Environmental Law:
An Overview
Background
Environmental law is a body of law dedicated to the protection of the natural environment. The earliest legal remedies available to address environmental problems can be found in the common law under trespass and nuisance. While these two causes of action are still valid, the "right to farm" laws enacted in all fifty states have limited their effect. For more information on "right to farm" laws, please see the Urban Encroachment Reading Room.
Specific statutory protection of the environment began in 1899, with enactment of the Rivers and Harbors Act, which provided a legal alternative to limiting the amount of water pollution in the nation's navigable waters. Modern environmental law began developing in the 1950s with the passage of statutes such as the Federal Water Pollution Control Act (later referred to as the Clean Water Act) and the Clean Air Act.
A developing area of law that has affected and will continue to impact environmental issues is biotechnology. While federal policy takes the position that biotechnology itself has no inherent dangers, biotechnology products are regulated under existing laws in the same manner as non-biotechnology products. Under this regulatory structure, transgenic plants are regulated by the USDA as potential plant pests and may be regulated by the EPA if they produce pesticides or potentially toxic chemicals. Additional potential for EPA regulation exists if the transgenic animal or microorganism produces potentially toxic chemicals. Because this is such a new and evolving area of the law, much of the current regulatory framework is untested and will continue to evolve as new transgenic organisms and products are brought to market. For more information, see the Biotechnology Reading Room.
Environmental laws affecting agriculture have rapidly developed over the past forty years and cover a broad spectrum of issues-- from pesticide use to erosion control, and from water quality, quantity and use, to particulate contamination of the air we breathe. Due to the wide range in environmental statutes and regulations, many of the topics covered in this reading room are also addressed in other places on this site. To find more detailed information on specific statutes, follow the links to the additional Reading Rooms provided below.
Major Statutes
National Environmental Policy Act
In order to implement the environmental laws, Congress passed the National Environmental Policy Act of 1969 ("NEPA"). NEPA declared it a national policy to protect the environment and created a Council on Environmental Quality (CEQ) in the Executive Office of the President. To implement the policy, NEPA requires that environmental factors be considered when federal agencies make decisions and that a detailed statement of environmental impacts be prepared for all major federal actions significantly affecting the human environment. This "detailed statement" has become to be known as an environmental impact statement ("EIS"). Elements of the EIS include a brief description of the project, including its underlying purpose and the need to which the agency is responding, as well as a description of all reasonable project alternatives, a description of the environment affected by the alternatives, and an analysis of the environmental consequences for each alternative. The completed EIS, in draft version, is then submitted for public comment. After the notice and comment period, a finalized EIS is issued. The final EIS must be issued before any work on the proposed project may begin.
Hazardous Waste Acts
There are several federal environmental statutes that address the storage, handling and disposal of hazardous waste. Enacted largely in response to the Love Canal disaster, they include the Resource Conservation and Recovery Act (RCRA), the Toxic Substance Control Act (TSCA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Congress passed RCRA in 1976, which gives the Environmental Protection Agency (EPA) the authority to control hazardous waste from the "cradle-to-grave," which includes the generation, transportation, treatment, storage, and disposal of hazardous waste. RCRA also sets forth a framework for the management of non-hazardous solid wastes. The 1986 amendments to RCRA enables EPA to address environmental problems that could result from underground tanks storing petroleum and other hazardous substances.
Congress also enacted in 1976 the Toxic Substance Control Act. Under this act, the EPA was given the ability to track the numerous industrial chemicals currently produced or imported into the United States. The EPA repeatedly screens these chemicals and can require reporting or testing of those that may pose an environmental or human-health hazard.
Four years later, CERCLA- also known as "Superfund"- was enacted. It is the federal statute that deals with discharges of hazardous waste into the environment by "potentially responsible parties." Administered by the EPA, it provides a Federal "superfund" to clean up uncontrolled or abandoned hazardous-waste sites as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment. Potentially responsible parties who can be identified bear the burden of the clean up costs under joint and several liability. For abandoned sites, or those where responsibility cannot be established, CERCLA created a fund to clean up abandoned hazardous waste sites.
For more information, see the Animal Feeding Operation, Landowner Liability, and Pesticides Reading Rooms.
The Clean Water Act
The object of the Clean Water Act (CWA) is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." It operates by authorizing water quality standards for surface waters, requiring National Pollution Discharge Elimination System (NPDES) permits for "point source" discharges of pollutants into navigable waters, assisting with funding for construction of municipal sewage treatment plants, and planning for control of nonpoint source pollution. "Navigable waters," defined in the statute as the "waters of the United States," is a controversial term that is further defined by agency regulations and conflicting judicial interpretations.
The CWA is the primary legal and policy instrument for regulating the pollution of the nation's waters. The EPA is the primary agency tasked with implementing and enforcing the CWA, although it works in conjunction with state environmental agencies and the U.S. Army Corps of Engineers.
In order to regulate point source pollution, the EPA must issue a NPDES permit before any pollutant can be discharged from a point source into a navigable water. "Pollutant" is broadly defined and includes heat, waste, soil, rock, chemical materials, and biological materials. The permits set the allowable amount of pollutants in a discharge. Point sources cover many manmade objects including pipes, ditches, tunnels, and airplanes, but do not cover return flows from irrigated agriculture, small feedlots, or sewage from certain ships. Certain confined animal feeding operations and the runoff from their operations are one important type of point source that is regulated by the CWA.
For more information, see the Clean Water Act, Animal Feeding Operation and Landowner Liability Reading Rooms.
