Chapter 14: Federal Chapter 14: Federal Environmental Protection and Environmental Protection and

RegulationRegulation

Text: Cubbage et al., 1992Text: Cubbage et al., 1992

Major Laws (1970s)Major Laws (1970s)• NEPA of 1969

• Federal Water Pollution Control Act 0f 1970 (as amended in 972 – esp. Sections 208, 319, 404)

• Air Pollution Control Act of 1970

• Federal Environmental Pesticide Control Act of 1972

– FIFRA of 1947 (Federal Insecticide, Fungicide, & Rodenticide Act)

• Coastal Zone Management Act of 1972 (as amended in 1990)

Federal Environ. Protection & RegulationFederal Environ. Protection & Regulation

• Conservation movement in 1800s led to:

– establishing national forest lands in West in 1891

– purchasing lands in East in 1911

• US first wildlife protection laws enacted

– Lacey Act of 1900

– Migratory Bird Treaty Act of 1918

• 1919 – first concerted efforts for federal regulation of private forestry began, led by Pinchot

Early Forest and Environmental PolicyEarly Forest and Environmental Policy

• Current environmental law and policy rooted in statures enacted by first settlers

• Europe: measures to protect forests already in place early

– Germany (1400s), England for centuries

• Early US: English heritage reflected in British common law designed to protect forests & game

Colonial AmericaColonial America• Early colonists regard forests as liability, cleared for farms & towns

• Most colonial laws promoted clearing lands, draining swamps, or otherwise "improving” land in its natural state

• Examples of early public regulation of forests in the US: (up to mid 1600s)

– 1626 (earliest): Plymouth Colony prohibited timber sale/transport out of colony

– 1668: Massachusetts Bay Colony reserved all white pine trees in Exeter town for ship masts

– 1681: Gov. William Penn keep 1 acre for every 5 acres of forest land cleared

– 1739: Massachusetts attempted to halt encroachment of sand dunes on part of Cape Cod by regulating timber cutting, burning, grazing

– Broad Arrow Policy (1691): English rulers William & Mary prohibited cutting white pine trees growing on land not granted to private persons

– 1735 (South) – Gov. Oglethorpe (GA) proclaimed preserving vast stands of timber and prevent scarcity; required license to cut timber

• “Nuisance”: concept referring to unreasonable interference in land use

The United StatesThe United States

• Early policies exploitation of forests & game resources

• Disposition, development, and private use were the policies; ignored conservation

The United StatesThe United States• Proposed Federal Forestry Regulation

– Clarke-McNary Act of 1924

• Federal Wildlife Laws

– Lacey Act of 1900 1913

– Weeks-McClean Act (Migratory Birds Law)

• Beginning Forest Practice Laws

• Mid-Century Conservation

– Civilian Conserv. Corps - building/protecting US parks/forests

– Soil Erosion Service (Soil Conservation Service) created

– Civilian environmental groups provided grassroots support for wildlife & land conservation laws (Sierra Club, Audobon Soc.)

– Silent Spring (1962) triggered environmental protection as a national issue

The Taking Issue: Regulatory police power The Taking Issue: Regulatory police power vs. Eminent domain powervs. Eminent domain power

• The taking issue – society’s police power to regulate persons on use of their lands to protect & promote public health, safety, welfare

– came from common law of private nuisance and from the doctrine of waste

– roots from colonial and early US policy

• Common law and legal doctrine individuals not to use their property in ways that will injure real property rights of others (private nuisance)

– Nuisance laws prevented foul-smelling businesses from locating near homes

– Firms cannot dump wastes in waters used by downstream owners

• Doctrine of wastes owners only have usufructuary rights, i.e., may use their land as they will as long as they don’t damage/destroy it

– owners shall not materially decrease their property’s value

The Taking Issue: Regulatory police power The Taking Issue: Regulatory police power vs. Eminent domain powervs. Eminent domain power

Police power under:• Eminent domain – property taken for public purpose but with

just compensation

• The taking issue – a regulation may restrict development of an area and decrease a property’s value, but land is not taken nor compensation is paid

• 14th Amendment: no state shall “deprive any person of life, liberty, or property without due process of law”

– state’s police power should not discriminate

Recent Court Decisions (late 1980s - 1990s)Recent Court Decisions (late 1980s - 1990s)

• Court decisions indicated limitations placed on public regulation of private landowners

– possible swing to favor property rights

• Inverse condemnation – instead of trying to prove that a constitutional taking occurred, landowners try to receive payments for their financial loss

• Environmental groups strongly support use of state’s police power to prevent harm to environment or to other individuals

National Environmental Policy Act of 1969National Environmental Policy Act of 1969

3 purposes:

• to encourage harmony between people & environment

• to promote efforts that prevent/eliminate damage to environment and biosphere, and stimulate health & welfare of humanity, and

• to enrich the understanding of the ecological systems and natural resources

National Environmental Policy Act of 1969National Environmental Policy Act of 1969

• requires preparation of EIS for all federal actions significantly affecting environment

• can stall projects until adequate study is done

• recommends guidelines that states could use in enacting its own environmental legislation

• EAR (Environ. Assessment Report) FONSI (Finding of No Significant Impact)

• If significant impact full-blown EIS

The Environmental Protection AgencyThe Environmental Protection Agency

• Created by Reorganization Order No. 3 in 1970

• Charge: to oversee pollution monitoring, research, standard setting, and enforcement activities.

