Environmental Law

U.S. Common Law

The first U.S. environmental laws existed within the common law, a system of law that originated in England based on the decisions of judges from previous cases as opposed to laws created by legislative bodies. Within common law, tort law provides remedies for injuries to a person's body, property, and rights. For example, a pollutant from one person entering another's property may constitute a violation of the common law rule of trespass, which prohibits invasion of a person's property. Several potential remedies exist for the injured party, including the costs to restore and rehabilitate the damaged environment.

U.S. Federal Environmental Law

Beyond common law, federal, state, and local legislatures and government agencies have created a wide array of environmental laws and regulations. The U.S. federal system limits the national government to those powers expressly stated in the U.S. Constitution, with the remaining powers retained by state governments. States have traditionally handled environmental matters under their police powers, the general authority to regulate for citizens’ health and welfare. The federal government has largely developed the legal framework for environmental protection based on its authority to regulate commerce, foreign relations, and federal property. Moreover, federal law is the supreme law of the land, and federal regulation may preempt any conflicting state laws. Nonetheless, [Page 966]state and local governments continue to play an important role in creating and implementing environmental laws and regulations.

Environmental laws generally address specific problems such as water pollution or hazardous waste; however, one major modern environmental law applies across all environmental issues. The National Environmental Policy Act of 1970 (NEPA) requires identification of environmental, social, and economic effects and alternative courses of action for all federal activities that could “significantly affect” the human environment. This occurs through the creation of environmental impact statements (EIS). Within this process, government agencies elicit and respond to public comments before making a final decision. The record of the final decision must include justification for the decision, but it only requires consideration of alternatives and the public's comments. Thus, NEPA does not guarantee any protection for the environment, only that environmental effects are considered in government decision making.

Pollution control is the prototypical environmental concern and is exemplified by the Clean Air and Clean Water Acts. The Clean Air Act (CAA) requires the U.S. Environmental Protection Agency (EPA) to set National Ambient Air Quality Standards (NAAQS)—concentration limits for “criteria” pollutants, those likely to pose a danger to human health and welfare. States must then devise implementation plans to meet the NAAQS, with EPA providing final approval of those plans. Air sheds on both ends of the spectrum, those not meeting NAAQS and those with high air quality, generally require stricter emission standards or particular technologies for new or modified sources to either improve or protect air quality in those geographic areas. Additionally, the federal government sets technology standards for pollutant sources not covered under the state implementation plans, hazardous pollutant sources, and mobile sources, including automobiles.

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