Environmental Law
Environmental Law
“If the law supposes that, then the law is a ass, a idiot!”
- Oliver Twist
Environmental Law
What do you have, when you have a lawyer up to his neck in cement?
Environmental Law
What do you have, when you have a lawyer up to his neck in concrete?
Not enough concrete.
Environmental Law
The American judicial system has its roots in our heritage of being a former English colony and is base upon English common law
The essence of English common law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent (stare decisis) to the facts before them
Environmental Law We will briefly look at several legal topics
Water rights
Mineral rights
International treaties and protocols
Controlling pollution
EPA
Cost-benefit analysis
Geologic hazards
Environment impact statements
First, you need to understand that the basic principals (laws) governing water rights vary not only from nation to nation, but also from place to place within a single country
In the U.S., navigable rivers and streams are under the jurisdictions of the federal and state governments
Water Rights
Water RightsThe concept is that a navigable river or stream is owned by all and is to be used for the common good
However, while one may not own the stream, you may be able to own or use the water
In the U.S., there are two principal approaches to surface water rights
Riparian Doctrine
Doctrine of Prior Appropriations
Surface Water RightsThe essence of the Riparian Doctrine is that whoever owns land adjacent to a body of water has a right to use that water and that all those bordering on a given body of water have and equal right to that water
This was long the basis for English surface water use
This concept works if water is plentiful
Surface Water Rights
The Riparian Doctrine became the basis for assigning water rights in the eastern U.S., where water is plentiful
Implicit in this principal is that no one water user rights should interfere with all of the other users rights
Provisions in the law also generally require that the water must be used for “natural purposes” or “beneficial use” and that the water be returned to the body where it came from
Surface Water RightsIn most of the western U.S., where surface water is in short supply, the prevailing doctrine is that of Prior Appropriation
Under this doctrine, whoever historically used the water first has top-priority rights to that water
Later users of that same water have subordinate rights, in the order in which they began to use it
Surface Water RightsUnlike the Riparian Doctrine in which you must own the land adjacent to the body of water, a Prior Appropriation user does not have to own land bordering on the water
The user may divert the water to elsewhere for “beneficial use”
In times of water shortage, a clear pecking order has been established
Surface Water RightsThe devil lies in the details
What constitutes “natural purposes” or beneficial use”?
Certainly municipal water supply, hydroelectric power generation, irrigation, watering livestock and navigation are recognized as beneficial uses
But what about watering your lawn, or filling a swimming pool or recreation?
Surface Water RightsDistribution of legal principals of surface-water rights in the U.S.
Groundwater Rights
Groundwater laws are at best confusing and varied across the U.S.
Most groundwater laws were established long before the hydrologic cycle was understood or it was realized that water moves laterally beneath the surface
The old English Rules of Capture gives property owners the right to use all of the groundwater that they can extract from under their land
Groundwater Rights
The American Rule of Reasonable Use imposes two major limitations on a property owners use of groundwater
The water use must be beneficial in connection with the land
One property owner cannot deprive an another property owner access to the water
Groundwater Rights
The states of California and New Jersey use Correlative Rights to divide the use of groundwater
The concept is that each land owner has rights to groundwater proportional to the area of their land overlying an aquifer
Groundwater RightsThere are four major legal principals that define the use of groundwater in the U.S.
Mineral RightsThe fundamental legislation that establishes mineral rights on federal land is the 1872 Mining Law
Yes, 1872
The clear intent of this law is to encourage the exploitation of mineral resources on federal lands by granting full mineral rights and even ownership of the land to anyone who locates a mineral deposit
Mineral RightsUnder the Mining Law, any federal land could be purchase for $2.50 to $5.00 per acre (and these prices are still in effect 135 years later)
There are no royalties or fees
The style of the mining is not regulated nor are there any provision for reclamation
Mineral Rights
Two subsequent laws, passed in 1922 and 1947 began to restrict this giveaway
Certain resources, such as oil, gas, coal, potash and phosphate deposits were singled out for different treatment
For these resources, there was unlimited rights of exploration
However, extraction rights had to be leased from the federal government and a royalty paid for extracting the resources
For all other minerals, nothing changed
Mineral Rights
In 1953, these same new provisions were extended to cover extracting these resources offshore
This was primarily aimed at coastal oil and gas deposits in California and the Gulf
Otherwise, all attempts to change the 1872 Mining Law have failed
Exclusive Economic ZonesHistorically, nations bordering the sea claimed territorial limits that extended 3 nautical miles from their coastline into the oceans
With the realization that valuable resources (such as oil and gas) lay beneath the continental shelf, several nations unilaterally extended their territorial limits out to 150 or 200 nautical miles, or even more
In 1982, The U.N. Law of the Sea Treaty attempted to bring some order to the chaos
Territorial limits were set at 12 nautical miles
An Exclusive Economic Zone (EEZ) was created that extends out 200 nautical miles
Exclusive Economic Zones
For many countries, this 200 nautical miles extends far past their continental shelves
For example, the EEZ for Mexico reaches the abyssal plains and rich manganese nodule deposits
Saudia Arabia and the Sudan have rights to the metal-rich-muds in the Red Sea
