Environmental Laws in the United States
The Environmental Protection Agency (EPA) is a federal agency that issues and enforces regulations to combat all forms of environmental pollution. The EPA was created by an executive order in 1970 by President Nixon to regulate air, water, solid waste, pesticides, radiation, and toxic substances and to protect endangered species. An executive order is a directive issued by the president of the United States that regulates the federal government and has the force and effect of law.
The EPA executive order was broad to allow for an integrated approach to combat pollution. For instance, the government wanted to avoid an action that would reduce water pollution by increasing air pollution. However, the EPA did not initially operate under this integrated approach. Instead, the EPA created separate offices for each of the pollution concerns, which caused a lack of interaction.
In 1994 the EPA's administrator moved all enforcement actions to one central office, the Office of Enforcement and Compliance Assurance, to provide the industry with clear information about compliance regulations. The Office of Enforcement and Compliance Assurance has regulators who specialize in agriculture, energy and transportation, and manufacturing. The Office of Enforcement and Compliance Assurance was also created to decide when legal action would be taken against polluters.
EPA policy requires its agents to detect "significant environmental harm" and "culpable conduct." Culpable conduct is often demonstrated by a history of repeated environmental violations, concealing misconduct, falsifying records, tampering with monitoring or control equipment, and failing to obtain required permits or licenses. This policy is meant to put the public on notice of what type of conduct may be criminally prosecuted. The policy also demonstrates the EPA's intent to punish only the most serious violators and to deter other violators.
They also created the EPA self-disclosure policies, which encourage organizations to develop a self-auditing system to detect environmental violations. If an organization can show that it detected an environmental violation and took steps to correct it, then the EPA will reward the organization for its efforts by reducing the punishment. On the other hand, if the organization detects a violation and decides not to take action, then it may face criminal liability. In 2015 a well-known automobile manufacturing company scandal revealed that the vehicle manufacturer installed devices in its vehicles to circumvent emissions tests. The Department of Justice initially sued the company, alleging that it tampered with emissions control devices and failed to report violations. The manufacturer pleaded guilty and agreed to pay $4.3 billion in criminal and civil penalties. Though the corporation settled its lawsuit, its executives were later personally charged with crimes for their own participation in the scandal.
Environmental Protection Agency
In 1970 the National Environmental Policy Act (NEPA) was the first major environmental law that set forth the United States's policy of protecting the environment. NEPA is influential and powerful because it was enacted to reform the regulatory decision-making process. NEPA refines this process by making any major prospective environmental action by the federal government available to public officials and citizens (1) before decisions are made and (2) before action is taken. Types of major actions that generally fall within NEPA include the adoption of formal plans, adoption of programs, adoption of official policy, and approval for specific projects. Federal action is excluded from NEPA requirements if it does not "individually or cumulatively have a significant effect on the human environment."
NEPA requires the preparation of an environmental impact statement (EIS), which must be prepared for every substantial federal activity that will affect the quality of the environment. This includes scoping the project, where the general public and a federal agency work to define issues and alternatives to be included in the EIS. The EIS describes:
- the environmental impact of the proposed action
- any negative environmental effects that cannot be avoided
- alternative actions
- short-term and long-term factors
- irreversible and irretrievable commitment of resources if the action happens
Environmental Impact Statement
Safe Drinking Water Act Developments
Several federal laws regulate hazardous waste and toxic substances, and state and local laws also exist. The Resource Conservation and Recovery Act of 1976 is a federal law regulating treatment, storage, and disposal of hazardous and nonhazardous waste. Other laws that regulate these materials include the Toxic Substances Control Act of 1976 and the Federal Insecticide, Fungicide, and Rodenticide Act of 1972 (based on the Federal Insecticide Act of 1910 but with substantial revisions).
Legal Responsibility for Environmental Acts
The government can hold any person legally responsible for pollution if that person has a connection to the source of pollution. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law and enacted in 1980, is a far-reaching retroactive law concerning hazardous substances on a site.
The Superfund law extends to four parties that may be involved with hazardous substances:
- owners and operators of the premises where the hazardous substances are located
- former owners and operators of the premises who disposed of or handled hazardous waste when the premises were in operation
- parties involved with the scheduling of disposing or transporting hazardous waste
- parties who transport hazardous substances
EPA's Superfund Results
The EPA also has its own criminal enforcement program that helps federal, state, and local governments that are prosecuting serious environmental crimes. This program employs special agents, investigators, forensic scientists and technicians, lawyers, and support staff. Through this program, the EPA provides prosecutors with evidence, environmental forensic analyses and technical evaluations, computer evidence retrieval and evaluation, and expert legal advice.
Civil prosecutions for environmental violations for those who are found guilty may result in:
- a monetary settlement
- civil penalties, meaning financial penalties rather than prison time
- injunctive relief, which means that a court orders a polluter to do or stop doing certain acts
- supplemental environmental projects, which are environmental improvement projects that the violator voluntarily agrees to carry out
- mitigation, which means making pollution less severe
Criminal cases may result in fines, incarceration, or other criminal penalties. The main difference between criminal and civil prosecution is that only criminal cases may result in incarceration.