Transcript Environmental Law - McGraw Hill Education

Chapter 18
Environmental Law
Resource Law
Water
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Surface Water Law
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Navigable streams are treated as community
property
Individual ownership not allowed
 Water rights are allowed
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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.
Figure 18.1 Distribution of underlying
principles of surface-water law
Resource Law
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Groundwater Law
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More complex than surface water law
Rule of Capture (English Rule)
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Water
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)
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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
Figure 18.2 Distribution of underlying
principles of groundwater law
Resource Law
Mineral and Fuel
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In U.S. original laws were meant to encourage
the exploitation of natural resources
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1872 Mining Law
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Mineral Leasing Act of 1920 and Mineral Leasing Act
for Acquired Lands of 1947 – restricted the previous
land giveaway.
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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’
Treatment for certain commodities such as oil, gas, coal,
potash, and phosphate deposits became restricted
Mine reclamation not seriously addressed until 1977
Figure 18.3 Federal land ownership
Resource Law
Mineral and Fuel
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Mine Reclamation
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Surface Mining Control and Reclamation Act of
1977 – applied to coal only
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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
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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
International Resource Disputes
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Third United Nations Conference on the
Law of the Sea (1982)
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Established a 12 mile territorial limit plus
various navigational, fishing, and other rights
Exclusive Economic Zones (EEZs)
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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
Figure 18.4 Exclusive Economic Zone of the United States
Figure 18.5 Possible mineral and rock
resources in EEZ of the United States
International Resource Disputes
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Antarctica – has been claimed by many countries
because of their respective exploration activities or
geographic proximity
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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.
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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
Figure 18.6 Land Claims in Antarctica prior to the 1961 treaty
Pollution and Its Control
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Do we have a right to a clean environment?
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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
Water Pollution
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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
Table 18.1
Air Pollution
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Clean Air Act of 1963 – empowered federal
agencies to undertake air pollution control
efforts
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Air Quality Act of 1965
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Amended in 1965 to allow national regulation of
motor vehicle emissions
required air quality standards on known harmful
effects of several air pollutants
Goal was to “protect and enhance the quality of the
Nation’s 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
Figure 18.7 a
Figure 18.7 b
Waste Disposal
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Solid Waste Disposal Act of 1965 and Resource
Conservation and Recovery Act (RCRA) of 1976
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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
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Funding for identified toxic waste sites is needed to
continue the work that the superfund program began
U.S. Environmental Protection Agency
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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
Figure 18.8
International Initiatives
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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
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Encourages nations to report their CO2 emissions
Encourages developed nations to assist developing
nations to address increasing dumping of CO2 into the
atmosphere
Figure 18.9
International Initiatives
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Montreal Protocol on Substances that Deplete the Ozone
Layer (of 1987)
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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
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U.S. expressed concerns over the economic impact of such a
move and did not agree to these standards
International Initiatives
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The U.N. has recognized, in the various
protocols and attempts at creating
international environmental law, that we
all share the global environment
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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
Cost-Benefit Analysis
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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
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‘we lack the economic technology’
‘the science isn’t 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
Figure 18.10 Components of EPA’s risk-assessment
process for potential health hazards
Cost-Benefit Analysis
Federal Government
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President Reagan’s 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
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Laws, or zoning ordinances, restricting
construction or establishing construction
standards related to known geologic hazards have
been opposed:
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Investment concerns
Development concerns
Lack of understanding by the general public
Construction controls and restrictive building
standards in earthquake prone areas have
experienced success:
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Many California earthquakes, since the Long Beach
earthquake of 1933 nearly destroyed that city, have not
destroyed as much property as they could have:
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San Fernando – 1971
Loma Prieta - 1989
Northridge – 1994
Figure 18.11 Effects of improving building
codes for earthquake resistance
Not All Hazard Responses Work
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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
Figure 18.12 Hazardmitigation legislation
Figure 18.13
Figure 18.14
National Environmental Policy Act
(NEPA)
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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
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many states have adopted EIS procedures and rules
also
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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Figure 18.15 Number of EISs
Figure 18.16 Distribution of EIS filings with EPA in 1994
Figure 18.17 the Trans-Alaska pipeline
Figures 18.18 a and b Route of the Trans-Alaska pipeline
and proposed alternative means for transport of the oil