• lead agency for federal regulation of public & private landowners in order to prevent environmental damage

• administers legislative programs fro water, air, radiation, and pesticide protection

• Council on Environmental Quality created by NEPA

– CEQ will work with EPA

– advises president; is concerned with all aspects of environmental quality

Federal Water Pollution Control Act of 1972Federal Water Pollution Control Act of 1972

• Section 402 – Industrial Point Source Pollution

• Section 209 & 319 – Nonpoint Source Pollution

• Section 404 – Wetland Point Source Pollution

– Permit Authority

– Silvicultural Exemptions

– Wetlands Definitions

– 2 Wetlands Mitigation Techniques (wetland value system, mitigation banking)

Federal Water Pollution Control Act of 1972Federal Water Pollution Control Act of 1972

• Permit Authority – national, regional, individual

• Silvicultural Exemptions (Section 404)

– No permit required for normal silvicultural activities

• Wetlands Definitions: 3 features– Wetland hydrology, hydric soils, hydrophilic vegetation

• 2 Wetlands Mitigation Techniques

– wetland value system, mitigation banking

Related Wetlands LegislationRelated Wetlands Legislation

• Coastal Zone Management of 1972

• Farm Bill (1985, 1990) – “swampbuster”

Clean Air Act of 1970Clean Air Act of 1970

• Air Pollutants

• Control Methods

• 1990 Amendments – esp. relating to forestry

Clean Air Act of 1970 (continued)Clean Air Act of 1970 (continued)Air Pollutants• Substances/particles harmful to human, animal, or plant health by

causing growth problems, mortality, or economic losses

• Examples

– Suspended particulates (from large industrial sources)

– sulfur dioxide (linked with acid precipitation)

– nitrogen dioxide (from car exhausts, power plant emissions)

– carbon monoxides and hydrocarbons

– ozone (principal smog component)

– lead, methane

Clean Air Act of 1970 (continued)Clean Air Act of 1970 (continued)Control Methods

• EPA to list pollutants that adversely affect public health or welfare

• EPA to establish national ambient air quality standards (NAAQS) for each pollutant

• EPA standards are uniform for all industries prevent states from using “easy” pollution regulations to attract new industry.

• States to develop specific implementation plans to achieve standards

• Legal controls used to ensure states meet federal requirements

Clean Air Act of 1970 (continued)Clean Air Act of 1970 (continued)1990 Amendments• Title I – sets requirements for nonattainment areas to meet NAAQS for

various pollutants & levels of noncompliance

• Title III – lists 189 chemicals; EPA to set standards for controls in 10 years

• Title IV – acid rain controls; sets cap on allowable emissions of sulfur dioxide, create market for right to emit this chemical; market approach to pollution control

• Title VI – concerns with ozone depletion & climate changes

– require phaseout of 5 ozone-depleting chemicals, 3 halons, and carbon tetrachloride by year 2000

– Prohibits production of methyl chloroform by 2002

– Freezes production of regulated hydrochlorofluorocarbons in 2015 and complete prohibition by 2030

Clean Air Act of 1970 & ForestryClean Air Act of 1970 & ForestryLand Use Controls: Effects in forestry

• Lumber mills stopped burning waste wood

• Plywood & particle board manufacturers have reduced formaldehyde emissions in plants & in structural lumber in homes

• Pulp & paper mills have reduced chemical emissions into the air

• Standards affecting forestry operations most particulate matters

• Standards changed from measuring total suspended particulates (TSP) to measuring particulates 10 microns in size or smaller (PM10).

• PM10 adopted in 1987 -- standard used to develop rules governing prescribed burning & residential wood combustion

Other Federal LawsOther Federal Laws

• Coastal Zone Management Act of 1972

• Federal Environmental Pesticide Control Act (FEPCA) of 1972

Federal Environmental Pesticide Control Federal Environmental Pesticide Control Act (FEPCA) of 1972Act (FEPCA) of 1972

Major Provisions

1. Registration of all pesticides with EPA

2. Classification of pesticides into 2 categories: general use and restricted use

3. Requires certification of applicators by two groups: private and commercial

4. Minimum standards of competency for both private and commercial applicators

5. Misuse of pesticides made unlawful with provisions for enforcement & penalties when appropriate

6. Enforcement of regulations delegated to designated state agencies

Coastal Zone Mgmt Act of 1972 (as Coastal Zone Mgmt Act of 1972 (as amended in 1990)amended in 1990)

• Provided federal assistance to states to protect coastal resources on the oceans and Great Lakes