Federal Environmental Legislation Research Articles

Актуальные правовые проблемы общественного контроля в сфере охраны окружающей среды

Public participation in environmental protection is a prerequisite for effective environmental policy. Environmental legislation provides for public environmental control. The analysis of federal environmental legislation shows that there are a number of legal problems in the field of public environmental control that need to be eliminated. The main problem is the lack of a unified approach and the need to unify the models of legal regulation of public environmental control in various acts of environmental legislation, which generates legal uncertainties.

Death by Committee: Reviving Federal Environmental Justice Legislation to Mitigate Disproportionate Impacts on Vulnerable Communities

This Note proposes legislation that provides an avenue for protecting the right to a clean and healthy environment by requiring agencies to consider vulnerable communities before initiating large-scale federal projects. Part I lays out the emergence of environmental justice issues in the United States, including its turning point. Part II introduces both successful and failed attempts at federal environmental justice legislation and analyzes why federal environmental justice legislation continuously fails. Part III dis- cusses how executive environmental justice action becomes pointless to the overall progression of environmental justice and examines President Biden’s progress in the first year of his presidency. Finally, Part V proposes specific language Congress should include in the proposed legislation and asserts why congressional action is the correct avenue for substantive environmental justice legislation. Part V additionally compares three governing documents—the National Environmental Policy Act, Executive Order 12898, and the New Jersey Environmental Justice law—to the proposed legislation in this Note.

СИСТЕМНЫЕ ПРОБЛЕМЫ В ПРАВОВОМ ОБЕСПЕЧЕНИИ ЭКОЛОГИЧЕСКОГО СТРАХОВАНИЯ НА ФЕДЕРАЛЬНОМ И РЕГИОНАЛЬНОМ УРОВНЯХ

In the context of the environmental crisis, the problem of the optimal set of funds neces-sary for environmental protection is acute, one of the tools of such protection being environmental insurance - an element of economic regulation established by the federal law “On Environmental Protection”. The study of scientific approaches, as well as the analysis of federal and regional legislation, which in a greater or lesser degree forms this legal institution, has revealed its systemic shortcomings, which are manifested mainly in its lack of develop-ment and, as a result, in whitespace. The authors propose the directions for the development of environmental insurance insti-tute that are based on the understanding of its complexity and interdisciplinarity that is mani-fested in its establishment by the rules of civil and environmental legislation. Being an inte-grated institution, it has great potential for development within the framework of civil and environmental legislation at the federal (civil and environmental legislation) and regional (environmental legislation) levels. It is necessary to pass not only the federal law on environ-mental insurance but also the acts of the subjects of the Russian Federation, which can take into account their regional features (environmental risks, environmental threats and measures to support insurers). The authors are convinced that the restructuring of the legal provision of environmental insurance should be carried out simultaneously with legislation directly affecting the applica-tion of environmental insurance rules, in particular, tax in terms of the inclusion of the insurance premium in the cost of income tax, which could be an incentive to conclude an environmental insurance contract. The development of environmental insurance also depends on the supporting measures of the potential insurers on the federal level.

From Hetch Hetchy to the Cuyahoga: How Rivers Shaped the American Environmental Movement

Rivers are common natural features through which the environment is experienced. They provide important economic benefits to society, and the spatial organization of watersheds makes them uniquely vulnerable to environmental change. For these reasons, the history of the U.S. environmental movement can be read as the history of society’s relationship with rivers. Here, an overview of this history is presented using five rivers that represent critical turning points in U.S. environmentalism. The Tuolumne River in the Hetch Hetchy Valley was an early battleground between differing visions of river aesthetics and recreation. The Colorado River in the Grand Canyon was a symbol of the last remaining wilderness. The infamous burning of the Cuyahoga River in Cleveland is widely credited with increasing awareness of pollution that led to the first Earth Day and landmark federal environmental legislation. The controversy over the Tellico Dam on the Little Tennessee River was an early sign of strong backlash against new environmental laws. Finally, the ongoing revitalization of the Los Angeles River, the paradigmatic urban stream, represents the promise and pitfalls of the environmental movement of the future.