Exclusive Economic ZonesExclusive Economic Zones give nations exclusive rights to mineral exploration and exploitation
Exclusive Economic Zones
The Exclusive Economic Zone of the U.S. covers 3.9 billion acres
Exclusive Economic Zones
Antarctic Dispute
Prior to 1960, seven countries (Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom) had lay claims to sizable portion of the Antarctic
The rest of the world did not recognize these claims
In 1961, those 7 nations, plus 5 other nations actively conducting research and exploration, signed a treaty and agreed to the following:
To set aside all territorial claims to the Antarctica
The whole continent should remain open
Military activities, weapons testing and nuclear-waste disposal were banned
Every effort should be made to preserve the distinctive Antarctic flora and fauna
Antarctic Dispute
In 1988, a convention was offered concerning the mineral resources of the region
No prospecting, exploration or development could occur without prior assessment
Mineral-resource development would require unanimous consent
20 years later, this is still being “discussed”
Meanwhile, in 1990, the U.S. passed a law forbidding mineral prospecting or development in the Antarctic by U.S. citizens
Antarctic Dispute
International Treaties & Protocols
The later half of the 20th century saw a rapid rise in international treaties relating to the environment
Many of these accords reflect a new concept in international law and diplomacy, the precautionary principle
The idea is that if there is a reasonable likelihood that certain actions may result in serious harm, they may be restrained before great damage is done
International Treaties & Protocols
A second principle of international law is the common but differentiated responsibility of states (nations)
The idea is that the nations causing more pollution and having more money are expected to do more and contribute more to the clean up
International Treaties & Protocols
The 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change is an amendment to the international treaty on climate change, assigning mandatory emission limitations for the reduction of greenhouse gas emissions to the signatory nations
International Treaties & Protocols
Kyoto Protocol
A major component of the Kyoto Protocol is a commitment by industrial nations to reduce their greenhouse-gas emissions by 5.2% below 1990 levels by 2012
The pie chart show the amount of reductions needed from various nations
Kyoto ProtocolAs of December 2006, a total of 169 countries and other governmental entities have ratified the agreement
Kyoto ProtocolIn 2001, the United States Government unilaterally abandoned the Kyoto Protocol
(In fact, the U.S. greenhouse-gas emissions rose by 16% from 1990 to 2001)
Controlling Pollution
The U.S, government (and state governments too) have the legal right to promote the general welfare by enacting legislation to restrict the spread of toxic and harmful substances
These legislations cover 3 broad categories
Water pollution
Air pollution
Waste disposal
Controlling Pollution
Water pollution was the first type of pollution addressed by the federal government
The refuse Act of 1899 prohibited dumping or discharging refuse into any body of navigable water
It essentially was never enforced
Controlling Pollution
In succeeding decades, stricter and more specific anti-water-pollution laws were passed
The Federal Water Pollution Control Act of 1956 focused on municipal sewage treatment
Controlling Pollution
The much broader Water Quality Improvement Act of 1970 and the important Clean Water Act of 1977 seriously addressed oil spills and chemical pollution, plus required sewage-treatment facilities to undertake secondary treatment by 1983
After heavy lobbying by big business, the Clean Water Act was allowed to lapse
Controlling PollutionThe Clean Air Act of 1963 was the first legislation to seriously empower federal agencies to undertake air-pollution-control efforts
It was amended in 1965 to specifically address automotive exhaust emissions
And was reauthorized in 1990
Controlling PollutionThe Clean Air Act also requires the reduction of CFCs and other compounds dangerous to the ozone
In fact, it provides for the reduction of nearly 200 airborne pollutants by industry
Controlling PollutionA series of federal legislations were passed in 1965, 1976 and 1984 that were originally designed to help state and local governments dispose of municipal solid wastes
Controlling PollutionHowever, it soon become apparent that the safe disposal of dangerous and toxic solid wastes should be given priority
By 1984, 100,000 companies that produce toxic solid wastes were subjected to regulation
EPAThe Environmental Protection Agency (EPA) is an agency of the federal government of the United States charged with protecting human health and with safeguarding the natural environment, air, water, and land
The EPA began operation on December 2, 1970, when it was established by President Richard Nixon
EPAThe EPA comprises 18,000 people in headquarters program offices, 10 regional offices, and 17 laboratories across the country
The EPA employs a highly educated, technically trained staff, more than half of whom are engineers, scientists, and environmental protection specialists, while others are legal, public affairs, financial, and computer specialists
EPA headquarters in Washington, D.C.
EPAThe EPA is led by its Administrator, who is appointed by the President of the United States and the position has become highly politicized
Stephen Johnson EPA Administrator under Bush was accused of favoring Big Business over enforcement
Lisa Jackson is charged with taking enforcement to extremes not authorized by law
EPA
It is the EPA’s responsibility to set standards for permissible concentrations and emissions of contaminates
Defining StandardsDefining pollution standards and has proven to be complicated
Given the number and variety of chemicals involved, it would take a staggering amount of research, time and money to determine scientifically the appropriate safe upper for each pollutant
Even worse, is the setting of standards by lobbying and political influence
The EPA has established a risk-assessment procedure for potential health hazards, but can health risks always be quantified or be free from politics?
