environmental law. “if the law supposes that, then the law is a ass, a idiot!” - oliver twist

Environmental Law

Environmental Law

“If the law supposes that, then the law is a ass, a idiot!”

- Oliver Twist

Environmental Law

What do you have, when you have a lawyer up to his neck in cement?

Environmental Law

What do you have, when you have a lawyer up to his neck in concrete?

Not enough concrete.

Environmental Law

The American judicial system has its roots in our heritage of being a former English colony and is base upon English common law

The essence of English common law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent (stare decisis) to the facts before them

Environmental Law We will briefly look at several legal topics

Water rights

Mineral rights

International treaties and protocols

Controlling pollution

EPA

Cost-benefit analysis

Geologic hazards

Environment impact statements

First, you need to understand that the basic principals (laws) governing water rights vary not only from nation to nation, but also from place to place within a single country

In the U.S., navigable rivers and streams are under the jurisdictions of the federal and state governments

Water Rights

Water RightsThe concept is that a navigable river or stream is owned by all and is to be used for the common good

However, while one may not own the stream, you may be able to own or use the water

In the U.S., there are two principal approaches to surface water rights

Riparian Doctrine

Doctrine of Prior Appropriations

Surface Water RightsThe essence of the Riparian Doctrine is that whoever owns land adjacent to a body of water has a right to use that water and that all those bordering on a given body of water have and equal right to that water

This was long the basis for English surface water use

This concept works if water is plentiful

Surface Water Rights

The Riparian Doctrine became the basis for assigning water rights in the eastern U.S., where water is plentiful

Implicit in this principal is that no one water user rights should interfere with all of the other users rights

Provisions in the law also generally require that the water must be used for “natural purposes” or “beneficial use” and that the water be returned to the body where it came from

Surface Water RightsIn most of the western U.S., where surface water is in short supply, the prevailing doctrine is that of Prior Appropriation

Under this doctrine, whoever historically used the water first has top-priority rights to that water

Later users of that same water have subordinate rights, in the order in which they began to use it

Surface Water RightsUnlike the Riparian Doctrine in which you must own the land adjacent to the body of water, a Prior Appropriation user does not have to own land bordering on the water

The user may divert the water to elsewhere for “beneficial use”

In times of water shortage, a clear pecking order has been established

Surface Water RightsThe devil lies in the details

What constitutes “natural purposes” or beneficial use”?

Certainly municipal water supply, hydroelectric power generation, irrigation, watering livestock and navigation are recognized as beneficial uses

But what about watering your lawn, or filling a swimming pool or recreation?

Surface Water RightsDistribution of legal principals of surface-water rights in the U.S.

Groundwater Rights

Groundwater laws are at best confusing and varied across the U.S.

Most groundwater laws were established long before the hydrologic cycle was understood or it was realized that water moves laterally beneath the surface

The old English Rules of Capture gives property owners the right to use all of the groundwater that they can extract from under their land

Groundwater Rights

The American Rule of Reasonable Use imposes two major limitations on a property owners use of groundwater

The water use must be beneficial in connection with the land

One property owner cannot deprive an another property owner access to the water

Groundwater Rights

The states of California and New Jersey use Correlative Rights to divide the use of groundwater

The concept is that each land owner has rights to groundwater proportional to the area of their land overlying an aquifer

Groundwater RightsThere are four major legal principals that define the use of groundwater in the U.S.

Mineral RightsThe fundamental legislation that establishes mineral rights on federal land is the 1872 Mining Law

Yes, 1872

The clear intent of this law is to encourage the exploitation of mineral resources on federal lands by granting full mineral rights and even ownership of the land to anyone who locates a mineral deposit

Mineral RightsUnder the Mining Law, any federal land could be purchase for $2.50 to $5.00 per acre (and these prices are still in effect 135 years later)

There are no royalties or fees

The style of the mining is not regulated nor are there any provision for reclamation

Mineral Rights

Two subsequent laws, passed in 1922 and 1947 began to restrict this giveaway

Certain resources, such as oil, gas, coal, potash and phosphate deposits were singled out for different treatment

For these resources, there was unlimited rights of exploration

However, extraction rights had to be leased from the federal government and a royalty paid for extracting the resources

For all other minerals, nothing changed

Mineral Rights

In 1953, these same new provisions were extended to cover extracting these resources offshore

This was primarily aimed at coastal oil and gas deposits in California and the Gulf

Otherwise, all attempts to change the 1872 Mining Law have failed

Exclusive Economic ZonesHistorically, nations bordering the sea claimed territorial limits that extended 3 nautical miles from their coastline into the oceans

With the realization that valuable resources (such as oil and gas) lay beneath the continental shelf, several nations unilaterally extended their territorial limits out to 150 or 200 nautical miles, or even more

In 1982, The U.N. Law of the Sea Treaty attempted to bring some order to the chaos

Territorial limits were set at 12 nautical miles

An Exclusive Economic Zone (EEZ) was created that extends out 200 nautical miles

Exclusive Economic Zones

For many countries, this 200 nautical miles extends far past their continental shelves