New Governance Mechanisms Contributing to the Integration of National Climate Change Adaptation and Mitigation Policies in the Brazilian Amazon

Research in the field of Global Environmental Governance (GEG) pays considerable attention to the emergence of New Governance Mechanisms (NGM). NGM poses profound challenges to governments and institutions in the Developed and Developing world alike, corresponding to new ways of participation. This article seeks to contribute to the debates on NGM by analyzing a municipal-level environmental governance scheme based on deforestation-free commitments emerged in 2011, in Brazil, that has successfully helped to reduce deforestation in the participant municipalities; the Programa Municípios Verdes (PMV). We also shed some lights on the risks represented by promises of changes in federal environmental legislation by the newly elected government of Brazil. It is secondary research based on official data analysis that provided a cost-effective way of gaining a broad understanding of the integration of multi-level climate change mitigation and adaptation policies as well as a report of the governance of policy instruments in local governance schemes. Methodologically we rely on the method of content analysis, based on the study of the PMV Statistical Database, that gives visibility to a broad range of environmental, social, and territorial data and information for the 144 municipalities of the Pará State, through six different types of official reports.

An analysis of U.S. federal environmental legislation in the nineteenth, twentieth and beginning twenty-first centuries, with emphasis on presidential party and political majorities in congress

ABSTRACT U.S. federal environmental legislation has followed a significant logistic growth curve from 1862 through 2012, as determined by the cumulative number of acts per Congress. Growth of federal environmental legislation reached an asymptote around 2003; the number of environmental regulatory acts passed per year has sharply declined since 2002. Republican presidential years generally resulted in more federal environmental acts than Democratic presidential years, with the greatest total number of acts passed occurring during the eight occurrences of a Republican president and Democratic control of both the Senate and the House of Representatives. Statistically, however, the number of acts is evenly distributed among presidential political parties. The significant decline in U.S. federal environmental legislation since 2003 is presumably due to the second anti-environmental regulation backlash in the U.S. Congress that began in 1995, and an apparent, recent reversal by the Republican Party of its historically strong support of pro-environmental legislation.

Breaking Backs and Boiling Frogs: Warnings from a Federal Dialogue between Water Law and Environmental Law

Law has long struggled to address cumulative environmental threats, as activities interact and aggregate to cause larger problems, from global climate change to water over-exploitation in the Murray-Darling Basin. Using two well-known proverbs – the straw that breaks the camel’s back, and the frog in a pot of water coming to the boil – this article critically examines how key elements of Australia’s most significant federal environmental and natural resources legislation treat cumulative environmental effects. Promising regulatory approaches are emerging. However, the structure and implementation of these linked federal legislative regimes ultimately permit metaphorical camels’ backs to be broken and frogs to be boiled. They risk insidious environmental degradation even in the absence of a conspicuous crisis. Judicial and policy development of key statutory concepts could guide a more effective response to incremental environmental change, and should be informed by experience of domestic, comparative and international legal approaches to controlling cumulative environmental effects.

A Dozen Landmark Nuisance Cases and Their Environmental Significance

Over four centuries, nuisance law has proved its versatility. Originally, a near strict liability doctrine restraining uses that interfered with traditional agrarian and domestic uses, nuisance evolved to accommodate the industrial revolution, providing nuisance defendants with defenses like suitability of uses to their location, use of best available technology, and a high standing bar for private plaintiffs alleging public nuisances, making injunctive relief unlikely. In the mid-20th century, the Restatements were interpreted by some courts to endorse wholesale balancing of the gravity of harmful activities versus their economic value to the defendant and society not just limited to the issue of injunctive relief versus damages but whether a nuisance existed at all. This transformation of nuisance doctrine, like the earlier one, was the product of instrumentalism: a perceived need to accommodate economic growth, as judges were able to deny nuisance plaintiffs relief based on value judgments about the relative value of development versus environmental quality. In recent years, the U.S. Supreme Court has intervened to stop federal nuisance law from applying to interstate pollution, including greenhouse gas emissions. The Court did so not on the basis of congressional intent but on its vision of federalism and judicial competency. While these decisions seem to remove nuisance law from the foremost pollution threat in our time, the doctrine may regain relevance if the Court proceeds to narrowly interpret the scope of federal environmental legislation protecting resources like wetlands and groundwater, thereby eliminating displacement arguments. If those resources are not federally regulated, nuisance doctrine would give injured landowners a remedy, just as it has afforded those injured by emissions from hog farms, recently the subject of multi-million dollar damage suits. This paper traces the evolution of nuisance law, examining a dozen landmark cases, revealing a doctrine that began by protecting traditional agrarian and domestic uses, yet was malleable enough to accommodate perceived development priorities in the 19th and 20th centuries. The paper does suggest that where not federally displaced or preempted by state statutes, nuisance law today remains a viable cause of action for injured landowners, particularly where the issue is left to juries. Given the evident hostility of the Supreme Court, nuisance may not be available to combat greenhouse gas emissions, despite the felt necessities of the 21st century, like the evident damages due unrestrained atmospheric pollution and ocean acidification, but could supply injured parties a remedy against unregulated activities. Those parties might encourage courts to rediscover nuisance’s strict liability roots and return the doctrine to its origins protecting against uses that inflict substantial injuries on their neighbors and the public at large.

