1. Chapter 21 Protecting the Environment

2. 2 Chapter Objectives 1. Identify common law actions available against polluters. 2. Describe the National Environmental Policy Act. 3. Explain how the government regulates air and water pollution. 4. List and describe the major statutes that regulate toxic chemicals. 5. Identify the purpose and functions of Superfund.

3. 3 Common Law Actions Businesses/people responsible for operations that created dirt, smoke, noxious odors, noise, or toxic substances were sometimes held liable under common law theories of nuisance or negligence.

4. 4 NuisanceNuisance A common law doctrine under which actions against pollution-causing activities may be brought. An action is permissible only if an individual suffers a harm separate and distinct from that of the general public.

5. 5 Case 21.1 Maddocks v. Giles Sewall and Maddocks owned property next to a gravel pit owned by Giles. Giles’ excavation of the gravel pit caused a subterranean spring providing high quality water on the Maddocks’ property to dry up and they filed a suit against Giles alleging “nuisance.” The court dismissed the complaint and the Maddockses appealed. What are the competing considerations in pollution cases that might operate to allow pollution to continue?

6. 6 Negligence and Strict Liability Parties may recover damages for injuries sustained as a result of pollution-causing activities of a firm if it can be demonstrated that:  the harm was a foreseeable result of the firm’s failure to exercise reasonable care (negligence)  businesses engaging in ultra hazardous activities are liable for whatever injuries the activities cause, regardless of whether the firms exercise reasonable care

7. 7 Federal Regulation The National Environmental Policy Act of 1969 imposes environmental responsibilities on all federal agencies and requires for every major federal action the preparation of an environmental impact statement (EIS). An EIS must analyze the action’s impact on the environment, its adverse effects and possible alternatives, and its irreversible effects on environmental quality. The Environmental Protection Agency was created in 1970 to coordinate federal environmental programs; it administers most federal environmental policies and statutes. Important areas regulated by the federal government include the following: air pollution, water pollution, noise pollution, toxic chemicals, and radiation.

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10. 10 International Organization for Standardization The Geneva-based International Organization for Standardization has created fourteen thousand universally applicable standards for the development of environmental management systems. The standards are not regulatory in nature and do not impose any restrictions on polluting activities. Why don’t the standards impose restrictions on polluting activities?

11. 11 Air Pollution Regulated under the authority of the Clean Air Act of 1963 and its amendments, particularly those of 1970, 1977, and 1990.

12. 12 Mobile Sources Regulations governing air pollution from automobiles and other mobile sources specify pollution standards and time schedules for meeting the standards. Under the 1990 amendments, automobile manufacturers must cut new automobiles’ exhaust emission of nitrogen oxide by 60% and emission of other pollutants by 35%.

13. 13 Stationary Sources The Clean Air Act authorizes the EPA to establish air-quality standards for stationary sources but recognizes that the primary responsibility for preventing and controlling air pollution rests with state and local governments. Under the 1990 amendments to the Clean Air Act, 110 of the oldest coal- burning power plants in the US must cut their emissions by 40% by the year 2001 to reduce acid rain.

14. 14 Hazardous Air Pollutants There are 189 hazardous air pollutants, including asbestos, benzene, beryllium, cadmium, mercury, and vinyl chloride. Instead of establishing specific emissions standards for each hazardous air pollutant, the 1990 amendments to the Clean Air Act require industry to use pollution-control equipment that represents the maximum achievable control technology to limit emissions.

15. 15 Violations of the Clean Air Act For violations of emission limits under the Clean Air Act, the EPA can assess civil penalties of up to $25,000 per day. Additional fines of up to $5,000 per day can be assessed for other violations, such as failing to maintain the required records. Those who knowingly violate the act may be subject to criminal penalties, including fines of up to $1 million and imprisonment for up to two years.

16. 16 Water Pollution Regulated by the:  Rivers and Harbors Appropriations Act of 1899, as amended  the Federal Water Pollution Control Act of 1948, as amended by the Clean Water Act of 1972

17. 17 Navigable Waters In 1972, amendments to the FWPCA established the following goals:  Make water safe for swimming  Protect fish and wildlife  Eliminate the discharge of pollutants into the water

18. 18 Case 21.2 Hoffman Homes, Inc. v. Administrator, United States Environmental Protection Agency In preparation for the construction of a housing subdivision, Hoffman Homes filled and graded a bowl-shaped depression where rainwater collected. The EPA ordered Hoffman to cease the filling and pay a fine as the area was “wetlands,” stating it had authority over the area because migratory birds could potentially use the area. Hoffman appealed. What did the court rule? In evaluating cases concerning wetlands, does it matter that the EPA, and not Congress, defines specifically what constitutes a “wetland”?

19. 19 Drinking Water Passed in 1974, this act requires the EPA to set maximum levels for pollutants in public water systems. The act was amended in 1996 to give the EPA greater flexibility in setting regulatory standard governing drinking water.

20. 20 Ocean Dumping The Ocean Dumping Act regulates the transportation and dumping of material into ocean waters. Each violation of any provision or permit may result in a civil penalty of not more than $50,000 or revocation or suspension of the permit. A knowing violation is a criminal offense that may result in a $50,000 fine, imprisonment for not more than a year, or both. An injunction may also be imposed.

21. 21 Noise Pollution Regulated by the Noise Control Act of 1972.

22. 22 Toxic Chemicals Pesticides and herbicides, toxic substances, and hazardous waste are regulated under the authority of  Federal Insecticide, Fungicide, and Rodenticide Act of 1947  Toxic Substances Control Act of 1976  Resource Conservation and Recovery Act of 1976 The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, regulates the clean-up of hazardous waste-disposal sites.

23. 23 SuperfundSuperfund The basic purpose of the CERCLA (commonly referred to as Superfund) is to regulate the clean-up of leaking hazardous waste-disposal sites. Must all of the contamination be removed from a hazardous waste site to ensure that it no longer poses any threat of harm to life? Would some lesser amount satisfy a reasonable degree of environmental quality?

24. 24 Case 21.3 Browning-Ferris Industries of Illinois, Inc. v. Ter Maat In 1971, the owners of a land fill leased it to a company that later became Browning-Ferris Industries of Illinois, Inc., which dumped a large quantity of toxic wastes from an auto plant until 1975. From 1975 until 1988, M.I.G. Investments, Inc., and AAA Disposal Systems, Inc., operated the landfill. Richard Ter Maat, president and primary shareholder of M.I.G. and AAA, moved to Florida after AAA was sold. M.I.G. abandoned the landfill without covering it properly, and two years later the EPA ordered the site be cleaned up. Browning- Ferris and the others filed a suit against Ter Maat, M.I.G., and AAA under CERLA to recover the costs. The plaintiffs appealed that too much of the liability was allocated to them. Can you think of a fairer system for cleaning up leaking hazardous waste sites than the system provided for by CERLA?

25. 25 RadiationRadiation The private nuclear industry is regulated under the Atomic Energy Act of 1954. Low-level radioactive waste generated by private facilities is the responsibility of each state under the Low Level Radioactive Waste Policy Act of 1980. Under the Nuclear Waste Policy Act of 1982, the government is looking for a permanent disposal site for nuclear materials and radioactive waste.

26. 26 State and Local Regulation Many states regulate the degree to which the environment may be polluted. City, county, and other local governments control some aspects of the environment.

27. 27 For Review 1.Under what common law theories may polluters be held liable? 2.What is an environmental impact statement, and who must file one? 3.What does the Environmental Protection Agency do? 4.What major federal statutes regulate air and water pollution? 5.What is Superfund? To what categories of persons does liability under Superfund extend?