For example, the EEZ for Mexico reaches the abyssal plains and rich manganese nodule deposits

Saudia Arabia and the Sudan have rights to the metal-rich-muds in the Red Sea

Exclusive Economic ZonesExclusive Economic Zones give nations exclusive rights to mineral exploration and exploitation

The Exclusive Economic Zone of the U.S. covers 3.9 billion acres


Antarctic Dispute

Prior to 1960, seven countries (Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom) had lay claims to sizable portion of the Antarctic

The rest of the world did not recognize these claims

In 1961, those 7 nations, plus 5 other nations actively conducting research and exploration, signed a treaty and agreed to the following:

To set aside all territorial claims to the Antarctica

The whole continent should remain open

Military activities, weapons testing and nuclear-waste disposal were banned

Every effort should be made to preserve the distinctive Antarctic flora and fauna

Antarctic Dispute

In 1988, a convention was offered concerning the mineral resources of the region

No prospecting, exploration or development could occur without prior assessment

Mineral-resource development would require unanimous consent

20 years later, this is still being “discussed”

Meanwhile, in 1990, the U.S. passed a law forbidding mineral prospecting or development in the Antarctic by U.S. citizens

Antarctic Dispute

International Treaties & Protocols

The later half of the 20th century saw a rapid rise in international treaties relating to the environment

Many of these accords reflect a new concept in international law and diplomacy, the precautionary principle

The idea is that if there is a reasonable likelihood that certain actions may result in serious harm, they may be restrained before great damage is done


A second principle of international law is the common but differentiated responsibility of states (nations)

The idea is that the nations causing more pollution and having more money are expected to do more and contribute more to the clean up


The 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change is an amendment to the international treaty on climate change, assigning mandatory emission limitations for the reduction of greenhouse gas emissions to the signatory nations


Kyoto Protocol

A major component of the Kyoto Protocol is a commitment by industrial nations to reduce their greenhouse-gas emissions by 5.2% below 1990 levels by 2012

The pie chart show the amount of reductions needed from various nations

Kyoto ProtocolAs of December 2006, a total of 169 countries and other governmental entities have ratified the agreement

Kyoto ProtocolIn 2001, the United States Government unilaterally abandoned the Kyoto Protocol

(In fact, the U.S. greenhouse-gas emissions rose by 16% from 1990 to 2001)

Controlling Pollution

The U.S, government (and state governments too) have the legal right to promote the general welfare by enacting legislation to restrict the spread of toxic and harmful substances

These legislations cover 3 broad categories

Water pollution

Air pollution

Waste disposal


Water pollution was the first type of pollution addressed by the federal government

The refuse Act of 1899 prohibited dumping or discharging refuse into any body of navigable water

It essentially was never enforced


In succeeding decades, stricter and more specific anti-water-pollution laws were passed

The Federal Water Pollution Control Act of 1956 focused on municipal sewage treatment


The much broader Water Quality Improvement Act of 1970 and the important Clean Water Act of 1977 seriously addressed oil spills and chemical pollution, plus required sewage-treatment facilities to undertake secondary treatment by 1983

After heavy lobbying by big business, the Clean Water Act was allowed to lapse

Controlling PollutionThe Clean Air Act of 1963 was the first legislation to seriously empower federal agencies to undertake air-pollution-control efforts

It was amended in 1965 to specifically address automotive exhaust emissions

And was reauthorized in 1990

Controlling PollutionThe Clean Air Act also requires the reduction of CFCs and other compounds dangerous to the ozone

In fact, it provides for the reduction of nearly 200 airborne pollutants by industry

Controlling PollutionA series of federal legislations were passed in 1965, 1976 and 1984 that were originally designed to help state and local governments dispose of municipal solid wastes

Controlling PollutionHowever, it soon become apparent that the safe disposal of dangerous and toxic solid wastes should be given priority

By 1984, 100,000 companies that produce toxic solid wastes were subjected to regulation

EPAThe Environmental Protection Agency (EPA) is an agency of the federal government of the United States charged with protecting human health and with safeguarding the natural environment, air, water, and land

The EPA began operation on December 2, 1970, when it was established by President Richard Nixon

EPAThe EPA comprises 18,000 people in headquarters program offices, 10 regional offices, and 17 laboratories across the country

The EPA employs a highly educated, technically trained staff, more than half of whom are engineers, scientists, and environmental protection specialists, while others are legal, public affairs, financial, and computer specialists

EPA headquarters in Washington, D.C.

http://en.wikipedia.org/wiki/Image:Epaheadquarters.jpg

EPAThe EPA is led by its Administrator, who is appointed by the President of the United States and the position has become highly politicized

Stephen Johnson EPA Administrator under Bush was accused of favoring Big Business over enforcement

Lisa Jackson is charged with taking enforcement to extremes not authorized by law

EPA

It is the EPA’s responsibility to set standards for permissible concentrations and emissions of contaminates

Defining StandardsDefining pollution standards and has proven to be complicated

Given the number and variety of chemicals involved, it would take a staggering amount of research, time and money to determine scientifically the appropriate safe upper for each pollutant

Even worse, is the setting of standards by lobbying and political influence

The EPA has established a risk-assessment procedure for potential health hazards, but can health risks always be quantified or be free from politics?