The Firm Constitutional Foundation and Shaky Political Future of Environmental Cooperative Federalsim

Congress embarked on a new era of environmental protection in 1970, when it passed the federal Clean Air Act. Within a few years, it had adopted statutes protecting the nation’s other natural resources. Many of these laws were built on a foundation of cooperative federalism. They envisioned a partnership between the federal government and the states in the pursuit of federally declared environmental protection goals. The statutes delegated to each level of government authority to adopt, implement, and enforce different aspects of the environmental laws. Over the ensuing decades, litigants have attacked these cooperative federalism statutes, claiming that they are inconsistent with the Constitution’s federalism design. Most frequently, the challenges have focused on alleged abuses of the powers granted to Congress under the Commerce Clause, but litigants have also claimed that federal environmental legislation impermissibly intruded on state sovereignty in violation of the Tenth Amendment. With few exceptions, the courts have dismissed these challenges, finding the environmental statutes to fit comfortably within federalism structures and traditions. The Roberts Court may have opened the door to the next wave of challenges by recognizing limits on the federal Spending Clause, but even if these assaults succeed, which is by no means assured, they are unlikely to disrupt most aspects of the environmental protection laws. The most significant current challenge to the successful implementation of the environmental cooperative federalism statutes lurks not in the litigation arena, but in the implementation of those laws by the Executive Branch. The Trump Administration has made much of it commitment to federalism and to an enhanced state role in fashioning and pursuing environmental policies. The Administration’s actions, however, have not been consistent with promoting that agenda. It has begun an unprecedented retrenchment of federal regulatory authority. Instead of fostering state capacity to fill the resulting gaps, the Administration has sought to withdraw the federal financial support for state regulators that has long been forthcoming, and even raised the possibility of blocking implementation of state programs that are more protective than the federal government’s. The Administration’s devotion to devolution of environmental policymaking authority seems limited to policies that weaken environmental regulation.

An Empirical Study of US Environmental Federalism: RCRA Enforcement From 1998 to 2011

State enforcement of federal environmental legislation has long been associated with the fear of environmental freeriding and states being too lenient, potentially leading to a race-to-the bottom in enforcement. This paper analyzes the effect of enforcement decentralization from 1998 to 2011 on a range of enforcement outcomes across US states as they have been authorized to implement their own programs aligning with the Resource Conservation and Recovery Act (RCRA). In this study, we look at the association between enforcement decentralization and corresponding outcomes, namely the number of evaluations, number of detected violations, and the amount of monetary penalties. Results showed that enforcement behaviors have not changed significantly as states have assumed more enforcement responsibilities; hence, we found no evidence of a race-to-the-bottom scenario associated with RCRA decentralization.

Aquatic monitoring programs conducted during environmental impact assessments in Canada: preliminary assessment before and after weakened environmental regulation.

Aquatic monitoring programs are imperative for the functioning of the environmental impact assessment (EIA) process and a cornerstone for industrial compliance in Canada. However, in 2012, several leading pieces of federal environmental legislation (e.g., Canadian Environmental Assessment Act c.19, s. 52, 2012) were drastically altered, effectively weakening levels of environmental protection for aquatic ecosystems during project developments. This paper assesses the impact of CEAA 2012 on aquatic monitoring programs (and subsequent monitoring data reporting) across Canada for ten projects (five completed pre-CEAA 2012 and five completed post-CEAA 2012). Projects included four energy and six mining projects and were selected based on the following criteria: (i) representative of Canada's resource economy; (ii) project information was publicly available; and (iii) strong public interest. Projects pre- and post-CEAA 2012 exhibited few apparent differences before and after environmental regulatory changes. However, wide discrepancies exist in numbers and types of parameters reported, along with a lack of consistency in reporting. Projects pre-CEAA 2012 provided more follow-up monitoring commitments. Although qualitative differences remain inconclusive, this paper highlights requirements for further assessment of aquatic monitoring and follow-up programs in Canada. Recommendations for the government to consider during reviews of the federal environmental assessment processes include (i) improved transparency on the Canadian Environmental Assessment Agency website ( https://www.ceaa-acee.gc.ca/ ); (ii) creation of a legally binding standardized aquatic monitoring program framework to ensure that all Canadian aquatic ecosystems are monitored with equal rigour; and (iii) commitments and justification related to frequency of aquatic monitoring of water quality.

