states have enacted their own laws

regulating mining within their boundariesregulating mining within their boundaries No state has received financial returns from No state has received financial returns from

mineral extraction on federal landsmineral extraction on federal lands However, states must contend with a variety of However, states must contend with a variety of

pollution problems that mining has producedpollution problems that mining has produced

International Resource International Resource DisputesDisputes

Mineral claims at sea have often become Mineral claims at sea have often become issues of serious disputeissues of serious dispute

Traditional 3 mile (5 km) territorial limits Traditional 3 mile (5 km) territorial limits proved unsatisfactory as modern proved unsatisfactory as modern technology allows for deeper exploitation technology allows for deeper exploitation of many commoditiesof many commodities

200 mile territorial limits 200 mile territorial limits were established were established but many small closely packed countries but many small closely packed countries did not benefitdid not benefit

International Resource DisputesInternational Resource DisputesContinuedContinued

Third United Nations Conference on the Third United Nations Conference on the Law of the Sea (1982)Law of the Sea (1982)

Established a Established a 12 mile 12 mile territorial limit territorial limit plus plus various navigational, fishing, and other rightsvarious navigational, fishing, and other rights

Exclusive Economic ZonesExclusive Economic Zones ( (EEZEEZss)) Established a Established a 200 nautical mile 200 nautical mile exclusive exclusive

mineral rights use zonemineral rights use zone A provision could allow a country to claim A provision could allow a country to claim

more continental shelf/ocean floor and more continental shelf/ocean floor and extend their EEZextend their EEZ

Exclusive Economic Zone of the United StatesExclusive Economic Zone of the United States

Possible mineral and rock resources Possible mineral and rock resources in in EEZ EEZ of the United Statesof the United States

International Resource DisputesInternational Resource Disputescontinuedcontinued

Antarctica – has been claimed by many Antarctica – has been claimed by many countries because of their respective countries because of their respective exploration activities or geographic proximityexploration activities or geographic proximity Treaty of 1961 Treaty of 1961 set aside all territorial claims by the set aside all territorial claims by the

signing countries; other have signed on signing countries; other have signed on subsequentlysubsequently

Convention for the Regulation of Antarctic Mineral Convention for the Regulation of Antarctic Mineral Resources Activities (Resources Activities (CRAMRA) CRAMRA) in 1988 established in 1988 established restrictive controls on Antarctica mineral restrictive controls on Antarctica mineral exploration and extractionexploration and extraction

CRAMRA CRAMRA not fully accepted by U.S.not fully accepted by U.S. U.S. passes Antarctic Protection Act of 1990 U.S. passes Antarctic Protection Act of 1990 and and

encourages others to sign onencourages others to sign on U.S. EPA issues U.S. EPA issues Environmental Impact Statement (EIS) Environmental Impact Statement (EIS)

rules on non-government activities such as scientific study rules on non-government activities such as scientific study and tourism in Antarcticaand tourism in Antarctica

Land Claims in Antarctica Land Claims in Antarctica prior to the 1961 prior to the 1961 treatytreaty

Pollution and Its ControlPollution and Its Control

Do we have a right to a clean Do we have a right to a clean environment?environment?

Criminal Law Criminal Law – – requires legislation by requires legislation by Federal and State governmentFederal and State government

Civil Law Civil Law – – not so restrictive; it has been the not so restrictive; it has been the best route to seek justice in many cases best route to seek justice in many cases

Water PollutionWater Pollution

Refuse Act of 1899 Refuse Act of 1899 – prohibited dumping or – prohibited dumping or discharge of refuse in navigable waterdischarge of refuse in navigable water

Federal Water Pollution Control Act of 1956 Federal Water Pollution Control Act of 1956 – focused on municipal waste treatment– focused on municipal waste treatment

Water Quality Improvement Act of 1970 and Water Quality Improvement Act of 1970 and Clean Water Act of 1977Clean Water Act of 1977 ––

addressed spills and chemical pollutantsaddressed spills and chemical pollutants Subsequent legislative actions have Subsequent legislative actions have

modified many provisions of these lawsmodified many provisions of these laws but but few major improvements, or overhauls, few major improvements, or overhauls, have occurredhave occurred

Air PollutionAir Pollution Clean Air Act of 1963 Clean Air Act of 1963 – empowered – empowered

federal agencies to undertake air pollution federal agencies to undertake air pollution control effortscontrol efforts Amended in 1965 to allow national regulation Amended in 1965 to allow national regulation

of motor vehicle emissionsof motor vehicle emissions Air Quality Act of 1965Air Quality Act of 1965

required air quality standards on known required air quality standards on known harmful effects of several air pollutantsharmful effects of several air pollutants

