From the air we breathe to the water we drink, to our delicate ecosystem, our environment plays an important role in everyone’s life.  However, our natural resources weren’t always protected.  Around 50 years ago, President Nixon and a Democratic Congress passed laws that changed the everyday experience of nearly everyone living in the U.S.  These laws sought to restrict toxic air pollution, clean up hundreds of waterways, and erect a permanent, federally empowered Environmental Protection Agency.  Most of these laws, including the Clean Air Act of 1970, and the Clean Water Act of 1972, remain in place today.  Since then, many more environmental laws have also been passed, including at the state and local levels.

What is Environmental Law?

Environmental law is the collection of laws, regulations, agreements, and common law that governs how humans interact with their environment.  It is designed to protect the environment and create rules for how people can use natural resources.  The goals for environmental law are not just to protect the environment, but also to determine who can use natural resources and the terms for the usage.  Environmental laws may regulate air quality, water quality, waste management, contaminant cleanup, chemical safety, mineral harvesting, hunting, fishing, etc. Much of environmental law enforcement takes place through administrative law.  Administrative law is the body of law that regulates the operation and procedures of governmental agencies. For example, the EPA investigates a violation and brings an administrative action to their officials.  Attorneys represent the EPA at these hearings, and they represent the people and corporations who are accused of violating the rules.  If the parties are found to be responsible for violating the rules, they may appeal the decision to the courts.  Most environmental violations are civil offenses, but there may be criminal penalties for serious offenders.

Sources of Environmental Law

Environmental laws originate from several places.  Most federal regulations are from the EPA.  One will find many of the EPA regulations in Title 40 of the Code of Federal Regulations.  The EPA uses its Office of Enforcement and Compliance Assurance to enforce its regulations.  Other federal departments that regulate the environment include the Bureau of Land Management, the U.S. Forest Service, the U.S. Fish, and Wildlife Service, and the National Park Service.

Command-and-Control

Most environmental law falls into a general category of laws known as “command-and-control.”  This type of regulation allows policymakers to specifically regulate both the amount and the process by which a firm should maintain the quality of the environment.  These laws typically involve three elements:

1)  Identification of a type of environmentally harmful activity

2)  Imposition of specific conditions of standards on that activity

3)  Prohibition of forms of activity that fail to comply with the imposed conditions or standards

There are, however, some flaws with command-and-control environmental regulation:

A)  Command-and-control regulation offers no incentive to improve the quality of the environment beyond the standard set by a particular law.  This means that once the regulation has been satisfied, polluters have no incentive to do better.

B)  By many, command-and-control regulation is viewed as inflexible.  The regulation usually requires the same standard for all polluters, and often the same pollution-control technology.  In other words, there is no distinction between entities that would find it easy and inexpensive to meet the pollution standard (or to further reduce pollution) and entities that might find it difficult and costly to meet the standard.

C)  Command-and-control regulations are written by legislators and the EPA, so they are subject to political compromises.  For example, a big corporation can successfully lobby that stricter environmental standards should not apply to them, but only to new companies that wish to start production.  Unfortunately, environmental laws are full of loopholes and exceptions.

Environmental Assessments Mandate

Unlike command-and-control regulations, mandated environmental assessments protect the environment by increasing the quality and quantity of publicly available information on the environmental consequences of contemplated actions.  This information potentially improves the decision-making of government officials and increases the public’s involvement in the creation of environmental policy.  These mandates perform three functions:

1)  Identification of a level or threshold of potential environmental impact at which a contemplated action is significant enough to require the preparation of an assessment.

2)  Establishment of specific goals for the assessment mandated.

3)  Setting of requirements to ensure that the assessment will be considered in determining whether to proceed with the action as originally contemplated or to pursue an alternative action.

Economic Incentives

Rather than policymakers using traditional regulatory approaches (like command-and-control), they may instead utilize economic incentives or market-based policies for environmental protection.  These policies rely on market forces to correct producer and consumer behavior.  These incentives may include pollution taxes, subsidies for clean technologies and practices, as well as tax-subsidy combinations.

Set-Aside Schemes

Another method of environmental protection is the practice of setting aside certain lands and waters in their natural state.  In the U.S., most federally-owned land can only be developed with the approval of a federal agency.

Disadvantages of Environmental Law

While no one would argue that our environment should be cared for, environmental regulation can also cause undesirable economic consequences.  Environmental laws can impose regulations without considering their impacts on local communities.  This can lead to a loss of jobs.  New regulations can also lead to higher taxes.

I’m Here to Help, I’m Rob Robinson.  As a 5th generation Floridian, I have been practicing law in Florida for over 30 years.  I understand that environmental laws can affect landowners and business owners alike.  Environmental law is complex and in some instances, vague.  Interpreting the numerous regulations can be confusing and leave some frustrated by the lack of clear-cut definitions. If you need innovative strategies to solve your environmental challenges, please don’t hesitate to contact my law office.  I will always work hard to help you effectively manage environmental risks, comply with environmental laws, and address environmental contamination.