2. Canada

In Canada’s federal system, most environmental legislation is enacted by the provinces, but 2017 was a year in which many of the most significant developments in environmental legislation were at the federal level. The government of Canada is in the process of making three significant legislative changes to the current environmental law: proposed amendments to the Canadian Environmental Protection Act (SC 1999, c. 33) and the Greenhouse Gas Pollution Pricing Act, and the repeal and replacement of the Canadian Environmental Assessment Act (SC 1999, c. 33). These changes will result in environmental law that more explicitly integrates international norms, environmental rights, sustainable development, and meaningful public participation and consultation with Indigenous peoples. The Canadian Environmental Protection Act is the centrepiece of Canadian federal environmental legislation. This extensive and complex legislation addresses wide-ranging issues, including public participation (SC 1999, c. 33, ss. 11–42), information gathering (ss. 43–55), pollution prevention (ss. 56–63), controlling toxic substances (ss. 64–103), biotechnology (ss. 104–15), controlling pollution and managing wastes (ss. 116–92), emergencies (ss. 193–205), and Aboriginal land (ss. 206–15). There are two notable changes underway to the Act—a discrete change that is long overdue and a recommended overhaul of the entirety of the Act.

Regulating Sewage Pollution of Malaysian Rivers and its Challenges

While sewage pollution is considered as an old problem which developed nations have already managed effectively, missing all too often in developing countries are the resources to come up with practical solution and the necessary political and legal infrastructure to support these solutions as well as the community awareness required to address the problem. Many Malaysian rivers continue to suffer from sewage pollution. This paper provided concise exposition the regulatory framework of sewage pollution control of inland surface waters under the country's existing primary federal environmental legislation. The paper then discussed regulators’ perceptions on the main causes that lead to the recurring sewage pollution problem in Malaysian rivers. Semi-structured interviews were conducted face-to-face with key informants from several relevant government bodies. They highlighted a mixture of causes to the recurring problem of sewage pollution in our rivers including insufficiency of the law and its implementation, outdated technology as well as lack of public awareness. This research gathers essential views from different authorities that can be of use by policy-makers in the efforts of improving the existing situation of sewage pollution problem in the country.

Oversight of shale gas production in the United States and the disclosure of toxic substances

With the encouragement of shale gas production in the United States, governments have considered a range of legislative and regulatory proposals to manage health and environmental damages that may accompany extraction activities. Exceptions adopted by Congress to major federal environmental legislation have meant that individual US states have deemed it necessary to provide oversight through regulations to protect people and safeguard environmental quality. In responding, states have legal structures under which drilling firms may not need to disclose the toxic substances used in fracturing wells. Yet, with increasing numbers of drilling sites, more people are at risk from accidents and exposure to harmful substances used at fractured wells. To provide for meaningful health and safety protection, governments may need to reevaluate legal provisions offering trade secret protection for toxic substances used in fracturing.

Freedom and constraint: Generative expectations in the US stream restoration field

The modern holistic wave of stream restoration was born in the 1970s from the combined support of a strong grassroots movement and new federal environmental legislation, most notably the Clean Water Act. Before holistic stream restoration could properly start, however, it was stopped in its tracks by two big issues: were the far more intensive interventions necessary to holistic restoration actually doable; and was it possible to reconcile the ecological goals of setting streams and rivers free with the powerful economic demands to minimize impacts from flooding and erosion? Taken together, these two issue called the whole project of stream restoration into doubt. But then a consultant, Dave Rosgen, stepped up with a restoration approach that promised both freedom and constraint: picturesque rivers teaming with game fish in a channel that stayed where it was put. Drawing on the sociology of expectations literature within STS, I argue that it was the expectations raised by this apparent resolution of the contradiction at the heart of stream restoration that transformed both Rosgen and the restoration field from shaky prospects into contenders, setting the stage for the exponential growth of stream restoration, and Rosgen’s success within in it.