The Clean Air Act
Enacted originally in 1955 to protect the nation's air quality, the Clean Air Act (CAA) was amended in 1990 to its current form. The CAA seeks to protect human health and the environment from emissions that pollute ambient, or outdoor, air. It requires the EPA to establish minimum national standards for air quality, and assigns primary responsibility to the states to assure compliance with the standards. Areas not meeting the standards, referred to as nonattainment areas, are required to implement specified air pollution control measures. The CAA establishes federal standards for mobile sources of air pollution, for sources of 188 hazardous air pollutants, and for the emissions that cause acid rain. Further, it establishes a comprehensive permit system for all major sources of air pollution. Finally, it addresses the prevention of pollution in areas with clean air and protection of the stratospheric ozone layer.
For more information, see the Animal Feeding Operation and Landowner Liability Reading Rooms.
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
While Congress enacted the original version of FIFRA in 1947, a 1972 revision is the basis of current pesticide policy. FIFRA requires the EPA to regulate the sale and use of pesticides in the United States through registration and labeling of pesticide products. The sale of any pesticide is prohibited in the United States unless it is registered and labeled. The EPA uses a cost-benefit analysis of the scientific data based on environmental, societal, and economic variables to determine the acceptable uses and conditions for use, if any, of the pesticide. The standard of analysis requires that the pesticide and its acceptable uses not cause unreasonable adverse effects on people or the environment.
In addition, FIFRA requires the EPA to re-register older pesticides based on new data that meet current regulatory and scientific standards. Pesticides manufactured solely for export do not require registration. For pesticides to be registered for use in food production, the EPA is authorized to establish allowable residue levels, called "tolerances," designed to ensure that human exposure to pesticide residues in food will be "safe." Foods with pesticide residues above the tolerance, or for which there is no tolerance established, may not be imported or sold in interstate commerce. A pesticide may not be registered under FIFRA for a food use unless a tolerance for that pesticide and food has been established under the Federal Food, Drug and Cosmetics Act (FFDCA).
Once registered, the manufacturer must prepare a label that meets EPA approval that explains the permissible uses and required conditions for use of the pesticides, including protections for workers. Pesticide label requirements preempt state and local laws, and application of a pesticide inconsistent with the label instructions is a violation of federal law.
If a special review or re-registration evaluation finds that a registered use may cause "unreasonable adverse effects," EPA may amend or cancel the registration. FIFRA also allows registrants to request cancellation or amendment of a registration to terminate selected pesticide uses. If a registration is canceled for one or more uses of a pesticide, FIFRA does not permit it to be sold or distributed for those uses in the United States
For more information, see Pesticides and Landowner Liability Reading Rooms.
The Endangered Species Act
The Endangered Species Act (ESA) protects species identified as endangered or threatened with extinction and attempts to protect the habitat on which they depend. It is administered primarily by the Fish and Wildlife Service and also by the National Marine Fisheries Service, for certain marine creatures.
Dwindling species are listed as either endangered or threatened according to assessments of the risk of their extinction. An endangered species is defined as "any species which is in danger of extinction throughout all or a significant portion of its range...." A threatened species is as "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." The Secretary of the Interior decides to list the species based on the "best available" scientific and commercial information, after a series of procedural steps to ensure public participation.
Once a creature is listed as endangered or threatened, its "taking" is prohibited under 16 U.S.C. § 1538. To "take," under the ESA, means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."
After a species is listed as threatened or endangered, the Secretary of the Interior must also designate critical habitat, which is either where the species is found or, if it is not found there, where there are features essential to its conservation. Once the habitat is identified, special protections are put into place for the area as well as the creature.
For actions that might "take" a listed species, the Secretary of the Interior may issue permits to allow "incidental take" of species for otherwise lawful actions. However, unlike many other environmental statutes, there is no specific agricultural exemption in the ESA.
For more information, see the Pesticides and Landowner Liability Reading Rooms.
Conservation Programs
Finally, Congress has enacted several voluntary programs that address environmental issues by encouraging good stewardship and conservation practices on agricultural lands. The most prominent of these programs are the Conservation Reserve Program, the Wetlands Reserve Program, the Environmental Quality Incentives Program, and the Conservation Security Program.
The Conservation Reserve Program (CRP) is a land retirement program designed to remove millions of acres of environmentally sensitive and highly erodible land from agricultural production. The predominate focus of CRP is to dramatically reduce the amount of soil erosion derived from agricultural production. Under CRP, producers enter into contracts for at least 10 years but no longer than 15 years in duration, and receive compensation from the government for removing the land from production and taking steps to prevent soil erosion. The Wetlands Reserve Program (WRP) is a land retirement program that gives producers the opportunity to receive technical and financial assistance for the purpose of protecting, enhancing, or restoring a wetland on agricultural land. WRP is a long-term easement program under which producers may enroll for 10 years, 30 years, or permanently. WRP is administered and implemented by the Natural Resources Conservation Service (NRCS).
The Environmental Quality Incentives Program (EQIP) is a working lands program that provides cost-share payments to producers and landowners to plan and install structural, vegetative, and land management practices such as filter strips and manure-management facilities to alleviate conservation problems. EQIP contains four subprograms: the Conservation Innovative Grants, Ground and Surface Water Conservation, Klamath River Basin, and Colorado River Basin Salinity Control programs. EQIP is administered by the NRCS.
The Conservation Security Program (CSP) is a voluntary working lands program that provides financial incentives and technical assistance to agricultural producers who promote conservation and improvement of soil, water, air, energy, plant and animal life, and other resource concerns on private and Tribal agricultural lands. The program is administered by the NRCS.
Altogether, the United States Department of Agriculture, through the Natural Resources Conservation Service and the Farm Service Agency (FSA), currently administers approximately two dozen of these federal conservation programs, including the four discussed above.
For more information, please see the Conservation Programs Reading Room and the Farm Bills Page.