Environmental Law

1. Environmental Law Chapter 19

2. Resource LawWater • Surface Water Law • Navigable streams are treated as community property • Individual ownership not allowed • Water rights are allowed • 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.

3. Distribution of underlying principles of surface-water law

4. Resource Law Water • Groundwater Law • More complex than surface water law • Rule of Capture (English Rule) • Property owners have the right to extract all the groundwater from under their property • Lateral movement of ground water is ignored

5. Rule of Reasonable Use (American Rule) • 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

6. Distribution of underlying principles of groundwater law

7. Resource LawMineral and Fuel • In U.S. original laws were meant to encourage the exploitation of natural resources • 1872 Mining Law • 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’ • Mineral Leasing Act of 1920 and Mineral Leasing Act for Acquired Lands of 1947 – restricted the previous land giveaway. • Treatment for certain commodities such as oil, gas, coal, potash, and phosphate deposits became restricted • Mine reclamation not seriously addressed until 1977

8. Federal land ownership

9. Resource LawMineral and Fuel Con’t. • Mine Reclamation • Surface Mining Control and Reclamation Act of 1977 – applied to coal only • 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 from mineral extraction on federal lands • However, states must contend with a variety of pollution problems that mining has produced

10. International Resource Disputes • 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

11. International Resource DisputesContinued • Third United Nations Conference on the Law of the Sea (1982) • Established a 12 mile territorial limit plus various navigational, fishing, and other rights • Exclusive Economic Zones (EEZs) • 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

12. Exclusive Economic Zone of the United States

13. Possible mineral and rock resources in EEZ of the United States

14. International Resource Disputescontinued • Antarctica – has been claimed by many countries because of their respective exploration activities or geographic proximity • 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. • 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

15. Land Claims in Antarctica prior to the 1961 treaty

16. Pollution and Its Control • Do we have a right to a clean environment? • 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

17. Water Pollution • 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

18. Air Pollution • Clean Air Act of 1963 – empowered federal agencies to undertake air pollution control efforts • Amended in 1965 to allow national regulation of motor vehicle emissions • Air Quality Act of 1965 • 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

21. Waste Disposal • Solid Waste Disposal Act of 1965 and Resource Conservation and Recovery Act (RCRA) of 1976 • 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 • Funding for identified toxic waste sites is needed to continue the work that the superfund program began

22. U.S. Environmental Protection Agency • EPA: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

23. International Initiatives • 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 • Encourages nations to report their CO2 emissions • Encourages developed nations to assist developing nations to address increasing dumping of CO2 into the atmosphere

24. International Initiativescontinued • Montreal Protocol on Substances that Deplete the Ozone Layer (of 1987) • 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 • U.S. expressed concerns over the economic impact of such a move and did not agree to these standards

25. International Initiativescontinued • The U.N. has recognized, in the various protocols and attempts at creating international environmental law, that we all share the global environment • 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

26. Cost-Benefit Analysis • 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 • ‘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 • Unfortunately; In some cases it is cheaper to pay the fine than to correct the problem

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

28. Cost-Benefit AnalysisFederal Government • 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

29. Laws Relating to Geologic Hazards • Laws, or zoning ordinances, restricting construction or establishing construction standards related to known geologic hazards have been opposed due to : • Investment concerns • Development concerns • Lack of understanding by the general public • Construction controls and restrictive building standards in earthquake prone areas have experienced success: • Many California earthquakes, since the Long Beach earthquake of 1933 nearly destroyed that city, have not destroyed as much property as they could have: • San Fernando – 1971 • Loma Prieta - 1989 • Northridge – 1994

30. Effects of improving building codes for earthquake resistance

31. National Environmental Policy Act (NEPA) • 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 • many states have adopted EIS procedures and rules as well

32. Environmental Impact Statements(EIS) • NEPA specifies that an EIS should include: 1. A description of the proposed action, its purpose, and why it is needed 2. A discussion of various alternatives (including the proposed action) 3. An indication of the environment to be affected and the environmental consequences anticipated 4. List of preparers of the statement and those agencies, organizations, or persons to whom copies of the statement are being sent

33. Number of EISs

34. Distribution of EIS filings with EPA in 1994

35. Trans-Alaska pipeline

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