Environmental LawEnvironmental Law

Chapter 18Chapter 18

Resource LawResource LawWaterWater

Surface Water LawSurface Water Law Navigable streams are treated as Navigable streams are treated as

community propertycommunity property Individual ownership not allowedIndividual ownership not allowed Water rights are allowedWater rights are allowed

Riparian Doctrine – Riparian Doctrine – who ever owns land who ever owns land adjacent to a stream has a right to use adjacent to a stream has a right to use that waterthat water; ; more applicable to humid more applicable to humid eastern U.S.eastern U.S.

Doctrine of Prior Appropriation – Doctrine of Prior Appropriation – first user first user of the water has top priorityof the water has top priority; more ; more applicable to arid western U.S.applicable to arid western U.S.

Figure 18.1 Distribution of underlying Figure 18.1 Distribution of underlying principles of surface-water lawprinciples of surface-water law

Resource LawResource LawWaterWater

Groundwater LawGroundwater Law More complex than surface water lawMore complex than surface water law

Rule of Capture (Rule of Capture (English RuleEnglish Rule)) Property owners have the right to extract all Property owners have the right to extract all

the groundwater from under their propertythe groundwater from under their property Lateral movement of ground water is ignoredLateral movement of ground water is ignored

Rule of Reasonable Use (Rule of Reasonable Use (American RuleAmerican Rule)) Property owners are limited to extract ground Property owners are limited to extract ground

water for beneficial use in connection with the water for beneficial use in connection with the land above. Extraction of ground water should land above. Extraction of ground water should not be so great that it deprives a neighbor of not be so great that it deprives a neighbor of their ground watertheir ground water

Issues have been argued about what Issues have been argued about what constitutes ‘beneficial use’constitutes ‘beneficial use’

Problems with invisibility of ground water has Problems with invisibility of ground water has created numerous legal conflictscreated numerous legal conflicts

Figure 18.2 Distribution of underlying Figure 18.2 Distribution of underlying principles of groundwater lawprinciples of groundwater law

Resource LawResource LawMineral and FuelMineral and Fuel

In U.S. original laws were meant to encourage In U.S. original laws were meant to encourage the exploitation of natural resourcesthe exploitation of natural resources 1872 Mining Law1872 Mining Law

Granted mineral rights, and often land title, to anyone Granted mineral rights, and often land title, to anyone locating a mineral deposit on federal land and would locating a mineral deposit on federal land and would invest some time and a little money in the ‘invest some time and a little money in the ‘claim’claim’

Mineral Leasing Act of 1920 and Mineral Leasing Mineral Leasing Act of 1920 and Mineral Leasing Act for Acquired Lands of 1947 – restricted the Act for Acquired Lands of 1947 – restricted the previous land giveaway.previous land giveaway.

Treatment for certain commodities such as oil, gas, coal, Treatment for certain commodities such as oil, gas, coal, potash, and phosphate deposits became restrictedpotash, and phosphate deposits became restricted

Mine reclamation not seriously addressed until Mine reclamation not seriously addressed until 19771977

Figure 18.3 Federal land ownershipFigure 18.3 Federal land ownership

Resource LawResource LawMineral and FuelMineral and Fuel

Mine ReclamationMine Reclamation Surface Mining Control and Reclamation Surface Mining Control and Reclamation

Act of 1977 – applied to coal onlyAct of 1977 – applied to coal only Intended to restore farmland and ground water Intended to restore farmland and ground water

flow once mining ceasedflow once mining ceased Several states have enacted their own laws Several states have enacted their own laws

regulating mining within their boundariesregulating mining within their boundaries No state has received financial returns form No state has received financial returns form

mineral extraction on federal landsmineral extraction on federal lands However, states must contend with a variety of However, states must contend with a variety of

pollution problems that mining has producedpollution problems that mining has produced

International Resource DisputesInternational Resource Disputes

Mineral claims at sea have often Mineral claims at sea have often become issues of serious disputebecome issues of serious dispute

Traditional 3 mile (5 km) territorial Traditional 3 mile (5 km) territorial limits proved unsatisfactory as limits proved unsatisfactory as modern technology allows for deeper modern technology allows for deeper exploitation of many commoditiesexploitation of many commodities

200 mile territorial limits were 200 mile territorial limits were established but many small closely established but many small closely packed countries did not benefitpacked countries did not benefit