Risk-assessment

In the realm of pollution control, companies frequently contest strict regulations on the grounds that meeting the standards is economically impossible

Each judge, each jury will have its own idea of what is “reasonable” in terms of he value of clean air and water, the importance of preserving wildlife and what constitutes an acceptable health risk

“Reasonable?”

In 1981, President Reagan issued Executive Order 12291, which decreed that a pollution-control regulation may be put forth by a federal agency only if the potential benefits to society outweigh the potential costs

Cost-benefit Analysis


A Regulatory Impact Analysis must be performed on any proposed new “major” regulations which are defined as one that is likely to result in either:

An impact on the economy of $100 million or more per year

A major cost increase to consumers, individual industries, government agencies or geographic regions

Significant adverse effects on competition, employment, investment or productivity


The projected cost of compliance was estimated to be a hefty $6.3 billion per year

Set against those costs was an impressive array of benefits: Reduction of acid rain, reduced mercury pollution, 30,000 fewer visits to hospitals, 12.5 millions fewer days of respiratory symptoms and at least 8,500 fewer premature deaths, with $21 billion saved in health costs

For example, consider the cost-benefit analysis done by the EPA for the Clean Skies Act

Geologic HazardsLaws and zoning ordinances restricting construction or establishing standards for construction in areas of known geologic hazards are a more modern development than antipollution legislation

For example, more strict requirements for site grading and slope stability has resulted in a major reduction in landslide damage to newer homes

Geologic HazardsHistorically, such restriction are opposed by real-estate investors and many land owner

However, the courts have repeatedly ruled in favor of these regulations

Geologic HazardsThe 1995 Kobe earthquake, was one of the most devastating earthquakes ever to hit Japan, with more than 5,500 killed, over 26,000 injured and $(US) 200 billion in damage

Geologic Hazards

For 30 years, prior to the 1995 Kobe earthquake, Japan had repeatedly improved building codes

As a result, the newer buildings suffered far less damage

Flood InsuranceWhen geologic catastrophes occur, federal disaster-relief can play a significant roll in reconstruction

Of course, this means that the tax payers pay for the damage suffered by those who purposely or through ignorance live in areas of high geologic risk

Flood InsuranceThe Flood Insurance Act of 1968 and its successor, the Flood Disaster Flood Protection Act of 1973, started a new trend where those who live in flood prone areas can pay for federally subsidized flood insurance

Flood InsuranceTo encourage the purchase this insurance, it is required for home owners and businesses who have federally insured mortgages or have mortgages from federally affiliated banks and lending institutions

Flood Insurance

For a community to remain eligible for this flood insurance, it must enact strict flood-plain zoning laws

That requires making detailed flood hazard maps (which have been slow in coming for many areas)

Only the NewLaws designed to reduce the risk of damage from geologic hazards have several problems in common

The basic scientific information needed to create sensible regulations may be lacking

The major problem is that the regulations will only apply to new structures, while the older, existing homes and structures remain at risk

Environmental Impact Statements

The National Environmental Policy Act (NEPA) established environmental protection as an important national priority

Whenever a federal agency proposes legislation or “other major federal action” that can affect the environment, they must compile and publish an Environmental Impact Statement (EIS)


An Environmental Impact Statement is required to include:

A description of the proposed action and why it is needed

A discussion of possible alternative actions

An explanation of the anticipated environmental consequences

A list of preparers, and a list of who is receiving the EIS document


NEPA dictates a review process (which some decry as bureaucracy at its best)


About 80% of the EISs are prepared by just 4 government agencies

Department of Defense including the U.S. Army Corp of Engineers (navigation, flood control, dredging)

Department of Agriculture (forestry and range, pesticides and herbicides)

Department of the Interior (recreation areas, mining, oil/gas)

Department of Transportation (freeways & roads)

Environmental Impact StatementsAbout 10% of EISs are challenged in court by lawsuits and close to half of the lawsuits involve citizen or environmental groups as plaintiffs

And even state governments sue

“The EIS lawsuit was filed by the State of Nevada on June 6, 2002, ... The suit challenges the DOE's Final Environmental Impact Statement (FEIS) on the Yucca Mountain repository.

The State of Nevada contends the FEIS violates the National Environmental Policy Act (NEPA) and the Nuclear Waste Policy Act (NWPA).


The usefulness of environmental impact statements has been limited by a number of factors

Not the least of which is the lack of impartiality of EIS preparers

And the purposeful inclusion of biased information, combined with suppression of adverse information

Environmental Impact StatementsOr consider the 6 volume EIS prepared for the Trans-Alaska pipeline

How could one person read and comprehend that much material?

Global Warming

environmental law. “if the law supposes that, then the law is a ass, a idiot!” - oliver twist

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