III. Environmental Law
Significant legislation targeted toward environmental crime didn’t emerge until the latter half of the 20th century. Increased societal concern for the environment in the 1960s and 1970s generated major pieces of legislation designed to address environmental crime. Former President Richard Nixon, through executive order, created the federal-level Environmental Protection Agency (EPA) in 1970. Prior to that date, there was scant societal attention directed toward environmental crimes and few sanctions available to address them. In other words, formal regulation of environmental crime existed in piecemeal fashion prior to 1970. The creation of the EPA generally coincided with a series of significant laws targeted at environmental crime.
Environmental laws are often complex given the atypical nature of environmental crime, the toxicity involved in many of the offenses, and the difficulty of translating scientific information into laws. Such laws must identify what constitutes a violation, the exposure level requirements, appropriate testing methods and equipment to be used, and the expected protocols. Further, environmental laws are often complex due to the political process in which multiple interests must be served. Particularly, legislators must consider the interests of industry, the public, and various interest groups. Adding to the complexity of environmental law is overlap among jurisdictions (e.g., state and federal) often associated with environmental crime, and the fact that multiple bodies of law may apply in particular situations (e.g., civil and criminal law). Finally, environmental laws are relatively new and many specifics have yet to be clarified in the courts. The laws are routinely challenged and often reinterpreted and redefined.
Among the more significant pieces of legislation regulating environmental protection are the Clean Water Act; Clean Air Act; the Resource Conservation and Recovery Act; and the Comprehensive Environmental Response, Compensation, and Liability Act. Discussion of the vast body of environmental law is beyond the scope of this research paper. Thus, this discussion is restricted to an overview of four pieces of major federal legislation regulating harms against the environment, with the goal of sharing the range of such laws.
The Clean Air Act was created in 1963 and amended in 1970, 1977, and 1990. Prior to passage of this act, there were no national standards regarding clean air in the United States. The legislation was designed to reduce air pollution levels through creating national, uniform standards for air quality. These standards are primarily assessed through evaluation of pollution emissions.
The Clean Water Act was originally passed as the Federal Water Pollution Control Act in 1972. The Clean Water Act (passed in 1977) was designed to prevent pollution discharges into waterways over which the federal government has constitutional authority. Further, the act was targeted to create fishable and swimmable waterways that protect marine animals and wildlife. To do so, the Clean Water Act utilizes a permit system and the designation of water quality standards.
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund Act, provides the EPA broad powers to protect and restore the environment through requiring offenders to clean up hazardous waste sites. Under CERCLA, the EPA is permitted to take the necessary steps to protect public health and the environment with regard to hazardous waste sites that present an imminent hazard. The EPA may employ civil remedies to recover remediation costs in cases where a corporation or individual created a hazardous waste site. Provisions in CERCLA also allow the EPA to sue defendants for costs incurred by the federal government when cleanup or other remediation actions are needed.
The Resource Conservation and Recovery Act (RCRA) pertains to management of solid and hazardous wastes. RCRA seeks to establish a tracking system for hazardous solid waste that regulates its transport, handling, storage, and disposal. Through its provisions, the RCRA encourages reductions in solid waste via recycling and improvement in manufacturing technology, alternatives to land disposal, safe land disposal when such disposal is required, and increased state responsibility for managing solid waste disposal.
This discussion highlights only a few aspects of federal legislation pertaining to environmental protection. To be sure, there are many more pieces of federal legislation pertaining to environmental harms, and it is anticipated that there will be more to come. However, the federal government is not alone in legislating environmental protection. States create and enforce their own laws, which vary from state to state, and local governments may create specific statutes that address environmental crime. Federal environmental laws provide the legal minimums for environmental protection by which each state and municipality must abide.
Laws have little impact if they are not considered by potential or actual offenders, nor are laws necessarily effective if they are not enforced by regulating parties. Whether they be restrictions against polluting the environment or statutes regulating the transport or disposal of hazardous waste, laws provide boundaries for acceptable behavior and sometimes prescribe penalties for unacceptable behavior. Accordingly, legislation must be considered with regard to its ability to deter or dissuade criminal behavior, and the extent to which laws are enforced. Legislative bodies are continuously creating laws to protect the environment, although some interested parties would argue that more laws are needed. Of particular concern with regard to legislative actions, especially those pertaining to the environment, are the enforcement practices of regulatory and law enforcement agencies.