History of U.S. Environmental Law in the United States
- 1 History of U.S. Environmental Law in the United States
Environmentalism in the 1960s and 1970s
The energy that fueled the civil rights movement and catalyzed the counterculture also stimulated an environmental movement in the mid-1960s. Many were aroused by the publication in 1962 of Rachel Carson’s book Silent Spring, which pointed to the ravages of chemical pesticides, particularly DDT. Public concern about the environment continued to increase throughout the 1960s as many became aware of other pollutants surrounding them – automobile emissions, industrial wastes, oil spills — that threatened their health and the beauty of their surroundings. On April 22, 1970, schools and communities across the United States celebrated Earth Day. “Teach-ins” educated Americans about the dangers of environmental pollution.
But many resisted proposed measures to clean up the nation’s air and water. Solutions would cost money to businesses and individuals, and force changes in the way people lived or worked. However, in 1970, Congress amended the Clean Air Act of 1967 to develop uniform national air-quality standards. It also passed the Water Quality Improvement Act, which made cleaning up off-shore oil spills the responsibility of the polluter. Then, in 1970, the Environmental Protection Agency was created as an independent federal agency to spearhead the effort to bring abuses under control. (1)
History of U.S. Environmental Law and Policy
Prior to the late 1960s and early 1970s, statutes dealing with environmental pollution were both rare and toothless. The primary environmental law in the United States, the Refuse Act, dated back to 1899. It made the Corps of Engineers the protectors of the waterways and prohibited discharges without a permit. But proof of violation under the Refuse Act was difficult. No method had been established to measure pollutants, and the states had been ineffective in setting standards for water quality. Pesticides were subject to the Insecticide Act of 1910, which regulated nothing but labeling. In 1947, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) was passed; it required registration and labeling, but it did not deal with safety.
Regulating pollution was also thwarted by the way responsibility for controlling it was sliced into pieces. The Department of Interior (DOI) received the water piece, and the Federal Water Quality Administration worked under the DOI umbrella. Pesticide studies were also concentrated in that department. The Department of Health, Education, and Welfare (HEW) took the air part along with solid waste and some of the pesticides issues. Programs were managed by a number of different agencies within HEW: the National Air Pollution Control Administration, the Bureau of Solid Waste Management, the Bureau of Water Hygiene, the Bureau of Radiological Health of the Environmental Control Administration, and the Food and Drug Administration. Pesticide registration and related activities vested in the Department of Agriculture. Radiation criteria and standards fell within the Atomic Energy Commission and the Federal Radiation Council. Another agency, the Council on Environmental Quality (CEQ), was responsible for studies relating to ecological systems.
Creation of the Environmental Protection Agency
Law that existed when Richard Nixon was president allowed him to issue an order for reorganization of departments and other agencies. So in 1970, Nixon issued an executive order for reorganization, Reorganization Plan No. 3, which created the Environmental Protection Agency and moved the environmental duties of the other agencies to the EPA. In his transmittal, he indicated that it was time to bring the functions of environmental protection into one agency. That was only the beginning of the work for the EPA, for soon Congress enacted numerous statutes that took advantage of the new system and greatly enlarged the EPA’s authority.
EPA headquarters is in Washington, D.C., but it also has ten regional offices. The headquarters, which houses the administrator (appointed by the president), deputy administrator, and assistant administrators, funnels information to the regional offices, reviews regional operations for consistency, establishes policy for the agency, and makes the final decision on many issues. Each regional office has a regional administrator (RA).
All RAs are political appointees, and all have the authority to represent the EPA within their regions. Their authority is not uncontrolled, however, for many of the RA’s decisions are reviewed by headquarters.
As a regulatory agency the EPA performs all three duties of government: legislating, executing, and judging. The EPA establishes standards with its legislative function, and procedural precautions make certain the public knows about the rulemaking.
