An Environmental Law Primer
Our firm is often asked, even by sophisticated attorneys who practice in other areas, how to deal with environmental issues that seem simple, but turn out to be very complicated. The complexity arises from the breadth of environmental law and its morass of regulations. This guide seeks to explain the basic structure of environmental law and provide some perspective to those affected by it.
Environmental issues may be addressed by familiar concepts in the common law – a business may be sued in state court for nuisance or trespass if emissions from its smoke stack affect a nearby residential area. But usually, federal and/or state statutes and/or regulations are invoked. (Yet additional requirements may lurk in municipal codes.) The multiple layers are the product of the development of environmental law over the last forty-plus years. Congress passed a number of statutes that established a basic infrastructure to deal with various types of pollution. The concept was to have the federal government, primarily the U.S. Environmental Protection Agency (U.S.EPA), administer the respective program initially, and subsequently authorize states to do so after their own similar programs were operable.
The result was that a single offense could violate both state and federal statutes. And, virtually identical regulations may be found not only in the Code of Federal Regulations, but in a given state’s administrative code. (One example is the body of underground storage tank regulations.) For the same reason, it is not uncommon for both the U.S.EPA and the respective state environmental enforcement agency (or state attorney general) to commence legal proceedings pertaining to the same environmental condition.
Between 1970 and 1980, Congress passed statutes that focused on air (the Clean Air Act, CAA), water (the Clean Water Act, CWA) and hazardous wastes on land (the Resource Conservation and Recovery Act, RCRA, and the Comprehensive Environmental Response, Compensation and Liability Act, CERCLA; a/k/a Superfund). Each of these laws gave rise to a labyrinth of sometimes incomprehensible regulations, and, as noted above, the states largely followed suit.
Obviously, pollution is not restricted to just air or just water. Therefore, an oil storage facility near a river may be affected by tank regulations under RCRA, and oil spill regulations under the CWA. A cleanup may originate under CERCLA and be affected by the CAA. Also, because environmental issues continue to arise, environmental law continues to expand beyond its traditional base. The implications of climate change will be addressed by U.S.EPA and other agencies, under laws yet to be written; the Federal Trade Commission, under its “Green Guides," will take legal actions against companies that make deceptive environmental claims, and the Department of the Interior and the Department of Energy will aid, or prevent, the construction of renewable energy facilities.
Nuts and Bolts
Permits. A hallmark of environmental statutes is their requirements to obtain permits for virtually anything that will be emitted to the environment. Most permits are issued by state agencies. Some may be relatively easily acquired, such as “general permits" covering multiple sources of pollution (some storm water discharge permits fall into this category). But most are site specific; they may require expensive modeling and be subject to public hearings (a landfill is one illustration). Once issued, a permit has the force of law. Operating without a permit, or in violation of conditions in the permit, can result in costly penalties.
Governmental authority. Environmental statutes grant considerable enforcement authority to administering agencies. Prosecutions may be initiated before an administrative tribunal or a court, and can drag on for years. Costs of defense, and as necessary, costs to remedy an underlying problem are usually high. Statutes also grant extensive information gathering authority administering agencies, which can require the submission of vast amounts of data even before any enforcement action is commenced.
Citizen suits. Another common feature of environmental statutes is a provision for citizen suits, which may carry the threat of collection of attorneys’ fees. Although businesses are often the target of such suits, businesses can also use citizen suits when they are adversely affected by environmental infractions of others.
Those faced with environmental issues should remain circumspect. Multiple regulatory authorities and/or statutes may be involved. A complete analysis before the fact may avoid problems at a later date.