Risk-assessment
In the realm of pollution control, companies frequently contest strict regulations on the grounds that meeting the standards is economically impossible
Each judge, each jury will have its own idea of what is “reasonable” in terms of he value of clean air and water, the importance of preserving wildlife and what constitutes an acceptable health risk
“Reasonable?”
In 1981, President Reagan issued Executive Order 12291, which decreed that a pollution-control regulation may be put forth by a federal agency only if the potential benefits to society outweigh the potential costs
Cost-benefit Analysis
Cost-benefit Analysis
A Regulatory Impact Analysis must be performed on any proposed new “major” regulations which are defined as one that is likely to result in either:
An impact on the economy of $100 million or more per year
A major cost increase to consumers, individual industries, government agencies or geographic regions
Significant adverse effects on competition, employment, investment or productivity
Cost-benefit Analysis
The projected cost of compliance was estimated to be a hefty $6.3 billion per year
Set against those costs was an impressive array of benefits: Reduction of acid rain, reduced mercury pollution, 30,000 fewer visits to hospitals, 12.5 millions fewer days of respiratory symptoms and at least 8,500 fewer premature deaths, with $21 billion saved in health costs
For example, consider the cost-benefit analysis done by the EPA for the Clean Skies Act
Geologic HazardsLaws and zoning ordinances restricting construction or establishing standards for construction in areas of known geologic hazards are a more modern development than antipollution legislation
For example, more strict requirements for site grading and slope stability has resulted in a major reduction in landslide damage to newer homes
Geologic HazardsHistorically, such restriction are opposed by real-estate investors and many land owner
However, the courts have repeatedly ruled in favor of these regulations
Geologic HazardsThe 1995 Kobe earthquake, was one of the most devastating earthquakes ever to hit Japan, with more than 5,500 killed, over 26,000 injured and $(US) 200 billion in damage
Geologic Hazards
For 30 years, prior to the 1995 Kobe earthquake, Japan had repeatedly improved building codes
As a result, the newer buildings suffered far less damage
Flood InsuranceWhen geologic catastrophes occur, federal disaster-relief can play a significant roll in reconstruction
Of course, this means that the tax payers pay for the damage suffered by those who purposely or through ignorance live in areas of high geologic risk
Flood InsuranceThe Flood Insurance Act of 1968 and its successor, the Flood Disaster Flood Protection Act of 1973, started a new trend where those who live in flood prone areas can pay for federally subsidized flood insurance
Flood InsuranceTo encourage the purchase this insurance, it is required for home owners and businesses who have federally insured mortgages or have mortgages from federally affiliated banks and lending institutions
Flood Insurance
For a community to remain eligible for this flood insurance, it must enact strict flood-plain zoning laws
That requires making detailed flood hazard maps (which have been slow in coming for many areas)
Only the NewLaws designed to reduce the risk of damage from geologic hazards have several problems in common
The basic scientific information needed to create sensible regulations may be lacking
The major problem is that the regulations will only apply to new structures, while the older, existing homes and structures remain at risk
Environmental Impact Statements
The National Environmental Policy Act (NEPA) established environmental protection as an important national priority
Whenever a federal agency proposes legislation or “other major federal action” that can affect the environment, they must compile and publish an Environmental Impact Statement (EIS)
Environmental Impact Statements
An Environmental Impact Statement is required to include:
A description of the proposed action and why it is needed
A discussion of possible alternative actions
An explanation of the anticipated environmental consequences
A list of preparers, and a list of who is receiving the EIS document
Environmental Impact Statements
NEPA dictates a review process (which some decry as bureaucracy at its best)
Environmental Impact Statements
About 80% of the EISs are prepared by just 4 government agencies
Department of Defense including the U.S. Army Corp of Engineers (navigation, flood control, dredging)
Department of Agriculture (forestry and range, pesticides and herbicides)
Department of the Interior (recreation areas, mining, oil/gas)
Department of Transportation (freeways & roads)
Environmental Impact StatementsAbout 10% of EISs are challenged in court by lawsuits and close to half of the lawsuits involve citizen or environmental groups as plaintiffs
And even state governments sue
“The EIS lawsuit was filed by the State of Nevada on June 6, 2002, ... The suit challenges the DOE's Final Environmental Impact Statement (FEIS) on the Yucca Mountain repository.
The State of Nevada contends the FEIS violates the National Environmental Policy Act (NEPA) and the Nuclear Waste Policy Act (NWPA).
Environmental Impact Statements
The usefulness of environmental impact statements has been limited by a number of factors
Not the least of which is the lack of impartiality of EIS preparers
And the purposeful inclusion of biased information, combined with suppression of adverse information
Environmental Impact StatementsOr consider the 6 volume EIS prepared for the Trans-Alaska pipeline
How could one person read and comprehend that much material?
Global Warming
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