One class of potentially responsible parties is current owners and operators of the site. The current owner or operator may not be disposing of hazardous waste on the property and may not even know that the hazardous waste is there. In some cases, the owner or operator may be able to prove that it is an innocent purchaser and should not be held responsible.
The theory behind including current owners and operators of the property is that the cleanup of the property will benefit them; therefore, they should pay. The distinction between owning and operating a facility is not as obvious as it seems. For example, an owner, for the purpose of the statute, may be a person who is leasing the property. An operator may be a trustee of a trust that has the facility as one of the assets. The key to determining the owner and operator is not only its legal status, but also its activities on the property. A landlord who allows a lessee to manufacture and dispose of hazardous waste on the property will still be the owner because of title to the land. But the factory owner will be both owner and operator of the facility for purposes of the cleanup, because the lease is broad enough to allow the manufacturer to act as if the property belongs to it as well as operate the enterprise there. Lenders may also wind up being owners or operators under the law. The statute exempts lenders that only hold title as an indication of their security interest, but if the lender exercises too much control over the operation or use of the property, it, too, may be considered an owner or operator [see lender liability].
Past owners and operators are also potentially responsible parties, but there is more of a logical connection with them. The persons who can be liable because of past ownership/operation of the facility owned or operated the site during the time disposal occurred. In a narrow sense, this definition excludes the person who owned the property between the time of the disposal and the current owner from the group of potentially responsible parties. Realistically, though, the government can also pursue the interim owner because the term disposal includes leaching, escaping, migrating, and so forth. So if the government could demonstrate that the waste was moving during the time the interim owner had the property, that person could also be a potentially responsible party. (2)
Transporters and Arrangers for Disposal
Persons or businesses that hauled hazardous substances to the disposal site are also potentially responsible parties unless the transporter did not select the site. For example, a generator hired a transporter to carry the waste to a hazardous waste facility and did not specify which one. The transporter is an arranger for disposal if he chose the facility, and he is also liable as a transporter. The question of selection is a factual issue.
The biggest class of potential responsible parties, however, is the arranger category. It includes the generators (originators of the waste) and anyone else who may have been involved in getting it to the hazardous waste facility.
In some cases, it is easy to determine whether a party is an arranger. For example, a person who sends trichlorethane to a waste facility is arranging for its disposal. However, an intermediary may wind up being the arranger. A recycling facility may accept someone’s batteries and crack them open, use the lead and dispose of the electrolyte. The recycler is an arranger for the electrolyte disposal. Occasionally, parties become arrangers when they are merely stepping in to clean up a property. For example, if a lender forecloses on a property and hires a company to take care of drums of solvent, it becomes an arranger of disposal. Also, if a person voluntarily cleaned up someone else’s spill of a hazardous substance and sent the waste to a facility, that person became an arranger.
Consequences of Being a Potentially Responsible Party
The number of potentially responsible parties available to sue for the cost of cleaning up a hazardous waste facility varies greatly from site to site. The statute that creates the duty to pay for the remediation, the Comprehensive Environmental Response, Compensation, and Liability Act, provides that the potentially responsible parties are responsible, both separately and together, for the cost of cleaning up the mess.
Potentially responsible parties are encouraged to form groups to negotiate with the government. They may use allocation methods to decide what everyone is responsible for, or they may ask the government to assist them with the allocation [see nonbinding allocation of responsibility]. If they cannot demonstrate a basis for separating the harm caused by their waste from other waste, the government will maintain that they are all responsible for all of the costs. In some cases, the cooperating parties will do whatever is necessary to clean up the site, then sue other potentially responsible parties for contributions to the cost [see contribution costs].
Even parties who have contributed very little to a hazardous waste site, such as a box of poisoned cookies used as evidence in a criminal case, cannot rest easy. Unless they are able to work out an agreement for settlement with the government that protects them from contribution, they may find themselves contributing to the cleanup in vastly disproportionate amounts [see de minimis!de micromis parties].(3)