International Resource DisputesInternational Resource Disputes

Third United Nations Conference on Third United Nations Conference on the Law of the Sea (1982)the Law of the Sea (1982) Established a 12 mile territorial limit plus Established a 12 mile territorial limit plus

various navigational, fishing, and other various navigational, fishing, and other rightsrights

Exclusive Economic ZonesExclusive Economic Zones (EEZs) (EEZs) Established a 200 nautical mile exclusive Established a 200 nautical mile exclusive

mineral rights use zonemineral rights use zone A provision could allow a country to claim A provision could allow a country to claim

more continental shelf/ocean floor and more continental shelf/ocean floor and extend their EEZextend their EEZ

Figure 18.4 Exclusive Economic Zone of the United StatesFigure 18.4 Exclusive Economic Zone of the United States

Figure 18.5 Possible mineral and rock Figure 18.5 Possible mineral and rock resources in EEZ of the United Statesresources in EEZ of the United States

International Resource DisputesInternational Resource Disputes Antarctica – has been claimed by many Antarctica – has been claimed by many

countries because of their respective countries because of their respective exploration activities or geographic proximityexploration activities or geographic proximity Treaty of 1961 set aside all territorial claims by Treaty of 1961 set aside all territorial claims by

the signing countries; other have signed on the signing countries; other have signed on subsequentlysubsequently

Convention for the Regulation of Antarctic Mineral Convention for the Regulation of Antarctic Mineral Resources Activities (CRAMRA) in 1988 Resources Activities (CRAMRA) in 1988 established restrictive controls on Antarctica established restrictive controls on Antarctica mineral exploration and extractionmineral exploration and extraction

CRAMRA not fully accepted by U.S.CRAMRA not fully accepted by U.S. U.S. passes Antarctic Protection Act of 1990 and U.S. passes Antarctic Protection Act of 1990 and

encourages others to sign onencourages others to sign on U.S. EPA issues U.S. EPA issues Environmental Impact Statement (EIS)Environmental Impact Statement (EIS)

rules on non-government activities such as scientific rules on non-government activities such as scientific study and tourism in Antarcticastudy and tourism in Antarctica

Figure 18.6 Land Claims in Antarctica prior to the 1961 treatyFigure 18.6 Land Claims in Antarctica prior to the 1961 treaty

Pollution and Its ControlPollution and Its Control

Do we have a right to a clean Do we have a right to a clean environment?environment?

Criminal Law – requires legislation by Federal Criminal Law – requires legislation by Federal and State governmentand State government

Civil Law – not so restrictive; it has been the Civil Law – not so restrictive; it has been the best route to seek justice in many cases best route to seek justice in many cases

Water PollutionWater Pollution

Refuse Act of 1899 – prohibited dumping or Refuse Act of 1899 – prohibited dumping or discharge of refuse in navigable waterdischarge of refuse in navigable water

Federal Water Pollution Control Act of 1956 – Federal Water Pollution Control Act of 1956 – focused on municipal waste treatmentfocused on municipal waste treatment

Water Quality Improvement Act of 1970 and Water Quality Improvement Act of 1970 and Clean Water Act of 1977 – addressed spills Clean Water Act of 1977 – addressed spills and chemical pollutantsand chemical pollutants

Subsequent legislative actions have modified Subsequent legislative actions have modified many provisions of these laws but few major many provisions of these laws but few major improvements, or overhauls, have occurredimprovements, or overhauls, have occurred

Table 18.1Table 18.1

Air PollutionAir Pollution Clean Air Act of 1963 – empowered federal Clean Air Act of 1963 – empowered federal

agencies to undertake air pollution control agencies to undertake air pollution control effortsefforts Amended in 1965 to allow national regulation Amended in 1965 to allow national regulation

of motor vehicle emissionsof motor vehicle emissions Air Quality Act of 1965Air Quality Act of 1965

required air quality standards on known required air quality standards on known harmful effects of several air pollutantsharmful effects of several air pollutants

Goal was to “Goal was to “protect and enhance the quality protect and enhance the quality of the Nation’s air resources so as to promote of the Nation’s air resources so as to promote the public health and welfare and the the public health and welfare and the productive capacity of its populationproductive capacity of its population””

Clean Air Act Amendments (CAAA) of 1990 Clean Air Act Amendments (CAAA) of 1990 is more restrictive than previous actis more restrictive than previous act

Figure 18.7 aFigure 18.7 a

Figure 18.7 bFigure 18.7 b

Waste DisposalWaste Disposal Solid Waste Disposal Act of 1965 and Solid Waste Disposal Act of 1965 and