Goal was to “Goal was to “protect and enhance the quality protect and enhance the quality of the Nation’s air resources so as to promote of the Nation’s air resources so as to promote the public health and welfare and the the public health and welfare and the productive capacity of its populationproductive capacity of its population””

Clean Air Act Amendments (CAAA) of 1990 Clean Air Act Amendments (CAAA) of 1990 is is moremore restrictive than previous act restrictive than previous act

Waste DisposalWaste Disposal Solid Waste Disposal Act of 1965 and Solid Waste Disposal Act of 1965 and

Resource Conservation and Recovery Act Resource Conservation and Recovery Act (RCRA) (RCRA) of 1976of 1976 Intended to help state and local governments Intended to help state and local governments

deal with disposal of municipal solid wastesdeal with disposal of municipal solid wastes EPA monitors EPA monitors the compliance with these actsthe compliance with these acts RCRA amended in 1984 RCRA amended in 1984 - - imposed new imposed new

requirements on landfills and disposal requirements on landfills and disposal sites; banned disposal of toxic liquid waste sites; banned disposal of toxic liquid waste at a landfillat a landfill

RCRA re-authorization of 1992 RCRA re-authorization of 1992 failedfailed – – additional regulation for broader pollution controls additional regulation for broader pollution controls and mining waste are neededand mining waste are needed Funding for identified toxic waste sites is needed Funding for identified toxic waste sites is needed

to continue the work that the superfund program to continue the work that the superfund program beganbegan

U.S. Environmental Protection AgencyU.S. Environmental Protection Agency

EPA:Established in 1970 EPA:Established in 1970 - - responsible for establishment and responsible for establishment and enforcement of air and water quality enforcement of air and water quality standards; requires testing and standards; requires testing and regulation of toxic chemical regulation of toxic chemical substances entering the environmentsubstances entering the environment

Enforcement activities often Enforcement activities often limited by limited by budgetary restrictions and political budgetary restrictions and political factorsfactors

International InitiativesInternational Initiatives

U.N. Convention to Combat Desertification of U.N. Convention to Combat Desertification of 19961996 – addressed localized problems found – addressed localized problems found around the worldaround the world

U.N. Framework Convention on Climate U.N. Framework Convention on Climate Change recognizes the role of COChange recognizes the role of CO22 and other and other greenhouse gases in global warminggreenhouse gases in global warming Encourages nations to report their COEncourages nations to report their CO2 2 emissionsemissions Encourages developed nations to assist Encourages developed nations to assist

developing nations to address increasing dumping developing nations to address increasing dumping of COof CO22 into the atmosphere into the atmosphere

International InitiativesInternational Initiativescontinuedcontinued

Montreal Protocol Montreal Protocol on Substances that on Substances that Deplete the Ozone Layer (of Deplete the Ozone Layer (of 19871987)) An attempt to have all nations recognize the need for An attempt to have all nations recognize the need for

international commitments to pollution control for international commitments to pollution control for everyone's benefiteveryone's benefit

This effort represent a new movement, based on a This effort represent a new movement, based on a precautionary principleprecautionary principle, that international law and , that international law and diplomacy must work to correct serious diplomacy must work to correct serious environmental problemsenvironmental problems

Kyoto Protocol of 1997Kyoto Protocol of 1997 – – an attempt to have an attempt to have industrialize nations agree to reduce greenhouse-industrialize nations agree to reduce greenhouse-gas emissions 5.2% below 1990 levels by 2008-gas emissions 5.2% below 1990 levels by 2008-20122012 U.S.U.S. expressed concerns over the economic impact of expressed concerns over the economic impact of

such a move and such a move and did not agree did not agree to these standardsto these standards

International InitiativesInternational Initiativescontinuedcontinued

The U.N. has recognized, in the various The U.N. has recognized, in the various protocols and attempts at creating protocols and attempts at creating international environmental law, that international environmental law, that we all share the global environmentwe all share the global environment Some nations contribute more to the Some nations contribute more to the

various problems than do othersvarious problems than do others The countries that create more of the The countries that create more of the

harmful emissions can better afford to harmful emissions can better afford to work to reduce their emissions and to work to reduce their emissions and to assist the developing countries to reduce assist the developing countries to reduce their emissionstheir emissions