National Survey of Environmental Justice Groups: What Do They Look Like (Organizational Structure)? What Do They Do (Tactics)? Some Implications

Environmental justice emerged as a grass roots movement to battle the injustices of inequitable enforcement of national environmental laws that affected people of color. A Web-based survey was conducted to gauge what these groups look like today in terms of their organizational structure and the types of tactics they use in their struggle to combat environmental racism. The findings indicated that these groups have lost many of the characteristics of social movements. They have also defied the traditional trajectory of transitioning to interest groups. Instead, the vast majority of these groups have incorporated as 501c(3) nonprofits. Their organizational structure is more institutionalized in terms of staffing, resources, budgeting, and decision making. The tactics they primarily use include: educating and training other groups, organizing other groups, and researching issues. These groups have been in existence for an average of nineteen years and serve multiple populations including Anglos. As nonprofit organizations, they have been able to gain access to the regulatory process by serving on boards and commissions; they may have contributed to the policy process by identifying problems and providing solutions although this remains unclear; and, they have excluded themselves from the political process since nonprofit organizations are barred from lobbying and, thus, attempting to influence federal environmental legislation.

Testing the States’ Rights Second Amendment for Content: A Showdown Between Federal Environmental Closure of Firing Ranges and Protective State Legislation

It is instructive to consider the manner in which federal environmental legislation threatens firing ranges, and the methods that states have and might further protect ranges from claims that shooting is incompatible with modern environmental sensitivities. One practical manifestation of the states rights or militia component of the second amendment is that states might trump powerful federal environmental statutes with range protection legislation.

Federal environmental legislation in the U.S. for protection of wildlife and regulation of environmental contaminants

The U.S. has a long history of legislation to protect wildlife, beginning with the Lacey Act of 1900. There are now over 170 Federal laws that regulate environmental activities which may affect wildlife. Two important laws are the Pittman-Robertson Act enacted in 1937 that authorizes a tax for wildlife management and the Fish and Wildlife Coordination Act passed in 1958 whose primary purpose is conservation of fish and wildlife, both of which continue to provide significant funding for wildlife management. Modern environmental regulations began by passage of the National Environmental Policy Act in 1969, followed by the Clean Water Act, Superfund, and other laws to regulate pesticides and toxics and clean up contaminated sites. International conventions regulate sale, use and disposal of toxics and ocean dumping. These laws and conventions should protect wildlife from unintended consequences of global industrialization.

:Love Canal Revisited: Race, Class, and Gender in Environmental Activism

Elizabeth D. Blum's book is a short, well-written account of one of the emblematic environmental disputes in recent historical memory. She complicates what we think we already know about how Lois Gibbs single-handedly and courageously sought relocation for her family and community away from the chemicals seeping from the old Hooker Chemical and Plastics Corporation site in Niagara Falls, New York, fighting both big business and government along the way to victory. In widening the narrative from heroic individualism to situating the events in their historical context (both in the 1970s in the wake of social movements and within the history of the region), Blum sheds light on the complex dynamics of race, class, and gender in this conflict. She begins with a contemporary dispute over what to do with the Love Canal site, as most current local residents oppose attempts to mark its significance through a museum or even a plaque. For Blum, this refusal comes as no surprise, given the contentiousness of the dispute itself. She focuses on white working-class women, of whom Lois Gibbs was the emblem in her capacity as the leader of the Love Canal Homeowners Association (LCHA). Gibbs was a housewife who linked her son's illness to the chemicals buried by the Hooker Corporation, which had sold the polluted land to the local school board for one dollar. After a long, complex struggle against the local and federal governments, LCHA successfully achieved relocation for its families, and the federal Superfund Act (the Comprehensive Environmental Response, Compensation, and Liability Act, 1980) was passed. In 1988, Hooker's successor organization was found responsible for the contamination and ordered to pay a large settlement. Thus, Love Canal represents many things: an example of local women taking on the power structure and winning; the need for the passage of federal environmental legislation; the political and cultural moment defined by distrust in the wake of Richard Nixon's resignation; and the rise of the anti-toxics and environmental justice movements that flourished in the 1980s.

Australian Environmental Law: A Federal Overview

This piece provides a detailed snapshot of national environmental law in 2001. Much has moved on since, but the analysis here was written shortly after the enactment of the first major piece of reform legislation (the Environmental Protection Biodiversity Conservation Act 1999) since the inception of federal environmental legislation in Australia in the early 1970s and to that extent remains relevant.