Resource Conservation and Recovery Act Resource Conservation and Recovery Act (RCRA) of 1976(RCRA) of 1976 Intended to help state and local governments Intended to help state and local governments

deal with disposal of municipal solid wastesdeal with disposal of municipal solid wastes EPA monitors the compliance with these actsEPA monitors the compliance with these acts RCRA amended in 1984 - imposed new RCRA amended in 1984 - imposed new

requirements on landfills and disposal sites; requirements on landfills and disposal sites; banned disposal of toxic liquid waste at a landfillbanned disposal of toxic liquid waste at a landfill

RCRA re-authorization of 1992 failed – RCRA re-authorization of 1992 failed – additional regulation for broader pollution additional regulation for broader pollution controls and mining waste are neededcontrols and mining waste are needed Funding for identified toxic waste sites is needed Funding for identified toxic waste sites is needed

to continue the work that the superfund program to continue the work that the superfund program beganbegan

U.S. Environmental Protection AgencyU.S. Environmental Protection Agency Established in 1970 - responsible for Established in 1970 - responsible for

establishment and enforcement of air establishment and enforcement of air and water quality standards; requires and water quality standards; requires testing and regulation of toxic testing and regulation of toxic chemical substances entering the chemical substances entering the environmentenvironment

Enforcement activities often limited Enforcement activities often limited by budgetary restrictions and by budgetary restrictions and political factorspolitical factors

Figure 18.8Figure 18.8

International InitiativesInternational Initiatives

U.N. Convention to Combat Desertification of U.N. Convention to Combat Desertification of 1996 – addressed localized problems found 1996 – addressed localized problems found around the worldaround the world

U.N. Framework Convention on Climate U.N. Framework Convention on Climate Change recognizes the role of COChange recognizes the role of CO22 and other and other greenhouse gases in global warminggreenhouse gases in global warming Encourages nations to report their COEncourages nations to report their CO2 2 emissionsemissions Encourages developed nations to assist Encourages developed nations to assist

developing nations to address increasing developing nations to address increasing dumping of COdumping of CO22 into the atmosphere into the atmosphere

Figure 18.9Figure 18.9

International InitiativesInternational Initiatives Montreal Protocol on Substances that Deplete the Montreal Protocol on Substances that Deplete the

Ozone Layer (of 1987)Ozone Layer (of 1987) An attempt to have all nations recognize the need for An attempt to have all nations recognize the need for

international commitments to pollution control for international commitments to pollution control for everyone's benefiteveryone's benefit

This effort represent a new movement, based on This effort represent a new movement, based on a a precautionary principleprecautionary principle, that international law , that international law and diplomacy must work to correct serious and diplomacy must work to correct serious environmental problemsenvironmental problems

Kyoto Protocol of 1997 – an attempt to have Kyoto Protocol of 1997 – an attempt to have industrialize nations agree to reduce greenhouse-industrialize nations agree to reduce greenhouse-gas emissions 5.2% below 1990 levels by 2008-gas emissions 5.2% below 1990 levels by 2008-20122012 U.S. expressed concerns over the economic impact of U.S. expressed concerns over the economic impact of

such a move and did not agree to these standardssuch a move and did not agree to these standards

International InitiativesInternational Initiatives

The U.N. has recognized, in the various The U.N. has recognized, in the various protocols and attempts at creating protocols and attempts at creating international environmental law, that international environmental law, that we all share the global environmentwe all share the global environment Some nations contribute more to the Some nations contribute more to the

various problems than do othersvarious problems than do others The countries that create more of the The countries that create more of the

harmful emissions can better afford to work harmful emissions can better afford to work to reduce their emissions and to assist the to reduce their emissions and to assist the developing countries to reduce their developing countries to reduce their emissionsemissions

Cost-Benefit AnalysisCost-Benefit Analysis Our attempts to legislate economic Our attempts to legislate economic

treatments, or use of technology, resulted in treatments, or use of technology, resulted in more conflicts and enforcement problemsmore conflicts and enforcement problems

Laws and legislation create a myriad of legal Laws and legislation create a myriad of legal maneuver room so companies, countries, and maneuver room so companies, countries, and individuals can escape their respective individuals can escape their respective responsibilityresponsibility ‘‘we lack the economic technology’we lack the economic technology’ ‘‘the science isn’t clear’the science isn’t clear’ ‘‘It is too expensive’It is too expensive’ ‘‘there will be not benefit if we use this technology’there will be not benefit if we use this technology’ ‘‘this clause will allow us to avoid our responsibility’this clause will allow us to avoid our responsibility’ And other excusesAnd other excuses