Cost-Benefit AnalysisCost-Benefit Analysis Our attempts to legislate economic Our attempts to legislate economic

treatments, or use of technology, resulted in treatments, or use of technology, resulted in more conflicts and enforcement problemsmore conflicts and enforcement problems

Laws and legislation create a myriad of legal Laws and legislation create a myriad of legal maneuver room so companies, countries, maneuver room so companies, countries, and individuals can escape their respective and individuals can escape their respective responsibilityresponsibility ‘‘we lack the economic technology’we lack the economic technology’ ‘‘the science isn’t clear’the science isn’t clear’ ‘‘It is too expensive’It is too expensive’ ‘‘there will be not benefit if we use this technology’there will be not benefit if we use this technology’ ‘‘this clause will allow us to avoid our this clause will allow us to avoid our

responsibility’responsibility’ And other excusesAnd other excuses

Unfortunately; In some cases it is cheaper to Unfortunately; In some cases it is cheaper to pay the fine than to correct the problempay the fine than to correct the problem

Components of EPA’s risk-assessment process Components of EPA’s risk-assessment process for potential health hazardsfor potential health hazards

Cost-Benefit AnalysisCost-Benefit AnalysisFederal GovernmentFederal Government

President Reagan’s Executive Order President Reagan’s Executive Order 12291 (in 1981) allowed the 12291 (in 1981) allowed the following:following: A (pollution control) regulation may A (pollution control) regulation may

be put forth only if the potential be put forth only if the potential benefits to society outweigh the benefits to society outweigh the potential costpotential cost

This This in effect weakened such in effect weakened such legislation as the Clean Air Act legislation as the Clean Air Act and the Clean Water Actand the Clean Water Act

Laws Relating to Geologic HazardsLaws Relating to Geologic Hazards Laws, or zoning ordinances, restricting Laws, or zoning ordinances, restricting

construction or establishing construction construction or establishing construction standards related to known geologic standards related to known geologic hazards have been hazards have been opposed opposed due to :due to : Investment concernsInvestment concerns Development concernsDevelopment concerns Lack of understanding by the general publicLack of understanding by the general public

Construction controls and restrictive Construction controls and restrictive building standards in earthquake prone building standards in earthquake prone areas have experienced success:areas have experienced success: Many California earthquakes, since the Long Many California earthquakes, since the Long

Beach earthquake of 1933 nearly destroyed that Beach earthquake of 1933 nearly destroyed that city, have not destroyed as much property as city, have not destroyed as much property as they could have:they could have:

San Fernando – 1971San Fernando – 1971 Loma Prieta - 1989Loma Prieta - 1989 Northridge – 1994Northridge – 1994

Effects of improving building codes for Effects of improving building codes for earthquake resistanceearthquake resistance

National Environmental Policy Act National Environmental Policy Act (NEPA)(NEPA)

NEPA enacted in 1969 and established NEPA enacted in 1969 and established environmental protection - an important environmental protection - an important national prioritynational priority

Established the Established the Council on Environmental Council on Environmental Quality in the Executive Office of the Quality in the Executive Office of the PresidentPresident

Established the requirements for Established the requirements for Environmental Impact Statements Environmental Impact Statements (EIS)(EIS)

Applies only to federal projectsApplies only to federal projects many states have adopted EIS procedures and many states have adopted EIS procedures and

rules as wellrules as well

Environmental Impact StatementsEnvironmental Impact Statements(EIS)(EIS)

NEPA specifies that an EIS should include:NEPA specifies that an EIS should include:

1. A description of the proposed action, its 1. A description of the proposed action, its purpose, and why it is neededpurpose, and why it is needed

2. A discussion of various alternatives 2. A discussion of various alternatives (including the proposed action)(including the proposed action)

3. An indication of the environment to be 3. An indication of the environment to be affected and the environmental affected and the environmental consequences anticipatedconsequences anticipated

4. List of preparers of the statement and those 4. List of preparers of the statement and those agencies, organizations, or persons to whom agencies, organizations, or persons to whom copies of the statement are being sentcopies of the statement are being sent

Number of EISsNumber of EISs

Distribution of EIS filings with EPA in 1994 Distribution of EIS filings with EPA in 1994

Trans-Alaska pipelineTrans-Alaska pipeline

Route of the Trans-Alaska pipeline and proposed Route of the Trans-Alaska pipeline and proposed alternative means for transport of the oilalternative means for transport of the oil