Environmental Laws and Regulations in the US

1. Environmental Laws and Regulations in the US

2. Creating Laws and Regulations • Law proposed by a member of Congress (“Bill”) • If bill is approved by House and Senate, goes to POTUS • POTUS: sign,veto, pocket veto • If signed becomes an “Act of Congress” • Act is standardized in language by the House (the “statute”) and published in the US Code (USC)

3. Making the Act Work • Law may be intentionally or unintentionally vague or ambiguous • Example: speed limit on a given street; tuition at PSU • But law will be specific about what agency is responsible • Most environmental laws delegated to US EPA • Clean Water Act: Section 404 dredging permits issued by US Army Corps of Engineers, with the assistance and coordination of EPA

4. “Rulemaking”: Creating Regulations • Congress: via the act gives general guidelines or specific goals • Example: CWA: “All navigable US waters should be fishable and swimmable” • Agency: produces specific, detailed RULES that translate the mandates of the act into everyday requirements

5. Rule-making By Agencies • Proposalof rule by agency • Published in the Federal Register for public review • CommentPeriod: 30/60/90 days of public review and testimony; also internal review • Revision of rules based on comments • Final promulgation by publication in the Code of Federal Regulations (CFR)

6. Federal Register Online • http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR

7. Role of U.S. States “Primacy”: Federalism in Action [“First or foremost”] • Federal EPA sets the general regulatory framework and in many cases the exact rules • States may write some or most of the actual regulations as long as they meet or exceed the federal standards

8. Enforcing the Rules: Mostly by States in Routine Cases • States assume the prime responsibility for enforcement • States normally are in charge of enforcement most actions, with federal oversight • US EPA does enforcement for very large or multi-state cases, often in conjunction with state agencies

9. Enforcement of Regulations:The “Carrot and the Stick”

10. The Carrot • Policy documents: “should do” • Guidance documents: “how to” • Policy: statements outlining official positions or procedures • Guidance: detailed instructions on how to implement requirements or regulations

11. The Stick:Enforcement

12. Civil Enforcement • Voluntary • Compliance with regulations is expected of everyone (like income taxes). • “Strict liability”: Doing it makes you guilty. Ignorance of the regulations is no defense. • Assistance is offered (“carrots”) • Grants to local governments etc. • Policy and guidance documents • “Forgiveness” for voluntary discovery

13. “Forgiveness”: Penalty Mitigationfor Voluntary Compliance Oregon rules are typical: • Penalties may be reduced (up to 100%) if violator discovers the violation and voluntarily reports it. • Does not apply if the “discovery” came from monitoring you were required to do anyway. • Never applies to toxic discharge to waterways.

14. Civil Enforcement Civil Action • Agency identifies noncompliance • Gives notice to responsible party • If no adequate response, suit is filed in court • May settle out of court • May go to trial, usually by federal judge/magistrate • May then reach an in-court settlement or else a court order from magistrate or judge

15. Alternative Enforcement • An agency fails to identify a problem or act on a known problem • An aggrieved party with legal standing in the matter files suit • For example, Northwest Environmental Advocates, Friends of the Coast Fork, Gifford Pinchot Task Force • State agency and other regulators are named as defendants; i.e., outside party sues the agency (not the polluter(s) directly).

16. Alternative Enforcement • Case settles or is decided by a court • The decision directs the agency on what to do to resolve the problem (issues an order or injunction) • Agency then goes after the responsible parties for actions and compensation (if possible)

17. A Few Basics of Civil Law • Standing • Complaint • Damage • Relief Sought • Financial relief • Compensatory damages • Punitive damages • Injunctive relief

18. The Issue of “Standing” “Standing” is the legal right to file suit to stop or penalize damage caused by another party. • In U.S. environmental cases, two main forms: • Party suffers direct damage, either current or imminent; has “something to lose”, economic or non-economic • Party is granted automatic standing by an environmental law. Party “stands in” to redress general damage. “Should trees have standing?”* • *- Christopher Stone, Original edition 1972

19. Complaint, Damage, Relief • A legal document in which plaintiff explains some injury or damage caused by defendant and lays out a claim for relief. • E.g., a group sues state for not enforcing a pollution law which is damaging a river or a water supply. • Relief is the specific remedy sought by the plaintiff.

20. Financial Relief • Money damages: Plaintiff seeks cash from the defendant. Typical in personal or class-action suits. • Compensatory damages: “Pay me for what it cost me to deal with this.” • Punitive damages: “Make them pay a lot more than that just to teach them and everyone else a lesson.”

21. Injunctive Relief Plaintiff wants the judge to order action by the plaintiff. • Requested where money is not enough or is not the solution. Typical in most environmental case brought by agencies or outside groups. • What if defendant does not comply with the order? • Civil penalties like fines • Criminal penalties like fines or imprisonment • Contempt of court charges

22. Settlement • A case is commonly settled in or out of court. • Out of Court: Parties agree in private to a mutually satisfactory outcome. Case dismissed. • In Court: Parties work out a solution but then get a court enforcement order after a “joint stipulation.”

23. What Makes Noncompliance a Crime? Intent or a “knowing violation”. Oregon DEQ’s definition is pretty typical: • A prevalent management philosophy or practice that concealed or condoned environmental violations; or • Knowing involvement in or deliberate ignorance of the violations by responsible corporate officials or managers; or • Substantial harm to human health or the environment.

24. Federal Criminal Enforcement EPA’s criminal enforcement program pursues individual and corporate defendants who have committed serious environmental crimes • EPA's criminal enforcement program established 1982 • Granted full law enforcement authority by Congress 1988. • 200 fully authorized federal law enforcement agents. These EPA Special Agents can pack heat. • 70 forensic scientists and technicians. • 45 criminal offense attorneys

25. Criminal Enforcement Info and Resources: EPA http://www2.epa.gov/enforcement/2014-major-criminal-cases http://echo.epa.gov www.youtube.com/watch?v=fAJlHxyapa0