In some cases it is cheaper to pay the fine In some cases it is cheaper to pay the fine than to correct the problemthan to correct the problem

Figure 18.10 Components of EPA’s risk-assessment Figure 18.10 Components of EPA’s risk-assessment process for potential health hazardsprocess for potential health hazards

Cost-Benefit AnalysisCost-Benefit AnalysisFederal GovernmentFederal Government

President Reagan’s Executive President Reagan’s Executive Order 12291 (in 1981) allowed the Order 12291 (in 1981) allowed the following:following: A (pollution control) regulation may A (pollution control) regulation may

be put forth only if the potential be put forth only if the potential benefits to society outweigh the benefits to society outweigh the potential costpotential cost

This in effect weakened such This in effect weakened such legislation as the Clean Air Act and legislation as the Clean Air Act and the Clean Water Actthe Clean Water Act

Laws Relating to Geologic HazardsLaws Relating to Geologic Hazards Laws, or zoning ordinances, restricting Laws, or zoning ordinances, restricting

construction or establishing construction construction or establishing construction standards related to known geologic standards related to known geologic hazards have been opposed:hazards have been opposed: Investment concernsInvestment concerns Development concernsDevelopment concerns Lack of understanding by the general publicLack of understanding by the general public

Construction controls and restrictive Construction controls and restrictive building standards in earthquake prone building standards in earthquake prone areas have experienced success:areas have experienced success: Many California earthquakes, since the Long Many California earthquakes, since the Long

Beach earthquake of 1933 nearly destroyed that Beach earthquake of 1933 nearly destroyed that city, have not destroyed as much property as city, have not destroyed as much property as they could have:they could have:

San Fernando – 1971San Fernando – 1971 Loma Prieta - 1989Loma Prieta - 1989 Northridge – 1994Northridge – 1994

Figure 18.11 Effects of improving building Figure 18.11 Effects of improving building codes for earthquake resistancecodes for earthquake resistance

Not All Hazard Responses WorkNot All Hazard Responses Work

Too many issues left to local officials Too many issues left to local officials to decide ‘to decide ‘what is an acceptable riskwhat is an acceptable risk’ ’ for their communitiesfor their communities

Some laws apply only to new Some laws apply only to new construction and allow schools to be construction and allow schools to be built on flood plains or in seismically built on flood plains or in seismically active areasactive areas

Some legislation passes the fiscal risk Some legislation passes the fiscal risk on to all tax payers through federally on to all tax payers through federally funded insurance programsfunded insurance programs

Figure 18.12 Hazard-Figure 18.12 Hazard-mitigation legislationmitigation legislation

Figure 18.13Figure 18.13

Figure 18.14Figure 18.14

National Environmental Policy Act National Environmental Policy Act (NEPA)(NEPA)

NEPA enacted in 1969 and established NEPA enacted in 1969 and established environmental protection - an important environmental protection - an important national prioritynational priority

Established the Council on Environmental Established the Council on Environmental Quality in the Executive Office of the Quality in the Executive Office of the PresidentPresident

Established the requirements for Established the requirements for Environmental Impact Statements (EIS)Environmental Impact Statements (EIS)

Applies only to federal projectsApplies only to federal projects many states have adopted EIS procedures and many states have adopted EIS procedures and

rules alsorules also

Environmental Impact StatementsEnvironmental Impact Statements NEPA specifies that an EIS NEPA specifies that an EIS

should includeshould include A description of the proposed action, A description of the proposed action,

its purpose, and why it is neededits purpose, and why it is needed A discussion of various alternatives A discussion of various alternatives

(including the proposed action)(including the proposed action) An indication of the environment to An indication of the environment to

be affected and the environmental be affected and the environmental consequences anticipatedconsequences anticipated

List of preparers of the statement List of preparers of the statement and those agencies, organizations, and those agencies, organizations, or persons to whom copies of the or persons to whom copies of the statement are being sentstatement are being sent

Figure 18.15 Number of EISsFigure 18.15 Number of EISs

Figure 18.16 Distribution of EIS filings with EPA in 1994 Figure 18.16 Distribution of EIS filings with EPA in 1994

Figure 18.17 the Trans-Alaska pipelineFigure 18.17 the Trans-Alaska pipeline

Figures 18.18 a and b Route of the Trans-Alaska pipeline Figures 18.18 a and b Route of the Trans-Alaska pipeline and proposed alternative means for transport of the oiland proposed alternative means for transport of the oil